ABDUL QAYYUM ABDI RAUF LJAM, MUMBAI V. ITO 21(3)(1), MUMBAI

ITA 5323/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1155 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-02-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-08-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K SHIVARAM
• Keywords: Search and seizure; Additional evidence
• Section: 143(3); 234B; 80IB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 5323/MUM/2008 (ASSESSMENT YEAR: 2005-06) SHRI ABDUL QAYYUM ABDUL RAUF KHAN INCOME TAX OFFICE R - 21(3)(1) AL-SHAMS APARTMENT, FLAT NO. 204 BANDRA (E), MUMBAU I 400051 C-WING, II FLOOR, NEW HALL ROAD VS. KURLA (W), MUMBAI 400070 PAN - AABPK 7683 K APPELLANT RESPONDENT APPELLANT BY: SHRI K. SHIVARAM RESPONDENT BY: SHRI SANJEEV JAIN O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- XXI, MUMBAI DATED 22.05.2008. 2. ASSESSEE HAS RAISED THE FOLLOWING THREE GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND ALSO IN LAW, THE LEARNED A.O. FAILED IN APPRECIATING THAT THE H OUSING PROJECT COMPLETED BY THE APPELLANT IS ELIGIBLE FOR DEDUCTIO N AMOUNTING TO RS.17966153/- U/S 80IB (10), I.E. IS HOUSING PROJEC T CARRIED OUT IN ACCORDANCE WITH THE SCHEME FRAMED BY THE CENTRAL GO VT. OR STATE GOVT. FOR THE RE-CONSTRUCTION OR RE-DEVELOPMENT OF THE EXISTING BUILDINGS IN THE AREAS DECLARED TO BE SLUM AREAS UN DER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND ALSO IN LAW, THE LEARNED CIT(A) ALSO ERRED IN CONFIRMING THE SA ME BY DISALLOWING DEDUCTION U/S 80IB(10) AMOUNTING TO RS.17966153/-. 3. THE LEARNED ASSESSING OFFICER ALSO ERRED LEVYING INTEREST U/S 234B & INITIATING PENALTY U/S 271(1)(C). 3. THE ASSESSEE FILED A PAPER BOOK CONTAINING PAGES 1 TO 57 AND ALSO WITH A PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCES IN THE FORM OF CORRESPONDENCE WITH CBDT, ETC DONE RECENTLY PURSUIN G THE MATTER OF ITA NO. 5323/MUM/2008 SHRI ABDUL QAYYUM ABDUL RAUF KHAN 2 NOTIFICATION OF SCHEME. THESE ADDITIONAL EVIDENCES FROM PAGES 58 TO 65 ARE ADMITTED. 4. BRIEFLY STATED, THE ASSESSEE IS AN INDIVIDUAL ENGAG ED IN THE BUSINESS OF HOUSING PROJECT IN THE NAME AND STYLE OF M/S. A.Q. PROPERTY, A PROPRIETARY CONCERN. DURING THE YEAR THE ASSESSEE HAS EXECUTED REDEVELOPMENT OF PROPERTY BEARING CS NO. 637(PART) OF MAZGAON DIVISI ON, CESS NO. E-7722(1A) & E-7722(1D) SITUATED AT 40, 44 & 44A, TAD BUNDER R OAD, KNOWN AS RAUF MANZIL, MAZGAON, MUMBAI. THE ASSESSEE HAS COMPLETE D THE HOUSING PROJECT WHICH IS CARRIED OUT IN ACCORDANCE WITH THE SCHEME FRAMED BY THE STATE GOVERNMENT UNDER THE SCHEME OF RECONSTRUCTION OR RE DEVELOPMENT OF