2016 (4) TMI 425

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....that the assessee is engaged in the business of real estate and a project named "Brahma Estate" was floated at Kondhwa, Khurd, Pune during the F.Y. 2000-01. The assessee claimed the said project to be an eligible project u/s.80IB(10) of the I.T. Act. The commencement certificate for the said project was obtained from the local authority on 06-10- 2010. The assessee declared profits from the project for the first time in A.Y.2003-04 and claimed deduction u/s.80IB(10) of the I.T. Act on the entire project. The AO noted that the assessment u/s.143(3) of the I.T. Act for the A.Y. 2003-04 was completed on 27-03-2006 denying the deduction u/s.80IB(10) of the Act on the ground that the project was not completed as on 31-03-2006 and the project was....

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....he provisions of section 80IB(10) of the Act, the assessee for getting the benefit has to fulfil the following conditions : a) Housing project has to be approved by local authority. b) Project to be completed before 31-03-2003. c) Project to commence on or before 01-10-1998 d) Size of the plot of the land for the project should have a minimum of 1 acre. e) Residential unit in cities other than Delhi or Mumbai should have maximum built up area of 1,500 sq.ft. 4. However, since the project "Brahma Estate" was not completed before 31-03-2003 and since the commercial built up area of the project "Brahma Estate" is 7128.87 sq.mtr being more than 20% of the total built up area and since the income that has accrued during the fin....

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....mended section) neither contemplate, nor provide for, any commercial space or area whatsoever as constituting a part of a 'housing project' ? 4. The learned Commissioner of Income Tax (Appeals) erred in holding that though the amended provision of section 80IB(10)(d) came into operation w.e.f 01.04.2005, those were not applicable in the case of assessee relating to AY. 2010-11 without appreciating and applying the principle laid down by Hon'ble Supreme Court in the case of CIT Vs. Isthmian Steamship Line, 20 ITR 52 and Karimatharuvi Tea Estate Ltd., 60 ITR 262 ? 5. The learned Commissioner of Income Tax (Appeals) erred in holding that the amended provisions u/s. 80IB(10)(d) would not be applicable w.e.f. 01.04.2005 as the ....

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.... appeal filed by the revenue against the order of the Tribunal the following questions of law were admitted for A.Y. 2003-04 in assessee's own case : "1. Whether on the facts and in the circumstances of the case and in law, the Income-tax Appellate Tribunal was justified in holding that the deduction u/s.80IB(10), as applicable prior to April 1, 2005 is admissible to a 'housing project' comprising of residential housing units and commercial establishments ? 2. Whether on the facts and in the circumstances of the case and in law, the Income-tax Appellate Tribunal was justified in holding that a project having commercial area up to 10 per cent of the project is eligible for deduction on the entire profits of the project u/s.80IB(10) up ....