Itxa/172/2013 Of Commissioner Of Income Tax-Central-Ii v. Smt. Manju R. Gupta

sbw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.172 OF 2013 Commissioner of Income Tax,Central-II..Appellant -Versus-Smt. Manju R. Gupta..Respondent ........... Mr. A. r. Malhotra a/w N. A. Kazi i/b. Ms. Padma Divakar for the Appellant. Mr. J. D. Mistri, Senior Advocate, a/w P. C. Tripathi for the Respondent............ CORAM: S.C. DHARMADHIKARI AND A.A. SAYED, JJ. DATE :- 24[th] DECEMBER, 2014 P.C.: By this Appeal, the Revenue challenges the order passed by the Income Tax Appellate Tribunal on 12[th] August, 2011 in the Appeal by the Assessee. 2]The Assessee filed an Appeal in the Tribunal challenging the order of the Commissioner of Income Tax (Appeals). The Appeal of the Assessee was numbered by the Tribunal's Mumbai Bench and taken up together with the Income Tax Appeal No.4806 of 2010 for the assessment year 2003-04. 3]Mr. Malhotra, learned counsel, appearing on behalf of the Revenue submits that two questions of law at page 6 and 7 and formulated by the Revenue are substantial questions of law. 4]He submits that the first question at best could be said to be covered by a Division Bench judgment of this Court in the case of Commissioner of Income Tax V/s. M/s. Brahma Associates reported in (2011) 333 ITR 289. However, the second question cannot be said to be so covered. 5]In relation to that the learned counsel submits that the Assessee had undertaken a project and within the meaning of section 80IB(10). That was a project for construction of residential buildings and on a plot of land. The Revenue had specifically urged that the Assessee had received a certificate styled as commencement certificate/Intimation Of Disapproval (IOD) for the first time and on such IOD being received for all practical purposes, the Assessee is free to commence the project. In these circumstances, that should be taken as a date when the construction commenced. It is submitted that the Tribunal erred in rendering the finding against the Revenue and on by relying some material produced by the Assessee. However, the earlier commencement certificate/IOD was not treated to be cancelled or invalid. 6]On the other hand, Mr. Mistry, learned Senior Counsel, submits that there is a pure finding of fact and which would demonstrate that though a 8.itxa172.13.doc commencement certificate was issued on 2[nd] March, 2001, yet, what the Assessing Officer proceeded was on a foundation that this is issued much-after the dead line of 1[st] October, 1998 as per section 80IB(10) of the Act. The commencement certificate issued on 15[th] May, 1991 could not be said to be valid and either stood lapsed or invalidated by efflux of time. There was a commencement certificate issued on 12[th] February, 1993 but that was also valid for one year. The construction could not start within the term stipulated in these certificates and by law. Thereafter, there was a commencement certificate issued on 2[nd] March, 2001. This refers to the earlier commencement certificate of 12[th] February, 1993 and its cancellation. Clause 22 of that certificate dated 2[nd] March, 2001 was relied upon to support this argument. Further, there was a clearance and which was awaited in terms of section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. If the land is in excess of the ceiling limit then there has to be an exemption in terms of section 20(1) clause (a) or (b) and only upon such exemption being granted can the municipal authority proceed to grant a commencement certificate. This date is referred in para 13.2 of the order of the Tribunal with the attendant facts. 7]The Tribunal also noted the further factual position as brought on record by the Assessee.record by the Assessee. 8]After hearing both sides at length, we are of the opinion that there wadhwa 7]The Tribunal also noted the further factual position as brought on record by the Assessee.record by the Assessee. 8]After hearing both sides at length, we are of the opinion that there wadhwa is much substance in the contention of Mr. Mistry. This was a pure factual finding rendered by the Tribunal and relying on admitted material. The admitted material was that the earlier commencement certificates could not be held to be valid after one year from the date of issuance. If they lapsed or were treated as cancelled, then, the Tribunal was right in its conclusion that benefit of section 80IB (10) can be derived or taken by the Assessee. All the three conditions for availing of the deduction or benefit are, thus, complied with. 9]To our mind, the factual finding rendered by the Tribunal in para 14 of the order under challenge relying on the dates and events as brought on record cannot be termed as perverse. It is not vitiated by any error of law apparent on the face of the record either. The Appeal does not raise any substantial question of law and it is, accordingly, dismissed. No costs. (A. A. SAYED, J.) (S.C. DHARMADHIKARI, J.) 4/4