Itat/212/2018 Ia No.ga/1/2018 (Old No. Ga/1820/2018) Ga/2/2018 (Old No. Ga/1821/2018) The Principal Commissioner Of Income Tax Kolkata – 11, Kolkata v. Ashiana Amar Developers , 5F, Everest House

OD-2 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/212/2018IA No.GA/1/2018 (OLD NO. GA/1820/2018)GA/2/2018 (OLD NO. GA/1821/2018)THE PRINCIPAL COMMISSIONER OF INCOME TAX KOLKATA – 11, KOLKATAVS.ASHIANA AMAR DEVELOPERS , 5F, EVEREST HOUSE, 46/C, CHOWRINGHEE ROAD,KOLKATA-700071 BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE BIVAS PATTANAYAKDate : 26[th] July, 2022 Appearance :Mr. Tilak Mitra, Adv…for the appellant.Mr. Pratyush Jhunjhunwala, Adv.Mr. Mrigank Kejriwal….for respondent. GA/1/2018 The Court : We have heard Mr. Tilak Mitra, learned standing Counsel for theappellant and Mr. Pratyush Jhunjhunwala learned Advocate assisted by Mr. MrigankKejriwal, learned Advocate for the respondent/assessee. There is a delay of 118 days in filing the appeal. We have perused the affidavit filed in support of the petition and found thatsufficient cause has been shown for not being able to prefer the appeal within the period of limitation. Accordingly, the application is allowed and the delay in filing the appeal iscondoned. ITAT/212/2018 This appeal by the revenue filed under Section 260A of the Income Tax Act, 1961(the Act) is directed against the order dated 6[th] October, 2017 passed by the Income TaxAppellate Tribunal, Kolkata “D” Bench (Tribunal) in I.T.A. No. 1307/Kol/2015 for theassessment year 2012-13. The revenue has raised the following substantial questions of law forconsideration :- i)Whether on the facts and the circumstances of the case the LearnedIncome Tax Appellate Tribunal has erred in law in upholding the orderpassed by the Learned Commissioner of Income Tax (Appeals)-9, Kolkatathereby allowing the claim by the assessee for deduction ofRs.11,01,49,340/- under Section 80IB of the Income Tax Act, 1961whereas the assessee failed to fulfill the conditions for claiming deductionunder Section 80IB of the Income Tax Act, 1961 ?Income Tax Appellate Tribunal has erred in law in upholding the orderpassed by the Learned Commissioner of Income Tax (Appeals)-9, Kolkatathereby allowing the claim by the assessee for deduction ofRs.11,01,49,340/- under Section 80IB of the Income Tax Act, 1961whereas the assessee failed to fulfill the conditions for claiming deductionunder Section 80IB of the Income Tax Act, 1961 ? ii)Whether on the facts and the circumstances of the case the LearnedIncome Tax Appellate Tribunal has erred in law in allowing deduction ofRs.11,01,49,340/- under section 80IB of the Income Tax Act, 1961 whereadmittedly the project was not complete in terms of the agreement in asmuch as failure to produce completion certificate from the DevelopmentAuthority in violation of section 80IB(10) of the Income Tax Act, 1961 ?Income Tax Appellate Tribunal has erred in law in allowing deduction ofRs.11,01,49,340/- under section 80IB of the Income Tax Act, 1961 whereadmittedly the project was not complete in terms of the agreement in asmuch as failure to produce completion certificate from the DevelopmentAuthority in violation of section 80IB(10) of the Income Tax Act, 1961 ? We have heard Mr. Tilak Mitra, learned standing Counsel for the appellant andMr. Pratyush Jhunjhunwala learned Advocate assisted by Mr. Mrigank Kejriwal, learnedAdvocate for the respondent/assessee. The short question involved in the instant case is whether deduction claimed bythe assessee in respect of the housing project under Section 80IB (10) of the Act wasliable and whether the assessing officer was right in depriving the assessee from filingthe deduction. Aggrieved by the order passed by the assessing officer dated 4.3.2015 underSection 143(3) of the Act, the assessee preferred appeal before the Commissioner ofIncome Tax (Appeal) 9, Kolkata CIT(A) and by order dated 21[st] August 2015, the appealwas allowed. Challenging the same the revenue preferred the appeal before the Tribunal.The Tribunal after considering the entire facts has dismissed the appeal. This is why therevenue is before us by way of present appeal. The short question involved in the instant case is whether deduction claimed bythe assessee in respect of the housing project under Section 80IB (10) of the Act wasliable and whether the assessing officer was right in depriving the assessee from filingthe deduction. Aggrieved by the order passed by the assessing officer dated 4.3.2015 underSection 143(3) of the Act, the assessee preferred appeal before the Commissioner ofIncome Tax (Appeal) 9, Kolkata CIT(A) and by order dated 21[st] August 2015, the appealwas allowed. Challenging the same the revenue preferred the appeal before the Tribunal.The Tribunal after considering the entire facts has dismissed the appeal. This is why therevenue is before us by way of present appeal. We find from the order of the Tribunal that identical deduction was claimed by theassessee in respect of the same project up to the stage which was concluded during theassessment year 2010-11. The assessing officer disallowed the deduction under Section80IB of the Act. Ultimately the matter travelled up to the Tribunal and the claim fordeduction under Section 80IB was allowed by the Tribunal vide order dated 22.1.2016 inI.T.A. No. 12/Kol/2014. The said order passed by the Tribunal in assessee’s own case inrespect of the same project for the assessment year 2010-11 had attained finality. Apartfrom that Tribunal has also noted the facts and circumstances of the case as well as thelegal position and dismissed the appeal. We find that there is no perversity in theapproach of the Tribunal and also find that no questions of law, much less substantialquestions of law arises for consideration in this appeal. Pkd/GH Accordingly the appeal fails and dismissed.The application GA/2/2018 stands closed. (T.S. SIVAGNANAM, J.) (BIVAS PATTANAYAK, J.)