EXISTING BUILDINGS AND THIS PROJECT HAS BEEN APPROV ED BY THE LOCAL AUTHORITY. THE RETURN OF INCOME FOR A.Y. 2005-06 DE CLARING TOTAL INCOME AT RS.85,561/- INCLUSIVE OF AGRICULTURAL INCOME OF RS. 26,9000/- WAS FILED ON 31.10.2005. THE ASSESSEE HAD CLAIMED DEDUCTION OF R S.1,79,66,153/- UNDER SECTION 80IB(10) OF THE I.T. ACT. THE A.O. PASSED O RDER UNDER SECTION 143(3) WHEREIN THE DEDUCTION UNDER SECTION 80IB(10) OF RS. 1,79,66,153/- WAS DISALLOWED ON THE GROUND THAT THE PROJECT WAS ON TH E PLOT WHICH WAS NOT MORE THAN ONE ACRE AND HENCE, THE ASSESSEE HAS NOT COMPLIED WITH THE CONDITIONS MENTIONED IN SECTION 80(IB)(10). THE CIT (A), AFTER CONSIDERING ASSESSEES SUBMISSIONS, REJECTED THE CLAIM BY STATI NG AS UNDER: - 5. I HAVE CAREFULLY CONSIDERED THE ISSUE RAISED IN THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY THE LD. COUNSEL OF THE APPELLANT. THE FACT OF THE CASE IS THAT THE APPELLANT IS CONSISTENTLY F OLLOWING PROJECT COMPLETION METHOD FOR SHOWING THE PROFIT FROM YEAR TO YEAR. THIS METHOD HAS BEEN ACCEPTED BY THE DEPARTMENT IN THE PREVIOUS ASSESSMENT YEARS. THEREFORE, THE APPELLANT HAS RIGHTLY DECLARED THE I NCOME IN THE RETURN OF INCOME FILED FOR A.Y. 2005-06. HOWEVER, IT IS VERY CLEAR FROM THE INCOME- TAX ACT THAT ANY HOUSING PROJECT ON A PLOT OF LAND LESS THAN 1 ACRE IS NOT ENTITLED TO CLAIM DEDUCTION U/S. 80IB(10), IN VIEW OF CONDITION (B) PRESCRIBED UNDER SECTION 80IB(10). THIS CONDITION H AS BEEN RELAXED W.E.F. 01.04.2005 I.E. FROM A.Y. 2005-06. THAT IS TO SAY T HAT FOR A.Y. 2004-05 AND BEFORE, THE CONDITION THAT THE PROJECT HAS TO B E ON THE SIZE OF A PLOT OF LAND, WHICH HAS A MINIMUM AREA OF ONE ACRE, WAS ABS OLUTE. THIS HAS BEEN SLIGHTLY LIBERALIZED FROM A.Y. 2005-06 TO THE EXTENT THAT EVEN IF THE PROJECT IS ON A PLOT OF LESSER SIZE, IF FOLLOWING T WO CONDITIONS ARE SATISFIED THE DEDUCTION MAY BE ALLOWED. I) THE HOUSING PROJECT IS IN ACCORDANCE WITH A SCHEME FRAMED BY THE CENTRAL OR A STATE GOVERNMENT FOR RECONSTRUC TION OR ITA NO. 5323/MUM/2008 SHRI ABDUL QAYYUM ABDUL RAUF KHAN 3 REDEVELOPMENT OF EXISTING BUILDINGS IN AREAS DECLAR ED TO BE SLUM AREAS UNDER ANY LAW. II) SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BEHALF . THESE TWO CONDITIONS HAVE TO BE FULFILLED SIMULTANE OUSLY. 5.1 ACCORDINGLY, THE APPELLANT WAS ASKED TO SUBMIT THE PROOF REGARDING HIS PROJECT BEING UNDER SUCH A SCHEME FRAMED BY CEN TRAL OR STATE GOVERNMENT. FURTHER, HE WAS ALSO ASKED TO PRODUCE T HE CBDTS NOTIFICATION IN THIS BEHALF. 