2013 (12) TMI 1010

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....f section 80IB(10) which was effective from 01.04.2005. 2. When the case was posted none appeared on behalf of the assessee and on earlier occasion also none appeared on 18.062013. In view of this we have considered the appeal exparte respondent. 3. Briefly stated, the assessee is a partnership firm engaged in the business of developing a housing project at Nallasopara(W), Thane known as 'Agarwal Krish Garden' started in assessment year 2005-06 and the project has satisfied all conditions laid down u/s. 80IB(10). The commercial area approved is only1760.26 sq.ft. which is less than 5% of the total constructed area. AO added the gymnasium at ground floor of 858.65 sq.ft. also as commercial area so as to come to the conclusion that the ....

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....nch has given categorical finding in the case of Brahma Associates vs. JCIT in ITA No. 1417/Pn/2006 (A.Y.2003-04) dated 06.04.2009, wherein the Hon'ble Members have held as under: "So far as Assessment Years prior to AY 2005-06 are concerned approval by the local authorities for the housing project constitutes admissible material to come to the conclusion the housing project is eligible for deduction u/s 80IB (10)- what was brought into effect by insertion of clause (d) in section 80IB(10) vide Finance Act, 2004, was a restriction on use of built-up area for commercial purposes -- This indicates that there was no such limit in force for the earlier years -- Restriction of 5% is applicable only with prospective effect and there is no just....

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....he part of successor Appellate Authority to interpret the applicability of law with different approach or on the basis of strange-logic, specially when facts are identical and there is no perversity of interpretative- understanding of the same set of facts. It is worthwhile to mention that in interpreting a provision, it will not be proper to look at a piece of subsequent legislation unless there is some ambiguity or obscurity. However, subsequent legislation may be looked at in order to see what is the proper interpretation to be put upon the earlier Act where the earlier Act is obscure or ambiguous or readily capable of more than one interpretation vide CIT Vs. Deepchand Kishanlal (1990) 183 ITR 299 (Kar); CIT Vs. India Exchange Trader's ....