TaxTMI 
TaxTMI 
2015 (8) TMI 1148
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....conclusion, arrived at in the impugned orders. 2.1. We have considered the rival submissions and perused the material available on record. In view of the above, we are reproducing hereunder the relevant portion from the impugned order:- 4.1. I have perused the order of the AO and also gone through the written submissions made by the appellant carefully and I intend to agree with the above arguments of the appellant. In a number of recent judicial decisions, it has been decided by various courts that the deduction to the Housing Projects u/s. 80IB(10) of the Act is to be allowed to the housing project of an undertaking even though it contain area of commercial establishments. 4.2. As per the details filed, it can be observed that the total built up area of the housing project Gagan Vihar Complex of the appellant is 1,33,874 sq. ft out of which the area of the commercial establishments is 5286.20 sq. ft., which comes to 3.95% of the total built up area. These commercial establishments in the residential housing project are in accordance with the rules and regulations prescribed by Development Control Regulations of the local authority, which are part and parcel of the housing proj....
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....al area, such projects normally should not get benefit of deduction unless the undertaking can show that the income from construction of residential dwelling units can be worked out separately, and even after excluding the commercial use of plot, the project satisfies all the requirements of s. 80- IB(10) on standalone basis". 4.4. It was further observed by the Hon'ble ITAT Pune Special Bench in the case of Brahma Associated Vs Joint Commissioner of Income Tax (Supra) that "it would be reasonable to grant benefit of the incentive provision to projects in which the built up area for the commercial purpose does not exceed 10 percent of the total areawhere approximately 90 percent or more of the total area is utilized for building dwelling unit and other conditions of 80IB(10) are fulfilled, there is no justification to deny the benefit where project has been passed as "residential cum commercial': 4.5. In the light of the above observations, the case of the appellant falls within the parameters set by the above decision in the case of Brahma Associates Vs Joint Commissioner of Income Tax (Supra). In the housing project of the appellant the commercial component of the proje....
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....n of the AO that the permissible shopping area of housing project exceed 5%, the assessee is not entitled for relief u/s. 80IB(10), we are of the view that the housing projects which were approved before 31.3.2005, there was no stipulation as to the shopping complex area is permissible in the project. As already stated earlier that the amendments were subsequently made while extending the deduction of income from housing project approved upto 31.3.2007, the denial of deduction in our view, is clearly not in accordance with law." 4.9. The view of the AO also cannot be accepted that the appellant has not completed the housing project on before 31/03/2008. The AR of the appellant has vehemently opposed the above observations of the AO and has contended that such occupation certificates in respect of all the 8 buildings of the Gagan Vihar Complex were obtained after the completion of the buildings which was much before 31/03/2008. Therefore there is no violation of the provisions of section 80IB(10) on this account. 4.10. The above contention of the appellant is correct. The AO has not pointed out as to how the appellant has not completed the housing project on or before 31/03/2008. ....
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....g project. On appeal, before the ld. Commissioner of Income Tax (Appeals), the facts were considered and ultimately, the claimed deduction was allowed as discussed hereinabove. The Revenue is aggrieved and is in appeal before this Tribunal. 2.3. We find that the claimed deduction was denied to the assessee broadly on the ground that the conditions enshrined in the section are not fulfilled on account of built up area of shops exceeded the prescribed limit and further the assessee did not obtain completion certificate on or before 31/03/2008 from the appropriate authority who approved that building plan. We further note that the ld. Commissioner of Income Tax (Appeals) at page-3 of the impugned order has reproduced section 80IB(10) of the Act, therefore, we are refraining ourselves to reproducing the same. There is no dispute to the fact that the sanction plan/approval was granted to the assessee as residential cum commercial project by CIDCO/competent authority. The entire project namely "Gagan Vihar complex", consisting of eight buildings was approved by the local authority under a single project under group housing scheme. In such a situation, in our view, the project as whole s....
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....e was no such limit in force for the earlier years - Restriction of 5 per cent is applicable only with prospective effect and there is no justification to presume that such a limit or prohibition was in place in the earlier years as well on the commercial use of area - It would be reasonable to grant benefit of incentive provision to projects in which built up area for commercial purposes does not exceed 10 per cent of total area - Where approximately 90 per cent or more of the total area is utilized for building dwelling units and other conditions of s. 80-IB(10) are fulfilled, there is no justification to deny the benefit where the project has been passed as "residential-commercial project" - Where the total builtup commercial area is more than 10 percent of total area, such projects normally should not get benefit of deduction unless the undertaking can show that the income from construction of residential dwelling units can be worked out separately, and even after excluding the commercial use of plot, the project satisfies all the requirements of s. 80-IB(10) on standalone basis". 2.4. If the totality of facts available on record is kept in juxtaposition with the order of the ....