TaxTMI 
TaxTMI 
2011 (3) TMI 206
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....erial facts are like this. During the course of scrutiny assessment proceedings, the Assessing Officer noticed that the assessee has claimed a deduction under section 80-IB(10), amounting to Rs. 12,44,455 in respect of Shantiniketan project. The Assessing Officer had, however, two objections to this claim of deduction - first, that area of plot of land is 4,000.02 square meters, which is less than one acre (one acre is equal to 4,046.82 square meters); and - second, that built up area of shops and commercial units is 4,302.88 square feet, which is more than 2,000 square feet. As regards the second point, i.e., regarding built up area of commercial units being more than 2,000 square feet, the Assessing Officer noted the same, but did not deal with the same in much detail. The Assessing Officer noted that this residential project was developed by the assessee on 4,000.02 square meter land allotted by City & Industrial Development Corporation of Maharashtra Limited (CIDCO, in short), as plot number 8A, on 6-2-2001. It was also noted that construction was completed on 28-5-2002, and that the occupation certificate of the project was also issued on 11-7-2002. The Assessing Officer was o....
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....o public at large, and observed that it was thus "manifestly clear that the appellant has tried to get its irregular claim of deduction under section 80-IB(10) regularized through the allotment of additional plot number 8B". The CIT(A), accordingly, concluded that "additional land cannot be regarded as part of the original project as it has neither been allotted exclusively for the project nor has been used for housing project" and the size of original plot being marginally less than once acre, the assessee was not entitled for deduction under section 80-IB(10). The disallowance was thus confirmed by the CIT(A) as well. The assessee is not satisfied by the stand so taken by the CIT(A), and is in further appeal before us. 4. We have heard the rival contentions, perused the material on record and duly considered the factual matrix of the case as also the applicable legal position. 5. We have noted that though there is no dispute about the fact that size of the original plot on which housing project was developed was less than one acre, the assessee was subsequently allotted an adjacent plot which made good this deficiency so far as requirement about minimum size of plot was con....
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....ss to public at large without discrimination on the ground of religion, caste, creed etc. "but the expression 'public at large' in this sentence is to be read in conjunction with the words immediately following these words, i.e. without discrimination on the ground of religion, caste, creed etc.,". It is not a case that the assessee has been permitted to develop a public park in the additional land so allotted, and the benefit to the residents in this project is only incidental; in fact, it is the other way round. The development in this land, as a park or children's playground or as green belt, is for the purposes of the residents of the project - as has been specifically approved by CIDCO, and the benefit to others, if at all, is only incidental. The additional land is as much a part of the housing project as much the original plot is, as evident from the fact that supplementary agreement, to lease out additional land, is not even a standalone agreement but it only seeks to modify the original lease by including plot number 8B in the area allotted for housing project. The mere fact that certain conditions have been put for use of additional land does not take away the fact that a....
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....roject is built originally consists of more than one units. In any event, even the lease agreement executed by CIDCO is only one, and by way of allotment of additional land, only the old agreement is modified "with retrospective effect". When lease agreement is one, plots 8A and 8B are adjacent plots and a cohesive unit on which project is now situated, declining deduction under section 80-IB(10) on the ground that plot 8B is a distinct plot is neither factually correct nor sustainable in law. The ground on which the Assessing Officer declined deduction under section 80-IB(10) are thus devoid of legally sustainable merits. 6. As regards learned CIT(A)'s observations to the effect that "it is manifestly clear that the appellant has tried to get its irregular claim of deduction under section 80-IB(10) regularized through the allotment of additional plot number 8B", and that it is not intention of legislature that that "housing projects, which have already been completed on a smaller plot, will also be eligible for deduction [under section 80-IB(10)] if subsequently it buys additional adjacent land to make the total area more than one acre", we are unable to see any merits in these....
