EMGEEN HOLDNGS P. LTD ( NOW WINDSOR REALTY P. LTD), MUMBAI v. DCIT RG 9(1), MUMBAI

ITA 3595/MUM/2009 | 2004-2005
Pronouncement Date: 29-07-2011 | Result: Allowed

Appeal Details

RSA Number 359519914 RSA 2009
Assessee PAN AAACE1883E
Bench Mumbai
Appeal Number ITA 3595/MUM/2009
Duration Of Justice 2 year(s) 1 month(s) 27 day(s)
Appellant EMGEEN HOLDNGS P. LTD ( NOW WINDSOR REALTY P. LTD), MUMBAI
Respondent DCIT RG 9(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 29-07-2011
Date Of Final Hearing 21-06-2011
Next Hearing Date 21-06-2011
Assessment Year 2004-2005
Appeal Filed On 02-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH MUMBAI. BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER I.T.A NOS.3594 & 3595/ MUM/2009 ASSESSMENT YEARS: 2003-04 & 2004-05 EMGEEN HOLDINGS P.LTD. .. APPELLANT (NOW WINDSOR REALTY P. LTD.) DWARKA 57 TAGORE ROAD SANTACRUZ(W) MUMBAI-400 054 PA NO.AAACE 1883 E VS DCIT RANGE 9(1) . RESPONDEN T AAYAKAR BHAVAN M.K. ROAD MUMBAI. I.T.A NOS.3647 & 3648/ MUM/2009 ASSESSMENT YEARS: 2003-04 & 2004-05 DCIT RANGE 9(1) . APPELLANT AAYAKAR BHAVAN M.K. ROAD MUMBAI. VS. EMGEEN HOLDINGS P.LTD. .. RESPONDENT (NOW WINDSOR REALTY P. LTD.) DWARKA 57 TAGORE ROAD SANTACRUZ(W) MUMBAI-400 054 PA NO.AAACE 1883 E APPEARANCES: S.C.TIWARI FOR THE ASSESSEE KUSUM INGALE FOR THE REVENUE 2 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THESE CROSS APPEALS THE APPELLANTS HA VE CALLED INTO QUESTION CORRECTNESS OF CIT(A)S SEPARATE ORDERS DATED 30 TH MARCH 2009 PASSED IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF TH E INCOME TAX ACT 1961 FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. 2. COMMON GROUNDS RAISED BY THE ASSESSEE IN BOTH TH E ASSESSMENT YEARS ARE AS FOLLOWS:- 1. A) THE LD CIT(A) ERRED IN RESTRICTING THE DEDUC TION UNDER SECTION 80IB(10) ON A PROPORTIONATE BASIS OF THE TOTAL PROFI T OF THE PROJECT IN PROPORTION TO THE ELIGIBLE SQUARE FEET AREA SOLD. B) THE LD CIT(A) ERRED IN FAILING TO SPECIFICALLY D EAL WITH THE APPELLANTS CLAIM THAT IT WAS ENTITLED TO A DEDUCTION UNDER SEC TION 80IB(10) OF ` .6 54 82 573 FOR A.Y. 2003-04 AND ` .1 91 72 008 FOR A.Y. 2004-05. C) THE APPELLANT SUBMITS THAT ITS HOUSING PROJECT CO MPLIED WITH ALL THE CONDITIONS MENTIONED IN SECTION 80IB(10) AND ACCOR DINGLY THE CLAIM FOR DEDUCTION AMOUNTING TO ` .6 54 82 573 FOR A.Y. 2003-04 AND ` .1 91 72 008 FOR A.Y. 2004-05 WAS CORRECTLY ALLOWED WHILE COMPLE TING THE ORIGINAL ASSESSMENT AND THE LD