DY. Commissioner of Central Cir., Panaji V. M/S. Models Real Estate Developers, Goa

ITA 91/PAN/2012

• Counselvise Citation: 9124114 RSA 2012
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 05-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHA DESAI
• Keywords: Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 91/PNJ/2012 : (ASST. YEAR : 2004 - 05) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, PANAJI, GOA (APPELLANT) VS. M/S. MODELS REAL ESTATE DEVELOPERS, 401, 4 TH FLOOR, JOFFRE RESIDENCY, BEHIND GOA COLLEGE OF PHARMACY, ST. INEZ, PANAJI, GOA. (RESPONDENT) PAN : AACFM4890J CO NO. 14/PNJ/2012 ( IN ITA NO. 91/PNJ/2012) : (ASST. YEAR : 2004 - 05) M/S. MODELS REAL ESTATE DEVELOPERS, 401, 4 TH FLOOR, JOFFRE RESIDENCY, BEHIND GOA COLLEGE OF PHARMACY, ST. INEZ, PANAJI, GOA. PAN : AACFM4890J (CROSS OBJECTOR) VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, PANAJI, GOA (RESPONDENT) REVENUE BY : SMT. ASHA DESAI, DR ASSESSEE BY : ANIL SATHE, CA DATE OF HEARING : 01/07/2013 DATE OF PRONOUNCEMENT : 02 / 08 /2013 O R D E R PER P.K. BANSAL : 1. THE APPEAL FILED BY THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF CIT(A) DT. 31.8.2012. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL : 1. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN HOLDING T HAT THE TWO PROJECTS OF THE ASSESSEE IN RESPECT OF WHICH THE DEDUCTION HAS BEEN CLAIMED 2 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) U/S. 80IB(10) ARE HOUSING PROJECTS AND THEREFORE, ENTITLED FOR THE DEDUCTION OF RS.2,26,61,478/ - . THE ASSESSEE, IN HIS CROSS OBJECTION, HAS TAKEN THE FOLLOWING EFFECTI VE GROUNDS OF APPEAL : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT ACCEPTING THE CLAIM OF THE ASSESSEE (THE CROSS - OBJECTOR HEREIN) THAT THE ENTIRE INCOME OF THE ASSESSEE (INCLUDING THAT EARNED FROM SALE OF COMMERCIAL AREA) DERIVED FROM HOUSING PROJECTS WAS DEDUCTIBLE UNDER SECTION 80 - IB(10) IN VIEW OF THE DECISION OF THE BOMBAY HIGH COURT IN BRAHMA ASSOCIATES 333 ITR 289. 2. THE LEARNED COMMISSIONER OF (APPEALS) ERRED IN NO T APPRECIATING THE RATIO OF THE DECISION OF THE BOMBAY HIGH COURT IN PRUTHVI BROKERS AND SHAREHOLDERS, WHICH HELD THAT APPELLATE AUTHORITIES HAVE JURISDICTION TO PREFER AN ADDITIONAL CLAIM. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNER SHIP FIRM ENGAGED IN DEVELOPING HOUSING PROJECTS. THE ORIGINAL ASSESSMENT U/S 143(3) WAS COMPLETED ON 29.12.2006 DISALLOWING CLAIM OF DEDUCTION U/S 80 - IB(10) AMOUNTING TO RS.2,26,61,478/ - AS ACCORDING TO THE AO THE ASSESSEE DID NOT COMPLY WITH THE CONDITI ON RELATING TO THE MAXIMUM BUILT - UP AREA OF EACH RESIDENTIAL UNIT. EVEN THOUGH THE ASSESSEE HAS CLAIMED PROPORTIONATE DEDUCTION, IT WAS NOT ALLOWED. ACCORDING TO THE AO, ASSESSEE HAS ALSO VIOLATED THE CONDITION BY INCLUDING COMMERCIAL FLATS AND SHOPS OF 2521 SQ. MTRS. AND 3616 SQ. MTRS. RESPECTIVELY IN THE HOUSING PROJECT. THE ASSESSEE WENT IN APPEAL BEFORE CIT(A) AND