2022 (7) TMI 31

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ax Act, 1961 (herein after referred to as 'the Act') vide order dated 31.03.2006. 2. This matter travelled before Hon'ble High Court by various Miscellaneous Petitions and Hon'ble High Court finally in Tax Case Appeal No. 797, 870 & 871/2010 vide judgment dated 14.02.2022 remitted all the matters back to the file of the Tribunal by giving specific directions in para 12 as under: "12. In view of the above submissions of the learned counsel for both sides, the impugned orders passed by the Tribunal are set aside. The matters are remanded to the Tribunal for passing appropriate orders on merits and also in the light of the decisions referred hereinabove. Such exercise shall be completed by the Tribunal as expeditiously as possible, after providing opportunity of hearing to the appellant. Accordingly, the Tax Case Appeals are disposed of. No costs." 3. Before us now, Ld. Counsel for the assessee has filed the history of these appeals and submitted chart in which list of dates and events and table explaining TCA Nos before Hon'ble High Court, which are relatable to orders of the Tribunal. The following chart has been placed by Ld. Counsel for the assessee:- LIST OF DAT....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... zone to include a commercial area with floor area not exceeding 100sq.m. d. The Commissioner of Income-tax (Appeals) ought to have seen that the extent of commercial holding in the housing project undertaken by the appellant was less than 100 sq.m. and there was, thus, no justification for denial of benefit under sec. 80IB of the Income Tax Act. e. The Commissioner of Income-tax (Appeals) ought not to have rejected the clarification issued by the CBDT on the ground that the same was not signed. He further ought to have noted that any clarification issued by the Central Board of Direct Taxes is on a factual and legal issue that is applicable to any assessee and cannot be restricted to apply only to the assessee in whose case it was issued." 5. Brief facts are that the assessee originally claimed the deduction of Rs. 28,32,048/- u/s. 80IB(10) of the Act in respect of its project named Marvel Apoorva and Wood Creek Country. Subsequently, the assessee revised its return of income on 03.02.2006, restricting its claim of deduction in the project Marvel Apoorva only. The assessee in the revised statement of income claimed deduction of Rs. 68,79,782/- u/s. 80IB(10) of....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ot exceeding 100 sq. meters. Even by virtue of the amendment brought about by the Finance Act, 2004, the commercial area permissible within a housing project cannot exceed 2000 sq. ft. (b) The clarification dated 04-05-2001 of the CBDT is addressed to the Maharashtra Chamber of Housing Industry in response to their query, but no such clarification ha been issued to the Tamilnadu Chamber of Housing Industry. Moreover, the copy of the CBDT's notification furnished by the learned AR is found to be an unsigned one which, therefore, raises doubt about its sanctity. (c) In respect of the A.Y. 2003-04, there is no provision in section 80 IB (10) which permits commercial area within a housing project. On the basis of the above grounds, I hold that the A.O was fully justified in disallowing the appellant's claim u/s 80IB(10). The grounds of the appellant in this regard thus fail." Aggrieved, assessee is in appeal before Tribunal. 7. Now, Ld. Counsel for the assessee Shri. G. Baskar, Advocate argued that the commercial area is only to the extent of 98.4 sq.m. which is for the daily needs of the residents of the project. Ld. Counsel stated that the committee ha....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....pproved as a housing project having residential units with permissible commercial user, then it is not open to the income tax authorities to contend that the expression 'housing project' in Section 801B(10) is applicable to projects having only residential units. It was further held that amendment of the Act came into force on 01.04.2005 and as long as the development/construction commenced on or after 01.10.1998 and completed before 31.03.2005, the assessee is entitled to the deduction. Therefore, the learned counsel for the appellant submitted that in the light of the above decision of the Honourable Supreme Court, it has to be examined as to whether the appellant has completed the construction of the housing projects before the amendment or after the coming into force of the amendment vis-avis the entitlement of the appellant to get deduction under Section 801B (10) of the Act." 9. On the other hand, Ld. Sr. DR could not controvert the above facts situation but only argued that there is no limit for commercial area prescribed on or before 01.04.2005 and assessee's case is for AY 2003-04 and once the assessee has constructed commercial area, the assessee is not entitle....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....th all the conditions of section 80-IB(10) as it stood then, the Assessee would be disentitled to the entire deduction claimed in respect of such housing project merely because he offered his profits to tax in the A.Y. 2005-06. In contrast, if the same Assessee had followed the work-in-progress method of accounting, he would have been entitled to the deduction under section 80-IB(10) upto the A.Y. 2004-05, and denied the same from A.Y. 2005- 06 and thereafter. It could never have been the intention of the Legislature that the deduction under section 80-IB(10) available to a particular Assessee would be determined on the basis of the accounting method followed. This, to our mind and as rightly submitted by Mr. Mistry, would lead to startling results. We therefore have no hesitation in holding that section 80-IB(10) is prospective in nature and can have no application to a housing project that is approved before 31st March, 2005. As the deduction sought to be claimed under section 80- IB(10) is inseparably linked with the date of approval of the housing project, it would make no difference if the construction of the said project was completed on or after 1st April, 2005 or that the p....