M/S. Tele Build Constructions Pvt. Ltd v. The Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 172 OF 2008 WRIT PETITION NO. 172 OF 2008 M/s. Tele Build Constructions Pvt. Ltd.. Petitioner Versus The Commissioner of Income Tax and another ... Respondents Mr. Firoz Andhyarjina, Sr. Counsel with Mr. M. Subramanian and Mr. V.S. Hadade for Petitioner. Mr. S.M. Shah with Mr. Sandeep Wasnik and Mr. P.S. Sahadevan for Respondents. CORAM: F.I.REBELLO&R.S. MOHITE, JJ.DATED: FEBRUARY 25, 2008 CORAM: F.I. R.S. MOHITE, JJ. DATED: FEBRUARY 25, 2008 P.C. P.C. . We have heard the learned counsel for the Petitioner at length. In fact the matter had been adjourned to enable the Petitioner to produce copy of the agreement which allowed them permission for development. The copy of the agreement for the development has been handed over. In clause 2 of the agreement, this is what is set out : "The Party of the First Part hereby grants the FSI right to the extent of 8500 sq. ft. out of the total FSI of 45657 s. ft. owned by the party of the First Part, to the party of the Other Part to construct a building and further the party of the first part also grant right to the party of the other part to use TDR on the said building more particularly shown at the location shown by red colour boundary on the plan annexed hereto, (hereinafter referred to as the said Building) by the Party of the Other Part at their cost to the extent it is required ................" . It is clear therefore, that the Petitioners were allowed to use particular FSI on the plot demarcated in red on the plan annexed to the agreement shown to us. Though the agreement is produced, the plan showing the place marked in red colour has not been produced. Even otherwise, what has been allotted is use of FSI of 8500 sq.ft. and to construct a building thereon. In our opinion, the predicates of section would not be satisfied. In the statement recorded the Petitioner in answer to question No. 13 has stated thus : "Q. No. 13 : If the area of plot of land on which "Gayatri Darshan is contracted in 3237.37 sq. mtr. then it is less than 4087 sq. mtr. i.e. 1 acre land area. In that case, how 80HB deduction is allowable in the case of "Gayatri Darshan"? Ans. The agreement for development dated 17.7.2000 for Gayatri Darshan Project: shows the land area of the project at 3237.37 sq. mtr. there is no other development agreement besides this, for the "Gayatri Darshan Project". The Land/FSI which is consumed for above said project is . In our opinion, considering the above, apart from the fact that the Petitioner was allowed only to use the FSI on the plot and various other constructions have come up on the said plot, the impugned order which has rejected the Petitioner’s contention cannot be faulted with. . The order does notsuffer from an error of law apparent on the face of record. Consequently, Petition rejected. (R.S. MOHITE, J.) (R.S. MOHITE, J.)(F.I.REBELLO, J.) (F.I.REBELLO, J.) (R.S. MOHITE, J.)