Itxa/1042/2011 Of The Commissioner Of Income Tax -21 Mumbai v. Vaman Estate

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1042 OF 2011 The Commissioner of Income Tax-21, Mumbai ..Appellant. V/s. Vaman Estate ..Respondent. Mr. Suresh Kumar for the appellant. Mr. Atul K. Jasani for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 1ST FEBRUARY, 2013 P.C. :- 1.In this appeal by the revenue for the assessment year 2006 -07, the following questions have been raised for our consideration:- a)Whether on the facts and circumstances of the case, the Tribunal was right in holding that the deduction u/s.80IB(10), as applicable prior to 1st April, 2005 is admissible in case of a 'housing project' comprising residential housing units and commercial establishments ?was right in holding that the deduction u/s.80IB(10), as applicable prior to 1st April, 2005 is admissible in case of a 'housing project' comprising residential housing units and commercial establishments ? b)Whether on the facts and circumstances of the case, the Tribunal was justified in holding that the residential projects having commercial area upto 10% of the project is eligible for the claim of deduction for entire profits of project u/s.80IB(10) ?was justified in holding that the residential projects having commercial area upto 10% of the project is eligible for the claim of deduction for entire profits of project u/s.80IB(10) ? c)Whether on the facts and circumstances of the case, the Tribunal is correct in holding that definition of built up area introduced by the Finance Act (No.2) Act 2004 as clause (a) to sub-section 14 of Section 80IB does not operate retrospectively ?is correct in holding that definition of built up area introduced by the Finance Act (No.2) Act 2004 as clause (a) to sub-section 14 of Section 80IB does not operate retrospectively ? d)Whether on the facts and circumstances of the case, the Tribunal is justified in remanding back the matter to the AO, when admittedly the built up area is more than 1000 sq. ft. ?is justified in remanding back the matter to the AO, when admittedly the built up area is more than 1000 sq. ft. ? e)Whether on the facts and circumstances of the case, the assessee is entitled to deduction u/s.80IB(10), when admittedly the built-up area of 5 flats is more than 1000 sq. ft. ?assessee is entitled to deduction u/s.80IB(10), when admittedly the built-up area of 5 flats is more than 1000 sq. ft. ? 2.So far as questions (a) & (b) are concerned, advocates for the parties state that the same do not arise from the impugned order of the Tribunal. 3.So far as questions (c), (d) & (e) are concerned, the Tribunal has restored the matter to the assessing officer. In view of the above, we do not entertain the questions (c), (d) & (e). 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)