Income Tax Appellate Tribunal - Mumbai
Haware Engineers & Builders Pvt. Ltd , ... vs Assessee on 2 August, 2007
ITA No. 6431/Mum/07
Assessment year: 2004-05
Page 1 of 17
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI H BENCH, MUMBAI
Bef ore Shri R V Easwar, Hon'ble President, and
Shri Pramod Kumar, Accountant Member
ITA No. 6431/Mum/07
Assessment year: 2004-05
Haware Engineers & Builders Pvt Ltd ................................ Appellant
413/416, Vardhman Market, Sector 17
DBC, VAshi, Navi Mumbai 400 705
PAN : AACH2577C
Vs.
Asstt Commissioner of Income Tax
Circle 29, Mumbai .......................... Respondent
Appearances:
S R Wadhva, for the appellant
Narendra Singh, for the respondent
O R D E R
Per Pramod Kumar :
1. By way of this appeal, the assessee has called into question correctness of CIT(A)'s order dated 2 nd August 2007, in the assessment under section 143(3) of the Income Tax Act, 1961, for the assessment year 2004-05.ITA No. 6431/Mum/07
Assessment year: 2004-05 Page 2 of 17
2. The assessee is engaged in construction of the building projects and the short issue that we are required to adjudicate in this appeal is whether or not the CIT(A) was justified in upholding the action of Assessing Officer in declining deduction under section 80 IB (10) in respect of Shanti Niketan project (Rs 12,44,455), Balaji Towers project (Rs 3,77,36,037) and Silicon Tower project (Rs 5,11,74,506). Let us take up these three claims of deduction under section 80IB (10) one by one.
Shantiniketan Project
3. Briefly stated, the material facts are like this. During the course of scrutiny assessment proceedings, the Assessing Officer noticed that the assessee has claimed a deduction under section 80 IB (10), amounting to Rs 12,44,455 in respect of Shantiniketan project. The Assessing Officer had, however, two objections to this claim of deduction - first, that area of plot of land is 4,000.02 square meters, which is less than one acre (one acre is equal to 4,046.82 square meters); and - second, that built up area of shops and commercial units is 4,302.88 square feet, which is more than 2,000 square feet. As regards the second point, i.e. regarding built up area of commercial units being more than 2,000 square feet, the Assessing Officer noted the same, but did not deal with the same in much detail. The Assessing Officer noted that this residential project was developed by the assessee on 4,000.02 square meter land allotted by City & Industrial Development Corporation of Maharashtra Limited (CIDCO, in short), as plot number 8 A, on 6 th February, 2001. It was also noted that construction was completed on 28 th May 2002, and that the occupation certificate of the project was also issued on 11 th July 2002. The Assessing Officer was of the view that since size of plot was admittedly less than one acre ( i.e. 4,046.82 square meters), the assessee was not entitled to deduction under section 80 IB (10). While the Assessing Officer noted that ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 3 of 17 the assessee was subsequently allotted an adjacent plot, admeasuring 48.13 square meters, by CIDCO as plot number 8B, he also held that this subsequent allotment did not make good this deficiency in eligibility for entitlement to deduction under section 80 IB(10) because " additional land was allotted to the assessee for purpose of playing ground/ green area only, and, as per terms specified by CIDCO, no development or construction was permitted therein" and "additional land, as such, could never have been utilized for development of housing project". The Assessing Officer also noted that, by way of this, " even though the agreement dated 1.4.2003 ( whereby CIDCO allotted the plot no. 8 B, admeasuring 48.13 square meters, to the assessee) modifies the original assessment retrospectively, the fact remains that the original plot of 4000.27 square meters only was utilized for housing project, and there was no development on additional plot for the simple reason that the additional plot was not available to the assessee at all" and "even otherwise, additional plot is actually a separate plot (plot 8 B) distinct from the original plot (plot 8A)". It was thus concluded that, " the assessee's contention that area of additional plot should also be included for considering area of housing project is, therefore, unacceptable". Aggrieved, assessee carried the matter in appeal before the CIT(A) but without any success. The assessee's plea to the effect that subsequent allotment of an adjacent plot, admeasuring 48.13 square meters, by CIDCO, as plot number 8B, made good this deficiency in eligibility for entitlement to deduction under section 80 IB(10), was rejected by the CIT(A) on the ground that "it is certainly not the intention of legislature that housing projects, which have already been completed on a smaller plot, will also be eligible for deduction [under section 80 IB(10)] if subsequently it buys additional adjacent land to make the total area more than one acre". The CIT(A) also noted that plot number 8B allotted by CIDCO was not to be used for any construction but was to be developed as green belt to be used as children's playground which will also have access to public at large, and ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 4 of 17 observed that it was thus "manifestly clear that the appellant has tried to get its irregular claim of deduction under section 80 IB(10) regularized through the allotment of additional plot number 8B". The CIT(A), accordingly, concluded that "additional land cannot be regarded as part of the original project as it has neither been allotted exclusively for the project nor has been used for housing project" and the size of original plot being marginally less than once acre, the assessee was not entitled for deduction under section 80 IB (10). The disallowance was thus confirmed by the CIT(A) as well. The assessee is not satisfied by the stand so taken by the CIT(A), and is in further appeal before us.