CIT(A) VIDE ORDER DT. 14.8.2007 DISMISSED THE GROUND OF THE ASSESSEE RELATING TO CLAIM OF DEDUCTION U/S 80 - IB(10) HOLDING THAT NONE OF THE PROJECT MEETS THE REQUIREMENT OF LAW WHICH ARE PLAINLY LAID DOWN IN CLAUSE (A), (B) AND (C) OF SUB - SECTION 10. THERE IS NO SCOPE TO READ ANY PRO - RATA ELEMENT AND PRO - RATA DEDUCTION IN RESPECT OF PART PROFITS. THE PROJECT SHOULD BE HOUSING PROJECT CONSIS TING EXCLUSIVELY OF RESIDENTIAL UNIT WHOSE BUILT - UP AREA MUST NOT EXCEED THE SPECIFIED LIMITS. AGAINST THE DEDUCTION DISALLOWED U/S 80 - IB(10), THE 3 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) ASSESSEE WENT IN F URTHER APPEAL BEFORE THE ITAT BY TAKING THE FOLLOWING EFFECTIVE GROUNDS : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE DENIAL OF THE DEDUCTION CLAIMED BY THE APPELLANT OF RS.2,26, 61,478/ - U/S 80 - IB(10). 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT APPRECIATING THE RATIO OF THE VARIOUS JUDICIAL DECISIONS CITED BEFORE HIM. ITAT VIDE ITS ORDER DT. 9.4.2009 IN ITA NO. 166/PNJ/2007 SET ASIDE THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION DE NOVO IN ACCORDANCE WITH LAW BY HOLDING AS UNDER : 7. RIVAL CONTENTIONS ARE HEARD. ON A CAREF UL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPERS ON RECORDS AND THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE LAWS CITED WE HOLD AS FOLLOWS : 8.1 THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSO CIATES (SUPRA) AT PARA 130 PAGE 100 HELD AS FOLLOWS: - (A) THE DEDUCTION UNDER SECTION 80 I B (10), AS APPLICABLE PRIOR TO 15 TH APRIL 2005, SUBJECT TO AND IN THE LIGH T OF THE OBSERVATIONS MADE IN THE PRECEDING PARAGRAPHS, IS ADMISSIBLE IN CASE OF A HOUSING PROJECT COMPRISING RESIDENTIAL HOUSING UNITS AND COMMERCIAL ESTABLISHMENTS. IN CASE THESE PROJECTS ARE APPROVED AS HOUSING PROJECTS BY THE LOCAL AUTHORITY, SUCH AN APPROVAL AS HOUSING PROJECT IS SUFFICIENT FOR THE PURPOSES OF ELIGIBILITY. IN ANY OTHER CASE, WHERE 90% OR MORE, OF THE TOTAL BUILT UP AREA IS USED FOR DWELLING UNITS, IN ACCORDANCE WITH THE SCHEME OF SECTION 80 I B (10), THE BENEFIT OF DEDUCTION UNDER SECTION 80 I B(10) WILL NOT BE DECLINED. IN CASE COMMERCIAL USE OF BUILT UP AREA IS MOR E THAN 10% BUT THE RESIDENTIAL SEGMENT OF THE PROJECT SATISF IES REQUIREMENTS OF SECTION 80 IB (10) ON STANDALONE BASIS, I.E. ( I ) THE SIZE OF THE PLOT, EXCLUDING PORTION UNDER COMMERCIAL UNITS BUILT ON SUCH AREA MUST SATISFY CONDITION OF CLAUSE (C) OF THE PR OVISION, AND (III) OTHER NECESSARY CONDITIONS ARE FULFILLED, AND WHERE INCOME FROM CONSTRUCTION OF RESIDENTIAL DWELLING UNITS CAN BE WORKED OUT ON STANDALONE BASIS, DEDUCTION UNDER SECTION 80 I B (10) WILL BE AVAILABLE IN RESPECT OF RESIDENTIAL SEGMENT OF T HE PROJECT. (B) THE DEDUCTION UNDER SECTION 8 0 I B (10) IS AVAILABLE IN RESPECT OF PROFITS OF HOUSING PROJECT AS A WHOLE, AND, AS SUCH, IT IS NOT RELEVANT AS TO WHAT IS 4 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) THE