CIT(A) ERRED IN ALLOWING ONLY THE PROPORTIONATE CLAIM. D) THE APPELLANT SUBMITS THAT THE LD CIT(A) FAILED T O APPRECIATE THAT ALL THE FLATS IN THE APPELLANTS HOUSING PROJECT WERE O F AN AREA OF LESS THAN THE SPECIFIED LIMIT AND EACH SUCH FLAT WAS SOLD SE PARATELY BY A SEPARATE REGISTERED SALE DEED ON WHICH STAMP DUTY WAS PAID. 2. THE APPELLANT SUBMITS THAT THE LD CIT(A) OUGHT T O HAVE DELETED THE INTEREST LEVIED UNDER SECTION 234B OR IN THE ALTERN ATIVE WITHOUT PREJUDICE OUGHT TO HAVE HELD THAT INTEREST UNDER S ECTION 234B(3) WILL BE LEVIED FOR THE PERIOD COMPRISED BETWEEN THE ORIGINAL ASSESSMENT AND REASSESSMENT AND ON THE AMOUNT BY WHICH THE TAX ON THE TOTAL INCOME DETERMINED ON THE BASIS OF THE REASSESSMENT EXCEEDS THE TAX ON THE TOTAL INCOME DETERMINED UNDER SECTION 143(3). 3. THE APPELLANT SUBMITS THAT THE AO BE DIRECTED TO 3 A) GRANT DEDUCTION UNDER SECTION 80IB(100 AMOUNTING TO ` .6 54 82 573 FOR A.Y. 2003-04 AND ` .1 91 72 008 FOR A.Y. 2004-05 AS PER ORIGINAL ASSESSMENT ORDER. B) TO DELETE INTEREST LEVIED UNDER SECTION 234B OR IN THE ALTERNATE WITHOUT PREJUDICE WORK OUT SUCH INTEREST IN ACCORD ANCE WITH THE PROVISIONS OF SECTION 234B(3). 3. THE REVENUE HAS RAISED THE FOLLOWING COMMON GRIE VANCES IN BOTH THE ASSESSMENT YEARS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S.80IB(10) ON PRORATE BASIS WITHOUT APPRECIATING THAT DURING THE COURSE OF SURV EY OPERATION SOME OF THE RESIDENTIAL FLATS HAVING BUILT UP AREA EXCEEDING 1000 SQ.FT WERE SOLD BY TWO SEPARATE AGREEMENTS TO THE SAME FAMILY MEMBER S VIOLATING THE CONDITIONS LAID DOWN U/S.80IB(10) OF THE INCOME TAX ACT 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT 1961 TO THE ASSESSEE ON PRORATA BASIS ON THE QUALIF YING UNITS WHICH SATISFIED THE CONDITIONS LAID DOWN U/S.80IB(10) OF THE INCOME TAX ACT 1961 WITHOUT APPRECIATING THAT THE CONDITIONS LAID DOWN U/S.80IB(10) WERE NOT SATISFIED AS SECTION 80IB(10) DOES NOT PER MIT FOR THE ALLOWANCE OF PROPORTIONATE DEDUCTION. 4. BRIEFLY STATED THE RELEVANT MATERIAL FACTS ARE A S FOLLOWS. THE ASSESSEE IS ENGAGED INTER ALIA IN THE BUSINESS OF REAL ESTATE DEVELOPMENT. ONE OF THE HOUSING PROJECT DEVELOPED BY THE ASSESSEE KNOWN BY THE NAM E OF GARDEN ENCLAVE WAS CLAIMED TO BE ELIGIBLE FOR DEDUCTION U/S.80IB(10) AND ACCORDINGLY DEDUCTION OF ` .6 54 82 573 FOR A.Y. 2003-04 AND ` .1 91 72 008 FOR A.Y. 2004-05 WAS ALLOWED TO THE ASSESSEE. HOWEVER IN THE COURSE OF A SURVEY SUBSE QUENTLY CONDUCTED ON THE ASSESSEE IT