4. We have heard the rival contentions, perused the material on record and duly considered the factual matrix of the case as also the applicable legal position.
5. We have noted that though there is no dispute about the fact that size of the original plot on which housing project was developed was less than one acre, the assessee was subsequently allotted an adjacent plot which made good this deficiency so far as requirement about minimum size of plot was concerned. The claim for deduction under section 80 IB (10) has, however, been rejected by the Assessing Officer on the ground that "no development or construction was permitted thereon", and, therefore, this additional land "could never have been utilized for development of housing project", as also on the ground that "additional plot is actually a separate plot (plot 8 B) distinct from the original plot (plot 8A)". The first limb of these objections, regarding utilization of additional land for construction, however proceeds on the fallacy that only such plot area can be included in the size of the plot on which construction is permissible. It is important to bear in mind that it is area of the plot, ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 5 of 17 and not built up area, which is relevant for the purpose of deciding eligibility of the project. Section 80 IB(10) (b) provides that the housing project, in order to be eligible for deduction, must, inter alia, satisfy the condition that (b) the project is on the size of a plot which was a minimum area of one acre. It is clearly area of the plot and not built up area which is important to determine eligibility in terms of Section 80 IB (10)(b). In our considered view, the size of the plot includes entire area of the project which is developed by the builder for the residents of the project, including all common areas and public amenities for the residents of the project, and cannot be confined to only such area on which construction is permissible. Whether construction is permissible on the additional land or not is wholly irrelevant as long it is not in dispute that the said additional land was actually allotted, with or without conditions, for the purposes of the project. We have also noted that, vide allotment dated 6 th April 2004 (pages 27- 30 of paperbook, @ page 28), the land use permitted, for the additional land so allotted, was only "for the purpose of development of green belt or children playground for the members of the society" (emphasis supplied by us ), but then development of green belt or children playground "for the members of the society" cannot but be an integral part of the housing project itself. Undoubtedly, the lease deed in favour of the society (pages 31 to 36,@page34) provides that the licensee "shall develop green belt or children's playground for the members of the society on the same (plot), which will have free access to public at large without discrimination on the ground of religion, caste, creed etc.", but the expression 'public at large' in this sentence is to be read in conjunction with the words immediately following these words, i.e. without discrimination on the ground of religion, caste, creed etc.". It is not a case that the assessee has been permitted to develop a public park in the additional land so allotted, and the benefit to the residents in this project is only incidental; in fact, it is the other way round. The development in this land, as a park or children's playground or as green ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 6 of 17 belt, is for the purposes of the residents of the project - as has been specifically approved by CIDCO, and the benefit to others, if at all, is only incidental. The additional land is as much a part of the housing project as much the original plot is, as evident from the fact that supplementary agreement, to lease out additional land, is not even a standalone agreement but it only seeks to modify the original lease by including plot number 8 B in the area allotted for housing project. The mere fact that certain conditions have been put for use of additional land does not take away the fact that additional land is an integral part of the housing project which, consequent to the additional land having been allotted, now stands on plot no. 8A and 8B, as against plot no. 8A originally, collectively shown, in location plan attached to the modified agreement, as area allotted to assessee for the housing project. It is also important to bear in mind that the Central Board of Direct Taxes itself, vide circular no. 5/ 2005 dated 15 th July 2005 has observed that "This section [ i.e. 80 IB (10)] does not specifically provide area limit for the garden, the development plan roads, internal means of access, etc. in the housing project. Therefore, the same should conform to the project plan approved by the local authority in accordance with the regulations in force". This also makes it clear that even areas of gardens, development