Itat/277/2022 Ia No: Ga/1/2022, Ga/2/2022 Principal Commissioner Of Income Tax Central 1, Kolkata v. M/S. Ideal Heights Pvt. Ltd. , Kolkata

O–3 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/277/2022IA NO: GA/1/2022, GA/2/2022PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL 1, KOLKATAVS.M/s. IDEAL HEIGHTS PVT. LTD. , KOLKATA BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 6 FEBRUARY, 2023 Appearance :Ms. Smita Das De, Adv.…for appellantNone appears…for respondent GA/1/2022 The Court : - We have heard Ms. Smita Das De, learned standing Counsel for theappellant. Though the respondent has been served, none appears for the respondent.There is a delay of 644 days in filing the appeal. On perusal of the affidavit filed in support of the application for condonation ofdelay we find sufficient cause has been shown for not preferring the appeal within theperiod of limitation. For such reason the application and the delay in filing the appeal iscondoned. ITAT/277/2022 This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961(the Act) is directed against the order dated 02.09.2020 passed by the Income TaxAppellate Tribunal “B” Bench, Kolkata in I.T.A. No. 158/Kol/2019 for the assessmentyear 2012-13. The revenue has raised the following substantial question of law forconsideration :- a)Whether in the facts and in the circumstances of the case the Tribunal wasjustified in law to allow the deductions under Section 80IB(10) of the said Actjustified in law to allow the deductions under Section 80IB(10) of the said Act by allowing the said consideration of car parking space for the purpose ofcalculation of deduction under Section 80IB(10) of the said Act? The learned Tribunal after considering the submissions made on behalf of eitherside took note of the factual position and accepted the case of the assessee that the carparking area is part and parcel of the housing project and it is a requirement as per thelocal municipal laws and the building has to compulsorily provide/construct carparking in specified ratios to the residential flats. Thus taking note of the said factualsituation the learned Tribunal accepted the case of the assessee and dismissed theappeal filed by the revenue holding that profit derived from the sale of car parkingare/space is also eligible for claiming deduction under Section 80IB(10) of the Act.Furthermore, the learned Tribunal noted that the Commissioner of Income Tax(Appeals) while allowing the assessee’s appeal had taken note of the decision of theBombay Bench of the Tribunal as well as the decision of the High Court of Bombay inthe case of M/s. Purvankara Projects Ltd. which appears to have attained finality asrevenue has not preferred any appeal against the decision of the High Court at Bombay.Thus on finding of facts learned Tribunal has affirmed the view taken by the CITA whichdoes not call for any interference. Thus we are of the view that no substantial questionof law arises out for consideration in this appeal. Thus the appeal fails and dismissed. (T.S. SIVAGNANAM, J.) Pkd/GH. (HIRANMAY BHATTACHARYYA, J.)