TaxTMI 
TaxTMI 
2014 (6) TMI 1020
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....09) : 2. Facts of the case, in brief, are that the assessee is an individual and is engaged in the business of Builders and Developers in the name of "Subhash Builders" as a proprietorship concern. He filed his return of income on 23-09-2008 declaring total income of Rs. 2,63,40,213/-. During the course of assessment proceedings the AO noted that the assessee had undertaken development and construction of one project, i.e. "Vardhaman Township". It was started on 20-05-2002 as per approval dated 23-03-2001. The project has been constructed on land admeasuring 40,050 sq.mtrs having residential units from 480 to 900 sq.ft. The project has also commercial establishment of about 750 sq.ft. 2.1 From the various details furnished by the assessee the AO observed that the assessee has claimed deduction/s.80IB(10) as under : Assessment Year Amount 2004-05 Rs.29,98,262/- 2005-06 Rs.60,00,309/- 2006-07 Rs.1,70,70,777/- 2007-08 Rs.2,51,91,854/- 2008-09 Rs.2,79,35,311/- The AO, therefore, asked the assessee to justify the said claim of deduction in the light of disallowance of the same in earlier assessment year, i.e. 2007-08. From the various details....
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....ngs in the housing project are not completed? c) Whether appellant is entitled to pro-rata deduction on flats/housing units completed by 31-03-2008? 3.5 The first issue is crucial, having as it were important ramifications. It is seen from the record that, almost immediately after survey and statement recorded on 13.5.2008, the appellant addressed a letter to the Assessing Officer on 28.5.2008, wherein he states that he is willing to pay tax on the incomplete part of the project, but requesting that deduction u/s 80IB(10) be allowed on the completed part of the project. On being informed by the Assessing Officer by letter dated 23.6.2008 that the appellant's contention was incorrect and contrary to the provisions of sec. 80IB(10) and therefore, he must honour his commitment and pay the taxes, the appellant paid taxes of Rs. 98,48,000 under protest and without prejudice to his claim for-'deduction u/s 80IB(10) and informed Assessing Officer vide letter dated 14.7.2008. It is to be noted that the appellant did not, however, file revised returns in response to 148 notice for A.Ys. 2004- 05 and 2005-06 but furnished reply stating that original returns filed on....
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....and D2 vide reference No. 1256 dated 9.10.2002. As per this approval, in addition to already sanctioned residential floor space of 8496.99 sq.m., appellant further proposed construction of another 7074.22 sq.m., thereby making total of 15,571.21 sq.m. The annexure to this commencement certificate, containing 14 sheets of approved plan refer to commencement certificate No. 4434 dated 20.5.2002. 3.7 The second revised approval in respect of the plot was received from PMC vide commencement certificate No. 2897 dated 15.9.2003. As per this certificate, permissible FSI is 38,018.56 sq.m. and proposed residential floor space is 16033.80 sq.m. This plan makes minor changes in the FSI calculations for buildings D, D1,D2 and D3. This certificate also refers to CC No.4434 dated 20-5-2002. The final and third revision of plan was communicated vide CC No. 3402/06 dated 22.12.2006. The permissible FSI remained unchanged at 38018.56 sq.m. and proposed residential floor space was 18330 sq.m. This plan made provision for commercial space of 17.75 sq.m. in ground floor of D building and 156.62 sq.m. of commercial space in ground floor of D3 building. This plan gives reference to earlier CC....
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.... first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority;" 3.10 From the plain reading of the section, it is clear that the appellant received its first approval for its housing project on 20.5.2002 and all subsequent approvals taken were for amendments to its initial plan to construct 9 residential blocks. Consequently, as per Explanation (i) to sec. 80IB(10)(a) the deemed date of approval of the housing project would be 20.5.2002. For the impugned assessments therefore, since the completion certificate in respect of the housing project was not received till 31.3.2008, the Assessing Officer was justified in rejecting the claim of the appellant u/s 80IB(10). Further, as is discussed in the subsequent paragraphs, the appellant's reliance on Bombay High Court decision in Vandana Properties is not justified. 3.11 The Mumbai High Court in Vandana Properties case has, (206 Taxman 584) in relation to Explanation to sec. 80IB(10)(a) held as under: "22. Reliance placed ....
