TaxTMI 
TaxTMI 
TaxTMI 
2008 (1) TMI 420
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....ting of 11 wings i.e. wings, A, B, C, D, E, F,. G, F1, A1, B1 and B2. The principal developer in pursuance of the sanctioned plan itself constructed only two wings, viz. wing A and wing B of this building and granted sub-development rights for the remaining 9 wings of this building to the assessee firm by an agreement dt. 29th May, 2000. 4. The assessee obtained such rights of development by an agreement dt. 29th May, 2000 in respect of 6,845 sq. mtrs. from the principal developer. As per this agreement, (1) the assessee was entitled to construct 6 wings of the aforesaid building being wings C, D, E, F, G and F1 covering a built-up area of 1,72,185 sq. ft. out of which it was required to deliver 99,573 sq. ft. to the principal developer as a consideration for grant of sub-development rights to it. Subsequently, the assessee entered into a MoU dt. 29th Jan., 2001 in terms of which the assessee would retain the entire built-up area in respect of the aforesaid 6 wings and the principal developer would be compensated by the monetary payment of Rs. 12,47,56,800. In terms of these two agreements, the assessee constructed 6 wings i.e. wings C, D, E, F, G and F1 and the block of these 6 w....
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....e CIT(A) agreed with the findings of the AO in denying the relief under s. 80-IB(10) of the IT Act. The assessee is now in appeal before us. 7. We have heard both the sides. The learned counsel for the assessee contended that the AO was not justified in holding that the two blocks 'Nisarg' and 'Breezy Corner' as one housing project. The assessee obtained the sub-development rights in 'Nisarg' which consisted of 6 wings was obtained by the assessee by two agreements dt. 29th May, 2000 and 29th Jan., 2001, whereas the sub-development right of block 'Breezy Corner' was obtained by a third agreement dt. 9th Feb., 2002, which is almost after two years. It was explained by the assessee that the construction and design of the two blocks were totally different. Separate books of account for the construction of two blocks were maintained by the assessee. The AO was totally not justified in holding that these two blocks constituted one housing project only to reject the claim for deduction under s. 80-IB(10) of the Act. The assessee further pointed out that in respect of the second block, i.e. 'Breezy Corner', the assessee has not even claimed deducti....
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....stances of the present case. 9. Now coming to the objection that the area of shopping complex exceeded 5 per cent of the limit prescribed, it is pointed out that this sub-section was amended by the Finance (No. 2) Act, 2004 w.e.f. 1st April, 2005. Prior to its substitution the section granting 100 per cent deduction of income arising from housing projects, it did not contain any restriction on the area of shopping complex included in the housing projects that were approved prior to 31st March, 2005. The substituted section extended the benefit of 100 per cent deduction of income derived from housing projects approved upto 31st March, 2007, but simultaneously imposed a restriction on the area of shopping complex included in the housing project. There is no dispute that the housing project of 'Nisarg' was approved prior to 31st March, 2005 and therefore, there is no restriction of area of shopping complex. The learned counsel for the assessee pointed out that the exemption acquired under s. 80-IB(10) under the pre-substituted provision cannot be taken away by way of retrospective amendment by the Finance (No. 2) Act even if it were taken technically so. Reliance was placed o....
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....h housing project if' (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st Oct., 1998 and completes such construction,' (i) in a case where a housing project has been approved by the local authority before the 1st April, 2004, on or before the 31st March, 2008, (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st April, 2004, within four years from the end of the financial year in which the housing project is approved by the local authority. Explanation 'For the purposes of this clause' (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is 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; (b) the project is on the size of a plot of land which has a minimum area of one acre; Provid....
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....etion certificate in respect of such housing project is issued by the local authority. No such requirement before 1.4.2005 The project is on the size of a plot of land which has a minimum area of one acre. The project is on the size of a plot of land which has a minimum area of one acre. Same in both Nothing contained in cl. (a) or cl. (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf No such provision before 1.4.2005 The residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty five kilometers from the municipal limits of these cities and one thousand and five hundred square feet at any other place. The residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometers from th....
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....nclude the next project as part of the earlier housing project just to deny the statutory relief which the assessee is entitled in respect of the eligible housing project. In that way the legislative intention to give a relief to the assessee who are undertaking the low housing projects will get defeated. 'Breezy Corner' project which was meant for higher strata of the society. The assessee has segregated the same and in no way mixed in these projects either in the design or in the structural manipulation or in the provision of amenities and the assessee has not claimed any relief in respect of project which admittedly does not admit the test laid down under s. 80-IB(10) of the Act. In our view, combining these two projects into one will lead to a result which manifestly will be unjust and absurd and defeat the very provisions of deduction sections. Unless there is a clear intention of the legislature the Revenue cannot be permitted to do so. After all the assessee have obtained different commencement certificates and started on different periods of time. They are separate by time, space and statutory approvals and even in designs, maintenance of separate books of account. ....