2014 (6) TMI 667

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....at the assessee is entitled for deduction u/s. 80IB(10), relying on the decision in the case of CIT Vs Brahma Associated, (2011) 33 ITR 289 (BOM), despite the fact that total build up area of the shops is 11,854 sq.ft. which exceeds prescribed limit of "5% of total built up area or 2000 sq.ft. whichever is less" as amended by Finance (No. 2) Act, 2004. 2. On the facts and circumstances of the case and in law, the CIT(A) erred in upholding the assessee's contention that substituted provisions of section 80IB(10) by Finance Act (No.2), 2004 are applicable prospectively and not retrospectively." On the other hand, the assessee, in the cross objection, raises the following ground: - "1. The CIT(A) erred in giving the direction in the l....

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.....e. CIDCO as "Residentialcum- Housing Project" vide approval dated 01.12.2003 comprising of six wings with residential units and commercial shops. In all there are 155 flats and 26 shops. The total area of the shops works out to 11854 sq.ft. whereas the total area of the flats, from A to F wings, works out to 131261 sq.ft. In the first year the AO appears to have discussed the issue in detail. In the opinion of the AO the assessee constructed commercial area of more than 2000 sq.ft., which is in excess of the prescribed limit as per the conditions laid down in section 80IB(10)(d) of the Income Tax Act. It was brought to the notice of the first Appellate Authority that the ITAT "G" Bench, Mumbai, vide its order in ITA No. 4207/Mum/2009 and C....

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....that the provisions as substituted by the Finance (No. 2) Act, 2004 is applicable retrospectively. By way of abundant precaution the assessee contends that the case of the assessee is squarely covered by the decision of the Hon'ble Bombay High Court in the case of Bhrama Associates (supra). 6. At the time hearing the learned counsel for the assessee placed before us copies of the following orders of the Tribunal to submit that the ITAT "G" Bench, Mumbai, in assessee's own case for other years, has consistently approved the plea of the assessee in the light of the decision of the Hon'ble Bombay High Court (supra) by holding that the amendment is prospective in operation and for the projects which have commenced prior to the said d....