TaxTMI 
TaxTMI 
2013 (2) TMI 289
X X X X Extracts X X X X
X X X X Extracts X X X X
....issued to clarify the notification dt. 03.02.2010. 2. Briefly stated the facts of the case are that, the assessee is engaged in the business as builder and developer through a proprietorship concern namely M/s. K.R. Builders. During the year under consideration, the assessee has declared income under the head "Income from Business" to the tune of Rs. 1,54,59,252, out of which a sum of Rs. 1,47,11,5733, was claimed as deduction under section 80IB(10) of the Act. 3. During the course of assessment proceedings, the Assessing Officer noticed that the size of plot of land on which the housing project was undertaken by the assessee was only 1064.70 sq.mtrs. i.e., less than one acre. The Assessing Officer required the assessee to submit Slum Rehabilitation Authority (for short "SRA") details, copy of approval, IOD, etc., in respect of the said project. The assessee submitted that it had applied for approval from SRA through letter of intent on 3rd July 2003, and intimation of approval was given on 4th August 2003, with certain condition to be fulfilled. On verification of these details, the Assessing Officer found that the assessee's Dharavi Project is in sum area, which is a slum p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Maharashtra, was notified. It was submitted that the same could not be produced before the Assessing Officer as the notification was not issued till the time of completion of the assessment proceedings. After going through the notification, the Commissioner (Appeals) noted that the CBDT has notified the claim contained in Regulation no.33(10) of D.C. Rules for Greater Mumbai, 1991, r/w provision of notification no.PB-4391/4080(A)/UD-II(ROP), dated 3rd June 1992, in the following manner, subject to the following conditions:- (i) Slum development falling in Category-VII mentioned in notification no.TPB-4391/4080(A)/UD-11(RDP) dated 3rd June 19992, shall be excluded from the scheme; (ii) Slum development falling within clause 7.7 of the appendix IV of regulation 33(10) which provides for joint development of slum and non-slum area shall be excluded from the scheme, and (iii) Any amendment in the scheme hereby notified shall be required to be re-notified by the Board. 7. The said notification dated 3rd August 2010, was to come into force w.e.f. from the date of its publication. Later on, the assessee also furnished the Notification number 2 of 2011, da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s the subsequent notification of CBDT categorically states that the benefit of the scheme would be available on the projects approved after 1st April 2004, and therefore, the benefit of proviso, relaxing the conditions of one acre would not be available to the assessee. Accordingly, the deduction under section 80IB(10), allowed by the Commissioner (Appeals) was not justified, either in law or on facts. He made detail submission with reference to various documents filed by the assessee and the findings of the Assessing Officer as well as learned Commissioner (Appeals). 10. On the other hand, the learned Counsel submitted that the Department has raised no such ground about the furnishing of a fresh evidence and moreover this is a Govt. notification which does not require any investigation of facts, therefore, the learned Commissioner (Appeals) has rightly taken into cognizance. Further, he submitted that in view of the amended provisions brought by the Finance Act, 2004, w.e.f. 1st April 2005, by which proviso was inserted, has relaxed the condition of minimum area of one acre for the housing project in a case where the housing project is carried out in a slum area as per the Govt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s given the intimation of approval on 4th August 2003, wherein various terms and conditions were required to be fulfilled by the assessee before the commencement of the project. The assessee complied with all the objects and the terms given in the intimation of approval vide letter dated 12th April 2004, to the Executive Engineer, SRA, and in response to which commencement certificate was issued on 17th October 2004. After the amendment brought in the statute by Finance Act, 2004, w.e.f. 1st April 2004, various conditions laid down in clauses (a) and (b) and particularly in clause (b), wherein one of the conditions for availing the deduction under section 80-IB(10), was that the project should be on the plot of land which has a minimum area of one acre, has been relaxed by insertion of a proviso. The amended provision of section 80IB(10) r/w proviso, reads as under:- "SECTION 80-IB(10) 1103[(10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2007, 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 proj....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... condition mentioned in clauses (a) and (b). The scheme of SRA contained in regulation 33(10) of Development Control Regulation for Greater Mumbai has been notified by CBDT Notification no.67, dated 3rd August 2010, which has been incorporated in the preceding paragraphs. This notification was further clarified by the CBDT in Notification no.2 of 2011 dated 5th January 2011, wherein it was provided that:- "In the notification of the Govt of India in the Ministry of Finance, Department of Revenue, (Central Board of Direct Taxes) number S.O. 1898(E), dated the 3rd August, 2010 (2010) 233 CTR (ST.) 56 : 2010) 43 DTR (St.) 8] published in the Gazette of India, Extraordinary, Part-II, section 3, sub-section (ii), dated the 3rd August, 2010, in paragraph 2 for "This notification shall come into force with effect from the date of its publication", read "This notification shall be deemed to apply to projects approved by a local authority under the aforesaid scheme on or after the 1st day of April, 2004, and before 31st day of March, 2008, thereby making the incomes arising from such projects eligible for deduction under sub-section (10) of section 80IB from the assessment year 2005-06 o....