Itxa/971/2013 Of Commissioner Of Income Tax-2 v. Jogani Constructions Ltd

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL (LOD) NO.179 OF 2013INCOME TAX APPEAL (LOD) NO.180 OF 2013 The Commissioner of Income Tax-2, Mumbai ..Appellant. V/s. Jogani Constructions Ltd. ..Respondent. Mr. Suresh Kumar for the appellant.Mr. Ashok J. Patil for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ.DATED : 15TH MARCH, 2013 P.C. :- 1.In these appeals by the appellant for the assessment years 2003-04 and 2004-05, following common questions of law have been raised for our consideration:- (i)Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in law in holding that the assessee is eligible for deduction u/s.80IB(10), though the assessee had violated the provisions contained in clause (d) of Section 80IB (10) of the Income Tax Act by having commercial area exceeding the permissible limit, by following the decision in the case of Brahma Associates 333 ITR 289 in which it is held that the amendment in Section 80IB(10) brought about by insertion of clause (d) w.e.f. 1/4/2005 will not apply to an assessment year prior to A.Y. 2005-06, ignoring the fact that the said decision has not been accepted and SLP has been filed against the said decision by the Income Tax Department ? (ii)Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in law in holding that the assessee is eligible for deduction u/s.80IB(10) by following the decision in the case of Brahma Associates 333 ITR 289 in which it is held that the amendment brought about in Section 80IB(10) by insertion of clause (d) w.e.f. 1/4/2005 will not apply to an assessment year prior to A.Y. 2005-06, ignoring that prior to the amendment to Section 80IB(10) w.e.f. 1/4/2005, there was in fact no provision to allow deduction u/s.80IB(10) on projects having commercial space and only housing projects without any commercial unit were eligible for deduction u/s.80IB(10) and the amendment by way of insertion of clause (d) had in fact given a relaxation by allowing commercial area not exceeding 5% of the housing project or up to 2000 sq. ft. whichever is less ?law, the Tribunal was correct in law in holding that the assessee is eligible for deduction u/s.80IB(10) by following the decision in the case of Brahma Associates 333 ITR 289 in which it is held that the amendment brought about in Section 80IB(10) by insertion of clause (d) w.e.f. 1/4/2005 will not apply to an assessment year prior to A.Y. 2005-06, ignoring that prior to the amendment to Section 80IB(10) w.e.f. 1/4/2005, there was in fact no provision to allow deduction u/s.80IB(10) on projects having commercial space and only housing projects without any commercial unit were eligible for deduction u/s.80IB(10) and the amendment by way of insertion of clause (d) had in fact given a relaxation by allowing commercial area not exceeding 5% of the housing project or up to 2000 sq. ft. whichever is less ? (iii)Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in law in upholding the order of the CIT(A) allowing the deduction under Section 36(1)(iii) of the income Tax Act, on proportionate interest expenditure allocable to work in progress forming part of closing stock, by following its law, the Tribunal was correct in law in upholding the order of the CIT(A) allowing the deduction under Section 36(1)(iii) of the income Tax Act, on proportionate interest expenditure allocable to work in progress forming part of closing stock, by following its decision in assessee's case for AY 1997-98, ignoring that the said decision of the Tribunal and also the decision on similar issue for AY 2000-01 has not been accepted and appeal u/s.260A has been filed before the Bombay High Court by the Income Tax Department ? decision in assessee's case for AY 1997-98, ignoring that the said decision of the Tribunal and also the decision on similar issue for AY 2000-01 has not been accepted and appeal u/s.260A has been filed before the Bombay High Court by the Income Tax Department ? 2.So far questions (i) & ( ii) are concerned, the Tribunal by the impugned order allowed the respondent-assessee's case by following the decision of this Court in the matter of Brahma Associates reported in [2011] 333 ITR 289. In these circumstances, we see no reason to entertain questions(i)& (ii). 3.So far as question (iii) is concerned, counsel for the parties state that identical question raised by the revenue in the respondent-assessee's own case in Income Tax Appeal (Lod) No.177 of 2013 pertaining to assessment year 2006-07 was not entertained by this Court in an order passed today i.e. 15[th] March, 2013. In view of the reasons mentioned in the order passed in Income Tax Appeal (Lod) No.177 of 2013, we see no reason to entertain question (iii). 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)