Vivek Varma, JM

1. The appeal is filed by the assessee against the order of CIT(A) 20, Mumbai, dated 04-08-2010, wherein the CIT(A) has sustained the disallowance of deduction claimed u/s 80IB(10). The solitary ground taken is that the revenue authorities have denied the deduction claimed u/s 80IB(10). The facts relating to the issue are that the assessee completed housing projects at Kurar Village Malad (East), Mumbai, under the SRA Scheme. During the course of assessment proceedings, the AO noticed that the assessee did not fulfill the conditions prescribed for the claim of the deduction. According to the AO, the built up area of the commercial/shopping area exceeded the prescribed limit of 5% of the aggregate built up area and the concerned project was not notified by the Board. The CIT(A) also subscribed with the observations of the AO and sustained the disallowance.

2. The assessee is now before the ITAT.

3. Before us, the Authorised Representative submitted that it is a fact that till the disposal of appeal before the CIT(A), the approval as applied for, had not been received. But vide Gazette Notification dated 3rd August, 2010, whereby CBDT notified as under:

S.O. 1898(E) In exercise of the powers conferred by the proviso to clause (a) and (b) of sub-section (10) of Section 80IB of the Incometax Act 1961 (43 of 1961), the Board hereby notifies the Scheme contained in Regulation 33(10) of Development Control Regulation for Greater Mumbai 1991 read with the provisions of notification No. TPB-4391/14080(A)/UD-11 (RDP) dat ed 3rd June, 1992, as a scheme for the purposes of the said Section subject to the following conditions,-

(i) slum development falling in Category mentioned in notification No. TPB-4391/ 4080(A)/UD-11 (RDP) dated 3rd June, 1992 shall be excluded from the Scheme

(ii) slum development falling within clause 7.7 of the Appendix IV of regulation 33(10) which provides for joint development of slum and non-slum areas shall be excluded from the Scheme;

(iii) any amendment in the Scheme hereby notified shall be required to be re-notified by the Board.

2. This notification shall come into force with effect from the date of its publication.

[F.No. 178/37f2006-ITA-I]

According to the A.R., with this notification, the requirement of plot size of minimum of one acre is not mandatory. He, therefore, prayed that the deduction as claimed should be allowed.

4. The DR relied on the orders of the revenue authorities and pressed the point that the approval dated 25-05-2004 and the certificate dated 07-11-2008 given by the Architect were at variance and in any case the notification dated 3rd August, 2010, submitted is of a later date.

5. We have heard the arguments of both the sides and on perusal of the Gazette Notification dated 3rd August, 2010, which the A.R. has so heavily relied upon, was not before either of the revenue authorities. As this Gazette notification will have a major bearing over the outcome of the instant case, we deem it fit to restore the issue to the file of the AO to examine the bearing of the Gazette Notification along with supporting evidence on the case of the assessee and work out the disallowance as per law.

6. We, therefore, set aside the order of the CIT(A) on the issue of claim of deduction u/s 80IB(10) and restore the issue to the file of the AO, who shall take into account the Gazette notification and all other supporting documents and decide the issue on merits, as per law, after affording adequate opportunity to the assessee. In the result, the appeal is allowed for statistical purposes.

Order pronounced in the open Court on this day of 04/07/2012.