TaxTMI 
TaxTMI 
TaxTMI 
2013 (7) TMI 649
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....by the assessee under section 80-IB(10) of the Act. Briefly stated the facts of the case are that the original assessment in this case was completed under section 143(3) disallowing deduction under section 80-IB(10) to the tune of Rs. 31,70,650 out of the total deduction claimed at Rs. 2,55,56,221. Thus deduction was allowed under section 80-IB(10) to the extent of Rs. 2,23,85,571. The Assessing Officer issued notice under section 148 on the ground that the assessee had claimed excess deduction under section 80-IB(10). The reasons recorded by the Assessing Officer, copy of which is available at page 34 of the paper book, indicate that the assessee was allowed deduction under this section on the total residential area of 97,162 sq.ft. as aga....
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....e is Navi Mumbai Municipal Corporation. It would be relevant to note that the Special Bench of the Tribunal in Brahma Associates v. Joint CIT [2009] 315 ITR (AT) 268 (Pune) ; [2009] 119 ITD 255 (Pune) [SB] held that deduction under section 80-IB(10) as applicable prior to April 1, 2005 is admissible in case of a housing project comprising residential units and commercial establishments if it is approved as a housing project by the local authority or where 90 percent or more of the total built up area is used for dwelling unit. This Special Bench order came up for consideration before the hon'ble Bombay High Court in CIT v. Brahma Associates in Income Tax Appeal No. 1194 of 2010 reported as [2011] 333 ITR 289 (Bom). While its recent judgmen....
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....cial carpet area of 625.600 sq.mtr. along with staircase, lift area and lift room having carpet area of 809.653 sq.mtr. in total. Percentage of commercial built up area to the total built up area in this case, thus comes to 8.8 percent Going by the aforenoted Special Bench order in Brahma Associates [2009] 315 ITR (AT) 268 (Pune), the assessee becomes entitled to deduction. The Assessing Officer has calculated the percentage of commercial area to the total area at 10.51 per cent., which is otherwise not correct, as even accepted by the learned Departmental representative. Even if we do not enter into the arena of calculation of the percentage of commercial area vis-a-vis total built up area, the assessee deserves to succeed on the basis of....
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.... should also be apportioned between residential and commercial in the ratio of 5635 : 625. He further admitted that one acre is equal to 4046.8 sq.mtr. Taking his contention further he stated that although the plot area was more than that, being 4300 sq.mtr. in the present case, but the unbuilt up area was also to be bifurcated in proportion to commercial as well as residential built up area. If that is considered the learned Departmental representative contended that the commercial area in this case would exceed 10 percent and hence the assessee becomes ineligible to deduction. We are not convinced with the submission advanced by the learned Departmental representative. On a pertinent query it was admitted by him that there was no evidenc....
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....n so far as the reliance of the Kolkata Bench order in Bengal Abuja Housing Development Ltd. is concerned, we are again unable to find any finding given by the Tribunal which comes in the way of granting deduction to the assessee in consonance with the judgment of the hon'ble jurisdictional High Court. The learned Departmental representative has referred to certain submissions made before the Kolkata Bench but was unable to point out the relevant parts of the Tribunal order wherein such submissions have been accepted. We are further not convinced with the contention put forth by him that only the "housing projects" should be considered as eligible for deduction which, in his opinion, emerges from the plain reading of sub-section (10) of sec....