TaxTMI 
TaxTMI 
2020 (12) TMI 59
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....ant in Tax Appeal Nos.52 of 2016 and 49 of 2016. ORAL JUDGMENT (Per M. S. Sonak, J) Heard Mr. Mihir Naniwadekar, learned counsel for the Assessee, and Ms. S. Linhares, learned Standing Counsel for the Revenue. 2. The learned counsel for the parties submit that the issue involved in all these appeals is common though the appeals may relate to different Assessment Years. They, therefore, agree that all these appeals can be disposed of by a common judgment and order. They submit that the Tax Appeal No. 5 of 2016 which relates to the Assessment Year 2008- 2009 may be taken as the lead matter. 3. The challenge in this appeal is to the judgment and order dated 14.07.2015 made by the Income Tax Appellate Tribunal (ITAT) in ITA Nos. 19 ....
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....o the conclusion that the Assessees was further entitled for exemption under Section 80IB(10) of the Income Tax Act on proportionate basis ?" 7. The assessee in the present matters has put up two housing projects "Devashri Garden" comprising of 105 residential units and "Vasant Vihar" comprising of 90 residential units. The assessee was denied the deduction under Section 80IB of the Income Tax Act (IT Act) by the Assessing Officer (AO) vide order dated 21.12.2010 on the ground that the area of five residential units in "Devashri Garden" and three residential units in "Vasant Vihar" exceeded 1500 square feet and this was in breach of conditions contained in sub-clause (c) of Clause 10 of Section 80IB of the IT Act. In denying this deducti....
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....pprovals were obtained by the assessee from the Local Authorities and the planning Authorities for putting up a housing project having residential units of less than 1500 square feet. He submits that if thereafter the allottees combined two residential units, the deduction under Section 80IB(10) can never be denied to the assessee. He submits that this contention of the assessee which was backed by documentary evidence which was not even considered by the ITAT. Hence, the appeals by the assessee. Mr. Naniwadekar relied upon several decisions in support of his contention. 12. Ms. Linhares, learned counsel for the Revenue submitted that there is no error in the findings of fact concurrently recorded by three Authorities that 8 out of 195 r....
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....a High Court. 15. Mr. Naniwadekar further pointed out that even the decisions in Brahma Associates (supra) and Vandana properties ( supra) assist the case of the assessee and not of the Revenue. He points out that in Commissioner of Income Tax-21 Vs Aakash Nidhi Builders and Developers (2016) 76 Taxman. com 73 (Bombay) the Revenue conceded that the proportionate deduction can be granted because of the decision in Vandana properties (supra). 16. Mr. Naniwadekar relied upon some other decisions as well to submit that the proportionate deduction can always be granted under Section 80IB(10) of the IT Act, even assuming that the area of some of the residential units was more than the ceiling prescribed in clause (c) of Section 80IB(10) of ....
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....d that the legislature has used the expression " the residential unit" in clause (c) of Section 80IB(10) of the IT Act and omitted to use the expression "each residential unit" . This omission is deliberate because in several sections like Section 5A, 6(5), 10(10), 35D(1), 44AD(3), 80HHB, 80I(5), 153C, 153D, 158DA, 293A(3), 296 and 298(4) of the IT Act as well as under Rules 2BA, 20(4), 22(3), 62(3), 74(2), 74(6) and 104, the legislature has expressly used the word "each". The Karnataka High Court has reasoned that it is well settled that when a situation has been expressed differently, the legislature must be taken to have been tended to express a different intention {See: Commissioner of Income Tax - Delhi Vs East West Import and Export (....
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....nal that in fact, there was no merger of two flats and consequently, there was no breach of condition that required the area of the residential units to not exceed 1000 square feet. Vandana properties (supra) is, therefore, of no assistance to the Revenue in this matter. 24. Similarly, the issue involved in Britannia Industries Ltd (supra) was entirely different, and in the present matters, it is not even the case of the Revenue that two projects put up by the assessee were not housing projects. Accordingly, even Britannia Industries Ltd. (supra) can be of no assistance to the Revenue in these matters. 25. In Aakash Nidhi Builders and Developers (supra) the Revenue conceded that the issue of proportionate deduction was decided by the ....