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Income Tax Appellate Tribunal, “D” BENCH,
Before: SHRI D.KARUNAKARA RAO & SHRI AMARJIT SINGH
Date of Hearing : 17.08.2015 Date of Pronouncement : 19.08.2016 O R D E R D.KARUNAKARA RAO, AM: 1. This is the appeal filed by the Revenue against the order of CIT(A)- II, Thane dated 31.10.2014. The Ground raised in the appeal is as under:
“Whether on the facts and in the circumstances of the case, and in law, the Hon’ble CIT(A) was right in deleting the addition of Rs. 82,24,290/- on account of disallowance of claim u/s 80IB(10) of the Act despite the fact that the assessee had constructed commercial area of 1800 sq.ft. and hence violated the conditions prescribed u/s 80IB(10).”
At the outset, there is none to represent for the assessee.
However, considering the fact that the Ground raised in the appeal relates to an issue which is already covered by the binding judgment of the jurisdictional High Court in the case of Brahma Associates (333 ITR 289), with the help of the ld. DR for the Revenue for the reason we proceed to adjudicate this issue in favour of the assessee. There is no dispute on the facts. Only legal dispute raised in the Ground by the Revenue relates to the applicability of the amended provisions of section 80IB(10) of the Act to the project which is approved prior to the said amendments. In this regard, we find that the project in question was approved prior to 01.04.2005. Therefore, the assessee has not violated the requisite conditions with regard to the extent of sq.ft., specified for the commercial area of the Housing Project.
In this regard, paragraph 4.2 of the order of CIT(A) is relevant and the same is extracted as under:
“4.2 As regards commercial area of 1800 sq.ft. contained in the Housing Project, it is an established legal position that there was not limit for commercial area in the housing project approved prior to 1.4.2005 as held by the Hon’ble jurisdictional High Court in the case of Brahma Associates (supra)”. The Hon’ble ITAT has also emphasized this aspect of the legal position in its order under reference. Accordingly, the commercial area of 1800 sq.ft. in the housing project of the appellant which undisputedly approved prior to 1.4.2005 would not be of any consequence so far as the deduction u/s. 80IB(10) is concerned. Even for the sake of arguments, it is presumed that the amended provisions would apply, then also the appellant satisfied the conditions because the commercial area was less than 2000 sq.ft. or 5% of the total built up area whichever was higher. Therefore, I hold that there is no violation in the case of appellant so far as the commercial area contained in the housing project is concerned which has been duly approved by the competent authority.
Considering the above, we are of the opinion that the CIT(A) is rightly decided the following binding jurisdictional High Court judgment in the case of Brahma Associates (supra). Therefore, we find that the order of CIT(A) is fair and reasonable and it does not call for any interference.
Accordingly, Ground raised by the Revenue is dismissed.
In the result, appeal of the Revenue is dismissed.
Order pronounced in the open court on this 19th day of August, 2016.