TaxTMI 
TaxTMI 
2020 (9) TMI 691
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....inst the consistency followed by the Revenue in earlier years in the facts and circumstances of the case. 3. The ld. AR, Shri Nikhil Pathak submits that the above said additional ground is a legal issue which requires no examination of new facts and this Tribunal can take up the same as a preliminary issue. The ld. DR, Shri Alok Malviya reported no objection in taking up the additional ground as a preliminary issue. Therefore, we proceed to hear both the parties on the additional ground. 4. The brief facts relating to the issue on hand are that the assessee is a firm engaged in the business of Builder and Developer and conducts its business under the name and style of "M/s. Vishal Constructions". The assessee carried on the said housing p....
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....ording to the CIT(A) the sanctioned given by the authorities in respect of layout plan of the housing project included the residential premises and the shops and commercial establishments and there were no separate sanctioned for construction of the residential premises and shops and commercial establishments were given. The CIT(A) held that the project is a composite project and cannot be construed that the housing project and commercial establishments are separate projects and confirmed the order of AO in denying the deduction u/s. 80IB(10) of the Act. For ready reference the relevant portion at paras 12 and 13 of the CIT(A) are reproduced here-in-below: "12. Clause-Id) of the Explanation is unambiguous in intent. It states that the hou....
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.... the assessee is not eligible to claim any deduction on pro rata basis in respect of the shops and commercial establishments constructed and sold by the assessee. Ground No.2 of the revised grounds of appeal is accordingly dismissed." 6. Before us, the ld. AR Shri Nikhil Pathak submitted that the respondent allowed deduction u/s. 80IB(10) of the Act from A.Y. 2010-11 onwards and referred to Form No. 10CCB up to A.Y. 2012-13 at pages 93, 65, 44 and argued that the respondent without following the consistency in granting the deduction denied such benefit to the assessee in the year under consideration. Further, he submitted that there was no change of facts in the year under consideration as compared to earlier years. He placed reliance in t....
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....He argued that the AO denied the said benefit on the reason that the assessee exceeded the built up area for shops and commercial establishments of 5000 sq. ft. and if the arguments of ld. AR is accepted that in granting pro-rata deduction the entire provisions contemplated u/s. 80IB(10) will be frustrated. He strongly supported the order of CIT(A). 8. We note that the assessee claimed pro-rata deduction u/s. 80IB(10) for the year under consideration to an extent of Rs. 70,59,208/- page No. 21 consisting of Form No. 10CCB for A.Y. 2013-14 and the computation of total income at page No. 3 supports the same. The Form No. 10CCB clearly shows that the date of commencement on 28-03-2007 and initial year for claiming deduction is A.Y. 2008-09. I....
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....espectively. Therefore, in our opinion as rightly pointed out by the ld. AR that the respondent revenue consistently allowing the deduction u/s. 80IB(10) of the Act from the date of initial assessment year and there was no reason shown by the respondent revenue for denial of such deduction in the year under consideration. 12. Coming to the decision of Hon'ble High Court of Bombay in the case of Paul Brothers (supra) wherein the Hon‟ble High Court of Bombay was pleased to hold when there was no change in the facts which were in existence during the initial assessment year, the claim of exemption cannot be withdrawn. In the present case as discussed above, the fact remains undisputed there was no change in the facts of the case as comp....