plan roads etc. are to be treated as part of the housing project as long as the same are approved by local authority in accordance with the regulations in force. It is, therefore, not correct to proceed on the basis that areas not used for construction, such as garden and roads etc., will not be included in the area of the project. The local authority in the present case is CIDCO itself as the housing project has been approved by CIDCO (page 14 of the paper-book) and commencement and completion certificates have been issued by CIDCO (pages 15-17 and 37-38 of the paper-book), and it is in accordance with the specific permission of CIDCO that the additional land has been developed, for the use of members of the society, as green belt and children's playground. The use of additional land, therefore, has to be ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 7 of 17 treated as a part of the approved project. The other objection of the Assessing Officer was that plot no. 8 B is a distinct plot and, therefore, it cannot be included in the housing project. We see no substance in this plea either. As evident from location plan attached to the modified lease agreement, plot 8A and 8B are adjacent to each other and are collectively shown as belonging to this project. It is not even necessary that area of each plot, on standalone basis, must at least be one acre. Once it is not in dispute that these two plots are adjacent plots which can be viewed as a cohesive unit, as are the admitted facts of this case, deduction under section 80 IB (10) cannot be declined only on the ground that the plot on which housing project is built originally consists of more than one units. In any event, even the lease agreement executed by CIDCO is only one, and by way of allotment of additional land, only the old agreement is modified "with retrospective effect". When lease agreement is one, plot 8 A and 8 B are adjacent plots and a cohesive unit on which project is now situated, declining deduction under section 80 IB(10) on the ground that plot 8B is a distinct plot is neither factually correct nor sustainable in law. The ground on which the Assessing Officer declined deduction under section 80 IB(10) are thus devoid of legally sustainable merits.
6. As regards learned CIT(A)'s observations to the effect that "it is manifestly clear that the appellant has tried to get its irregular claim of deduction under section 80 IB(10) regularized through the allotment of additional plot number 8B", and that it is not intention of legislature that that "housing projects, which have already been completed on a smaller plot, will also be eligible for deduction [under section 80 IB(10)] if subsequently it buys additional adjacent land to make the total area more than one acre", we are unable to see any merits in these observations either. In case an assessee finds that he is not eligible for deduction under section 80 IB(10) because size of the plot, on which project is built, is less than minimum necessary size, and he makes good that deficiency, and ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 8 of 17 ensures that all the necessary preconditions are satisfied and approvals obtained, the assessee is eligible for deduction under section 8 IB(10). The fact that he satisfied the conditions later does not adversely affect its claim for deduction. What is material is that at the point of time when matter comes up for examination of the claim, the necessary preconditions for being eligible to the claim are satisfied, and that is the case before us. The deduction under section 80 IB(10) is, therefore, admissible on the facts of this case. We make it clear that we have arrived at these conclusions on the peculiar facts of this case, and considering smallness of the size of additional plot of land which is just 48.13 meters, and this decision should, therefore, not be construed as of general applications in all such cases where additional plot of land has been added subsequently in the project. As regards the commercial built up area being in excess of 2,000 square feet, we have noted that the issue is now squarely covered by Hon'ble Bombay High Court's judgment in the case of CIT Vs. Brahma Associates ( 51 DTR 298 ) wherein Their Lordships have held that the restriction on the area of commercial use of built up area comes into play only with effect from 2005. The assessment year before us is 2004-05 and, therefore, use of commercial are in excess of 2,000 square feet does not vitiate assessee's claim for deduction under section 80 IB (10). In view of these discussions and bearing in mind entirety of the case, we hold that the assessee was eligible for deduction under section 80 IB(10) in respect of Shantiniketan project. We direct the Assessing Officer to grant the said deduction.
7. Grievance of the assessee, against CIT(A)'s upholding the disallowance of deduction under section 80 IB(10) in respect of Shantiniketan project, is thus upheld.
