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3.2 The deduction under reference is in respect of Phases VII, X, XI and XIA of a housing construction project by the name 'Golden Nest'. The same bearing commercial area in excess of the prescribed percentage of 5% of the aggregate built up area, or 2000 sq. ft., whichever is less, the same was considered as barred for deduction u/s.80-IB(10).

The hon'ble jurisdictional high court, per its decision in the case of Brahma Associates (supra), has clarified that a housing project approved upto 31.03.2005, commercial user to the extent permitted under the development control rules/regulations framed by the respective local authority would hold in-as-much as the amendment in law, prescribing the said limitation came w.e.f. 01.04.2005. In the present case, it is undisputed that Phases VII and X were approved by the local authority on 25.01.2001 and Phases XI and XIA on 14.01.2004, i.e., both prior to 01.04.2005 w.e.f. from which date clause (d) stands inserted to section 80-IB(10). Accordingly, the said amendment would, in terms of the cited decision by the hon'ble jurisdictional high court, have no bearing on the allowability of the deduction under the provision for the said phases of the housing project under reference, which as it appears are reckoned as separate housing projects for the purpose of s. 80-IB(10). This is also the basis on which relief stands allowed by the tribunal to the assessee for the earlier year, i.e., A.Y. 2006-07. Respectfully following the decision by the hon'ble high court, we admit and accept the assessee's case for the current year as well, allowing ground no. 2.