PORTION OF PROFITS WHICH CAN BE SAID T O BE ATTRIBUTABLE TO RESIDENTIAL UNITS. THIS IS SUBJECT TO THE RIDER THAT IN CASE COMMERCIAL USE OF BUILT UP AREA IN A PROJECT IS MORE THAN 10% AND, FOR THIS REASON THE PROJECT CANNOT BE SAI D TO BE A PREDOMINANTLY HOUSING PROJECT, BUT, IN TERMS OF OBSERVATIONS MADE IN PARAGRAPH 115 ABOVE, THE ASSESS EE IS ENT I TLED TO DEDUCTION IN RESPECT OF RESIDENTIAL UNIT SEGMENT OF THE OVERALL PROJECT ON FULFILLMENT OF NECESSARY CONDITIONS, THE ENTITLEMENT OF INCENTIVE DEDUCTION WILL BE CONFINED TO ONLY TO THE PROFITS TO THE RESIDENTIAL SEGMENT OF THE OVERALL PROJE CT. ( C ) THE LIMIT ON COMMERCIAL USE OF BUILT UP AREA AS PRESCRIBED BY CLAUSE (D) OF SECTION 80 I B (10) HAS NO RETROSPECTIVE APPLICATION, AND IT APPLIES ONLY W.E.F THE ASSESSMENT YEAR 2005 - 06. 9. IN VIEW OF THE SUBMISSIONS OF BOTH THE PARTIES AND A S THE FACTS AND CIRCUMSTANCES OF THE CASE HAVE TO BE EXAMINED IN THE LIGHT OF THE PROPOSITIONS LAID DOWN BY THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES AND OTHERS (SUPRA), WE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION DE NOVO IN ACCORDANCE WITH LAW. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED, FOR STATISTICAL PURPOSE. 2 . 1 BEFORE US, THE LD. DR RELIED ON THE ORDER OF THE AO WHILE THE LD. AR RELIED ON THE ORDER OF THE HON'BLE BOMBAY HIGH COURT IN T HE CASE OF CIT VS. BRAHMA ASSOCIATES, 51 DTR (BOM) 298 IN WHICH IT WAS HELD THAT FOR ASSESSMENT YEARS PRIOR TO A.Y. 2005 - 06 THE PROJECT APPROVED AS HOUSING PROJECT BY THE LOCAL AUTHORITY IS ELIGIBLE FOR DEDUCTION U/S 80 - IB(10) OF THE INCOME TAX ACT IRRES PECTIVE OF THE EXTENT OF COMMERCIAL USER. IT WAS POINTED OUT THAT DURING THE RELEVANT PREVIOUS YEAR, THE ASSESSEE RETURNED INCOME IN RESPECT OF TWO PROJECTS, VIZ. MODELS MILLENIUM VISTAS AND MODELS MERIDIEN. I N THE INITIAL ASSESSMENT, THE AO DENIED THE CLAIM OF DEDUCTION U/S 80 - IB(10) ON THE GROUND THAT THERE WAS SOME COMMERCIAL AREA INCLUDED IN THE HOUSING PROJECT AND VERY SMALL NUMBER OF RESIDENTIAL UNITS EXCEEDED THE SPECIFIED BUILT - UP AREA. IN THE CASE OF MODELS MILLENIUM VISTAS , THE COMMERCIAL AR EA CONSTITUTED 7.6 6 % OF AGGREGATE BUILT - UP AREA AND IN MODELS MERIDIEN PROJECT , COMMERCIAL AREA IS 9.7% OF THE AGGREGATE BUILT - UP AREA OF THE HOUSING PROJECT. THUS, IT WAS CONTENDED THAT THE 5 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) TOTAL AREA OF THE COMMERCIAL ESTABLISHMENT IS LESS THAN 10% OF THE TOTAL PROJECT AREA. THUS, THE ASSESSEE IS ENTITLED FOR BENEFIT. CLAUSE (D) OF SEC. 80 - IB(10) WAS INSERTED W.E.F. 1.4.2005 AND IS PROSPECTIVE IN NATURE. THE PROJECT OF THE ASSESSEE HAS BEEN APPROVED PRIOR TO 1.4.2005 AND PRIOR TO INSERTION OF CLAUSE (D) THERE WAS NO CONDITION ABOUT THE COMMERCIAL BUILT - UP AREA. THE ASSESSEE SATISFIED ALL THE PRE - REQUISITE CONDITIONS NECESSARY FOR THE ENTITLEMENT OF THE DEDUCTION U/S 80 - IB(10) AND THEREFORE, THE FIRM CLAIMED PROPORTIONATE