TaxTMI 
TaxTMI 
2015 (1) TMI 51
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.... as under:- 01. Whether on the facts and circumstances of the case and in law the Ld./ CIT(A) is correct in allowing deduction u/s 80IB(10) of Rs. 1,77,51,803/- without appreciating the fact that "In respect of "Veena Santoor" project Development rights of commercial units were transferred to its sister concern M/s Nikunj Developers to avail the deduction u/s 80IB(10) of he Income Tax Act 1961." 2. In this case a search & seizure action u/s. 132(1) of the Act was carried out on 10.07.2009. Accordingly, notices u/s. 153A were issued to the assessee. In response to notices issued u/s 153A, the assessee filed return of income, wherein claimed deduction u/s 80IB(10). On examination of details furnished, the Assessing Officer noted that in res....
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....d considered the relevant material on record. The threshold question arises is regarding the applicability of the amended provisions of section 80IB(10) w.e.f 1.4.2005 vide Finance Act, 2004, in respect of the project of the assessee which was approved prior to 1.04.2005. The Ld. Authorized Representative of the assessee has relied upon the judgment of Hon'ble Jurisdictional High Court dated 9th September 2014 in the case of CIT Vs. M/s Happy Home Enterprises, in Income Tax Appeal No. 201 of 2012 as well as in the case of CIT Vs. M/s Kanakia Spaces Pvt. Ltd. in Income Tax Appeal no. 308 of 2012. We find that an identical question fell for consideration of Hon'ble Jurisdictional High Court in the case of CIT Vs Happy Home Enterprises....
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....ntum of commercial area is to be included in the said project. It is on this basis that building plans are approved by the local authority and construction is commenced and completed. It is very difficult, if not impossible to change the building plans and / or alter construction midway, in order to comply with clause (d) of section 80-IB(10). It would be highly unfair to require an Assessee to comply with section 80-IB(10)(d) who has got his housing project approved by the local authority, before 31st March, 2005 and has either completed the same before the said date or even shortly thereafter, merely because the Assessee has offered its profits to tax in A.Y. 2005- 2006 or thereafter. Requiring the Assessee to comply with the condition se....
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....categorically held that the said provision viz. sub-section (14)(a) of section 80-IB inserted w.e.f. 1st April, 2005 applied only to housing projects which were approved subsequent to 1st April, 2005. Although, the Karnataka High Court was construing sub-section (14)(a) of section 80-IB that defined the words "built-up area", we find that the same reasoning can even be applied to clause (d) of sub-section (10) of section 80-IB. We should keep in mind that the object of section 80-IB(10) was to bring in investments and to encourage infrastructural development of middle level housing projects. If we were to hold that clause (d) of subsection (10) of section 80-IB was tobe complied with even by an Assessee whose housing project was approved be....
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.... dealing with the aforesaid contention and after analysing the provisions of section 80-IB(10), the Gujarat High Court held as under :- "34. Neither the assessee nor the 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 per cent of the total built-up area or 5,000 sq.feet, whichever is higher (now in the post-2010 period) or 5 per cent of the aggregate built-up area or 2,000 sq.feet, whichever is less. The Revenue is also in error to suggest that even if such conditions are onerous, they are required to be fulfi....