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....also went into the issue as to whether a builder must have a vacant plot of land with a minimum area of one acre so as to be eligible for deduction u/s 80IB(10) but since it is not relevant to the facts of the present case, this aspect may be ignored for the present. 3.13. From the facts narrated above, it can be seen that the facts in the present case are completely distinguishable from the facts and circumstances adjudicated by Mumbai High Court in Vandana Properties. It is clear from the preceding paragraphs that the appellant sought revision of its original housing project that was earlier approved by PMC bearing Reference No. 4434, and such approval was received on 20.5.2002. The appellant sought certain modifications to its housing project which was approved by PMC on 9.10.2002. A second revision was sought by the appellant and received on 15.9.2003. Again, for the third time the appellant sought revision of its original plan for the housing project from PMC which was received on 22.12.2006. This is therefore, a case, as the Hon'ble Mumbai High Court held vide para 22 of its judgement reproduced at para 5.1 supra, where amendment of the building plan at several s....
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....71 (Chennai) Aruna Excello ii. 33 SOT 277 (Mum) ACIT vs Sheth Developers iii. 25 DTR 278 (Nag) ITO vs AIR Developers iv. 119 TTJ 269 (Bang) Brigade Enterprises v. 22 DTR 1 (Pune) (SB) Brahma Associates vi. 39 DBCAJ 546 (Cal) Bengal Ambuja Hsg. Developers vii. 35 SOT 135 (Murn) Arpana Development Corporation viii. Ekta Housing Pvt. Ltd. (Mumbai ITAT) ITA No. 3649/Mum/2009 dated 20.5.2011 4.1 All the above case laws relied upon by the appellant are perused. It is seen that all of them are on the issue of pro-rata deduction u/s 80IB(10) in respect of eligible residential units as prescribed u/s 80IB(10)(c) and are not relevant to the facts of the instant case, save and except Brahma Associates, which revolved around the issue of commercial user in housing project approved prior to 1.04.2005, In that case, the honourable Mumbai High Court implicitly disapproved of concept of proportionate deduction u/s 80IB(10). The High court held that sec. 80IB(10) allows deduction to the entire project approved by the local authority and not to a part of the project. When all the conditions prescribed by the statute as satisfied....
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....roviding affordable housing: accommodation to public at large. Further as has been held in the preceding paragraphs, unlike Vandana Properties case, where an individual building was held to be a housing project, primarily because there was held to be no linkage between the old buildings completed prior to 1/10/1998, in the appellant's case the housing project has been amended and the deemed date of first approval within the meaning of section 8018(10) read with explanation(i) has to be taken as 31-10-2005. 4.3 On the issue of prorata deduction, there are two decisions of High Courts namely Kolkata High Court's decision in Bengal Ambuja Housing Devt and Mumbai High Court's decision in Brahma Associates. Neither of these two decisions are squarely on the issue of deemed date of approval of housing project and date of completion thereof. However, during the course of hearing on 29.10,2012, the learned AR of the appellant has submitted that on the identical facts, the Pune bench of ITAT has allowed prorata deduction u/s 80 IB(10) in the case of Ramsukh Properties vs DCIT, Circle 2 Pune in ITA No 84/PN/2011 vide their order dated 5.07.2012. I have perused the said o....
