Itxa/1035/2013 Of The Commissioner Of Income Tax Iii, Pune v. M/S Kruti Constructions

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.73 OF 2013 The Commissioner of Income Tax-III, Pune..Appellant.V/s.M/s. Kruti Constructions..Respondent. Mr. Tejveer Singh, for the Appellant. None for the Respondent. P.C:- CORAM: J.P.DEVADHAR & M.S.SANKLECHA,JJ.DATE : 5[th] MARCH, 2013. Heard. 2In this Appeal by the Revenue for the Assessment Years 2004-05 following questions have been raised for our consideration:- (a)Whether on the facts and in circumstances of the case and in law, the Tribunal was right in granting deduction to the assessee under Section 80IB(10) of the Income Tax Act, 1961 ignoring the factual finding of the assessing office in the assessment order that the built-up area of flats referred to in the assessment order, exceeded stipulated limit of 1500 sq. ft.? (b)Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in not appreciating the fact that the issue of variation in area of flat as quoted by the Government Approved Valuer remained un-examined? (c)Whether on the facts and in the circumstances of the case, the Tribunal was correct in ignoring the fact that when it was clearly brought out in the assessment order for Assessment Year 2004-05 that the area of flats (dwelling units) of the same scheme, was more than the prescribed limit for allowance of deduction under Section 80IB(10) of the Income Tax, Act in view of the fact that two constructed units were joined together to make one dwelling unit and hence it was disqualified for the claim for the Assessment Year 2004-05? 3The basic issue in all the aforesaid questions is whether the Respondent-Assessee is entitled to deduction under Section 80IB of the Income Tax Act, 1961 even though the area of some of the flats are in excess of 1500 sq. feet. The Tribunal by the impugned order has recorded a finding of fact that the building plan as approved and completion certificate as issued by the Municipal Authorities clearly indicates that the size of the flat sold by the Respondent-Assessee was less than 1500 sq. feet each. However, after the flats (each of which was less 1500 sq. ft), were purchased, some of the flat owners joined two flats which resulted in the size of the some of the flat being in excess of 1500 sq. feet. The Tribunal while upholding the order of the CIT(A) held that merely S.R.JOSHI2 of 3 because 4 out of 83 flats constructed were joined together into 2 bigger units in excess of 1500 sq. ft. each after the sale by the Respondent-Assessee, the benefit under Section 80IB of the Income Tax Act, 1961 cannot be denied. Since the decision of the Tribunal is based on a findings of fact, we see no reason to entertain the proposed questions of law. 4Accordingly, appeal is dismissed with no order as to costs. (M.S.SANKLECHA,J.) (J.P.DEVADHAR,J.)