5.2 THE APPELLANT HAS NOT BEEN ABLE TO PRODUCE THE CBDTS NOTIFICATION AT ALL. SINCE THE ABOVE TWO CONDITIONS HAVE TO BE S IMULTANEOUSLY FULFILLED FOR A PERIOD OF LESS THAN 1 ACRE OF LAND, THE APPEL LANT HAS CLEARLY FAILED TO SATISFY THE CONDITIONS PRESCRIBED UNDER CLAUSE (B) OF SUB-SECTION 10 OF SECTION 80IB OF THE I.T. ACT. THIS IS NOTWITHSTANDI NG THE FACT THAT DUE TO PROJECT COMPLETION METHOD BEING FOLLOWED BY THE A PPELLANT, HE WOULD HAVE BEEN ENTITLED TO THIS DEDUCTION FOR A.Y. 2005- 06, IF HE HAD SATISFIED THE ABOVE TWO CONDITIONS SIMULTANEOUSLY. 5.3 ACCORDINGLY, IT IS HELD THAT THE APPELLANT HAS NOT SATISFIED THE CONDITIONS PRESCRIBED UNDER CLAUSE (B) OF SECTION 8 0IB(10) AS APPLICABLE FOR A.Y. 2005-06. THEREFORE, IT IS HELD THAT THE ACTION OF THE ASSESSING OFFICER IN NOT ALLOWING THE DEDUCTION U/S . 80IB(10) IS VALID. NO INTERFERENCE IS CALLED FOR IN THE ASSESSM ENT REGARDING THE DENIAL OF DEDUCTION U/S. 80IB. THE ASSESSEE IS AGGRIEVED ON THE ABOVE. 5. REFERRING TO VARIOUS PAPERS FILED IN THE PAPER BOOK , THE LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE HAS SATISFIED A LL THE CONDITIONS EXCEPT ONE CONDITION THAT THE PROJECT IS ON THE SIZE OF THE PLOT WHICH HAS A MINI MUM AREA OF ONE ACRE. IT WAS SUBMITTED THAT EVEN THOUGH PLOT AREA WAS SM ALLER THE PROJECT WAS APPROVED BY THE MHADA AS HOUSING PR OJECT VIDE THE SCHEME FOR RECONSTRUCTION OR REDEVELOPMENT OF EXISTING BUI LDINGS IN ACCORDANCE WITH DCR 33(7) SANCTIONED BY THE GOVERNMENT IN URBAN DEV ELOPMENT DEPARTMENT NOTIFICATION PUBLISHED IN GOVERNMENT GAZ ETTE DATED 25 TH JANUARY 1999 AND THIS PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY. APPROVAL OF THE PROJECT WAS GIVEN BY THE MHADA DATE D 23.05.2002 AND THE APPROVAL FOR COMMENCEMENT WAS GIVEN ON 21.01.2003. THE PROJECT WAS COMPLETED AND MHADA HAS GIVEN NO OBJECTION VIDE THE IR LETTER DATED 20.02.2005. ACCORDINGLY THE ASSESSEE HAS CLAIMED 80 IB(10) DEDUCTION RELEVANT FOR A.Y. 2005-06. IT WAS FURTHER SUBMITTED THAT 80IB(10) RELEVANT FOR ITA NO. 5323/MUM/2008 SHRI ABDUL QAYYUM ABDUL RAUF KHAN 4 THIS ASSESSMENT YEAR HAS BEEN AMENDED VIDE FINANCE ACT 2004 W.E.F. 01.04.2005 WHERE VIDE (10)(B) THE PROVISO IS AS UND ER: - 80IB (10) (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND W HICH HAS A MINIMUM AREA OF ONE ACRE: PROVIDED THAT NOTHING CONTAINED IN CLAUSE (A) OR CLAUSE (B) SHALL APPLY TO A HOUSING PROJECT CARRIED OUT IN ACCORDANCE WITH A SCHEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT FOR RECONSTRUCTION OR REDEVELOPMENT OF EXISTING BUILDINGS IN AREAS DEC LARED TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BEHALF; 6. IT WAS FURTHER SUBMITTED THAT EVEN THOUGH THE ASSES SEES PROJECT WAS APPROVED BY THE STATE GOVERNMENT THE SCHEME IS NOT NOTIFIED BY THE BOARD AND THE ASSESSEE CANNOT BE DENIED THE BENEFIT JUST BECAUSE THE BOARD HAS NOT NOTIFIED THE PROJECT. THE LEARNED COUNSELS SUB MISSIONS ARE AS UNDER: - 1. THE WORD PROJECT CONVEYS THE IDEA OF A SCHEME OR A VENTURE IN A PLANNED DEVELOPMENT. 