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....am constrained to accept the dictates of judicial discipline and follow the ratio laid down in the order of ITAT referred to supra. Consequently, it is held that the appellant is allowed deduction u/s.80IB(10) on proportionate basis in respect of projects completed during the impugned assessment years. The additional ground of appeal is thus allowed. 3. However, for the A.Y. 2008-09 the Ld.CIT(A) deviated from the order of his predecessor and upheld the order of the AO in denying the benefit of deduction u/s.80IB(10) by following the decision of the Hyderabad Bench of the Tribunal in the case of Sainath Estate Pvt. Ltd. reported in 142 ITD 370, the decision of the Mumbai Bench of the Tribunal in the case of Everest Home Construction India Pvt. Ltd. and the decision of the Mumbai High Court in the case of Brahma Associates reported in 333 ITR 289. 3.1 Against the order of the CIT(A) for A.Y. 2008-09 the assessee filed a petition u/s.154 of the I.T. Act which was dismissed by the CIT(A) vide order dated 13-12-2012. The assessee has filed an appeal against the said order. As against the order of the CIT(A) allowing pro-rata deduction for A.Yrs. 2004-05 to 2007-08 the Revenue is ....
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....arni Developers Ltd. Vs. ACIT vide ITA Nos. 1428 and 1429/PN/2008 order dated 08-08-2012 for A.Yrs. 2004-05 and 2005-06 after considering the decision of the Hon'ble Mumbai High Court in the case of Brahma Associates (Supra) has allowed the claim of proportionate deduction. He accordingly submitted that this being a covered matter the claim of deduction u/s.80IB(10) for all the years should be allowed. 6. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A) for A.Y. 2008-09 and submitted that since the assessee has not fulfilled the conditions laid down u/s.80IB(10), therefore, he cannot be allowed proportionate deduction u/s.80IB(10). 7. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. There is no dispute to the fact that during the course of survey carried out u/s.133A on the business premises of the assessee on 13-05-2008 it was found that the project had not been completed as required under the provisions of section 80IB(10) as it stood prior to....
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....he assessee are two different projects. The relevant observations of the Ld.CIT(A) are already reproduced at para 4.1 of the impugned order. The revenue is not in appeal before us on this issue. Therefore, this issue on which the AO has denied the deduction is not relevant. 14. However, the Ld.CIT(A) upheld the action of the AO in denying the claim of deduction on the other reasons stated by the AO, i.e. (a) the completion certificate has not been obtained on or before 31-03-2008 (b) that the assessee did not explain anything about Project B and (c) that the project includes shops and commercial area in excess of the prescribed limit. 14.1 From the details furnished by the assessee in the Paper Book we find the details of completion certificate No and date and the reference to the date of application are as under : Project A -Plot No 3 Completion Certificate No Date Completion With reference to date Building No of flats SHOPS BCO/03/262 28/06/2000 27/03/2000 F 48 0 640 30/03/2010 04/04/2006 D-1 24 7 640 30/03/2010 04/04/2006 D-2 24 8 640 30/03/2010 04/04/2006 E-2 24 ....
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....e completion certificate issued by the PMC dated 31-03-2010 for Buildings of Project A is not with reference to application dated 04-04-2006. Therefore, in our opinion, the completion certificate issued on 31-03-2010 with reference to the application dated 04-04-2006 for Project A relates back to the date of application, i.e. 04-04-2006. 14.4 The second issue on which the Ld.CIT(A) completed the denial of deduction u/s.80IB(10) is that nothing was explained about Project B. As already mentioned earlier completion certificate for Building G & H of Project B has already been granted on 05-10-2005 which is not disputed by the Revenue since a copy of the same was filed before the AO & CIT(A) as certified in the Paper Book and not disputed by the Revenue. So far as the building I + K of Project B is concerned we find although the assessee has applied for the same on 04-04-2006, however, the same is pending before PMC for technical reasons. 14.5 We find the Pune Bench of ITAT in the case of Hindustan Samuha Awas Ltd. has observed as under : "9. From the above, one this is clear that the date that appear on the Architect's Completion Certificate filed before the....
