M/S. Surana Mutha Developers v. Dated

rsk 1 904-WP-9586-19.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.9586 OF 2019 M/s. Surana Mutha Developers...PetitionerVs.The Income Tax Officer, Ward-11 (4) and Ors....Respondents WITH ORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO.518 OF 2019 M/s. Surana Mutha Developers...AppellantVs.The Income Tax Officer, Ward-11 (4) and Ors....Respondents ------- Mr. Mihir Naniwadekar a/w. Mr. Rohan Deshpande, Ms. FarzeenKhambatta i/b Alisha Pinto for Appellant.Mr. Sham V. Walve for Respondents. ------- CORAM DATED :K. R. SHRIRAM &AMIT B. BORKAR, JJ.:7 DECEMBER 2021. P. C.: Heard counsel. 2.In paragraph No.6 of the order pronounced on 12/3/2018, the Tribunal has recorded as under: "The assessee also placed on record electricity bills in respect offlats in building No.D had been raised in the names of flatowners prior to 31/3/2011. The final completion certificate forbuilding No.D was issued on 15/3/2012 by the local authority.While arguing the said appeal, the learned AuthorizedRepresentative for the assessee pointed out that since the planfor building No.D had been sanction on 29/3/2007, theexpected date of completion of said building under theprovisions of Section 80IB(10) of the Act was 31/3/2012. Theassessee thus, pleaded that building Nos.A, B. and C werecompleted within stipulated time and hence, there was nomerit in disallowance of claim of deduction under section80IB(10) of the Act." 3.At the same time in paragraph No.14 of the same order the Tribunal records as under: "The Tribunal had also taken note of the fact that the assesseeclaims that it had transferred the flats up to 31/3/2011 againstwhich the possession certificate was also given. It is not clearhow the possession of any portion of building could be handedover before even the building is constructed. Whether it iscompleted or not let us not go into the same but as per thefinding of Tribunal based on various evidences availableagainst the assessee and even looking at the alleged Architect'scertificate of completion of building, the Tribunal has held thatit was completed only till the plinth level and was still inconstruction and it was not completed till 31/3/2011" 4.We find that the Tribunal has not commented on theassessee's argument that electricity bills in respect of flat in Building D hadbeen raised in the name of flat owners prior to 31/3/2011 when theArchitect certificate provides that the Building D was completed only till rsk the plinth level and was still under construction and it was not completed till 31/3/2011. 5. Moreover the Tribunal would have to give a separate finding as to: (i) Whether Building D was a separate project ? (ii) When the project was completed ? (iii) If it was completed only on 15/3/2012, whether petitioner would be entitled to claim deduction under Section 80IB (10) of theAct for the year under consideration ? 6.The matter is remanded to the Tribunal to give specificfindings on the four points mentioned above in paragraph Nos.4 and 5.Petition disposed. 7.We clarify that we have not made any observations on themerits of the case. Tribunal to pass such orders based on this order on orbefore 31/3/2022. 8. In view of the above order, Mr. Naniwadekar seeks leave to rsk 4 904-WP-9586-19.doc withdraw Income Tax Appeal No.518/2019. Same is dismissed aswithdrawn. Refund of Court fees, if any, in accordance with the Rules. (AMIT B. BORKAR, J.) ( K.R. SHRIRAM, J.) Digitally signedRAJESHWARIby RAJESHWARISUBODHSUBODH KARVEKARVEDate: 2021.12.0916:52:02 +0530