2. THE APPELLANT SRA SCHEME WHICH IS APPROVED BY TH E STATE GOVERNMENT AND SRA NEEDS NOT BE FURTHER NOTIFIED BY CBDT FOR THE PURPOSE OF CLAIMING SEC. 80IB(10) DEDUCTION, MORESO WHEN UNDER THE INCOME TAX ACT OR RULES OR CBDT HAS NOT LAID DO WN ANY GUIDELINES, RULES OR PROCEDURE AS TO HOW, WHERE AND WHEN AN ASSESSEE SHOULD APPROACH TO GET THE PROJECT NOTIFIE D. IN FACTS OF THE CASE ALL THE DETAILS LIKE APPROVALS, PLANS ETC HAD BEEN FILED BEFORE THE ASSESSING OFFICER. 3. THE FINANCE (NO.2) ACT 2004, PROVISO WAS INSERTE D IN CLAUSE (B) WHEREBY THE RESTRICTION OF SIZE OF PLOT WAS RELAXED WITH VIEW TO RATIONALISE THE PROVISION. IT IS SUBMITTED THAT THE PROVISO WAS INSERTED TO MAKE THE PROVISION WORKABLE AND AVOID T HE DIFFICULTY. INTERPRETATION SHOULD BE MADE TO BRING EFFECTIVE RE SULT AND AVOID UNJUST RESULT OR DISCRIMINATION. THE PROVISO WAS IN SERTED TO CURE THE DEFECT. 4. THE ASSESSEE CANNOT BE COMPELLED TO PERFORM SOME ACT HOWEVER NO PRESCRIBED RULES, GUIDELINES, PROCEDURE ETC ARE LAID DOWN FOR THE SAME. 5. IMPOSSIBILITY OF PERFORMANCE, BY THE ASSESSEE EX EMPTION CANNOT BE DENIED. 6. ONCE STATE GOVT. APPROVED THE PROJECT, FURTHER A PPROVAL IF ANY WILL BE DISPUTES BETWEEN STATE & CENTRAL, HENCE THE ASSE SSEE CANNOT BE DENIED THE EXEMPTION. ITA NO. 5323/MUM/2008 SHRI ABDUL QAYYUM ABDUL RAUF KHAN 5 7. DEDUCTION U/S. 80IB(10) MAY BE GRANTED. 8. WITHOUT PREJUDICE TO ABOVE APPROVAL IF ANY MAY B E REQUIRED FOR CENTRAL GOVT. PROJECT AND NOT FOR STATE GOVT. PROJE CT APPROVED BY THE STATE GOVT. 7. THE LEARNED D.R., HOWEVER, SUBMITTED THAT THE ASSES SEE HAS NOT CLAIMED 80IB DEDUCTION IN EARLIER YEARS, ON THE PRO FITS OFFERED ON WORK IN PROGRESS AS RECORDED BY THE A.O. IN PARA 10 OF THE ASSESSMENT ORDER AND ACCORDINGLY THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCT ION AS IT HAS NOT SATISFIED THE CONDITION THAT IT SHOULD BE ON A PLOT MORE THAN ONE ACRE AND THE A.O. WAS RIGHT IN DISALLOWING THE CLAIM UNDER SECTION 80 IB(10) . 8. WHILE ADMITTING THAT THIS PROVISION WAS AMENDED W.E .F. 01.04.2005 BY THE FINANCE ACT 2004 AND SIMILAR EXEMPTION WAS NOT AVAILABLE IN EARLIER YEARS, IT WAS THE SUBMISSION OF THE LEARNED COUNSEL THAT THE ASSESSEE CANNOT BE DENIED THE BENEFIT IN THE ASSESSMENT YEAR JUST B ECAUSE THE CBDT HAS NOT NOTIFIED AND REFERRED TO THE CORRESPONDENCE FILED A S ADDITIONAL EVIDENCE TO SUBMIT THAT APPROVAL FROM THE BOARD IS BEYOND THE C ONTROL OF THE ASSESSEE AND ACCORDINGLY THE CLAIM, WHICH IS OTHERWISE ALLOW ABLE, SHOULD BE ALLOWED. IT IS ALSO SUBMITTED THAT IF THIS FORUM CANNOT GRAN T THE RELIEF ONLY OPTION IS TO CLAIM THE DEDUCTION IN THE HIGHER FORUM, WHO CAN DI RECT THE CBDT IN THIS REGARD. 