NET PROFIT OF RS. 1,03,73,527 / - (FROM MILLENIUM VISTA) AND RS.1,22,87,951/ - (FROM MODELS MERIDIEN) I.E. AGGREGATE NET PROFIT OF RS.2,26,61,478/ - AS DEDUCTION U/S 80 - IB(10) OF THE ACT. THE HOUSING PROJECT IS NOWHERE DEFINED UNDER THE ACT. SEC. 80 - IB(10) REFERS TO HOUSING PROJECTS WHI CH ARE APPROVED BY LOCAL AUTHORITIES. PROJECT CONSISTS OF BOTH COMMERCIAL UNITS AND SHOPS. THE ASSESSEE DID NOT CLAIM THE DEDUCTION IN RESPECT OF UNITS WHERE THE SUPER - BUILT UP AREA EXCEEDED 1500 SQ.FT. EVEN THOUGH ON THE BASIS OF THE DECISION OF ITO VS. AIR DEVELOPERS, 122 ITD 125 (NAG) THE ASSESSEE SHOULD HAVE BEEN ALLOWED DEDUCTION IN RESPECT OF PROFIT DERIVED FROM THE FULL PROJECT. IN THIS REGARD, WHEN THE ATTENTION OF THE LD. AR WAS INVITED TO THE FACT THAT NO SUCH CLAIM WAS MADE BY THE ASSESSEE IN THE FIRST ROUND OF APPEAL, HOW THIS TRIBUNAL CAN ADJUDICATE THIS ISSUE AGAIN, THE LD. AR DREW OUR ATTENTION TOWARDS THE CROSS OBJECTION FILED BY HIM AND REFERRING TO THE CROSS OBJECTION IT WAS VEHEMENTLY CONTENDED THAT THE ASSESSEE SHOULD BE ALLOWED DE DUCTION IN RESPECT OF PROFIT EARNED NOT ONLY FROM RESIDENTIAL UNIT BUT FROM THE SALE OF COMMERCIAL UNITS ALSO. HE RELIED ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD., 349 ITR 336. RELIANC E WAS ALSO PLACED ON THE DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MYSTIC INVESTMENTS, 22 TAXMANN.COM 219 (KAR). IN RESPECT OF THE CROSS OBJECTION, THE RELIANCE WAS PLACED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF N ATIONAL THERMAL POWER CO. LTD. VS. CIT, 229 ITR 383 (SC) . 6 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) 2.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE VARIOUS CASE LAWS RELIED BY BOTH THE SIDES BEFORE DISPOSING OFF THE GROUND TAKEN BY THE REVENUE IN ITS APPEAL. WE WOULD LIKE TO DISPOSE OFF THE GROUND TAKEN IN THE CROSS OBJECTION BY THE ASSESSEE FIRST . 2.3 IN THE CROSS OBJECTION, THE ASSESSEE PREFERRED AN ADDITIONAL CLAIM BY WHICH THE ASSESSE E CLAIMED DEDUCTION U/S 80 - IB(10) ON THE ENTIRE INCOME DERIVED FROM THE HOUSING PROJECT I.E. INCOME EARNED FROM THE RESIDENTIAL UNITS AS WELL AS FROM THE SALE OF COMMERCIAL UNITS. IN THIS REGARD, RELIANCE WAS PLACED BY THE ASSESSEE MAINLY ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN CIT VS. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD., 349 ITR 336 ( SUPRA ). IT IS AN UNDISPUTED FACT THAT IN THIS CASE WHILE FILING THE RETURN, THE ASSESSEE CLAIMED PROPORTIONATE DEDUCTION ONLY IN RESPECT OF PROFIT DERIVED FROM THE RESIDENTIAL UNITS. THE AO IN THE ORIGINAL PROCEEDINGS AS DENIED THE DEDUCTION TO THE ASSESSEE AGAINST WHICH THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) AND ULTIMATELY THE MATTER TRAVELLED TO THE TRIBUNAL. BEFORE NONE OF THE AUTHORITIES, THE ASSESSEE HAS ENLARGED HIS CLAIM MADE U/S 80 - IB(10) DURING THE COURSE OF THE FIRST ROUND OF APPEAL. THE GROUND TAKEN BEFORE THE TRIBUNAL DURING THE COURSE OF FIRST ROUND OF APPEAL WERE AS UND ER : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE DENIAL OF THE DEDUCTION CLAIMED BY THE APPELLANT OF RS.2,26,61,478/ - U/S 80 - IB(10). 