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....e. In particular, the Tribunal noted that the construction was completed in 2006. Application for BU permission to the Municipal authorities was filed on 15.2.2006 which was rejected on 1.7.06. Several residential units were occupied since the same was done without necessary permission. The assessee had also paid penalty and got such occupation regularized. Several tenements were sold long before the last date. 6. In the present case, therefore, the fact that the assessee had completed the construction well before 31st March, 2008 is not in doubt. It is, of course, true that formally BU permission was not granted by the Municipal Authority by such date. It is equally true that explanation to clause (a) to section 80-IB(10) links the completion of the construction to the BU permission being granted by the local authority. However, not every condition of the statute can be seen as mandatory. If substantial compliance thereof is established on record, in a given case, the court may take the view that minor deviation thereof would not vitiate the very purpose for which deduction was being made available. 7. In the present case, the facts are peculiar. The assessee had....
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.... Ld. Authorised Representative heavily relied on decision of Bengal Ambuja Housing Development Ltd. (supra), Brigade Enterprises P. Ltd. (supra), AIR Developer (supra), Sheth Developers (supra) and also G.V.Corporation (supra), wherein deduction u/s.80IB(10) was denied as size of some of the residential units exceeded prescribed limit as laid down u/s.80IB(10) of the Act. Above mentioned decisions are applicable in their own sphere, i.e. on point of excess area of some of the flats which hold good in its own sphere. However, in case before us, deduction u/s.80IB(10) of the Act has been rejected on the ground that condition of completion of project before the due date i.e., 31.03.2008 as laid down u/s.80IB(10)(c) of the Act, has not been complied by assessee which is basic condition for allowability of deduction u/s.80IB(10) of the Act. We find that in case of Johar Hassan Zojwalla (supra), wherein condition of completion as laid down in section 80IB(10)(a) could not be complied with because of a stay being granted by MRTP Court. Thus fault of incompletion of construction was not attributable to assessee. In case such a contingency emerges which makes the compliance with provision i....
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....g Officer is directed accordingly." 14.10 We find the Pune Bench of the Tribunal in the case of Runwal Multihousing Pvt. Ltd. (Supra) has observed as under : "18. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find in the instant case the assessee obtained the permission for construction of buildings A, B, C, D, E, F and 17 row houses on 12-12-2001. The assessee constructed building Nos. A,C, D and E and the 17 row houses and dropped the idea of construction of Building Nos. B and F being uneconomical and had not submitted any revised plan to PMC. Although the assessee applied for completion certificate on 22-01-2004, the same was not received by the assessee before 31-03-2008. It is the case of the revenue that deduction u/s.80IB(10) cannot be availed of by the assessee since it has not constructed all the six buildings and 17 row houses for which permission was granted and completion certificate was not obtained before 31-03-2008. It is the submission of the learned counsel for the asses....
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....dise Project and also submit the relevant applications? Ans. We have applied for Completion Certificate for the entire project. We are submitting herewith the application for Completion Certificate dated 22- 01-2004vide Commencement Certificate No.1372 dated 10-01-2002 as per Annexure "C". The copies of any further application, if any, we will submit the same on 2nd June 2008. Q.12. As per revised building layout sanctioned on 10-01-2003, you got approval for construction of buildings A to F and row houses 1 to 18 in Runwal paradise Project. However as seen from the list of Flat Holders submitted by you as Annexure "D" and also the inspection carried out at the site of Runwal Paradise located at S.No.981, at Paud Road, Kothrud, Pune, the construction of buildings B and F is yet to be completed. Please give your comment? Ans. Yes, I agree that the construction of buildings B and F have not been carried out with a perfect understanding in the mind that we wanted to give up these two wings. In case these wings would have been constructed they would have been very shabby and been place for non-hygiene in the entire project. Looking at the merits and demerits ....
