2012 (6) TMI 859

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....im of deduction u/s 80IB (10) of the I.T. Act, 1961. Made by the assessee even though the Assessing Officer rejected the claim of such deduction on the grounds :- i. That the buildup area of the 68 shops included in the housing project of tenements exceeded 5% of the aggregate built-up area of the housing project, there by contravening the provision of Sec. 80Ib (10) (d) of the Act. ii. That the assessee was a contractor and not a builder and iii. That the assessee has sold TDR and the same being movable asset, the provisions of Sec 80IB (10) of the Act did not apply being applicable to the housing projects only. 3. On the facts and circumstances of the case and in law, the ld CIT (A) erred in appreciatin....

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....jection raised by the ld DR. 5.1 As regards the objection regarding the commercial establishment is concerned, as per remand report, the Assessing Officer has accepted the fact that the project was approved vide agreement dt 11.5.2004; therefore, the pre-amendment of provision of sec. 80IB(10) are applicable. Accordingly, in view of the decision of the jurisdictional High in the case of Brahma Associates (supra), there is no bar of commercial establishment in the housing project for availing deduction u/s 80IB(10) prior to the insertion of clause (d) w.r.f 1.4.2005. The Hon'ble High Court in para 33 has observed as under: "In the absence of any provisions under the Income-tax Act, the Tribunal was not justified in holding ....