2012 (10) TMI 1093

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....nal is right in law and on facts to allow deduction on pro rata basis excluding commercial construction when the deduction was allowed only to housing projects and there was no scope for commercial construction, particularly when total area of commercial construction is more than permitted area subsequently allowed by amendment by Finance Act, 2009 w.e.f. 01.04.2005? (B)Whether the Appellate Tribunal is right in law and on facts in restricting the addition made by the Assessing Officer u/s68 of the Act on account of unexplained cash credit at ₹ 9,760/- instead of ₹ 4,06,463/-? (C)Whether the Appellate Tribunal is right in law and on facts in restricting the addition made by the Assessing Officer u/s 69C of the Act on accou....

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....'s appeal. 3) We may notice that during the year under consideration, section 80IB (10) of the Act did not prescribe any maximum limit of commercial construction in a housing project to be eligible for deduction under such provisions. The Commissioner (Appeals) as well as the Tribunal both noted that the project was duly approved by the local authority. The shops were of small size and all shops provided the daily utility supplies of the residents. We are convinced that the Tribunal committed no error in upholding the Commissioner's order granting benefit of deduction to the assessee under section 80IB(10) of the Act, particularly when such deduction was confined to the exclusion of the area occupied by the commercial construction.....

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.... 80-IB(10) inserted with effect from April 1, 2005 provides that even though shops and commercial establishments are included in the housing project, deduction under section 80-IB(10) with effect from April 1, 2005 would be allowable where such commercial user does not exceed five per cent of the aggregate built-up area of the housing project or two thousand square feet whichever is lower. By the Finance Act, 2010, clause (d) is amended to the effect that the commercial user should not exceed three per cent of the aggregate built-up area of the housing project or five thousand square feet whichever is higher. The expression "included" in clause (d) makes it amply clear that commercial user is an integral part of a housing project. Thus, by ....