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TMI Blog2014 (11) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... area the CIT(A) also recorded a finding to the effect that in terms of decision of jurisdictional High Court, there was no condition of 1000 sq.ft. for shops and this condition was only for residential unit. CIT(A) also recorded a categorical finding that the project was commenced on 9-3-2000 and a completion certificate was also issued on 23-1-2003. AO has included the commercial area at 6% on the basis of the certificate of architect and occupancy certificate after inclusion of club house. AO has also computed the area which neither form part of residential area nor of built-up commercial area, accordingly, following the decision of case of Brahma Associates[ 2011 (2) TMI 373 - BOMBAY HIGH COURT ] wherein as held that deduction should not be denied to projects which include commercial area when the project is approved by the local authority, even where commercial area exceeds 10%. After relying on various judicial decision of coordinate benches of the Tribunal, the CIT(A) has followed the decision of the Hon ble High Court in the case of Brahma Associates - Decided against revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... record to substantiate that this condition was not satisfied. The second issue relating to this is that there are several shops wherein the area exceeds 1000 sq.fts independently. This fact is verifiable from the assessment order. There are only two flats i.e. 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 verified by the A.O. and confirmed in the remand report as above. Thus, this argument of the A.O. given in the assessment order is also misfounded. The third ground for disallowance of deduction me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal are a) Upto 311312005 (subject to fulfilling other conditions), deduction under Section 80lB(10) is allowable to housing projects approved by the local authority having residential units with commercial user to the extent permitted under the DC Rules/Regulations framed by the respective local authority. b) In such a case, where the commercial user permitted by the local authority is within the "limits prescribed under the DC Rules/Regulation, the deduction under Section 80113"(10) upto 311312005 would be allowable irrespective of the fact that the project is approved as 'housing project' or 'residential plus commercial '. c) In the absence of any provisions under the Income Tax Act, the Tribunal was not justified in holding that upto 311312005 deduction under Section 80IB(10) would be allowable to the projects approved by the local authority having residential building with commercial user upto 10% of the total built-up-area of the plot. d) Since deductions under Section 80IB(10) is on the profits· derived from the housing projects approved by the local authority as a whole, the Tribunal was not justified in restricting Section 80IB(10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting 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 completed on 16-1-2003 [date of completion certificate 31-3-2003], therefore, the amended provisions are not applicable. Accordingly, assessee is eligible for deduction u/s. 80IB(10). We, accordingly, the AO to allow deduction u/s.80IB(10), 9. In the result, assessee's appeal is allowed. " Accordingly, it was argued that it doesn't make any difference even if the project of the appellant was approved as 'Residential cum commercial' project as held by Hon'ble Bombay High Court in Bramha Associates (supra).In view of the above facts and judicial pronouncements, I a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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