9911796707
TMI Blog2014 (11) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment, the AO observed that in respect of two flats sold by the assessee bearing numbers 103 & 104, the area exceeded 1000 sq.ft.. The AO also observed that commercial area exceeded the prescribed percentage of 10 of the total construction area, therefore, the assessee is not eligible for deduction u/s.80IB(10). By impugned order, the CIT(A) deleted the disallowance by following the decision of Hon'ble jurisdictional High Court in the case of Brahma Associates, 333 ITR 289.The precise observation of the CIT(A) was as under :- "4.5 I have gone through the assessment order, perused the submissions made by the appellant and also discussed the case with the A.R. of the appellant. The first ground on the basis of which the AO. has made di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Flat No.1 03 and Flat No.1 04 and the balance are shops. The appellant has stated that the condition of 1000 sq.ft. is for residential units only and not for shops. On perusal of the language used in section 80lB(10), this contention of the appellant appears to be correct. The second ground for disallowance of deduction by A.O. was that as per the papers given to the Akola Janta Commercial Bank, Akola, the date of commencement of construction was 19.09 .l998 and since this was prior to 1.10.1998, no deduction was admissible. This was explained to be a typographical error by the 'appellant stating that this was the date of incorporation of company while the project had actually commenced on 09.03.2000. These facts have now been verifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. has admitted that the maximum commercial area as per approval granted by NMMC for construction available to assessee is 15%. Accordingly, it was argued that the commercial area is within the limit of Development Control Rules. The appellant also invited my attention to the order of Hon'ble ITAT, Mumbai dated 20.05.2011 in the case of appellant sister concern M/s. Bhumiraj Homes, for .Y. 2005-2006. wherein on identical facts, the issue was decided in favour of the appellant. In the said order, the Hon'ble ITAT discussing the issue has observed as under : "7 We have considered the rival carefully and find that basically two disputes are involved. The first dispute is whether deduction u/s.80IB(10) can be allowed even in cases where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Section 80IB(10) deduction only to a part of the project. However, in the present case, since the assessee has accepted the decision of the Tribunal in allowing Section 80IB(10) deduction to a part of the project, we do not disturb the findings of the Tribunal in that behalf. e) Clause (d) inserted to Section 80IB(10) with effect from 1/4/2005 is prospective and not retrospective and hence cannot be applied for the period prior to 1/4/2005." From the above, it is clear that if the project has been approved by the local authority even with higher percentage of commercial area, then deduction u/s.80IB(10) has to be allowed on the whole of the project. In any case, further similar view was taken in assessee's own case for the A.Y 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken to have been complied with" - Slum Rehabilitation Schemes involve providing alternate accommodation to slum dwellers, who are displaced from their existing place - Therefore, they have to be treated as housing project Law as it existed in the asst. yr. 2004-05 when the assessee submitted its proposal for slum rehabilitation and the permission for carrying out the development was accorded on 17th Nov. 2003 and when the assessee commenced development is to be applied. " Similarly view has been taken in the other cases cited by the assessee and no contrary decision has been brought to our notice by the Revenue. Therefore, following these decisions we hold that in the case before us since the project has been approved on 27-3-2001 and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er authorities in their respective orders as well as cited by the learned AR and DR before us, in the context of factual matrix of the case. 7. From the record we found that during the remand proceedings, the AO has carried out verification of these two flats and found that Flat No.103 was sold by the assessee company to Shri Dharmendra Dhade vide agreement dated 22.06.2000 and Flat No.104 was sold by assessee company to Shri Suresh Kadam. vide agreement dated 4.7.2000. Subsequently, vide agreement dated 3.3.2005 flat No.103 was sold by Dharmendra Dhade to Smt. Pratima Suresh Kadam, wife of Shri Suresh Kadam. The AO. also reported that as per floor plan these two flats were separate from each other by a brick wall and also had two separate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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