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TMI Blog2019 (1) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... ced against those assessee where the housing project granted development permission prior to such date. We notice that Gujarat High Court in case of Maran Corporation [2012 (9) TMI 700 - GUJARAT HIGH COURT] has also taken a similar view. In any case where issue has now been considered by the Supreme Court in case of Commissioner of Income-Tax Vs. Sarkar Builders (2015 (5) TMI 555 - SUPREME COURT). In that view of the matter it would be worthwhile to admit these appeals since no question of law can be stated to have arisen. Both the appeals are therefore dismissed. - INCOME TAX APPEAL NO.968 OF 2016 WITH INCOME TAX APPEAL NO.998 OF 2016 - - - Dated:- 8-1-2019 - AKIL KURESHI AND B.P. COLABAWALLA, JJ. Mr. Ashok Kotangle with Ms. Pad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f possession was granted earlier. Counsel for the assessee however pointed out that such an issue has been decided by this Court in case of Commissioner of Income Tax Vs. Happy Home Enterprises and anr. (2015) 372 ITR 1 (Bom) hold that such modified requirement for claiming deduction under Section 80IB(10) of the Act cannot be enforced against those assessees where the housing project granted development permission prior to such date. Following portion of the judgment may be noted: 35. However, the provisions of section 80IB(10) were substantially amended by way of Finance (No.2) Act, 2004 w.e.f. 1st April, 2005. As can be noted from the amended provisions, there were several conditions that were imposed in the newly substituted se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, before 31st March, 2005 and has either completed the same before the said date or even shortly thereafter, merely because the Assessee has offered its profits to tax in A.Y. 2005-2006 or thereafter. Requiring the Assessee to comply with the condition set out in clause (d) of subsection (10) of section 80IB merely because he has offered his profits to tax in A.Y. 200506 or thereafter, even though his housing project was approved before 31st March 2005, would be requiring the Assessee to virtually do a humanly impossible task. This, in our opinion, could never have been the intention of the Legislature. In fact, to our mind, it would run counter to the very object for which these provisions were introduced, namely to tackle the shortage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd denied the same from A.Y. 2005-06 and thereafter. It could never have been the intention of the Legislature that the deduction under section 80IB(10) available to a particular Assessee would be determined on the basis of the accounting method followed. This, to our mind and as rightly submitted by Mr Mistry would lead to startling results. We therefore have no hesitation in holding that section 80IB(10)(d) is prospective in nature and can have no application to a housing project that is approved before 31st March, 2005. As the deduction sought to be claimed under section 80IB(10) is inseparably linked with the date of approval of the housing project, it would make no difference if the construction of the said project was completed on or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we are not called upon to decide any such condition and hence we are not laying down any general proposition of law, save and except that clause (d) of section 80IB(10) being a condition linked to the date of the approval of the housing project, would not apply to any housing project that was approved prior to 31st March, 2005 irrespective of the fact that the profits of the said housing project are brought to tax after the said provision was brought into force. 4. We notice that Gujarat High Court in case of Maran Corporation 356 ITR 44 has also taken a similar view. In any case where issue has now been considered by the Supreme Court in case of Commissioner of Income-Tax Vs. Sarkar Builders (2015)375 ITR 392 (SC). In that v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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