WAS NOTICED THAT SOME OF THE RESIDENTI AL UNITS HAD AREA EXCEEDING 1 000 SQ. FT. INASMUCH AS IT WAS FOUND THAT THE ASSESSEE HAD SOLD THE FLAT BY TWO SEPARATE AGREEMENTS TO THE MEMBERS OF THE SAME FAMILY THOUG H AS SUCH SUCH PAIRS OF FLATS SOLD SEPARATELY WOULD BE VIEWED ONLY AS ONE UNIT. O N THE BASIS OF THESE FINDINGS AS ALSO THE ADMISSION MADE BY THE ASSESSEE IN SURVEY P ROCEEDINGS THE STAND TAKEN BY THE ASSESSING OFFICER WAS THAT IN ORDER TO BE ELIGI BLE FOR DEDUCTION UNDER SECTION 80IB(10) THE TOTAL AREA OF RESIDENTIAL UNIT SHOULD NOT EXCEED 1 000 SQ.FT BUT AS THESE 4 PAIRS OF FLATS COULD BE VIEWED ONLY AS ONE UNIT AND THE AREA OF SUCH UNITS EXCEEDS 1 000 SQ.FT THE ASSESSEE WAS NOT ELIGIBLE FOR DEDU CTION U/S.80IB(10). ACCORDINGLY THE ASSESSEE WAS DECLINED THE DEDUCTION U/S.80IB(10). AGGRIEVED ASSESSEE CARRIED THE MATTER IN APPEAL BUT WITHOUT COMPLETE SUCCESS. WHIL E THE CIT(A) UPHELD DISALLOWANCE OF DEDUCTION U/S.80IB(10) IN RESPECT OF SUCH UNITS AS EXCEED 1 000 SFT.FT THE CIT(A) FURTHER HELD THAT THE DISALLOWANCE HOWEVER MUST R EMAIN RESTRICTED ON PRORATA BASIS ONLY TO DEDUCTION RELATABLE TO SUCH UNITS. WHILE D OING SO THE CIT(A) INTER ALIA OBSERVED AS FOLLOWS: 3.5 I HAVE CAREFULLY CONSIDERED THE ABOVE FACTS OF T HE CASE THE APPELLANTS SUBMISSION AOS CONTENTION AS WELL AS V ARIOUS CASE LAWS AS CITED ABOVE. THE AO WHILE DISALLOWING THE CLAIM FOR DEDUCTION U/S.80IB(10) OF THE ASSESSEE OBSERVED THAT ALL THE UNITS IN THE PROJECT WERE NOT HAVING INDIVIDUAL AREA OF 1000 SQ.FT AND S OME OF THE RESIDENTIAL UNITS HAD INDIVIDUAL AREA OF MORE THAN 1000 SQ.FT. THEREFORE THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE AO AS THE CONDITIO N PRESCRIBED IN THE SECTION FOR CLAIMING THE DEDUCTION WHEREIN EACH RES IDENTIAL UNIT SHOULD HAVE A MAXIMUM BUILT UP AREA OF 1000 SQ.FT HAS NOT BEEN SATISFIED. HOWEVER IT IS THE APPELLANTS CONTENTION THAT FULL DEDUCTION U/S.80IB(10) OF THE ACT IS ALLOWABLE OR ALTERNATIVELY PROPORTIONA TE DEDUCTION SHOULD BE ALLOWED. AS PER THE DETAILS SUBMITTED BY THE ASSESS EE THE TOTAL BUILT UP AREA OF ALL THE FLATS (189 FLATS) IN THE HOUSING PR OJECT IS 116278 SQ.FT AND THE BUILT UP AREA OF COMBINED ADJOINING 114 FLATS IS 59898 S .FT WHICH COMES TO 42.30% OF THE TOTAL AREA OF THE PROJ ECT. THE PROPORTIONATE AREA FOR REMAINING FLATS IS 56380 SQ. FT. WHICH COMES TO 57.70%. THE APPELLANT COMPANY RELYING ON THE VARIO US DECISIONS OF ITAT AND HIGH COURTS HAS CLAIMED THAT IT IS ENTITLED TO