ITA No. 6431/Mum/07Assessment year: 2004-05 Page 9 of 17 Balaji Towers Project
8. As far as this project is concerned, the relevant material facts are like this. During the course of the assessment proceedings, the Assessing Officer noticed that land, on which this project was developed, was leased by CIDCO to a partnership firm by the name of Danik Pundhari. This land consisted of plot nos. 29 to 32 and 36 to 37 situated at Sector 30, Vashi, Navi Mumbai, and the total land area was 7,999.79 square meters. The Assessing Officer noted that, out of total built up area of 11,997.813 square meter, permissible FSI being 1.5 of the plot size i.e. 7,999.79 square meters, only 6,231.742 square meter. The Assessing Officer was of the view that, "thus it can be clearly seen that the development undertaken on the said plot of land is predominantly and substantially in nature of commercial establishment". It was also noted that "certain residential units, viz. A/105, B/107, C/102, C/106, C/107, C/207, C/607, C/707 and C/303, have built up area exceeding 1,000 sq. fts. ( calculated as predetermined percentage of super built up area/ saleable area mentioned in the agreement and after taking into consideration the area of attached terrace)". It was in this backdrop that the Assessing Officer declined deduction under section 80 IB (10) in respect of this project as well. Aggrieved by the stand so taken by the Assessing Officer, assessee carried the matter in appeal before the CIT(A) but without any success. Learned CIT(A), relying upon a coordinate bench decision of this Tribunal in the case of Laukik Developers Vs DCIT (105 ITD 657), concluded as follows:
It is very clear from the decision of Hon'ble Mumbai bench of the ITAT ( in the case of Laukik Developers) that no deduction under section 80 IB- (10) is allowable if the construction project of the assessee is not approved by the local authority as 'housing project'. In the present case, project of the appellant has been approved as 'press cum housing cum residential project'. Theref ore, f ollowing the decision of the ITAT, Mumbai benches, mentioned above, it is held that the construction project of the appellant, namely Balaji Tower, is not entitled to ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 10 of 17 deduction under section 80 IB (10). In view of this finding, it is not necessary to examine whether area of some of individual flats were more than 1,000 sq. ft. rendering the appellant ineligible f or deduction under section 80 IB (10). The appeal of the appellant, on this point, is, accordingly, dismissed.
9. The assessee is aggrieved and is in appeal before us.
10. We have heard the rival contentions, perused the material on record and duly considered factul matrix of the case as also the applicable legal position.
11. We find that the basic reason of the impugned disallowance of deduction is that the project was not approved as a housing project but as a housing cum commercial project, and because the project had substantial commercial area. The issue as to what should be done in such cases came up before a Special Bench of this Tribunal in the case of Brahma Associates Vs JCIT (119 ITD 255). That was a case in which the project was not approved as a housing project but as 'residential + commercial project', and deduction under section 80 IB (10) was declined, following coordinate bench decision in the case of Laukik Developers (supra), on the ground that it was not a housing project. The Special Bench, inter alia, held that " as long as the residential use of built-up area is 90 per cent or more, it cannot be said that the project is not a predominantly housing project and, accordingly, deduction under section 80-IB(10) cannot be declined". It was thus held that a commercial built up area of upto 10 percent would not vitiate the entitlement for deduction under section 80 IB (10). However, when matter travelled in further appeal before Hon'ble Bombay High Court, Their Lordships held that no such limit on commercial use were justified. On the facts of this very case, in which the project was admittedly a residential cum commercial project, Their Lordships, inter alia, observed as follows :
ITA No. 6431/Mum/07Assessment year: 2004-05 Page 11 of 17 ........In the present case, it is not in dispute that the project is approved for residential and commercial buildings as per the DC Rules, Pune. The fact that the residential buildings under the DC Rules can have commercial user upto 50% of the built- up area of the plot cannot be a ground to hold that the project is not a housing project. It is for the legislature to impose restrictions on commercial user in a project for the purposes of availing Section 80IB(10) deduction and that has been done by inserting clause (d) to Section 80IB(10) with effect from 1/4/2005. Therefore, the decision of the Tribunal in holding that a project with residential and commercial user to the extent permitted under DC Rules would be a housing project and hence eligible for deduction under Section 80IB(10) upto 31/3/2005 cannot be faulted.
27. The question then to be considered is, whether the Special Bench of the Tribunal was justified in holding that the projects having commercial area upto 10% of the built-up area of the plot are eligible for deduction Section 80IB(10) on the entire project upto 1/4/2005. Once the basic argument of the revenue that the housing projects with commercial user are not entitled to Section 80IB(10) deduction is rejected, then in the absence of any restriction imposed under the Act, it was not open to the Tribunal to hold that the projects approved by the local authorities having residential buildings with commercial user upto 10% of the plot area would alone be entitled to deduction under Section 80IB(10). As noted earlier, restriction regarding commercial user has been imposed for the first time by introducing clause (d) to Section 80IB(10) with effect from 1/4/2005.
