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TMI Blog2018 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... i Kul Bharat, Hon ble Judicial Member And Shri Manish Borad, Hon ble Accountant Member Appellant by : Shri K.G. Goyal Respondent by : Shri Prakash Jain Shri Vishnu Jhavar ORDER Per Shri Manish Borad, AM This appeal of the revenue relating to the assessment year 2013-14 is directed against the order of the Commissioner of Income Tax (Appeals)-II, Indore, dated 10.1.2017 which is arising out of the order u/s 143(3) of the Act dated 17th March, 2016 framed by the ITO 5(2), Indore. 2. The sole grievance of the revenue is against the order of the Commissioner of Income Tax (Appeals) deleting the addition made by the Assessing Officer denying the deduction claimed by the assessee u/s 80IB(10) of the Act amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for allowing proportionate deduction u/s 80IB(10) of the Act for the units which complied with the provisions of section 80IB(10) of the Act and partly succeeded as the Commissioner of Income Tax (Appeals), following the decision of the ITAT, Indore Bench, in the case of ACIT vs. Smt. Saroj Kapoor (2010) 14 ITJ 585 as well as the decision of his predecessors adjudicating similar issue, allowed the assessee s plea for granting proportionate deduction u/s 80IB(10) of the Act. 5. Aggrieved, the revenue is now in appeal before the Tribunal. 6. The learned DR supported the order of the Assessing Officer and the learned counsel for the assessee relied upon the findings of the Commissioner of Income Tax (Appeals). 7. We have heard the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not disputed by the assessee also that in case of few units, the area is little more than 1500 sq. ft. which is in the range of 1500 sq. ft. to 1560 sq. ft. It was contended by the assessee before the lower authorities that in total housing projects having 12 row houses and 96 flats, certain variation ought to arise in constructing the unit due to various constraints involved in construction and architectural work. However, the Municipal Corporation has given due sanction and the completion certificate was also issued by the concerned authority. It seems that due certificates were awarded by these authorities realising the practical difficulty faced by the developer in the construction line as it is dependent upon illiterate labours a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of law that when a particular term is defined by an amendment, which results into increase/levy of civil liability, the same has to be considered as the substantive one, hence prospective. The judicial decisions cited by the assessee also support this view. Accordingly, we reject the contention of the revenue that the provisions of section 80IB(14)(a) are of retrospective nature. This view leads us to another question i.e. in the absence of any specific term in the Act how that term should be interpreted. In this regard, it is also a settled principle that some common sense approach or dictionary meaning if the term is of general nature should be found out or if the term is of technical nature, then the definition of such term used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t., and the relevant built-up area requirement is specified under Section 80IB(10)(c) of the Income Tax Act. Thus, the built-up area in some of the flats in both these projects are in excess of 1500 sq.ft., i.e., 32 flats in Agrini and only one flat in Vajra and that the assessee had not claimed any deduction on this. We hold that the Tribunal is not correct in its view, that by reason of these Units being in excess of 1500 sq.ft., the entire claim of the assessee in respect of these two projects would stand rejected under Section 80IB(10) of the Income Tax Act. Thus, going by the definition of housing project under Explanation to Section 80HHBA of the Act as referred to above as the construction of any building and the wordings in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 206 TAXMAN 584 (CIT v. Vandana Properties), which was decided by the Bombay High Court on similar lines as in the assessee's case before us. 14. Moving further relating to pro rata eligibility permission, pro rata simply means a proportionate division relating to each of the respective portions. On a critical analysis as to how the principle of pro rata is applied here is that the assessee may seek pro rata deduction in case of units that have complied with the provisions and the Assessing Officer may disallow for the units that have not complied. The issue here is whether such proportionatelity can be claimed in respect of these provisions ? 15. We find that in the case of Emgeen Holdings Pvt. Ltd.; ITA No. 322/Mum/2010 order da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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