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TMI Blog2018 (2) TMI 1855X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 14-2-2018 - Shri Mahavir Singh and Shri Rajesh Kumar, JJ. Appellant by: Ms. Pooja Swaroop Respondent by: Ms. Rutuja N. Pawar ORDER Rajesh Kumar, AM This appeal has been filed by the Revenue against the order of the CIT(A)-44, Mumbai dated 06.06.2016 for A.Y. 2011-12. 2. The issue raised by the Revenue is against the order of the CIT(A) directing the AO to allow proportionate deduction under Section 80IB(10) of the Income Tax Act, 1961 (hereinafter the Act ) in respect of those units where the area has not exceeded the limit as prescribed under Section 80IB(10)(c) of the Act. 3. At the outset the learned A.R. submitted before the Bench that the case of the assessee is covered in its favour by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted is only a housing project as approved by the local authority, to which (approval) the provision refers to, so that the same, where not violative of any of the conditions listed in the provision, as with regard to the extent of commercial user (which condition did not exist in the provision as it stood at the relevant time), could not be imposed by judicial diktat. Further, the project, as approved, is a single project, which either satisfies the conditions enlisted in the provision or not. There was therefore no scope for bifurcating it s profits into that subject to deduction there-under and not so. The following words capture the decision, which follows a comprehensive discussion on the various aspects, and in harmony and agreement wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition is even otherwise inconsistent with the fundamental principle that any deduction is subject to eligibility, i.e., satisfaction of each of the conditions precedent. Further, our reading of those decisions by the tribunal, did not exhibit any discussion on or an interpretation of section 80-IB(10)(c), as indeed was also the case for the judgment by the hon ble court in Brahma Associates (supra). The provision is accordingly examined closely, to find clause (c) as worded differently from the other clauses of section 80-IB(10), setting forth the conditions precedent for the eligibility to deduction of the profits of the project. The said clause, on a fair construction, was found to contain a condition with reference to the residential uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which we may refer to Bajaj Tempo Ltd. vs. CIT [1992] 196 ITR 188 (SC) relied upon by the tribunal in the various orders, as far as appears on a reading of their extracts as listed in the tribunal s order for A.Y. 2007- 08 (supra). The interpretation is also in accord with a purposive and liberal approach, advocated by the apex court in, inter alia, Bajaj Tempo Ltd. (supra). The provision being an incentive provision, toward promoting the growth of affordable housing in the country, the construction enables the same, while at the same time operating to exclude the extension of the incentive to housing that is not covered or targeted by the provision, as sought to be included by the ld. AR. Again, it is trite law that the benefit of any amb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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