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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SRI MAHAVIR SINGH & SRI MANOJ KUMAR AGGARWAL
IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SRI MAHAVIR SINGH, JUDICIAL MEMBER AND SRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER (A Y: 2003-04) Vs. Paresh The Income Tax Officer, Ward-3(4), Construction Co., Kalyan Range-3, 2nd floor, Rani Shop No.6, Ground Floor, Mansion, Murbad Road, Kalyan (W), Dass Krupa Building, R. P. 421 301 Road, Kalyan (W) 421301 PAN:AABFP 5209 K .. Appellant Respondent Appellant by .. Ms. Bharti Singh, DR Respondent by .. Ms. Nikita Agarwal,AR Date of hearing .. 27-07-2016 Date of pronouncement .. 27-07-2016 O R D E R PER MAHAVIR SINGH, JM:
This appeal by the Revenue is arising out of the order of CIT (A)-1, Mumbai passed in appeal No.323/11-12 dated 12-06-2014. Assessment was framed by the ITO- Ward 3(4), Mumbai for assessment year 2003-04 vide his order dated 04-11-2011 passed u/s 143(3) read with Section 254 of the Income Tax Act, 1961 (hereinafter “the Act”).
The only issue in this appeal of the Revenue is against the order of the CIT (A) allowing deduction u/s 80-IB of the Act. For this, the Revenue has raised the following 3 grounds:- 1. “Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in allowing the deduction u/s 80IB (10) without appreciating the fact that the AO has rightly disallowed it as the basic conditions for claim of deduction was not fulfilled i. e. the commercial unit admeasuring 3150 sq. ft. was constructed out of total built-up area of 59852 sq. ft. and also the approved plan was for a residential & commercial project”.
2. “Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in not considering the fact that amendment which was made from 01/04/2005 was not with retrospective effect therefore the amendment is not applicable to this case as the project was approved on 03/04/1999 and revised on 09/04/199”. 3. “Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) Thane allowed the claim u/s 80IB (10) based on the decision of M/s. Brahma Associates which has not been accepted by the Department which is pending before Supreme Court”.
Briefly stated facts are that the AO disallowed the claim of deduction u/s 80IB(10) of the Act in respect of the assessee’s construction of commercial area i.e. built-up area of commercial units at 3190 sq. ft. which is more than the prescribed limit of 2000 sq. ft. He disallowed the claim of the assessee for deduction u/s 80IB (10) of the Act. The AO also noted that this case is covered by the decision of the Special Bench of ITAT in the case of Brahma Associates and others in dated 06- 04-2009 and it has not become final and SLP is pending before the Hon’ble Supreme Court against the order of the Hon’ble Bombay High Court wherein the Hon’ble Bombay High Court has confirmed the order of the Special Bench of the Tribunal. The CIT (A), following the judgment of the Hon’ble Bombay High Court in the case of CIT Vs Brahma Associates [2011] 333 ITR 289 (Bom) allowed the claim of the assessee vide Para 12 by observing as under:- “12. With regard to the extent of the commercial area in the housing project, it is seen that the ITAT, Special Bench, Pune had held that before 1.04.2005 if the commercial area in a housing project was less than 10%of the total built up area of the project, then no adverse inference was required to be drawn and deduction u/s. 80IB (10) was to be allowed. However, Hon’ble Bombay High Court in the case of Brahma Associates & Others has further removed the restriction of even 10% in respect of the commercial area for projects approved before 01.04.2005 as there was no such limit prescribed by the Act. The amendment to section 80IB (10)(d) prescribing the limit 5% of the total built up area or 2000 sq. ft. whichever is less, has been held to be prospective by the Hon’ble Bombay High Court in the case of Brahma Associates & Others”.
Now before us, the learned Counsel for the assessee stated that even the SLP has been dismissed by the Hon’ble Supreme Court in the case of Brahma Associates and Others reported in (2015) 277 CTR report 297.
In terms of the above facts that the issue is covered by the decision of the Hon’ble Bombay High Court in the case of Brahma Associates and others (supra) in which eventually even the Supreme Court confirmed the decision of the Hon’ble Bombay High Court dismissing the SLP. Respectfully following the same, we confirm the order of the CIT (A) and dismiss the appeal of the Revenue.
In the result, the appeal of the Revenue is dismissed. Order pronounced in the open court on 27/07/2016.