2014 (6) TMI 177

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....ted by the ld. Authorized Representative (AR), the assessee's counsel, that the issue arising in the instant case stands covered by the decision by the Hon'ble jurisdictional High Court in the case of CIT vs. Brahma Associates [2011] 333 ITR 289 (Bom.) and, following it, by the hon'ble court in its own case for A.Ys. 2003-04 & 2004-05 (in ITA No.1420 of 2011 & 1598 of 2011 dated 06.08.2012/PB pg.1). In fact, the tribunal has also, following the same, dismissed the Revenue's appeal for f.y. 2006-07, challenging the disallowance of deduction u/s.80-IB(10) to the assessee on its construction project 'Golden Nest' (in ITA No.4607/Mum(E)/2011 dated 18.07.2012/PB pgs.2-9), taking us through the relevant part of the said order. The same stand was ....

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....e shall take both of them separately, in seriatim. 3.2 The deduction under reference is in respect of Phases VII, X, XI and XIA of a housing construction project by the name 'Golden Nest'. The same bearing commercial area in excess of the prescribed percentage of 5% of the aggregate built up area, or 2000 sq. ft., whichever is less, the same was considered as barred for deduction u/s.80-IB(10). The hon'ble jurisdictional high court, per its decision in the case of Brahma Associates (supra), has clarified that a housing project approved upto 31.03.2005, commercial user to the extent permitted under the development control rules/regulations framed by the respective local authority would hold in-as-much as the amendment in law, prescribing th....

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....while the tribunal has confirmed the disallowance at Rs.6.70 lacs for A.Y. 2004-05, as also for A.Y. 2006-07, perhaps on a proportionate basis, the hon'ble jurisdictional high court has in Brahma Associates (supra) clarified that a 'housing project' being not defined under the Act, it is that as approved by the local authority that would obtain. Further, it is the housing project as approved which is either eligible u/s.80-IB(10) or not so and, as such, deduction thereunder, where so, would be available for the entire project and not to a part thereof. Be that as it may, our concern, in view of the finding of the ld. CIT(A), which is not on merits, in the matter would be as to whether the said issue arises in the facts of the present case; ....