Commissioner Of Income Tax, Central – 1, Mumbai v. M/S.dosti Associates

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.135 OF 2010 Commissioner of Income Tax, Central – 1, Mumbai ..Appellant. Versus M/s.Dosti Associates..Respondent. Ms.Padma Divakar for the appellant.Mr.Atul K. Jasani for the respondent. CORAM : J.P. Devadhar & Mrs.Mridula Bhatkar, JJ. P.C. : DATE : 28[th] February, 2011. 1.This appeal was admitted on 1-12-2010 on the following substantial questions of law : “a)Whether, on the facts and circumstances of the case, the ITAT, in law was justified in holding that the deduction under Section 80IB(10), as applicable prior to 1-4-2005, is admissible in case of a “housing project” comprising residential housing units and commercial establishments ? b)Whether, on the facts and circumstances of the case, the ITAT, in law, was justified in holding that the projects wherein the commercial area is more than 10% of the project and the income from the residential dwelling units in that project can be worked out separately and even after excluding the commercial use of plot, the project satisfies all the requirements of Section 80IB(10), the residential part of the project is eligible for deduction ? c)Whether, on the facts and circumstances of the case, the ITAT, in law, was justified in holding that the limit of commercial use of built up area as prescribed by clause (d) of Section 80IB(10) has not retrospective application, and it applies only w.e.f. the assessment year 2005-2006 ?” 2.Counsel on both sides agree that the questions of law raised in this appeal are answered against the Revenue and in favour of the assessee by the decision of this Court in Income Tax Appeal No.1194 of 2010 (CIT V/s. Brahma Associates) dated 22-2-2011. 3.Accordingly, the aforesaid questions are answered in favour of the assessee and against the Revenue. The appeal is thus disposed off accordingly with no order as to costs. (Mrs.Mridula Bhatkar, J.) (J.P. Devadhar, J.)