12. It is thus clear that, as the law stands now in the light of Hon'ble jurisdictional High Court's judgment in the case of Brahma Associates (supra), as long as project is an approved project, even as commercial cum residential - as was the position in Brahma Associates case (supra) and as the position in the present case, deduction under section 80 IB (10) cannot be declined on the ground that it is not a purely residential project or on the ground that it has substantial commercial built up area. As for the co ordinate bench decision in the case of Laukik Enterprises (supra), it was overruled by the Special Bench decision in the case of ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 12 of 17 Brahma Associates and Hon'ble Bombay High Court has upheld the action of the Special Bench in this regard. The very foundation of impugned disallowance thus does not hold good in law any longer.
13. The other objection of the Assessing Officer was that the size of some of the residential units was more than one thousand square feet. However, even according to the Assessing Officer, this working was "calculated as predetermined percentage of super built up area/ saleable area mentioned in the agreement and after taking into consideration the area of attached terrace". The expression 'built up area' has been defined, with effect from 1 st April 2005, "inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units". However, so far as the relevant assessment year is concerned, admittedly the expression 'built up area' was an undefined expression under the Income Tax Act, 1961, and, therefore, meaning assigned to this expression were as understood in common parlance. As to the question whether area of balconies could be included in the definition of 'built up area' for assessment years prior to 2005-06, we find this issue is now covered by a coordinate bench decision in the case of ACIT Vs Sheth Developers Pvt Ltd (33 SOT 277) wherein coordinate bench has, inter alia, observed as follows:
18. Now coming to the second question which is whether balcony is to be construed as a part of the built-up area. According to the Assessing Officer if the balcony area is also added, the built-up area would exceed 1000 sq. ft. per unit in number of cases. For resolving this we have to once again go back to the definition of built-up area introduced by the Finance (No. 2) Act, 2004, as clause (a) to sub-
section (14) of section 80-IB and first decide whether it is retrospective or not. For brevity, this definition is reproduced once again hereunder :
"(14) for the purpose of this section:--ITA No. 6431/Mum/07
Assessment year: 2004-05 Page 13 of 17
(a) 'built-up area' means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units."
Though, both the learned D.R. as well as the learned A.R. have delved into a large number of cases for their respective contentions for and against retrospectivity, we find that the answer to this question can be found easily from the definition itself. The definition says built-up area 'include' projection and balconies. The accepted rules of interpretation for an inclusive definition as elucidated by the Hon'ble Apex Court in the case of CIT v. Taj Mahal Hotel AIR 1972 SC 168 is that if the word 'include' is used in an interpretation clause, it must be construed as comprehending not only such things as it signify according to their nature and import, but also things which the interpretation clause declares that they shall include. So normal meaning of built-up area, but for the definition including projection and balcony, would definitely exclude the latter. Even according to the Assessing Officer himself, built-up area as normally understood in common parlance means area enclosed within the external lines of the external walls. Therefore, there can be no doubt that prior to the introduction of the definition clause aforesaid, built-up area would not include projections and balconies as normally understood. Now the question whether the definition clause mentioned above can be deemed as retrospective, we are afraid we have to answer against the revenue. Number one, the enactment itself clearly specifies that clause will have effect from 1-4-2005. Number two, it is not a procedural section but a definition section, where an enlarged meaning is given to the term 'built-up area' and such enlarged meaning would not have been in the realm of understanding of any person, prior to its introduction, and assessees would have gone ahead with their respective projects based on a common understanding of the term built-up area. Thus, the enlarged meaning, if given a retrospective effect, will definitely affect the vested rights of an assessee. Therefore, we have no hesitation to conclude that the definition had only prospective effect from 1-4- 2005. We are roboranted in taking this view by the decision of the Special Bench in Brahma Associates' case (supra), where amendment to section 80-IB(10) also effected through same Finance (No. 2) Act, 2004, were considered to have only prospective effect, vis-a-vis sub-clause (d) thereof. No doubt in the case of Dy. CIT v. Ansal Properties & Industries Ltd. [2009] 116 ITD 253 Delhi Bench of the Tribunal has taken a view that extension of time-limit for completion of project, brought into the statute ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 14 of 17 through an amendment which came into effect from 1-4-2001 would apply prior to that as well. However, there the issue was the extension of a benefit of time-limit and this cannot be treated as equivalent to introduction of a definition which hitherto before had a different meaning as understood in common business parlance. Even otherwise, revenue is precluded from taking the plea that such definition is having retrospective effect for the simple reason that Assessing Officer himself had accepted it to be only prospective. Various contentions of the learned DR that there can be no estoppel against law even if the Assessing Officer himself had taken a different view becomes irrelevant on the face of our finding that definition of built-up area is only prospective with effect from 1-4-2005. Thus prior to 1-4-2005, balcony would not form part of the built-up area, irrespective of the area of such balcony.