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....tnership firm by the name of Danik Pundhari. This land consisted of plot Nos. 29 to 32 and 36 to 37 situated at Sector 30, Vashi, Navi Mumbai, and the total land area was 7,999.79 square meters. The Assessing Officer noted that, out of total built up area of 11,997.813 square meter, permissible FSI being 1.5 of the plot size i.e., 7,999.79 square meters, only 6,231.742 square meter. The Assessing Officer was of the view that, "thus it can be clearly seen that the development undertaken on the said plot of land is predominantly and substantially in nature of commercial establishment". It was also noted that "certain residential units, viz., A/105, B/107, C/102, C/106, C/107, C/207, C/607, C/707 and C/303, have built up area exceeding 1,000 sq. fts. (calculated as pre-determined percentage of super built up area/saleable area mentioned in the agreement and after taking into consideration the area of attached terrace)". It was in this backdrop that the Assessing Officer declined deduction under section 80-IB(10) in respect of this project as well. Aggrieved by the stand so taken by the Assessing Officer, assessee carried the matter in appeal before the CIT(A) but without any success. ....
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....eal before Hon'ble Bombay High Court, Their Lordships held that no such limit on commercial use were justified. On the facts of this very case, in which the project was admittedly a residential cum commercial project, Their Lordships, inter alia, observed as follows : ". . . . . In the present case, it is not in dispute that the project is approved for residential and commercial buildings as per the DC Rules, Pune. The fact that the residential buildings under the DC Rules can have commercial user upto 50 per cent of the built-up area of the plot cannot be a ground to hold that the project is not a housing project. It is for the legislature to impose restrictions on commercial user in a project for the purposes of availing section 80-IB(10) deduction and that has been done by inserting clause (d) to section 80-IB(10) with effect from 1-4-2005. Therefore, the decision of the Tribunal in holding that a project with residential and commercial user to the extent permitted under DC Rules would be a housing project and hence eligible for deduction under section 80-IB(10) upto 31-3-2005 cannot be faulted. 27. The question then to be considered is, whether the Special Bench of the Tr....
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.... is concerned, admittedly the expression 'built up area' was an undefined expression under the Income-tax Act, 1961, and, therefore, meaning assigned to this expression were as understood in common parlance. As to the question whether area of balconies could be included in the definition of 'built up area' for assessment years prior to 2005-06, we find this issue is now covered by a coordinate bench decision in the case of Asstt. CIT v. Sheth Developers (P.) Ltd. [2009] 33 SOT 277 (Mum.) wherein coordinate bench has, inter alia, observed as follows : "18. Now coming to the second question which is whether balcony is to be construed as a part of the built-up area. According to the Assessing Officer if the balcony area is also added, the built-up area would exceed 1000 sq. ft. per unit in number of cases. For resolving this we have to once again go back to the definition of built-up area introduced by the Finance (No. 2) Act, 2004, as clause (a) to sub-section (14) of section 80-IB and first decide whether it is retrospective or not. For brevity, this definition is reproduced once again hereunder : (14) for the purpose of this section :- (a) 'built-up area' means....
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....' case (supra), where amendment to section 80-IB(10) also effected through same Finance (No. 2) Act, 2004, were considered to have only prospective effect, vis-a-vis sub-clause (d) thereof. No doubt in the case of Dy. CIT v. Ansal Properties & Industries Ltd. [2009] 116 ITD 253 Delhi Bench of the Tribunal has taken a view that extension of time-limit for completion of project, brought into the statute through an amendment which came into effect from 1-4-2001 would apply prior to that as well. However, there the issue was the extension of a benefit of time-limit and this cannot be treated as equivalent to introduction of a definition which hitherto before had a different meaning as understood in common business parlance. Even otherwise, revenue is precluded from taking the plea that such definition is having retrospective effect for the simple reason that Assessing Officer himself had accepted it to be only prospective. Various contentions of the learned DR that there can be no estoppel against law even if the Assessing Officer himself had taken a different view becomes irrelevant on the face of our finding that definition of built-up area is only prospective with effect from 1-4-20....