TaxTMI 
TaxTMI 
2009 (8) TMI 760
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....ceded that so far as hearing before the Tribunal is concerned, the matter is to be decided against the assessee. He, however, hastened to add that this statement should not be construed as amounting to conceding the case because the assessee would like to keep the matter alive by taking the issue to Hon'ble High Court. 3. Shri Amrinder Kumar, learned Departmental Representative submitted that so far as the issue in appeal is concerned, as rightly pointed out by Dr. Pathak, it is covered against the assessee but the matter does not end there. Shri Kumar invited our attention to the fact that in the present case, the AO had granted deduction under s. 80-IB(10) in respect of residential units on a proportionate basis, but in the light of Special Bench decision in the case of Brahma Associates, it is now settled position of law that proportionate deduction for residential units was not admissible for the simple reason that the construction of commercial units was admittedly in excess of 10 per cent in the present case. It was pointed out that as held by the Special Bench in the said case, where commercial built-up area is in excess of 10 per cent of the total area, the project canno....
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....n of Hon'ble Supreme Court in the case of Assam Travels Shipping Service, learned counsel submitted that the same will not apply to the situation before us for more reasons than one. Firstly, according to learned counsel, the decision of Assam Travels Shipping Service and Mcorp Global (P) Ltd. are from Co-ordinate Benches of equal strength and therefore, following well-settled rule of the precedents, the latter decision must prevail. Secondly, it was submitted that the decision of Assam Travels Shipping Service was given in a situation in which a patent error has occurred in as much as the penalty imposed by the AO was less than the minimum penalty prescribed under the law. Such a situation does not exist in the, present case. The issue as to whether deduction under s. 80-IB(10) should be admissible in cases where commercial construction is more than 10 per cent is highly contentious issue, which is essentially a matter of perception rather than undisputed legal provisions. It was thus sought to be canvassed that the principle emerged from Assam Travels Shipping Service case will only be confined to a situation where unambiguous legal provisions have been violated and by way of a r....
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.... to residential units as long as all the conditions of s. 80-IB(10) of the Act are fulfilled on a stand alone basis in respect of such residential units of the project. It is thus clear that irrespective of whether or not the conditions of s. 80-IB(10) of the Act are fulfilled on a stand alone basis relating to residential project, in a situation where commercial built-up area is more than 10 per cent the profits arising on sale of commercial units cannot be entitled for deduction under s. 80-IB(10) of the Act. To that extent, the plea of the AO in this appeal is indeed well taken. We approve the same and reverse the relief granted by the CIT(A). 7. What is however, sought from us by the learned Departmental Representative is that even deduction under s. 80-IB(10) in respect of residential units on proportionate basis, which was granted by the AO himself, should be reversed by us. Earlier in this order, we have taken note of learned Departmental Representative's strong reliance upon the Special Bench decision in the case of Brahma Associates and his prayer that the matter should be restored to the file of the AO for adjudication afresh in the light of the said decision. What is ....
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....unal was in seisin of a situation in which Explanation to s. 90 was retrospectively amended after the assessment was finalized and before the appellate proceedings were completed. That provided finality to the legal position in force and no two views were possible on the same. As regards the Hon'ble Supreme Court's judgment in the case of Assam Travels Shipping Service, Hon'ble Supreme Court was in seisin that was a case in which penalty was levied which was less than the minimum penalty, which should have been levied under the law. There again, there could not have been any ambiguity about whether or not the penalty can be levied at less than the minimum levied prescribed under the Act. It is thus clear that in both these situations, it could not have been a conscious decision of the AO to grant some benefit, which was taken away by the Tribunal either directly or by remitting the matter to the file of the AO. In our humble understanding these two situations are not on pari materia with the situation that we are in seisin of and accordingly these decisions will not have any application on the facts of the present case. This takes up to rather emotional plea of the learned Departme....