14. In view of the view so adopted by the coordinate bench, with which we are in respectful agreement, area of balcony cannot be included in the built up area. The Assessing Officer thus clearly erred in including the area of balcony. We have also noted that, as noted by the Special Auditor appointed by the revenue authorities (page 116 of the paperbook), if area of the balcony is to be excluded, none of the flats will exceed the area of one thousand square feet. There is thus no legally sustainable merits in Assessing Officer's objections with regard to the size of the flat as well. Once balcony area is excluded, even according to the revenue authorities, no flat is of more than one thousand square feet.
15. Learned counsel has submitted that deduction under section 80 IB (10) has been allowed in respect of this project, in the preceding assessment years, by Settlement Commission, and following the principles of consistency, we must allow the same for this year as well. Some arguments were advanced on the issue as to whether orders of settlement commission have precedential value. However, having regard to the fact that the issue has been decided on merits, we do not consider it necessary to deal with these arguments and adjudicate upon the same.
ITA No. 6431/Mum/07Assessment year: 2004-05 Page 15 of 17
16. One more argument of the assessee has been that as far as assessee is concerned, its project is only for the residential units and the assessee constructed other commercial area for lessee of the land, in consideration of so using the land and FSI for residential purposes. It is submitted that land was allotted to Danik Pundhir and, it was in consideration of assessee doing construction for their needs as press, the assessee was allowed to use the area for residential use. The project of the assessee was thus only with regard to the housing units built by the assessee, and what has been built as commercial units and for press, is in fact consideration for allowing the assessee to develop residential segment of the overall project. However, in view of the fact that the quantum of commercial construction, in view of Hon'ble Bombay High Court's decision in the case of Brahma Associates (supra), is not coming in the way of assessee's entitlement for deduction under section 80 IB(10), we see no need to adjudicate upon, or deal with, these contentions either.
17. In view of the above discussions, we uphold assessee's claim of deduction under section 80 IB (10) in respect of Balaji Towers project as well. The impugned disallowance is deleted. The assessee will get the relief accordingly.
Silicon Tower Project
18. The facts relating to Silicon Tower Projects are broadly the same as Balaji Towers Project. It was a case in which 8,200 square meter plot, i.e. plot no. 46 at Sector No. 30 A Sanapada, Navi Mumbai, was allotted by CIDCO to Parbhodhan Prakashan, and, in collaboration with the said concern, the assessee constructed the residential cum commercial project.
ITA No. 6431/Mum/07Assessment year: 2004-05 Page 16 of 17 Out of total built up area of 12,295 square meters, residential area was only 9,036 square meters. The deduction was declined on the ground that the project was not a housing project and because some of the flats, after including the balcony area, exceed the requisite size of one thousand square feet. The CIT(A) also confirmed the action of the Assessing Officer by following the stand taken by him in the matter of Balaji Project. The assessee is aggrieved and is in further appeal before us.
19. Learned representatives agree that whatever we decide for Balaji Tower Project will follow here as well. In view of the discussions above, we have upheld assessee's claim for deduction under section 80 IB (10) and the same observations will apply mutatis mutandi here as well. Accordingly, we uphold assessee's claim of deduction under section 80 IB (10) in respect of Balaji Towers project as well. The impugned disallowance is deleted. The assessee will get the relief accordingly.
20. The assessee thus succeeds in his claim for deduction under section 80 IB (10) in respect of Silicon Towers Project as well.
21. In the result, the appeal is allowed in the terms indicated above. Pronounced in the open court today on 30 th day of March, 2011.
Sd/xx Sd/xx (R V Easwar ) (Pramod Kumar) Hon'ble President Accountant Member Mumbai; 30 th day of March , 2011. Copy forwarded to : ITA No. 6431/Mum/07 Assessment year: 2004-05 Page 17 of 17 1. The appellant 2. The respondent 3. Commissioner -Mumbai City , Mumbai 4. Commissioner (Appeals) , Mumbai 5. Departmental Representative, H bench, Mumbai 6. Guard File True Copy By Order etc. Assistant Registrar Income Tax Appellate Tribunal Mumbai benches, Mumbai