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....vident that the assessee asserted that before 31-3-2008, the construction of building was complete in all respects; that electrical connection was provided to each flat owner; road was complete; water and drainage connection was available; sewerage system was operating; club house was functional; etc. The assessee also pointed out that the local authority had also initiated property tax assessments for each of the flats and the same demonstrated that all the flats in the building were complete. In fact, in para 6.9 of the assessment order, the Assessing Officer noticed that "the facts that the flats were completed and possession given will not come to the rescue of the assessee". The aforesaid finding of the Assessing Officer supports the assertion made by the assessee that factually speaking construction of flats in building 'E' was also complete and possession handed over to the actual user/customers prior to 31-3-2008. Pertinently, on the basis of the architect's certificate confirming completion of construction of building, the assessee applied for the completion certificate to the Pune Municipal Corporation on 12-3-2008. It has been pointed out before us that the l....
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....hority by way of filing the requisite forms together with the completion certificate given by the Architect, the specialist in the matter and the assessee has done his job scrupulously in this case. However, the local authority has neither objected to the said application of the assessee and the Architect by raising any objections for accepted by issue of said completion certificate till 10-10-2008. Therefore, the delay in grant of the said certificate is certainly not attributable to the assessee. Therefore, in our opinion, the assessee is not defaulter on this account and thus, the AO has erred in denying the deduction u/s 80-IB(10) of the Act. Accordingly, the order of the CIT(A) has to be reversed. Thus, the grounds raised in the appeal are allowed" 13. The aforesaid decision of the Tribunal is clearly applicable to the facts of the present case also. In the present case, the completion certificate was applied for before 31-3-2008 i.e. on 12-3-2008. It is undisputable that the application of the assessee has been approved by the local authority without raising any amendment or objection, as has been asserted by the assessee all along and the delayed issuance of the com....
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.... precedents. We therefore, set aside the order of the CIT(A) on this aspect and hold that the assessee cannot be denied the claim of deduction u/s 80-IB(10) on the strength of non-issuance of the completion certificate for building 'E' by the Pune Municipal Corporation before 31-3- 2008, having regard to the facts and circumstances of the case." 20.2 We find the Hon'ble Gujarat High court in the case of CIT Vs. Tarnetar Corporation (Supra) has held as under : "With respect to the second contention, we may record that the contention of the Revenue is that the assessee did not complete the housing project within the statutory time frame. Under sub-clause (i) of clause (a) of section 80IB(10), the assessee since had got approval for the housing projects from the local authority before Ist April 2004 was required to complete the construction latest by 31st March 2008. Relying on explanation (ii) to clause (i), Revenue contends that since BU permission was granted after March 2008, the construction must be deemed to have been completed after such date. Explanation (ii) reads as under : (ii) the date of completion of construction of the housing pr....
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....ld to be illegal. In the result, the Tax Appeal is dismissed". 20.3. We find the Pune Bench of the Tribunal in the case of Hindustan Samuha Awas Ltd. Vs. ITO vide ITA Nos 945 to 950/PN/2010 order dated 30- 08-2011 has held as under : "7. We have considered the above view points of the parties in disputed. We find that it is a fact that the assessee through its architect had filed application with the AMC for issuance of occupancy certificate on 25-3-2008. Requisite fee was also paid by the assessee in this regard. AMC did not raise any objection to the said completion certificate of the Architect. The occupancy certificate dt.10-10-2008 has been issued by the AMC only on the basis of the said application dt.25-3-2008. It is also an undisputed fact that issuance of occupancy certificate is the prerogative of the local authority i.e. AMC and in this regard, the assessee has no control and it is beyond the power of the assessee to make the AMC issue the said Completion/Occupancy certificate before 31.3.2008. What was under the power and control of the assessee was only to move the AMC for completion certificate fulfilling all the requirements with the AMC for issuanc....
