Itxa/506/2006 Of M/S Laukik Developers -Thane v. The Dy Commissionr Of Income-Tax-Circle-3,Thane

1 itxa506-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.506 OF 2006 M/s. Laukik Developers ..Appellant. V/s. The Dy. Commissioner of Income Tax,Circle-3, Thane & Anr...Respondents. Dr. K. Shivram with A.R. Singh, Renu Chaudhary & P.S. Savla for appellant. Mr. S.K. Bhatnagar with N.R. Prajapati for respondents. CORAM : J.P. DEVADHAR AND MRS. MRIDULA BHATKAR, JJ. MRS. MRIDULA BHATKAR, JJ. DATED : 22ND FEBRUARY, 2011 P.C. :- 1.This appeal was admitted on 8th July, 2008 on the following questions of law:- 1.Whether the appellate Tribunal was justified in law in holding that the housing project of the appellant was not a housing project within the meaning of section 80IB(10) of the Act and therefore the appellant was eligible for deduction of Rs.8,74,331/- without appreciating that the housing project has been approved by the local authority, as required under Section 80IB(10) of the Act ?the housing project of the appellant was not a housing project within the meaning of section 80IB(10) of the Act and therefore the appellant was eligible for deduction of Rs.8,74,331/- without appreciating that the housing project has been approved by the local authority, as required under Section 80IB(10) of the Act ? 2.Whether for the purpose of Sec. 80IB(10) a housing project containing certain convenience shops, approved by the local containing certain convenience shops, approved by the local authority as per the Development Control Rules as residential project be considered as housing project ? 3.Whether the appellate Tribunal had exceeded its jurisdiction in treating the approved residential housing project by Kalyan Dombivli Municipal Corporation (KDMC) as not a housing project because one of the buildings had certain convenience shops without appreciating that the shops were permitted under the Development Control Rules of KDMC ?treating the approved residential housing project by Kalyan Dombivli Municipal Corporation (KDMC) as not a housing project because one of the buildings had certain convenience shops without appreciating that the shops were permitted under the Development Control Rules of KDMC ? 4.Whether for the purpose of section 80IB(10) of the Act once a project is approved by the local authority (i.e. KDMC) as residential housing project as per the provisions of Development Control Rules the same ought to have been accepted by the Income Tax Department ?project is approved by the local authority (i.e. KDMC) as residential housing project as per the provisions of Development Control Rules the same ought to have been accepted by the Income Tax Department ? 5.Whether Tribunal was justified in holding that the appellant was a residential as well as commercial project which is perverse and contrary to the evidence on record as neither the Assessing Officer, CIT(A) or the Appellate Tribunal, has examined or verified the competent authority who have certified that the project of appellant as Residential Project ?residential as well as commercial project which is perverse and contrary to the evidence on record as neither the Assessing Officer, CIT(A) or the Appellate Tribunal, has examined or verified the competent authority who have certified that the project of appellant as Residential Project ? 6.Whether the Appellate Tribunal was justified in not considering the alternative contention that the commercial shops were only 2.9% of the total project hence if all any disallowance is made it should be restricted to the area and profit element of shops ?alternative contention that the commercial shops were only 2.9% of the total project hence if all any disallowance is made it should be restricted to the area and profit element of shops ? 2.Counsel on both sides agree that all the questions of law 6.Whether the Appellate Tribunal was justified in not considering the alternative contention that the commercial shops were only 2.9% of the total project hence if all any disallowance is made it should be restricted to the area and profit element of shops ?alternative contention that the commercial shops were only 2.9% of the total project hence if all any disallowance is made it should be restricted to the area and profit element of shops ? 2.Counsel on both sides agree that all the questions of law raised in this appeal are answered against the revenue and in favour of the assessee by the judgment of this Court in Income Tax Appeal No.1194 of 2010 [CIT V/s. Brahma Associates] decided by us today i.e. 22/02/2011. Accordingly, in terms of the order passed by us in the case of Brahma Associates (supra) the appeal is disposed of in favour of the assessee and against the revenue with no order as to costs. (MRS. MRIDULA BHATKAR, J.) (J.P. DEVADHAR, J.)