PROPORTIONATE DEDUCTION BEING 57.705 OF THE TOTAL PROFIT OF THE PROJECT IN P ROPORTION TO THE ELIGIBLE SQ.FT AREA SOLD. 3.6 THE APPELLANTS CLAIM IS SUPPORTED BY THE DECIS ION OF HONBLE MUMBAI ITAT IN THE CASE OF M/S. SAROJ SALES ORGANISATIONIT A NO.4008/M/07 ORDERDT.24.1.2008 WHEREIN ON IDENTICAL FACTS THE H ONBLE ITAT FOLLOWING THE HONBLE SUPREME COURT DECISION IN THE CASE OF BA JAJ TEMPO LTD. REPORTED IN 196 ITR 188 HAS OBSERVED THAT THE PROVI SIONS SHOULD BE INTERPRETED LIBERALLY. FURTHER FOLLOWING THE HONBL E ITAT DECISION IN THE CASE OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD. KOLK ATA THE HONBLE MUMBAI ITAT ALLOWED THE ASSESSEES CLAIM ON PRORATA BASIS ON QUALIFYING UNITS WHICH SATISFIED THE CONDITIONS LAID DOWN BY S ECTION 80IB(10). THE HONBLE ITAT KOLKATA IN THE CASE OF BENGAL AMBUJA HO USING DEVELOPMENT LTD VS DCITG ITA NO.1595/KOL/2005 AY 2 002-03 BENCH C 5 ORDER DTD.24.3.2006(2007 ) 39-D BCAJ 546) HAS HELD THAT EVEN IF THE UNITS CONSTRUCTED ARE BOTH SMALLER AND LARGER UNITS WITH REFERENCE TO THE STIPULATED AREA THE PROFIT DERIVED FROM THE CONSTR UCTION OF THE SMALLER UNITS I.E. WITHIN THE STIPULATED AREA OF 1000 SQ.FT BULITUP AREA OUGHT TO HAVE ALLOWED AS DEDUCTION U/S.80IB(10) OF THE ACT. THE ABOVE DECISION IS APPROVED BY THE HONBLE KOLKATA HIGH COURT AS REFERR ED IN THE DECISION OF ACTI VS. SHREE BALAJI DEVELOPERS (ITA NO.2592/M/200 6 AY 2004-05 BENCH C ORDERDTD.21.10.2008) WHEREIN THE THEORY OF PRO-RATA DEDUCTION IS APPROVED AND HELD THE DEDUCTION U/S.80 IB ON PRO-RATA BASIS MEETS THE OBJECTIVES OF THE PROVISIONS OF SECTION 8 0IB.THE HONBLE ITAT BANGALORE BENCH IN THE CASE OF DCIT VS. BRIGADE ENT ERPRISES PVT LTD. (24 DTR 371) BANGALORE (2008) HAS HELD THAT THE DISALLO WANCE IF ANY WILL HAVE TO BE RESTRICTED TO THE EXTENT OF NON-COMPLIANC E OF THE PROVISIONS. THIS RULE OF PROPORTIONATELY IS WELL FOUNDED IN THE INCOME TAX LAW AND IS RECOGNIZED UNDER VARIOUS PROVISIONS OF THE ACT. TH E HONBLE ITAT CHENNAI IN THE CASEOF ARGUN EXCELLO FOUNDATIONS PVT LTD VS. ACTI(2007) 108 TTJ 71CHENNAI) HAS ALSO UPHELD THE PRO-RATA DED UCTION ON ELIGIBLE RESIDENTIAL UNITS. THUS RESPECTFULLY FOLLOWING TH E ABOVE JUDGMENTS OF THE VARIOUS ITAT AND COURTS AND PARTICULARLY THE JURISD ICTIONAL ITAT IN THE CASE OF SAROJ SALES ORGANISATIONS(SUPRA) I HOLD TH AT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S.80IB ON PRO-RATA BASIS. THE AO IS THEREFORE DIRECTED TO ALLOW THE DEDUCTION U/S.80IB(10) SUBJEC T TO VERIFICATION OF THE AREA-WISE CALCULATION DONE DURING THE COURSE OF SUR VEY OPERATION. THIS GROUND OF APPEAL IS PARTLY ALLOWED. 