The Commissioner Of Income Tax – 23, Mumbai v. M/S.abhilasha Combines

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1482 OF 2011 The Commissioner of Income Tax – 23, Mumbai..Appellant. Versus M/s.Abhilasha Combines ..Respondent. Mr.Atul K Jasani for the appellant.Mr.Arvind Pinto for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 15[th] February 2013 P.C. : 1.In this appeal by the Revenue for assessment year 2004-05, following questions of law have been formulated for our consideration. “a)Whether in the facts and circumstances of the case and in law, the Tribunal was right in allowing deduction under Section 80IB (10)(a), while the project was approved by local authority on 16-9-1998 which was before the specified date i.e. 1-10-1998, as per the condition laid down under Section 80IB(10)(a) for availing deduction under Section 80IB (10). b)Whether in the facts and circumstances of the case and in law, the Tribunal was right in considering the commencement certificate dated 16-9-1998 as disapproved by Local Authority, as the land was agricultural land. Whereas nowhere in the said certificate it is mentioned that the project was disapproved. c)Whether in the facts and circumstances of the case and in law, the Tribunal was right in not considering the fact that there are many commencement certificate on record i.e. 16-9-1998, 17-12-2003 and 13-12-2005, and as per Explanation 1 to Section 80IB (10), it clearly says that where the approval in respect of housing project is obtained more than once, such project shall be deemed to have been approved on the date on which the building plan is first approved by the Local Authority ? d)Whether in the facts and circumstances of the case and in law, the Tribunal was right in setting aside the order with regard to commercial area back to the file of the AO for deciding it afresh in accordance with Special Bench order of Pune Bench of the Tribunal in Brahma Associates V/s. JCIT (2009) 119 ITD 255 (Pune) (SB), when the Act clearly states that built up area of the shops and other commercial establishment included in the housing project should not exceed five per cent of the aggregate built up area of the housing project or two thousand square feet, whichever is less, whereas in the assessee, commercial area is 3920 square feet ?” 2.In so far as questions (a) and (c) are concerned, same are nothing but mere facet of question (b). 3.In so far question (b) is concerned, during the assessment year in question Section 80IB(10)(a) of the Income Tax Act, 1961 ('Act' for short) provided that for availing the benefit thereof, the undertaking must commence the development and construction of the housing project on or after 1[st] October 1998. The CIT (A) as well as the Tribunal have recorded a finding of fact that the activity of construction had commenced in this case after 1[st] October 1998 as is evident from the following facts : (a)Permission of conversion from agricultural to non-agricultural was received on 21[st] November 2001; (b) on receipt of permission, the local authority approved the same and granted commencement certificate on 17[th] December 2003; and (c) the books of accounts of the assessee also indicate that till 31[st] March 2003 the amounts given for the plot was shown only as advance. On these findings of facts concurrently arrived at by two authorities, the Tribunal reached the conclusion that the benefit of Section 80IB (10)(a) is available to the respondent – assessee. As the decision of the Tribunal is based on finding of fact, we see no reason to entertain question (b) as framed. 4.In so far as question (d) is concerned, counsel for the parties state that the issue is covered in favour of the assessee and against the Revenue by the decision of this Court in the matter of Commissioner of Income Tax V/s. Brahma Associates reported in (2011) 333 ITR 289 (Bom). In view of the above, we see no reason to entertain question (d) as framed. On these findings of facts concurrently arrived at by two authorities, the Tribunal reached the conclusion that the benefit of Section 80IB (10)(a) is available to the respondent – assessee. As the decision of the Tribunal is based on finding of fact, we see no reason to entertain question (b) as framed. 4.In so far as question (d) is concerned, counsel for the parties state that the issue is covered in favour of the assessee and against the Revenue by the decision of this Court in the matter of Commissioner of Income Tax V/s. Brahma Associates reported in (2011) 333 ITR 289 (Bom). In view of the above, we see no reason to entertain question (d) as framed. 5.Accordingly, the appeal is dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)