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....red deeming sanction will be treated as the date of Completion (occupancy) Certificate to meet out the requirement of Explanation (ii) to Section 80IB (10)(a) of the Act. We have already discussed hereinabove what would be the small objections. In brief those objections which do not affect the main project and are generally temporary constructions. 20. We thus while setting aside orders of the authorities below direct the A.O to allow the claimed deduction u/s. 80IB(10) of the I.T. Act 1961 in the assessment years under consideration treating the required date of completion of construction of the housing project as the date when above discussed deeming provision period of 21 days expired i.e. 20.11.20." B. Extract from the decision of the Tribunal in the case of Sanghvi & Doshi Enterprise vide ITA NO. 259 TO 263/Mds/2010 "24. Next objection of the Assessing Officer is that the project had to be completed on or before 31.03.2008 and since the assessee did not furnish the completion certificate, the assessee is not eligible for deduction. The objection is to the effect that the completion certificate from CMDA is dated 13.6.2008, i.e. three months after the....
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.... that the type of defects which were pointed out by the CMDA could have been rectified in such a short period. Be that as it may, the Hon'ble High Court also ratified the deviations and directed the CMDA to consider the explanation of the assessee. All these facts go to point that the project was indeed completed before the 31.3.2008. Thus, this ground also has no force to deny the assessee the impugned deduction. " C Extract from the decision of the Tribunal in the case of M/s. D.K.Construction vide ITA 243/Ind/2010 "7. We have considered the rival contentions, carefully gone through the orders of the authorities below and relevant material placed on record towards which our attention was invited during the course of hearing by the ld. Authorized Representative and the ld. Senior D.R. Provisions of Section 80IB allows claim for deduction in respect of housing project, which has been approved prior to 1.4.2004 and also completed before 31.3.2008. During the course of assessment with regard to assessee's claim of deduction u/s 80IB in respect of its D.K.Honey Homes Project, the AO has asked the assessee to furnish the certificate of completion of this project M/s. ....
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....ant one. In the instant case, the said date is 25-3-2008 and the assessee filed requisite form before the local authorities intimating the completion of the project. The said certificate/ intimation was accepted by the local authority without any amendments or objections. Local authority has not raised any queries on the quality construction of the building or the completion of the same as per the plans approved by such authority. In such circumstances, in our opinion, the delay in obtaining the completion certificate on 10-10-2008 is certainly not attributable to the assessee and obtaining the said certificate before 31.3.2008 is beyond the control of the assessee. Assessee's job includes the completion of the building in accordance with the approved plans and intimation of the same to the local authority by way of filing the requisite Forms together with the Completion certificate given by the Architect, the specialist in the matter and the assessee has done his job scrupulously in this case. However, the local authority has neither objected to the said application of the assessee and the Architect by raising any objections nor accepted by issue of said completion certificate til....
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....1333 dated 31.03.2008, the Ld. Authorised Representative heavily relied on decision of Bengal Ambuja Housing Development Ltd. (supra), Brigade Enterprises P. Ltd. (supra), AIR Developer (supra), Sheth Developers (supra) and also G.V.Corporation (supra), wherein deduction u/s.80IB(10) was denied as size of some of the residential units exceeded prescribed limit as laid down u/s.80IB(10) of the Act. Above mentioned decisions are applicable in their own sphere, i.e. on point of excess area of some of the flats which hold good in its own sphere. However, in case before us, deduction u/s.80IB(10) of the Act has been rejected on the ground that condition of completion of project before the due date i.e., 31.03.2008 as laid down u/s.80IB(10)(c) of the Act, has not been complied by assessee which is basic condition for allowability of deduction u/s.80IB(10) of the Act. We find that in case of Johar Hassan Zojwalla (supra), wherein condition of completion as laid down in section 80IB(10)(a) could not be complied with because of a stay being granted by MRTP Court. Thus fault of incompletion of construction was not attributable to assessee. In case such a contingency emerges which makes the c....
