TaxTMI 
TaxTMI 
2016 (6) TMI 454
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....013. 2. The first issue under appeal (raised vide Grounds 1 and 2) is the validity or otherwise in law of the proportionate deduction to the assessee's, a builder and developer, housing project by the name 'Prathmesh Heritage', at Mira Road (E), Thane (falling within 25 km of the municipal limits of Mumbai), i.e., qua the residential units that do not meet the stipulated criteria of the maximum built-up area of 1000 sq. ft. per section 80-IB(10)(c). The Revenue pleads its' case with reference to the decision by the Tribunal in the case of Asst. CIT vs. Viswas Promoters (P.) Ltd. [2010] 126 ITD 263 (Chen), advocating literal interpretation of the statute, so that the word 'project' appearing therein, not defined, is to be considered as on....
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....tum of non-deduction on or with reference to a part of the project, rather, follows that of the entire project being a single project. The conditions for eligibility are, it may be appreciated, qualifying conditions and, therefore, operate cumulatively. So, however, the tribunal per its' decision in Ekta Sankalp Developers (supra) has clarified that the condition as to the cap on the built-up area, specified per clause (c) of section 80-IB(10), does not apply to the housing project as a whole, but only qua each residential unit. We may reproduce herein under the relevant part of the said order (refer para 5): '5. We, faced with the decision by the hon'ble jurisdictional high court in the case of Brahma Associates (supra), .............
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....again by the apex court. Also, fiscal statutes are to be strictly interpreted, and so are the exemption provisions. It is only once an entity or income, which is the subject matter of exemption, is found, on such construction, to be within the ambit of the provision, that a liberal approach is to be adopted toward effectuating the object of the provision, for which we may refer to Bajaj Tempo Ltd. vs. CIT [1992] 196 ITR 188 (SC) relied upon by the tribunal in the various orders, as far as appears on a reading of their extracts as listed in the tribunal's order for A.Y. 2007-08 (supra). The interpretation is also in accord with a purposive and liberal approach, advocated by the apex court in, inter alia, Bajaj Tempo Ltd. (supra). The provisi....
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....g the maximum built-up area as prescribed per clause (c) thereof, would qualify for deduction on a proportionate basis, i.e., to the exclusion of the other residential units. We decide accordingly, disposing Grounds 1 & 2 of the appeal. 4. The only other issue raised by the Revenue is of addition u/s. 69C in respect of bogus purchases at Rs. 22,76,268/-, agitated vide Grounds 3 to 7 of its' appeal. Toward this, the ld. AR would before us raise an alternative argument, i.e., even granting so, the assessee would stand to be allowed deduction u/s.80-IB(10) on the enhanced profit, i.e., to the extent of an addition u/s. 69C. 5. We have heard the parties, and perused the material on record. The ld. CIT(A), we find, has disallowed 15% of....
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....te contention could be acceded to; it being not in appeal as well as having not preferred a cross objection, i.e., could the same be admitted for consideration. In our view, the same is to be regarded as concession by the assessee with regard to the issue in principle, i.e., qua the addition for Rs. 22.76 lacs, which we have clarified to be in law a disallowance u/s. 37(1) of the Act. The question of application or otherwise of the decision in the case of Simit P. Sheth (supra), i.e., with reference to which the ld. CIT(A) has allowed relief to the assessee, and which decision was not even referred to during hearing, does not consequently arise. Further, even if therefore the assessee is not in appeal, with there further being no plea, simi....