ITA No. 105/Mum/2012 and CO No. 254/Mum/2012, (Assessment Year: 2008-2009). Case: 1. ACIT, 2. Girdharilal K. Lulla Vs 1. Girdharilal K. Lulla, 2. ACIT. ITAT (Income Tax Appellate Tribunal)
| Case Number | ITA No. 105/Mum/2012 and CO No. 254/Mum/2012, (Assessment Year: 2008-2009) |
| Counsel | For Appellant: Shri R.K. Sahu and For Respondents: Shri Suresh N. Otwani |
| Judges | D. Manmohan, Vice President and N.K. Billaiya, Member (A) |
| Issue | Income Tax Act, 1961 - Sections 80IB, 80IB(10), 80IB(10)(d) |
| Judgement Date | June 09, 2014 |
| Court | ITAT (Income Tax Appellate Tribunal) |
Order:
D. Manmohan, Vice President, (ITAT Mumbai 'G' Bench)
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These cross appeals are directed against the order passed by the CIT(A)-II, Thane and it pertains to A.Y. 2008-09.
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Following grounds were urged by the Revenue:-
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On the facts and circumstances of the case and in law, the CIT(A) erred in holding that the assessee is entitled for deduction u/s. 80IB(10), relying on the decision in the case of CIT Vs Brahma Associated, (2011) 33 ITR 289(BOM), despite the fact that total build up area of the shops is 11,854 sq. ft. which exceeds prescribed limit of "5% of total built up area or 2000 sq. ft. whichever is less" as amended by Finance (No. 2) Act, 2004.
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On the facts and circumstances of the case and in law, the CIT(A) erred in upholding the assessee's contention that substituted provisions of section 80IB(10) by Finance Act (No. 2), 2004 are applicable prospectively and not retrospectively.
On the other hand, the assessee, in the cross objection, raises the following ground:-
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The CIT(A) erred in giving the direction in the last para of the Order at Page No. 2 by expressing the opinion that the deduction on Profit from commercial areas to the extent of prescription as per clause (d) of Section 80IB(10) of the IT Act, 1961 may be allowed as against the Decision which was followed by CIT(A)-II, Thane wherein as per clause V of the Decision finding was given "wherein Commercial built up area does not exceed 10% of the total area are eligible for benefit as such projects are predominantly residential in nature" Appellant's case is covered by this findings being having identical facts (333 ITR 289-Brahma Associated vs. JCIT).
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Facts necessary for disposal of the appeals are stated in brief. The assessee is engaged in the business of construction. For the year under consideration the assessee claimed deduction of `1.08 crores under section 80IB of the Act. This deduction has been claimed against Shree Ganesh Plaza-II. The AO observed that such claim was not accepted in the previous years in view of the fact that built up area of shops and other commercial establishments exceeded 5% of the aggregate built up area or by 2000 sq. ft. Though it was admitted that the issue was disposed of by the CIT(A) and an appeal is pending before the Tribunal, in order to keep the matter alive the AO followed the same pattern and disallowed the claim of deduction under section 80IB of the Act.
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Aggrieved, assessee contended before the CIT(A) that...
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