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....cribed limit. The Assessing Officer is directed accordingly. 7. As a result, the appeal of the assessee is disposed off as indicated above." In the light of the above discussion the order of the CIT(A) denying benefit of deduction u/s.80IB(10) for non-receipt of completion certificate is set-aside and the grounds raised by the assessee on this issue are allowed." 14.11 In view of the above decisions the first issue on which the Ld.CIT(A) denied the deduction u/s.80IB(10) i.e., the project is not complete before 31-03-2008 is not correct since the assessee in the instant case has applied for the completion of the project vide letter dt. 04-04-2006 and the PMC has issued certificate on 31-03-2010 with reference to the application dt. 04-04-2006, therefore, the completion certificate by PMC relates back to the date of application, i.e. 04-04-2006 and, therefore, in our considered opinion the assessee has completed the project before 31- 03-2008. So far as the second issue is concerned the assessee has duly applied for issue of completion of buildings I+K of Project B on 04-04- 2006 and has handed over the flats to the customers, that they have undertaken for....
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....5, Apex Court with two possibilities of interpretation of a taxing statute, one which is favourable to the assessee should be always preferred. 33. As also laid down in the case of Bajaj Tempo Ltd. vs. Commissioner of Income-Tax reported in 196 ITR 188 (SC), taxing statute granting incentives for promoting economic growth and development should be liberally construed to facilitate and advance the objectives of the provision. 34. Above discussion cumulatively when examined with the objectives and intent it sought to achieve in bringing about the said provision of Section 80IB(10), this amended taxing statute requires to be interpreted in favour of the assessee rather than insisting upon strict compliance leading to absurdity. 35. It can be also held that this being a substantive amendment and not a clarificatory amendment, the amendment of this nature cannot have retrospective effect." 15.2 Similar view has been taken by the Mumbai Bench of the Tribunal in the case of Hiranandani Akruti JV Vs. DCIT reported in 39 SOT 498 where it has been held that law as it existed in the A.Y. 2004-05 when the assessee submitted its proposal for slum rehabilitation and th....
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....issue of completion certificate was not for completing the project but on technical grounds, i.e. non payment of the compounding fees of Rs. 2,41,865/- for unauthorized constructions which the assessee has denied all along and non allotment of certain built up area to the economically weaker section of the society which the assessee has complied before 31-03-2008. So far as the decision in the case of Everest Home Construction (India) Pvt. Ltd. (Supra) to the proposition that the amendment brought in by the Finance Act, 2004 is applicable to A.Y. 2005-06 and onwards, even if the project is approved before 31-03- 2005 we find the same is not applicable in view of the decision of Hon'ble Gujarat High Court in the case of Manan Corporation (Supra) which has already been reproduced. Further, the decision of a High Court would prevail upon the decision of the Tribunal which is a lower forum than the High Court. 15.6 Therefore, in view of the above discussions we hold that the assessee in the instant case is entitled to the benefit of deduction u/s.80IB(10) on its housing projects. Accordingly, the first ground of the assessee is allowed. Since the assessee succeeds on the first....
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.... 1. Open Shelters Pvt. Ltd. Vs. ACIT (ITA No.219/PN/2010 for A.Y. 2005- 06 order dated 31-05-2010 2. G.K. builders in ITA No.1077 and 1078/PN/2010 for A.Y. 2005-06 and 2006-07 order dated 30-07-2012 3. Hiranandani Akruti JV Vs. Dy. CIT reported in 39 SOT 498 (Mumbai) The Tribunal also considered the judgments of the Hon'ble Bombay High Court in the case of Brahma Associates (2011) 333 ITR 289 (Bom.) to hold that amendments in question are to be seen as prospective in nature. 8. Apart from the aforesaid we may also notice the judgment of the Hon'ble Gujarat High Court in the case of Manan Corporation Vs. ACIT dated 03-09-2012 wherein the bone of contention was the applicability of the requirements contained in Clause (d) of section 80IB(10) of the Act. The Revenue had canvassed that the provision of section 80IB(10)(d) of the Act was applicable from 01-04-2005 and was to be considered for A.Y. 2006-07 as well, regardless of the date of approval of the project in question. The Hon'ble Gujarat High Court, by referring to the judgment of the Hon'ble Bombay High Court in the case of Brahma Associates (Supra) and also the judgment of the Hon'ble Kar....