A)Mr. Tejveer Singh, Learned Counsel Appearing For The Revenuevery Fairly States That The Decision Of This Court In Commissioner Ofincome Tax v. 16-Itxa-8=.Doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 208 OF 2016 The Pr. Commissioner of Income Tax-4 .. Appellant v/s. Shri. Tajuddin M. Somjee ..Respondent Mr. Tejveer Singh for the appellant None for the respondent CORAM : M.S. SANKLECHA & SANDEEP K. SHINDE, J.J. P.C. DATED : 1[st] AUGUST, 2018. 1.This Appeal under Section 260-A of the Income Tax Act, 1961(the Act) challenges the order dated 30[th] December, 2014 passed by theIncome Tax Appellate Tribunal (the Tribunal). This appeal relates toAssessment Year 2003-04. 2.The Revenue has urged the following substantial questions of lawfor our consideration :- (i)Whether on the facts and in the circumstances of the caseand in law, the Tribunal while allowing claim of deduction underSection 54EC erred considering the date of transfer of capital asset as 23.01.2003 (date of final payment of consideration received bythe assessee) instead of the date of development agreement15.06.2002 which is the actual date of transfer of capital asset. (ii)Whether on the facts and in the circumstances of the caseand in law, the Tribunal was justified in allowing assessee'sMiscellaneous Application on additional evidence filed withoutsetting aside the case before the concerned CIT(A) or concernedAO? 3.Regarding question no.(i) :- (a)Mr. Tejveer Singh, learned Counsel appearing for the Revenuevery fairly states that the decision of this Court in Commissioner ofIncome Tax Vs. Dr. Arvind S. Phake (Income Tax Appeal No.139 of2015) rendered on 20[th] November, 2017 may conclude the issue againstthe Revenue. The only distinction which he seeks to draw in thepresent facts from that decision in the case of Dr. Arvind S. Phake(supra) is that the date of transfer there was taken as the date on whichthe possession of the property handed over by the assessee to the buyer.While in the present case, the date of transfer of the property has beentaken by the Authorities as the date on which the last installment wasreceived in respect of the sale of the property by the respondentassessee. This for the purpose of computing the six months within which the investment has to be made under Section 54EC of the Act. (b) We had on the last occasion adjourned this appeal to today toenable Mr. Tejveer Singh to find out the date when possession of theproperty was given by the respondent assessee to the buyer in thepresent facts. (c)Today, Mr. Tejveer Singh, learned Counsel for the Revenue statesthat he is unable to find out the date when possession of the propertywas given to the buyers as there is nothing on record of the Revenueand Officers are also not in a position to state. Normally, the lastpayment of installment would have been received before handing overof the possession of the property to the buyer or simultaneously withhanding over the possession. Thus, in these facts, even if the sixmonths period is taken from the date of receiving the last installment,the investment indisputably has been made within the period of sixmonths from the date of transfer i.e. the date of receiving the lastinstallment in the present facts. (d)In the above view, this question as above does not give rise to anysubstantial question of law. Thus, not entertained.substantial question of law. Thus, not entertained. 4.Regarding question no.(ii) :- (a)This issue was not urged by the Revenue before the Tribunal. In fact, the Revenue participated in the hearing on merits and assisted inthe disposal of the miscellaneous application by the impugned orderdated 30[th] December, 2013. (b)Therefore, this not being an issue urged before the Tribunal bythe appellant Revenue, it cannot give rise to any substantial question oflaw from the order of the Tribunal as held by this Court inCommissioner of Income Tax vs. Tata Chemicals Ltd. reported in 256ITR 395. (d)In the above view, this question as above does not give rise to anysubstantial question of law. Thus, not entertained.substantial question of law. Thus, not entertained. 4.Regarding question no.(ii) :- (a)This issue was not urged by the Revenue before the Tribunal. In fact, the Revenue participated in the hearing on merits and assisted inthe disposal of the miscellaneous application by the impugned orderdated 30[th] December, 2013. (b)Therefore, this not being an issue urged before the Tribunal bythe appellant Revenue, it cannot give rise to any substantial question oflaw from the order of the Tribunal as held by this Court inCommissioner of Income Tax vs. Tata Chemicals Ltd. reported in 256ITR 395. (c)In the above view, question no.(ii) also does not give rise to anysubstantial question of law. Thus not entertained. 5.Accordingly, the appeal is dismissed. No order as to costs. (SANDEEP K. SHINDE J.) (M.S. SANKLECHA, J.)