TaxTMI 
TaxTMI 
2012 (12) TMI 361
X X X X Extracts X X X X
X X X X Extracts X X X X
....area in the housing project Nisarg City is 3494.83 sq.ft. in the total built up area of 1,07,930 sq.ft. After discussing the various issues in this case and after considering the various submissions made by the assessee from time to time the AO disallowed the claim of deduction u/s.80IB(10) of the I.T. Act on the following grounds : 1. Built up area of shops is more than 2000 sq.ft. 2. Built of area of Flat No. 502 is more than 1500 sq.ft. 3. Built up area of all the row houses is more than 1500 sq.ft. if the area of roof terrace is taken into consideration. 4. Built up area of row houses No. 1 to 8 and 25 to 31 is more than 1500 sq.ft. even if area of roof terrace is not taken into consideration. 3. In appeal, the learned CIT(A) upheld the disallowance made by the AO. While doing so, he observed that the decision of the Special Bench of the Tribunal in the case of Brahma Associates reported in 122 TTJ (Pune) (Special Bench) 433 for assessment year 2003-04, is prior to the amendment brought into the statute w.e.f, assessment year 2005-06. By this amendment Clause (d) was inserted in section 80IB(10) imposing restriction on the commercial area to 5% of built up area or 2000 sq....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dated 26- 04-2012 for the assessment years 2003-04 to 2005-06 he drew the attention of the Bench to Para 6 of the order and submitted that the Tribunal in the said decision after considering the various decisions cited before it has held that provisions of sub section 14(a) of section 80IB which defines "built up area" to include projections and balconies are applicable only in respect of the projects approved after 01-04-2005 and consequently balconies/terrace cannot be included in the "built up area" of the flats in the assessee's housing project. Since in the instant case the project has been approved prior to 01-04-2005 and since after excluding the projections and balconies the built up area of none of the flats exceeds 1500 sq.ft., therefore, the assessee is entitled to deduction u/s. 80IB(10). 5. So far as the issue regarding commercial area is concerned he submitted that in view of the decision of the jurisdictional High Court in the case of Brahma Associates (Supra) the assessee is entitled to deduction u/s. 80IB(10). 5.1 The learned D.R. on the other hand heavily relied on the orders of the AO and the CIT(A). 6. We have considered the rival arguments made by bo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal in that behalf. e) Clause (d) inserted to Section 80IB(10) with effect from 1/4/2005 is prospective and not retrospective and hence cannot be applied for the period prior to 1/4/2005." Since in the present case the total commercial area permitted by the local authority is within the limits prescribed under the DC Rules/Regulations therefore the deduction u/s. 80IB(10) upto 31-03-2005 would be allowable irrespective of the fact that the project is approved as housing project or residential-cum-commercial. 7. So far as the issue relating to denial of benefit of deduction u/s. 80IB(10) on the ground that the built up area in some of the cases exceeds 1500 sq.ft. we find this Bench of the Tribunal in the case of ITO Vs. Prime Properties vide ITA Nos. 887, 888 and 889/PN/2009 order dated 26-04-2012 has held as under : "6. We have considered the rival arguments made by both the parties, perused the orders of the AO and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. The only dispute in the grounds raised by the Revenue is regarding allowability of deduction u/s.80IB(10) since the total area of certain f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the time of approval and commencement of the construction of the project well before 1.4.2005. Bombay Bench of the Tribunal in the case of Hiranandani Akruti J.V (supra) has discussed all these relevant aspects raised by the Department. In the case of Hiranandani Akruti J.V V/s. DCIT, it has been held that the law as existed when the assessee submitted its proposal and permission for carrying out the development was accorded and when the assessee commenced development is to be applied. In the present cases, as per page nos. 17 and 20 of the paper book in the case of Opel Shelter the project was commenced on 23.2.2001 and even completed on 14.5.2004, similarly as per the contents of page No.2 of the assessment order and page no. 41 of the paper book in the case of D.S. Kulkarni and Associates, the project was commenced on 12.4.2001 and completed in the month of November 2003. Thus, the assessees were supposed to complete the projects as per the law as existed in the A.Y. 2001-02 in the case of Opel Shelters and in the A.Y. 2002-03 in the case of D.S. Kulkarni and Associates. We thus following the decision in the case of Hiranandani Akruti JV V/s. DCIT (Supra) hold that amended pro....