9. WE HAVE CONSIDERED THE ISSUE. THE ASSESSEE, AS STAT ED IN PARA 10 OF THE ASSESSMENT ORDER, HAS STARTED THE PROJECT WAY B ACK IN 2003 AND IN THE EARLIER TWO ASSESSMENT YEARS FILED THE RETURNS WITH OUT CLAIMING 80IB(10) DEDUCTION. SINCE THE ASSESSEES PROJECT WAS APPROVE D WAY BACK IN A.Y. 2002- 03 BY THE MHADA, THE PROVISO TO SECTION 80IB(10) WA S NOT AVAILABLE AT THAT POINT OF TIME. THE AO STATES THAT THE ASSESSEE OFFE RED INCOME ON PERCENTAGE COMPLETION METHOD IN EARLIER YEARS BUT THE CIT(A) R EJECTS THE CLAIM EVEN ON PROJECT COMPLETION METHOD. THE ASSESSEE HAS UNDERTA KEN THE PROJECT AS A SLUM REHABILITATION PROJECT AND GOT APPROVAL FROM M HADA. HE WAS VERY WELL AWARE AT THAT POINT OF TIME THAT THE SAID PROJECT W AS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10). THE ASSESSEE WAS OFFERING THE INCOME ON WORK-IN-PROGRESS IN EARLIER YEARS AS FAR AS INCOME OF THE PROJECT IS CONCERNED AND NO CLAIM UNDER SECTION 80IB(10) WAS MADE, AS TH E PROJECT IS NOT ITA NO. 5323/MUM/2008 SHRI ABDUL QAYYUM ABDUL RAUF KHAN 6 FULFILLING THE CONDITIONS LAID DOWN UNDER SECTION 8 0IB(10). ONLY IN THIS YEAR, IN VIEW OF THE INSERTION OF PROVISO TO SECTION 80IB (10)(B) WITH EFFECT FROM 01- 04-05, THE ASSESSEE MADE A CLAIM WITHOUT THERE BEIN G ANY APPROVAL FROM THE CBDT OF THE SCHEME UNDER WHICH THE PROJECT WAS APPR OVED. ANY PROJECT HAS TO SATISFY THE CONDITIONS LAID DOWN UNDER THE SECTI ON IN ORDER TO CLAIM THE BENEFIT OF DEDUCTION UNDER SECTION 80IB. ONE SUCH C ONDITION IS THAT THE PROJECT SHOULD BE ON THE SIZE OF A PLOT WHICH HAS A MINIMUM AREA OF ONE ACRE. THIS CONDITION WAS RELAXED IN THIS ASSESSMENT YEAR ONWARDS FOR SPECIFIC PROJECTS WHICH ARE IN ACCORDANCE WITH THE SCHEME FRAMED BY THE CENTRAL GOVERNMENT OR STATE GOVERNMENT FOR RECONSTR UCTION OR REDEVELOPMENT OF THE EXISTING BUILDINGS IN AREAS DE CLARED TO BE SLUM AREAS AND SUCH SCHEME IS TO BE NOTIFIED BY THE CBDT IN TH IS BEHALF. WHAT IS REQUIRED IS NOT THE APPROVAL OF THE CBDT FOR INDIVI DUAL PROJECTS. THE PROVISO CONTEMPLATES THAT THE SCHEME IS TO BE APPROVED/ NOT IFIED BY THE CBDT IN THIS BEHALF. EVENTHOUGH THE STATE GOVERNMENT HAS FO RMULATED A SCHEME FOR REDEVELOPMENT OR RECONSTRUCTION OF EXISTING BUILDIN G AND THE POWERS WERE DELEGATED TO THE SLUM REHABILITATION