9911796707
TMI Blog2025 (3) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... MUMBAI]
We, therefore respectfully agree with the findings arrived at by the coordinate bench of this Tribunal. Accordingly hold that the appellant assessee is entitled to the claim of deduction u/s. 80IB(10) of the Act. Assessee appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... is Tribunal. This Tribunal, vide consolidated order dated 09.12.2016 dismissed assessee's appeals. 5. Assessee preferred an appeal against the order dated 09.12.2016 passed by this Tribunal before the Hon'ble Bombay High court. Hon'ble Bombay High Court, vide order dated 30.01.2020 passed in ITA No. 1148 of 2017 set aside the order dated 09.12.2016 passed by this Tribunal with a direction for fresh hearing and decision. Hence this appeal in third round of hearing. 6. Perused the records. Heard learned representative for the appellant assessee and learned DR for the revenue. 7. The main point for determination under appeal is as to whether appellant assessee is entitled for the claim of deduction of Rs. 28,69,487/- u/s. 80IB(10) of the Act? 8. Learned representative for the appellant assessee has argued that the assessee undertook a project under the scheme of Slum Rehabilitation Authority (SRA) framed by the government of Maharashtra for carrying out a housing project in Santacruz. The assessee's claim of deduction of Rs. 28,69,487/- has been wrongly declined by the revenue authorities merely on the ground that the project was approved before 01.04.2004, whereas the amendment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of profits and gains from certain industrial undertakings other than infrastructure development undertakings.- (1) Where the gross total income of an assessee includes any profits and gains derived from any business referred to in sub-sections (3) to(11), (11A) and (11B) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to such percentage and for such number of assessment years as specified in this section. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2008 by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from such housing project if,- (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998 and completes such construction,- (i) in a case where a housing project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idual, no other residential unit in such housing project is allotted to any of the following persons, namely:- (i) the individual or the spouse or the minor children of such individual, (ii) the Hindu undivided family in which such individual is the karta, any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta. Explanation.-For the removal of doubts, it is hereby declared that nothing contained in this sub-section shall apply to any undertaking which executes the housing project as a works contract awarded by any person (including the Central or State Government) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" 12. A cursory reading of section 80IB(10) of the Act shows that one of the condition for the eligibility of deduction in respect of derived profits in case of an undertaking developing and building housing properties, is that the construction of the project approved before the first day of April 2004, should have been completed on or before the 31st day of March 2008. It is noticed that the Slum Rehabilitation Authority approved assessee's project on 10.06.1990 vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d projects subject to the fulfilment of the other conditions. Thus an exception has been carved out by the proviso in cases of housing projects being developed in slum areas under a government scheme and the exception over rides the conditions mentioned in clause (a) & (b) above. This issue has been elaborated by the co-ordinate bench of this Tribunal as under. 14. The relevant paras 7 to 7.3 of Ramesh Gunshi Dedhai (Supra) are reproduced as under: "7. As regards, the benefit of the proviso to section 80IB(10) we note that the conditions enumerated in clause (a) & (b) are relaxed if the housing project is carried out in accordance with the scheme framed by the Central or State Government for reconstruction/redevelopment of slum area declared therein. However such scheme are required to be notified by the board in this behalf. It is pertinent to note that in the earlier years when this matter came before the Tribunal this scheme was not notified by the board and only on 5th January 2011, the board has notified the scheme. Therefore, this issue was not raised before this Tribunal in the earlier years. For the sake of ready reference we quote the notification dated 5th January 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation for the purposes of this clause;- (1) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority. (b) the project on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the board in this behalf;" 7.2 The deduction u/s 80IB(10) is available to the housing project which fulfils the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proviso to clause (a) & (b) of the section 80IB(10) the following requirements are to be satisfied viz. ( the housing project is carried out in accordance with the scheme of reconstruction or redevelopment of slum area (ji) such scheme is framed by the Central Government or State Government (iii) such scheme is notified by the board in this behalf. 7.3 There is no dispute that the projects in question are carried out in accordance with the scheme for redevelopment of the slum area as framed by the State Government of Maharashtra and the same has been notified by the board vide notification dated 5th January 2011. The second part of this notification contemplates a new condition which is not provided even under the clause (a) of section 80IB(10). The condition inserted in the notification says that the notification shall be deemed to apply to the projects approved by the local authority on or after 01st April 2004 and before 31st March 2008. We find that this condition contemplated under the notification is repugnant to the conditions provided under section 80IB(10). The proviso in question has been inserted to relax the condition provided under clause (a) & (b) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the law applicable to the facts of the present case. The impugned order is thus set aside. The facts of the present case are almost similar to the facts of Ramesh Gunshi Dedhai (Supra). We, therefore respectfully agree with the findings arrived at by the coordinate bench of this Tribunal. Accordingly hold that the appellant assessee is entitled to the claim of deduction u/s. 80IB(10) of the Act. The issue under consideration is determined in favour of the assessee and against the revenue. Learned assessing officer is directed to delete the said addition. The appeal is thus liable to be allowed. ITA No. 4390/MUM/2014 (Assessment Year : 2007-08) 16. This appeal has been preferred against the impugned order dated 24.04.2014 passed in Appeal no. CIT(A)-32/ACIT 21(1)/IT-67/13-14 by the Ld. Commissioner of Income-tax(Appeals) [hereinafter referred to as the "CIT(A)"] u/s. 250 of the Income-Tax Act, 1961 for the Assessment year [A.Y.] 2007-08, wherein learned CIT(A) has confirmed the assessment order dated 12.03.2013, confirming the disallowance of deduction of Rs. 98,73,174/- u/s. 80IB(10) of the Act. The remaining facts and issues involved in this appeal are similar to that of iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