5. NONE OF THE PARTIES IS SATISFIED BY THE STAND SO TAKEN BY THE CIT(A). WHILE ASSESSEE IS AGGRIEVED OF PARTIAL CONFIRMATION OF DI SALLOWANCE BY THE CIT(A) THE ASSESSING OFFICER IS AGGRIEVED THAT ASSESSEE IS EVE N ALLOWED DEDUCTION U/S.80IB(10) IN RESPECT OF THE UNITS LESS THAN 1 000 SQ.FT. BOT H THE PARTIES ARE IN APPEAL BEFORE US FOR BOTH THE ASSESSMENT YEARS. 6. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE AS ALSO THE A PPLICABLE LEGAL POSITION. 7. WE FIND THAT THE DEDUCTION U/S.80IB(10) HAS BEEN DECLINED BY THE ASSESSING OFFICER ON THE GROUND THAT SIZE OF THE RESIDENTIAL UNIT WAS IN EXCESS OF 1 000 SQ.FT WHICH IN TURN PROCEEDS ON THE BASIS THAT THE FLAT S SOLD TO THE FAMILY MEMBERS ADMITTEDLY BY SEPARATE AGREEMENTS SHOULD BE TREATE D AS ONE UNIT. WE ARE UNABLE TO 6 APPROVE THIS APPROACH. WE HAVE NOTED THAT THE SIZE OF EACH FLAT AS EVIDENT FROM BUILDING PLAN AS DULY APPROVED BY MUNCIPAL AUTHORIT IES WAS LESS THAN 1 000 SQ.FT. WE HAVE ALSO NOTED THAT IT IS NOT EVEN REVENUES CASE THAT EACH OF FLAT ON STANDALONE BASIS WAS NOT A RESIDENTIAL UNIT. EVEN IF FLATS WERE CON STRUCTED OR PLANNED IN SUCH A WAY THAT TWO FLATS COULD INDEED BE MERGED INTO ONE LARG ER UNIT AS LONG EACH FLAT WAS AN INDEPENDENT RESIDENTIAL UNIT DEDUCTION U/S.80IB(10 ) COULD NOT BE DECLINED. IT IS IMPORTANT TO BEAR IN MIND THE FACT THAT WHAT SECTIO N 80IB(10) REFERS TO IS RESIDENTIAL UNIT AND IN THE ABSENCE OF ANYTHING TO THE CONTR ARY IN THE INCOME TAX ACT THE EXPRESSION RESIDENTIAL UNITS MUST HAVE THE SAME C ONNOTATIONS AS ASSIGNED TO IT BY LOCAL AUTHORITIES GRANTING APPROVAL TO THE PROJECT. THE LOCAL AUTHORITY HAS APPROVED THE BUILDING PLAN WITH RESIDENTIAL UNITS OF LESS TH AN 1 000 SQ.FT AND GRANTED COMPLETION CERTIFICATE AS SUCH. THAT LEAVES NO AMB IGUITY ABOUT THE FACTUAL POSITION. WE HAVE FURTHER NOTED THAT THE PROHIBITION AGAINST SALE OF MORE THAN ONE FLAT IN A HOUSING PROJECT TO MEMBERS OF A FAMILY HAS BEEN INS ERTED SPECIFICALLY WITH EFFECT FROM 1 ST APRIL 2010 AND IN OUR HUMBLE UNDERSTANDING THI S AMENDMENT IN LAW CAN ONLY BE TREATED AS PROSPECTIVE IN EFFECT. WHAT IS THEREFORE CLEAR IS THAT SO FAR AS PRE- AMENDMENT POSITION IS CONCERNED AS LONG A RESIDEN TIAL UNIT HAS LESS THAN SPECIFIED AREA IS AS PER THE DULY APPROVED PLANS AND IS CAPA BLE OF BEING USED FOR RESIDENTIAL PURPOSES ON STANDALONE BASIS