ITO vs. M/s Yash Developers (ITAT Mumbai)

DATE: (Date of pronouncement)
DATE: February 26, 2014 (Date of publication)

Click here to download the judgement (yash_developers_80_IB_10.pdf)

S. 80-IB(10): Limit on extent of commercial area imposed by clause (d) of s. 80IB (10) inserted w.e.f. 1.4.2005 does not apply to projects approved before that date

In the assessee’s own case for the same project relating to AYs 2005-06 and 2006-07, which falls after the insertion of clause (d) to s. 80IB(10), the Tribunal held that the assessee is eligible for deduction u/s 80IB(10) in respect of the housing project. Not only this, in Manan Corporation 214 Taxmann 373 (Guj) it was held that the condition of limiting commercial establishment/shops to 2000 sq.ft, which has come into force w.e.f. 1.4.2005 would be applicable for projects approved on or after 1.4.2005 and where the approval of the project was prior to 31.3.2005, the amended provision would have no application for those projects. The Gujarat High Court placed heavily reliance on the decision of the Bombay High Court in Brahma & Associates 333 ITR 289 (Bom).

Note: The contrary view in Everest Home Construction (India) Pvt. Ltd was not followed even though the AM was the author of that order. See also G.R. Developers 353 ITR 1 (Kar) & Anriya Project Management Services 353 ITR 12 (Kar) where it was held that s. 80-IB(10)(d) applied only prospectively (SLP rejected in both cases)

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