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09.

3. The assessee in ITA No.1031/PUN/2015, relating to assessment year 2008-09 has raised the following grounds of appeal:-

On facts and in law, 1] The learned CIT(A) erred in confirming the disallowance of deduction u/s 80IB(10) of Rs.57,34,420/- claimed in respect of the profits of the project 'Abhijeet Park' located at Thergaon, Pune.

2] The learned CIT(A) erred in holding that the revised return filed by the assessee was not valid and accordingly, the claim of deduction made u/s 80IB(10) in the revised return could not be allowed to the assessee firm. 3] The learned CIT(A) failed to appreciate that the revised return filed by the assessee was valid and in accordance with the provisions laid down in Section 139(5) and therefore, the deduction claimed u/s 80IB(10) in the revised return should have been allowed to the assessee firm. 4] The learned CIT(A) erred in holding that the total commercial area in the housing project was more than 2,000 sq.ft. and accordingly, the assessee had violated the provisions of clause (d) of Section 80IB(10) and hence, the deduction u/s 80IB(10) was rightly denied by the learned A.O. 5] The learned CIT(A) erred in not appreciating that the assessee firm has satisfied all the conditions laid down in Section 80IB(10) and hence, the deduction ought to have been granted to the assessee. 6] The learned CIT(A) erred in not appreciating that as per Finance Act, 2010, the permitted area of commercial units in the housing project was 3 of the total built up area or 5,000 sq.ft. whichever is higher and hence, as the assessee had constructed commercial area of only 2772.05 sq.ft., there was no reason to deny the claim made by the assessee. 7] The learned CIT(A) ought to have appreciated that the amendment permitting higher commercial area was applicable to the project constructed by the assessee and hence, the deduction u/s 80IB(10) should have been allowed.

14. The learned Authorized Representative for the assessee in rejoinder pointed out that the learned Departmental Representative for the Revenue relied on the ratio laid down by the Hon'ble High Court of Delhi in Nath Brothers Exim International Ltd. Vs. Union of India (supra), which was not applicable since in the facts of the case before the Hon'ble High Court of Delhi, no return of income was filed under section 139(1) of the Act and belated return of income was filed and it was held that the revised return of income was not valid. In respect of reliance in DCIT Vs. Kamdhenu Builders and Developers (supra), the learned Authorized Representative for the assessee pointed out that in the facts of said case, the return of income was filed under section 139(1) of the Act and it does not say that the assessee had to claim the deduction in the original return of income. He further pointed out that the decisions relied upon by the learned Departmental Representative for the Revenue are referred by the Hon'ble Bombay High Court in CIT Vs. Happy Home Enterprises (2015) 372 ITR 1 (Bom). The learned Authorized Representative for the assessee stressed that no date was mentioned vis-à-vis operation of section 80IB(10)(d) of the Act, so, it applies to pending projects; even in incentive provisions, certain conditions are to be applied strictly. Clause (d) was correct and there was no ambiguity and it was only an explanation given, which had to be interpreted.