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TMI Blog2018 (10) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... igible for deduction u/s 80IB(10) as the relevant A.Y before us i.e. A.Y 2007-08 which is subsequent to the initial A.Y of the claim and the Tribunal has already allowed the deduction in the earlier A.Ys. - Decided in favour of assessee. - ITA No.520/Hyd/2011 - - - Dated:- 17-10-2018 - Smt. P. Madhavi Devi, Judicial Member And Shri S.Rifaur Rahman, Accountant Member For The Assessee : Shri S. Rama Rao For The Revenue : Smt. S. Praveena, DR ORDER Per Smt. P. Madhavi Devi, J.M. This is assessee s appeal for the A.Y 2007-08 against the order of the CIT (A)-V, Hyderabad, dated 20.01.2011. The assessee has raised the following grounds of appeal: 1. That on the facts and circumstances of the case as well as in law, the learned CIT (A) is not justified in confirming the denial of claim of deduction of ₹ 56,05,926 made by the appellant u/s 80IB of the I.T. Act. 2. That the learned CIT (A) has wrongly interpreted the provision of section 80IB of the I.T. Act both in respect of the provisions prior to the amendment made by the Finance Act 2004 and also post amendment and is wrong in denying the deduction u/s 80IB(10) of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction u/s 80IB(10), the same cannot be denied to the assessee. 4. The learned DR, on the other hand, supported the orders of the authorities below. 5. Having regard to the rival contentions and the material on record, we find that the Coordinate Bench of the Tribunal in ITA No.1498/Hyd/2012 in the assessee s own case has considered the issue at length at paras 10 to 15 and for the sake of ready reference the relevant paras are reproduced hereunder: 10. As far as chronological events of the housing projects are concerned, there is no dispute to the following facts: ( i) In the year 1996, M/s. Sahara India Housing Ltd., M/s. Sahara Financial India Corporation Ltd., M/s. Sahara States etc., and others acquired land admeasuring 44.63 acres from Sri Mayur Kunj others. ( ii) Land use was changed from 'conservation to residential use' by Government of Andhra Pradesh. Variation in land use was published in Andhra Pradesh gazette on 19-03-1998. ( iii) The Housing project has seven blocks namely, Vrindavani, Gandhar, Mallhar, New Mallhar, Bahar, New Bahar and Yaman. These block have flats as well as row houses ranging from 345.83 sq. ft to 1498 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the projects which are approved before 01-04-2004, but on or after 01-04- 1998. This issue of stipulation for completion of project by 31-03- 2008 is subject matter of litigation, as various assessees have been denied deduction based on the amended provisions of the Act. The matter has ultimately reached Hon'ble Supreme Court and by the judgment in the case of CIT-19, Mumbai Vs. M/s. Sarkar Builders (supra), this issue was set at rest by the Hon'ble Supreme Court, while examining the amended provisions of the Section 80IB. (extracts) We are concerned with the amendment to the said sub-section carried out by Finance No.2, Act, 2004 w.e.f. 01-04-2005. In all these cases, though the housing projects were sanctioned much before the said amendment but have been completed after 01-04-2005 when amended provision has come into operation. It is also not in dispute that the amendment is prospective in nature. Interestingly, when the housing project was approved by a local authority, which is the requirement under sub-section (10) of Section 80IB, as on that date, the conditions stipulated in the said sub-section were met by the assessees. However, condition in clause (d) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ample, a case where under the extant DC Rules, for shops and commercial activity construction permitted was, say, 10% and the project was also sanctioned allowing a particular assessee to construct 10% of the area for commercial purposes. The said developer started with its project much prior to 01-04-2005 with the aforesaid permissible use and the construction was at a very advanced stage as on 01-04-2005. Can it be argued by that Revenue that he is to demolish the extra coverage meant for commercial purpose and bring the same within the limits prescribed by the new provision if he wanted to avail the benefit of deduction under section 80IB(10) of the Act, only because of the reason that the project was not complete as on 01-04-2005? As in such a case he filed his return for an assessment year after 01-04- 2005 and for the purpose of assessment of the said return, law prevailing as on that date would be applicable? Answer has to be in the negative on the principle that with the aforesaid planning as per the law prevailing prior to 01-04- 2005, these assessees acted and acquired vested right thereby which cannot be taken away. It is ludicrous on the part of the Revenue authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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