Itxa/1507/2012 Of Commissioner Of Income Tax, Thane -I v. M/S. Kasturi Construction

*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1507 OF 2012 Commissioner of Income-Tax, Thane-I-Versus-M/s. Kasturi Construction ..Appellant ..Respondent ........... Mr. Suresh Kumar for the Appellant. ........... CORAM: S.C. DHARMADHIKARIAND A. K. MENON, JJ. DATE :- 1[st] OCTOBER, 2014 P.C.: 1]This Appeal challenges the order passed by the Tribunal in Income Tax Appeal No.1082/Mum/2010 and Cross Objection No.176/Mum/2010. The Mumbai Bench of the Tribunal delivered the impugned order on 13[th] June, 2012. The Assessment year is 2006-07. 2]Mr. Suresh Kumar, learned counsel, submits that there are questions of law and which are substantial. They are not covered by any of the orders passed by this Court in Income Tax Appeal No.201 of 2012 in the case of The Commissioner of Income Tax-16 V/s. M/s. Happy Home Enterprises and in Income Tax Appeal No.308 of 2012 in the case of The Commissioner of Income Tax, Central-II, Mumbai V/s. M/s. 1/4 Kanakia Spaces Pvt. Ltd. 3]Mr. Suresh Kumar's special emphasis is on questions at page 4 and 5 of the paper book. They read as under:- “(a) Whether on the facts and in the circumstances of the case and law, the Tribunal was correct in deleting the disallowance made of Rs.49,74,650/- being deduction claimed by Assessee firm under section 80IB(10) despite the fact that primary conditions for claim of such deduction has not been fulfilled?(b) Whether on the facts and in the circumstances of the case and law, the Tribunal was correct in allowing deduction under section 80IB(10) when the project was not completed within time is 31[st] March, 2008? (c) Whether on the fact and in the circumstances of the case and law, the Tribunal was corrct in allowing the Assessee's method of following the project completion method when the Assessee had been consistently following percentage method earlier and had shown profit @ 21.5% for subsequent assessment year 2008-09 following the same percentage method?” 4]Mr. Suresh Kumar would submit that two Government agencies gave an authenticated information and which is recorded in their documents. They certify that the area was not one acre but lesser than the same. If that was not one acre, then, the project does not qualify for the deduction under section 80IB(10) of the Income Tax Act, 1961. The Tribunal erroneously concluded that the same is eligible for this deduction. 5]In that regard, we have perused the impugned order of the Tribunal to the extent relevant for the purposes of this question and what we find from the same is that the Tribunal referred in para 20 to the area certificate by two Government agencies and the discrepancy therein, which also refers to a private document emerging from the record as it was placed by the Assessee. Finally, the Tribunal permitted this additional evidence to be placed on record and remanded the issue to the Assessing Officer. He has to verify the actual size of the plot either physically or through some agencies. We have no doubt in our mind that the Assessing Officer will give ample opportunity to both sides and, then, carry out the order of the Tribunal. The order and direction therein is essentially on factual issue. That does not raise any substantial question of law, particularly because the order of remand does not prejudice the Revenue in any manner. Hence, question no.1(a) as reproduced above is not a substantial question of law. 6]Insofar as other two questions appearing on page 5 of the paper book, to our mind, in the light of the factual finding rendered by the Tribunal, with regard to the date of sanction/approval of the local/planning authority and the period of completion, we are of the view that the project qualified for the deduction in terms of section 80IB(10)(a) 6]Insofar as other two questions appearing on page 5 of the paper book, to our mind, in the light of the factual finding rendered by the Tribunal, with regard to the date of sanction/approval of the local/planning authority and the period of completion, we are of the view that the project qualified for the deduction in terms of section 80IB(10)(a) (ii) of the Income Tax Act, 1961. The section with the explanation for the clause which has been referred by the Tribunal, requires an approval in respect of the housing project and its commencement, development and construction. The completion of construction in this case is within four years from the end of the financial year in which the housing project was approved by the local authority. Such is a finding of fact in para 12.1 of the impugned order of the Tribunal. That is not demonstrated to be perverse or vitiated by any error of law apparent on the face of the record. In these circumstances, question no.(b) and (c) are not substantial question of law. In any event, they are answered against the Revenue and in favour of the Assessee by our judgment and order in the case of The Commissioner of Income Tax-16 V/s. M/s. Happy Home Enterprises and in the case of The Commissioner of Income Tax, Central-II, Mumbai V/s. M/s. Kanakia Spaces Pvt. Ltd. decided on 19[th] September, 2014. The Appeal is devoid of merits and, therefore, dismissed. No costs. (A. K. MENON, J.) (S.C. DHARMADHIKARI, J.) wadhwa 4/4