COMMISSIONER OF INCOME TAX Vs. HAPPY HOME ENTERPRISES

JUDGEMENT

(1.) Income Tax Appeal No.201 of 2012 is filed by the Revenue under section 260A of the Income Tax Act 1961 (hereinafter referred to as the Act) wherein the following questions of law are projected as substantial and read as under :-

(2.) This appeal was admitted on the aforesaid questions by a Division Bench of this Court on 22nd February, 2013. Since we found that several Appeals on similar questions were either admitted or pending admission in this Court, we by our order dated 4th July, 2014 passed in Income Tax Appeal No.308 of 2012, directed the learned counsel for the parties to submit a list to the Registrar so that these Appeals could be listed before this Court for disposal. By the said order, we also requested the respective counsels to address us on the point as to whether the judgment of this Court in the case of CIT v/s Brahma Associates, 2011 333 ITR 289 (Bom) would cover the cases where the housing project within the meaning of section 80-IB(10) had been approved prior to 31st March, 2005 and whether the view taken in Brahma Associates would cover all such matters. This is how these Appeals are listed before us.

(3.) Basically, we have been called upon to interpret the provisions of section 80-IB(10)(d) from two different perspectives. Firstly, we have to examine whether the said provision applies to a housing project approved before 31st March, 2005 and completed before 1st April, 2005. Secondly, we have to examine whether the said provision applies to a housing project approved before 31st March, 2005 but completed on or after 1st April, 2005. The date 1st April, 2005 is of some significance because by Finance (No.2) Act, 2004, w.e.f. 1st April 2005, section 80-IB(10) was substantially amended and clause (d) was inserted therein, that stipulates that the built up area of the shops and other commercial establishments included in the housing project should not exceed five percent of the aggregate built up area of the housing project or two thousand square feet, whichever is less. What we are called upon to decide is whether this condition/restriction set out in clause (d) of section 80-IB(10) will apply to the two scenarios set out above.