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT APPRECIATING THE RATIO OF THE VARIOUS JUDICIAL DECISIONS CITED BEFORE HIM. FROM THESE GROUNDS, IT IS APPARENT THAT THE ASSESSEE NEVER MADE THE CLAIM U/S 80 - IB(10) IN RESPECT OF PROFIT/INCOME DERIVED FROM THE WHOLE OF THE HOUSING PROJECT INCLUDING THE INCOME EARNED FROM THE SALE OF COMMERCIAL UNITS. ON THE 7 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) BASIS OF THESE GROUNDS, THE TRIBUNAL VIDE ITS ORDER DT. DT. 9.4.2009 SET ASIDE AND RESTORED THE MATTER TO THE FILE OF AO BY OBSERVING AS UNDER : 7. RIVAL CONTENTIONS ARE HEARD. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPERS ON RECORDS AND THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE LAWS CITED WE HOLD AS FOLLOWS : 8.1 THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) AT PARA 130 PAGE 100 HELD AS FOLLOWS: - (A) THE DEDUCTION UNDER SECTION 80 I B (10), AS APPLICABLE PRIOR TO 15 TH APRIL 2005, SUBJECT TO AND IN THE LIGH T OF THE OBSERVATIONS MADE IN THE PRECEDING PARAGRAPHS, IS ADMISSIBLE IN CASE OF A HOUSING PROJECT COMPRISIN G RESIDENTIAL HOUSING UNITS AND COMMERCIAL ESTABLISHMENTS. IN CASE THESE PROJECTS ARE APPROVED AS HOUSING PROJECTS BY THE LOCAL AUTHORITY, SUCH AN APPROVAL AS HOUSING PROJECT IS SUFFICIENT FOR THE PURPOSES OF ELIGIBILITY. IN ANY OTHER CASE, WHERE 90% OR MO RE, OF THE TOTAL BUILT UP AREA IS USED FOR DWELLING UNITS, IN ACCORDANCE WITH THE SCHEME OF SECTION 80 I B (10), THE BENEFIT OF DEDUCTION UNDER SECTION 80 I B(10) WILL NOT BE DECLINED. IN CASE COMMERCIAL USE OF BUILT UP AREA IS MORE THAN 10% BUT THE RESIDENT IAL SEGMENT OF THE PROJECT SATISF IES REQUIREMENTS OF SECTION 80 IB (10) ON STANDALONE BASIS, I.E. ( I ) THE SIZE OF THE PLOT, EXCLUDING PORTION UNDER COMMERCIAL UNITS BUILT ON SUCH AREA MUST SATISFY CONDITION OF CLAUSE (C) OF THE PROVISION, AND (III) OTHER NE CESSARY CONDITIONS ARE FULFILLED, AND WHERE INCOME FROM CONSTRUCTION OF RESIDENTIAL DWELLING UNITS CAN BE WORKED OUT ON STANDALONE BASIS, DEDUCTION UNDER SECTION 80 I B (10) WILL BE AVAILABLE IN RESPECT OF RESIDENTIAL SEGMENT OF THE PROJECT. (B) THE DEDUC TION UNDER SECTION 8 0 I B (10) IS AVAILABLE IN RESPECT OF PROFITS OF HOUSING PROJECT AS A WHOLE, AND, AS SUCH, IT IS NOT RELEVANT AS TO WHAT IS THE PORTION OF PROFITS WHICH CAN BE SAID T O BE ATTRIBUTABLE TO RESIDENTIAL UNITS. THIS IS SUBJECT TO THE RIDER TH AT IN CASE COMMERCIAL USE OF BUILT UP AREA IN A PROJECT IS MORE THAN 10% AND, FOR THIS REASON THE PROJECT CANNOT BE SAI D TO BE A PREDOMINANTLY HOUSING PROJECT, BUT, IN TERMS OF OBSERVATIONS MADE IN PARAGRAPH 115 ABOVE, THE ASSESSEE IS ENT I TLED TO DEDUCTION IN RESPECT OF RESIDENTIAL UNIT SEGMENT OF THE OVERALL PROJECT ON FULFILLMENT OF NECESSARY CONDITIONS, THE ENTITLEMENT OF INCENTIVE DEDUCTION WILL BE CONFINED TO ONLY TO THE PROFITS TO THE RESIDENTIAL SEGMENT OF THE OVERALL PROJECT. ( C ) THE LIMIT ON COMMERCIAL USE OF BUILT UP AREA AS PRESCRIBED BY CLAUSE (D) OF SECTION 80 I B (10) HAS NO RETROSPECTIVE APPLICATION, AND IT APPLIES ONLY W.E.F THE ASSESSMENT YEAR 2005 - 06. 