AUTHORITY UNDE R SECOND PROVISO OF SECT IN 3A OF MAHARASHTRA SLUM AREAS IMPROVEMENT, CLEARA NCE AND REDEVELOPMENT ACT 1971, SUCH SCHEME HAS NOT YET BEE N NOTIFIED BY THE CBDT. IN FACT AS SEEN FROM THE CORRESPONDENCE FILED AS ADDITIONAL EVIDENCE, THE CBDT HAS ASKED FOR DETAILS OF THE SCHEME VIDE L ETTER DATED 2 ND AUGUST 2006 ADDRESSED TO THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT FOR NOTIFICATION OF REDEVELOPMENT SCHEME IN SLUM AREAS UNDER SECTION 80IB(10) OF THE I.T. ACT. EVEN IF SUCH SCHEMES ARE NOTIFIED, THEY CAN ONLY BE NOTIFIED W.E.F. 01.04.2005 IE. FROM THE TIME THE PROVISO CAM E ON STATUTE. AS STATED EARLIER THE ASSESSEE HAS UNDERTAKEN THE PROJECT AS EARLY AS A.Y. 2002-03 AND NECESSARY APPROVALS HAVE BEEN OBTAINED BY THE LATTE R DATED 23.05.2002. THE COMMENCEMENT CERTIFICATE WAS ALSO GIVEN AS EARLY AS 21.01.2003 AND COMPLETED THE PROJECT BY 20.02.2005, I.E. BEFORE AN Y NOTIFICATION CAN BE CONSIDERED BY THE CBDT FOR APPROVAL OF THE SCHEME. THE PROJECT UNDERTAKEN BY THE ASSESSEE WAS OUTSIDE THE SCHEME/NOTIFICATION TO BE CONSIDERED BY THE CBDT. EVEN THOUGH THE ASSESSEE HAS ENTERED INTO COR RESPONDENCE WITH THE CBDT FOR THE PURPOSE OF NOTIFICATION, WE ARE AFRAID THAT AS PER THE NORMS ITA NO. 5323/MUM/2008 SHRI ABDUL QAYYUM ABDUL RAUF KHAN 7 AVAILABLE IN THIS REGARD THE SCHEME CAN ONLY BE NOT IFIED PROSPECTIVELY W.E.F. 01.04.2005 UNDER THE EXISTING PROVISIONS OF SECTION 80IB(10) WHICH WAS INTRODUCED FROM THAT DATE ONLY. IN VIEW OF THIS, SI NCE THE SCHEME IS NOT NOTIFIED BY THE CBDT/CANNOT BE NOTIFIED BY THE CBDT FOR EARLIER YEARS, WE ARE OF THE VIEW THAT THE PROVISO TO SECTION 80IB(10 )(B) IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE. CONSEQUENTLY, WE UPHOLD THE ORDER OF THE CIT(A) IN THIS REGARD. THE ASSESSEE HAS NOT SATISFI ED THE CONDITIONS OF SECTION 80IB(10) AND HAS UNDERTAKEN THE PROJECT KNOWING VER Y WELL THAT THE PROJECT IS ON A PLOT LESS THAN ONE ACRE AND ALSO FILED THE RETURNS IN EARLIER TWO YEARS WITHOUT CLAIMING DEDUCTION UNDER SECTION 80IB(10). THE CLAIM MADE BY THE ASSESSEE IN THIS YEAR BASED ON AMENDED SECTION 80IB (10) CAN NOT BE ALLOWED AND ACCORDINGLY THE A.O. HAS RIGHTLY DENIED THE DED UCTION UNDER SECTION 80IB(10). THE ORDERS OF THE A.O. AND THE CIT(A) ARE ACCORDINGLY UPHELD. GROUNDS ARE REJECTED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH JULY 2010. SD/- SD/- (R.V. EASWAR) (B. RAMAKOTAIAH) PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 9 TH JULY 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXI, MUMBAI 4. THE CIT XXI, MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.