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TMI Blog2010 (2) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... n and sale of residential units. 2. The learned CIT(A) has eared in holding that the assessee is eligible for deduction u/s 80IB (10) of the Act only on the proportionate pro9fit from commercial area without appreciating that the project consists of commercial and residential area. 3. The learned CIT(A) has failed to appreciating the fact that Act does not permit for the proportionate deduction to be allowed in respect of violation made while availing the deduction u/s 80IB(10). 4. On the facts and in the circumstances of the case, the Ld. CIT(A) has failed in appreciating the fact that the A.O. has clearly established that the assessee has violated the conditions prescribed under section 80IB(10) of the Act and has of non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the granting of 80IB when there are violations of provisions in view of commercial area, which is more than 10% in some of the units. He referred to the facts culled out from the CIT(A) s order in support of the grounds. 5. The learned counsel in reply submitted that the assessee has 4 sectors and the commercial area of the entire project is only at 6.15% and gave the following table with reference to various assessment years and claims thereon: - Sector No. Resi. Area Sq.Ft. Shop Area Sq.Ft. Profit Total Profit Deduction u/s. 80IB Assessment Year 1 49788 10135 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he also analysed various ITAT decisions. Accordingly he granted proportionate deduction by stating as under: - 04. I have carefully considered the findings of the Assessing Officer and as well as the arguments of the ld. A.R. The learned A.R. pointed out that the project developed by the appellant effectively is a housing project as per the commencement certificate No. BBSR/CC/BP- 1735/B/418 dated 17.06.1998 is for residential building and residential with shopline building and thereby the appellant has complied with the notification issued by the CBDT vide No.205/3/2001/ITA II dated 4/5/2001. The jurisdictional Tribunal in the case of Mr. Harshad P. Doshi Vs ACIT [2007] 109 TTJ 335 has also pronounced the same verdict. It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the approval of the project as a housing project and also there is no dispute that all the sectors are considered by the Revenue as one single project for the purpose of deduction under section 80IB. Since the commercial area is less than 6.15% the assessee is eligible for deduction under section 80IB as the facts are clearly covered by the decision in the case Brahma Associates 315 ITR(AT) 266 (SB). In terms of percentage the commercial area constitutes 6.15% of the total constructed area. The decision in the case of M/s. Laukik Developers relied upon by the Revenue in the grounds of appeal has been considered and overruled by the decision of the Special Bench in the case of Brahma Associates (supra). In view of the order of the Special B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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