8 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) 9. IN VIEW OF THE SUBMISSIONS OF BOTH THE PARTIES AND A S THE FACTS AN D CIRCUMSTANCES OF THE CASE HAVE TO BE EXAMINED IN THE LIGHT OF THE PROPOSITIONS LAID DOWN BY THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES AND OTHERS (SUPRA), WE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION DE NOVO IN A CCORDANCE WITH LAW. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED, FOR STATISTICAL PURPOSE. FROM THESE FINDINGS OF THE TRIBUNAL, IT IS APPARENT THAT THE ASSESSEE DID NOT CLAIM DEDUCTION IN RESPECT OF COMMERCIAL UNITS. THE TRIBUNAL HAS VIDE ITS ORDER DT. 9.4.2009 SET ASIDE THE MATTER RELATING TO THE GROUNDS OF APPEAL BEFORE IT TO THE FILE OF AO FOR FRESH ADJUDICATION DE NOVO . THE FINDING OF THE TRIBUNAL HAS BECOME FINAL. IN OUR OPINION, NO FRESH GROUND CAN BE TAKEN BY THE ASSESSEE DURING THE COURSE OF SECOND ROUND OF APPEAL. OUR JURISDICTION IS ALSO LIMITED ONLY TO THE EXTENT OF THE ISSUE BEING DECIDED BY THE TRIBUNAL IN THE FIRST ROUND OF APPEAL. WE HAVE GONE THROUGH THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF C IT CENTRAL VS. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD., 349 ITR 336 ( SUPRA ) ON WHI CH THE LD. AR VEHEMENTLY RELIED. IN OUR OPINION, THIS DECISION WILL NOT ASSIST THE ASSESSEE. IN THAT CASE, THE QUESTION INVOLVED BEFORE THE HON'BLE HIGH COURT WAS WHETHER THE ASSESSEE CAN AMEND THE RETURN FILED BY HIM FOR MAKING ADDITIONAL CLAIM FOR DEDUCTION OTHER THAN FILING A REVISED RETURN. THE QUESTION DOES NOT RELATE TO WHETHER THE ASSESSEE CAN MAKE ADDITIONAL CLAIM FOR DEDUCTION DURING THE CO URSE OF APPEAL PROCEEDINGS AGAINST THE ASSESSMENT BEING FRAMED AFTER THE ISSUE HAS BEEN SET ASIDE BY THE TRIBUNAL AND THE TRIBUNAL HAS DIRECTED TO RE - ADJUDICATE THE ISSUE AFRESH. THIS DECISION OF THE HON'BLE BOMBAY HIGH COURT WILL NOT ASSIST THE ASSESSEE. IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT, 229 ITR 383 (SC) ( SUPRA ) THE ISSUE RELATED TO THE ADDITIONAL GROUND TAKEN FOR THE FIRST TIME BEFORE THE TRIBUNAL IN THE ORIGINAL PROCEEDINGS. THERE ALSO, THE ADDITIONAL GROUND WAS NOT TAKEN BEFORE THE APPELLATE AUTHORITY DURING THE COURSE OF SET ASIDE PROCEEDINGS. THAT DECISION 9 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) ALSO, IN OUR OPINION, WILL NOT ASSIST THE ASSESSEE. WE, IN THE OPEN COURT, ASKED THE LD. AR IF THERE IS ANY DECISION DIRECTLY ON THE ISSUE THAT THE ASSESSEE CAN MAKE A FRES H CLAIM IN THE APPELLATE PROCEEDINGS DURING THE COURSE OF SECOND ROUND OF APPEAL WHEN THE ORDER FROM THE FIRST ROUND OF APPEAL HAS ALREADY BECOME FINAL. THE LD. AR EVEN THOUGH SUBSEQUENTLY RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. JAI PARABOLIC SPRINGS LTD. , 306 ITR 42 AS WELL AS THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ R ANI GULATI VS. CIT, 346 ITR 543, THESE DECISIONS ALSO ARE NOT APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE . IN BOTH THESE DECISIONS, THE ASSESSEE HAS TAKEN ADDITIONAL GROUND FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY DURING THE COURSE OF FIRST ROUND OF PROCEEDINGS. IN VIEW OF THIS FACT, IN OUR OPINION, GROUND NOS. 1 AND 2 OF THE ASSESSEES CROSS OBJEC TION DO NOT HAVE ANY LEGS TO STAND AND WE, ACCORDINGLY, DISMISS BOTH THE GROUNDS TAKEN BY THE ASSESSEE IN HIS CROSS OBJECTION. 2.4 NOW, COMING TO THE GROUND OF APPEAL TAKEN BY THE REVENUE, WE NOTED THAT THE ISSUE IS DULY COVERED BY THE DECISION OF THE HON 'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES 51 DTR (BOM) 298 IN WHICH THE HON'BLE HIGH COURT HAS HELD AS UNDER : LASTLY, THE ARGUMENT OF THE REVENUE THAT S. 80 - IB(10) AS AMENDED BY INSERTING CL. (D) W.E.F. 1 ST APRIL, 2005 SHOULD BE APPLIED RETROSPECTIVELY IS ALSO WITHOUT ANY MERIT, BECAUSE, FIRSTLY, CL. (D) IS SPECIFICALLY INSERTED W.E.F. 1 ST APRIL, 2005 AND, THEREFORE, THAT CLAUSE CANNOT BE APPLIED FOR THE PERIOD PRIOR TO 1 ST APRIL, 2005. SECONDLY, CL. (D) SEEKS TO DENY S. 80 - IB(10) DEDUCTION TO PROJECTS HAVING COMMERCIAL USER BEYOND THE LIMIT PRESCRIBED UNDER CL. (D), EVEN THOUGH SUCH COMMERCIAL USER IS APPROVED BY THE LOCAL AUTHORITY. THEREFORE, THE RESTRICTION IMPOSED UND ER THE ACT FOR THE FIRST TIME W.E.F. 1 ST APRIL, 2005 CANNOT BE APPLIED RETROSPECTIVELY. THIRDLY, IT IS NOT OPEN TO THE REVENUE TO CONTEND ON THE ONE HAND THAT S. 80 - IB(10) AS IT STOOD PRIOR TO 1 ST APRIL, 2005 DID NOT PERMIT COMMERCIAL USER IN HOUSING PROJ ECTS AND ON THE OTHER HAND CONTEND THAT THE RESTRICTION ON COMMERCIAL USER INTRODUCED W.E.F. 1 ST APRIL, 2005 SHOULD BE APPLIED RETROSPECTIVELY. THE ARGUMENT OF THE 10 ITA NO. 91/PNJ/2012 & CO NO. 14/PNJ/2012 (ASST. YEAR : 2004 - 05) REVENUE IS MUTUALLY CONTRADICTORY AND HENCE LIABLE TO BE REJECTED. THUS, THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT CL. (D) INSERTED TO S. 80 - IB(10) W.E.F. 1 ST APRIL, 2005 IS PROSPECTIVE AND NOT RETROSPECTIVE AND HENCE CANNOT BE APPLIED TO THE PERIOD PRIOR TO 1 ST APRIL, 2005 BRAHMA ASSOCIATES VS. JT. CIT (2009) 122 TTJ (PUNE)(SB) 433 : (2009) 22 DTR (PUNE)(SB)(TRIB) 1 AFFIRMED (PARTLY). RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE BOMBAY HIGH COURT, WE DISMISS THE GROUND TAKEN BY THE REVENUE IN THE APPEAL. 3. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AS WELL AS THE CROSS OBJECTIO N FILED BY THE ASSESSEE STAND DISMISSED. 4. ORDER PRONOUNCED IN THE OPEN COURT ON 02 / 08 /2013. SD/ - (D.T.GARASIA) JUDICIAL MEMBER SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 02 / 08 / 2013 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER SR. P RIVATE S ECRETARY ITAT, PANAJI, GOA