TaxTMI 
TaxTMI 
2013 (10) TMI 707
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....ht in law and on facts in deleting the addition made by the Assessing Officer on account of disallowance of deduction u/s.80IB(10)?" [B] "Whether on the facts and circumstances of the case and in law, the assessee company is entitled for deduction u/s.80IB (10) of the Income Tax Act, 1961 when the assessee's building project approved by the local authority is residential and commercial project, for the A.Y.2006-07?" [C] "Whether on the facts and circumstances of the case and in law, the assessee company is entitled to deduction u/s.80IB(10) of the Income Tax Act, 1961 when the shops and other commercial establishment included in the housing project of the assessee company is about 7.96% thereby exceeding the limit specified in Clause ....
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....nds. Firstly, he was of the opinion that the construction of the housing project was not completed by 31-3-2008 and further that the area covered by commercial construction exceeded 5%. The Assessing Officer based such conclusions on his findings that in type 'F' houses, out of 91 houses proposed as per the layout plan, only 86 were constructed and 5 houses had not yet been constructed. He further found that type 'G' houses were not constructed at all. He also found that the area occupied by commercial construction was 7.96% of the total area of the housing project. 4. The assessee carried the matter in appeal. Commissioner (Appeals) allowed the appeal. On the question of completion of the housing project, he held that the project compri....
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....lowing the decision of the Special Bench of this Tribunal in Brahma Associates vs. JCIT (supra) found that the assessee is eligible for deduction u/s. 80IB(10) since the commercial area is less than 10% of the total project. We have also carefully gone through the decision of this Tribunal in ITO vs. Nandanvan Builders (supra). This Tribunal, after following the judgment of the Bombay High Court in Brahma Associates (supra) found that once the housing project was approved by the local authority, the assessee is eligible for deduction u/s. 80- IB(10). Since the commercial area admittedly does not exceed 10% of the total project, by following the decision of the Special Bench of this Tribunal in Brahma Associates (supra) and the decision of t....
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.... Revenue contended that since the housing project was not yet completed, the reduced ceiling of permissibility of commercial construction should be applied. This court held that such reduced limit could not be applied. Relevant observations of the judgment read as under:- "21. Neither the assessee nor local authority responsible to approve the construction projects are expected to contemplate future amendment in the statute and approve and/or carry out constructions maintaining the ratio of residential housing and commercial construction as provided by the amended Act being 3% of the total built up area or 5000 sq. feet which ever is higher (now in post 2010 period) or 5% of the aggregate built up area or 2000 sq. feet whichever is less.....