DEDUCTION U/S.80IB(10 ) CANNOT BE DECLINED IN RESPECT OF THE SAME MERELY BECAUSE THE END USER BY BUYING MORE THAN ONE SUCH UNIT IN THE NAME OF FAMILY MEMBERS HAS MERGED THESE RESIDENTIA L UNITS INTO A LARGER RESIDENTIAL UNIT OF A SIZE WHICH IS IN EXCESS OF SPECIFIED SIZE . THAT PRECISELY IS THE CASE BEFORE US. WHILE ON THE SUBJECT IT IS USEFUL TO TAKE NOTE OF LEGISLATIVE AMENDMENT BY THE VIRTUE OF WHICH LEGISLATURE PUT CERTAIN RESTRICTIONS ON SALE OF RESIDENTIAL UNITS TO CERTAIN FAMILY MEMBERS OF A PERSON WHO HAS BEEN SOLD A RESIDENTIAL UNIT IN THE HOUSING PROJECT. SECTION 80IB(10) NOW PROVIDES AN ADDITIONAL ELIGIBI LITY CONDITION THAT IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUSING PROJECT IS ALLOTT ED TO ANY PERSON BEING AN INDIVIDUAL NO OTHER RESIDENTIAL UNIT IN SUCH HOUSING PROJECT I S ALLOTTED TO ANY OF THE FOLLOWING PERSON NAMELY (I) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL (II) THE HUF IN WHICH SUCH INDIVIDUAL I S A KARTA (III) ANY PERSON REPRESENTING SUCH INDIVIDUAL THE SPOUSE OR MINOR C HILDREN OF SUCH INDIVIDUAL OR THE 7 HUF IN WHICH SUCH INDIVIDUAL IS A KARTA. THE EXPL ANATION MEMORANDUM EXPLAINED THE LEGISLATIVE AMENDMENT AS FOLLOWS: (314 ITR(ST) 203) FURTHER THE OBJECT OF THE TAX BENEFIT FOR HOUSING PROJECTS IS TO BUILD HOUSING STOCK FOR LOW AND MIDDLE INCOME HOUSEHOLDS. THIS HA S BEEN ENSURED BY LIMITING THE SIZE OF THE RESIDENTIAL UNIT. HOWEVER THIS IS BEING CIRCUMVENTED BY THE DEVELOPER BY ENTERING INTO AGREEMENT TO SELL MULTIPLE ADJACENT UNITS TO A SINGLE BUYERS. ACCORDINGLY IT IS PROPOSED TO INSE RT NEW CLAUSES IN THE SAID SUB-SECTION TO PROVIDE THAT THE UNDERTAKING WHICH D EVELOPS AND BUILDS THE HOUSING PROJECT SHALL NOT BE ALLOWED TO ALLOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUSING PROJECT TO THE SAME PERSON NOT BEING A N INDIVIDUAL AND WHERE THE PERSON IS AN INDIVIDUAL NO OTHER RESIDENTIAL U NIT IN SUCH HOUSING PROJECT IS ALLOTTED TO ANY OF THE FOLLOWING PERSON:- (I) SPOUSE OR MINOR CHILDREN OF SUCH INDIVIDUAL; (II) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA; (III) ANY PERSON REPRESENTING SUCH INDIVIDUAL THE SPOUSE OR MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA. THIS AMENDMENT WILL TAKE EFFECT FROM THE 1 ST APRIL 2010 AND SHALL ACCORDINGLY APPLY IN RELATION TO ASSESSMENT YEAR 2010-2011 AND SUBSEQUENT YEARS. 8. IT IS THUS CLEAR THAT THE AFORESAID AMENDMENT HA S BEEN BROUGHT WITH PROSPECTIVE EFFECT I.E. FROM 1 ST DAY OF APRIL 2010 AND THERE IS NO INDICATION WHATSOEVER TO SUGGEST THAT THESE RESTRICTIONS NEED TO BE APPLIED WITH RETROSPECTIVE EFFECT. THE AMENDMENT SEEKS TO PLUG A LOOPHOLE BUT RESTRICTS THE REMEDY WITH EFFECT FROM 1 ST DAY OF APRIL 2010 I.E. AY 2010-2011. THE LAW IS VERY CLEAR THAT UNLESS PROVIDED IN THE STATUTE THE LAW IS ALWAYS PRESUMED TO BE PROSPECTIVE IN NATURE. IT WILL THEREFORE BE CONTRARY TO THE SCHEME OF LAW T O PROCEED ON THE BASIS THAT WHEREVER ADJACENT RESIDENTIAL UNITS ARE SOLD TO FAM ILY MEMBERS ALL THESE RESIDENTIAL UNITS ARE TO BE CONSIDERED AS ONE UNIT. IF LAW PER MITTED SO THERE WAS NO NEED OF THE INSERTION OF CLAUSE (F) TO SECTION U/S 80IB(10). I T WILL BE UNREASONABLE TO PROCEED ON THE BASIS THAT LEGISLATIVE AMENDMENT WAS INFRUCTUOU S OR UNCALLED FOR PARTICULARLY AS THE AMENDMENT IS NOT EVEN STATED TO BE FOR REMOVA L OF DOUBTS. ON THE CONTRARY THIS AMENDMENT SHOWS THAT NO SUCH ELIGIBILITY CONDITIONS COULD BE READ INTO PRE- AMENDMENT LEGAL POSITION. 9. AS REGARDS THE AOS STAND THAT THE ASSESSEE HIM SELF HAS OFFERED THE DEDUCTION U/S.80IB(10) IN RESPECT OF THESE UNITS DURING THE C OURSE OF SURVEY PROCEEDINGS IT IS ONLY ELEMENTARY THAT NEITHER STATEMENT RECORDED U/S .133A HAS AN EVIDENTIARY VALUE 8 NOR A LEGAL CLAIM CAN BE DECLINED ONLY BECAUSE ASSE SSEE AT SOME STAGE DECIDED TO GIVE UP THE SAME. IN VIEW OF THESE DISCUSSIONS AND BEAR ING IN MIND ENTIRETY OF THE CASE ARE OF THE CONSIDERED VIEW THAT THE DEDUCTION U/S. 80IB(10) OUGHT TO HAVE BEEN ALLOWED TO THE ASSESSEE ENTIRELY. TO THIS EXTENT WE MODIFY THE ORDER OF THE CIT(A) AND ALLOW FURTHER RELIEF TO THE ASSESSEE. 10. AS WE HAVE HELD THE ADMISSIBILITY OF DEDUCTION U/S.80IB(10) IN RESPECT OF ENTIRE PROJECT REVENUES GRIEVANCE AGAINST PARTIAL RELIEF GRANTED TO THE ASSESSEE IS INFRUCTUOUS AND ACADEMIC WE ACCORDINGLY DISMISS THE SAME. GRIEVANCES AGAINST REOPENING OF ASSESSMENT IN THE ABSENCE OF SPECIFIC ARGUMENTS IN SUPPORT OF THE SAME ARE TREATED AS ABANDONED AND AS SUCH DISMIS SED. 11. IN THE RESULT APPEALS OF THE ASSESSEE ARE ALLO WED IN THE TERMS INDICATED ABOVE AND APPEALS OF REVENUE ARE DISMISSED AS INFRUCTUOUS . PRONOUNCED IN THE OPEN COURT ON 29 TH JULY 2011 SD/- (VIJAY PAL RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI DATED 29 TH JULY 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS) IX MUMBAI 4. COMMISSIONER OF INCOME TAX IX MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH J MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI