The Commissioner Of Income Tax – Iii, Pune v. M/S.kruti Constructions, Pune

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.52 OF 2012 The Commissioner of Income Tax – III, Pune..Appellant. Versus M/s.Kruti Constructions, Pune ..Respondent. Mr.Suresh Kumar for the appellant.Mr.Jitendra Jain with Mr.Prakash Shah & Mr.Jas Sanghavi i/by PDS Legal for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 3[rd] April 2013 P.C. : 1.In this appeal by the Revenue for assessment year 2005-06, following questions of law have been proposed for our consideration. “a)Whether, on the facts and in the circumstances of the case and in law, the Tribunal was right in granting deducting to the assessee under Section 80IB(10) of the Income Tax Act, 1961, ignoring the factual finding of the assessing officer in the assessment order that the built-up area of each of the 5 flats referred to in the assessment order, exceeded stipulated limit of 1500 sq. ft. ?law, the Tribunal was right in granting deducting to the assessee under Section 80IB(10) of the Income Tax Act, 1961, ignoring the factual finding of the assessing officer in the assessment order that the built-up area of each of the 5 flats referred to in the assessment order, exceeded stipulated limit of 1500 sq. ft. ? b)Whether, on the facts and in the circumstances of the case and in law, the Tribunal was right in not appreciating the fact that the issue of variation in area of flat quoted by the assessee vide his submission dated 6-12-2007 made during the course of scrutiny law, the Tribunal was right in not appreciating the fact that the issue of variation in area of flat quoted by the assessee vide his submission dated 6-12-2007 made during the course of scrutiny assessment for assessment year 2005-06 and the area as quoted by the Government Approved Valuer in the project verification report dated 6-10-2009 called for with reference to remand report remained unexamined ? c)Whether, on the facts and in the circumstances of the case and in law, the Tribunal was correct in ignoring the fact that when it was clearly brought out in the assessment order for AY 2007-08, that the area of two flats (dwelling units) of the same scheme, was more than the prescribed limit for allowance of deduction under Section 80IB (10) of the Income Tax Act, in view of the fact that two constructed units were joined together to make one dwelling unit and hence it was disqualified for the claim for the assessment year 2007-08 as well as earlier years ?law, the Tribunal was correct in ignoring the fact that when it was clearly brought out in the assessment order for AY 2007-08, that the area of two flats (dwelling units) of the same scheme, was more than the prescribed limit for allowance of deduction under Section 80IB (10) of the Income Tax Act, in view of the fact that two constructed units were joined together to make one dwelling unit and hence it was disqualified for the claim for the assessment year 2007-08 as well as earlier years ? d)Whether, on the facts and in the circumstances of the case and in law, the Tribunal was correct, despite the fact that learned Departmental Representative conceded that the above aspect of joining two constructed units together to make one dwelling unit, does not arise out of the order of the Assessing Officer / CIT (A), still however since the fact of disqualification does not change, additional ground, relating to this issue, though not raised before, should be allowed to be raised as laid down by Hon'ble High Court in Ooppoottil Kurien and Company Private Limited V/s. CIT reported in (2004) 266 ITR 409 (Ker.) ?law, the Tribunal was correct, despite the fact that learned Departmental Representative conceded that the above aspect of joining two constructed units together to make one dwelling unit, does not arise out of the order of the Assessing Officer / CIT (A), still however since the fact of disqualification does not change, additional ground, relating to this issue, though not raised before, should be allowed to be raised as laid down by Hon'ble High Court in Ooppoottil Kurien and Company Private Limited V/s. CIT reported in (2004) 266 ITR 409 (Ker.) ? 2.In so far as questions (a) to (c) are concerned, counsel for the parties state that identical issues were raised by the Revenue in its appeals for assessment years 2003-04 and 2007-08 in Income Tax Appeal (L) Nos.72 of 2013 and 74 of 2013 in respect of the same respondent – assessee before this Court. By orders dated 5[th] March 2013, this Court did not entertain both the appeals being Income Tax Appeal (L) Nos.72 of 2013 and 74 of 2013 filed by the Revenue on questions similar to questions (a) to (c) herein. In view of the above, we see no reason to entertain questions (a) to (c). 3.In so far as question (d) is concerned, the Revenue had fairly conceded before the Tribunal that the issue does not arise from the orders of the authorities below. In this view of the matter, no occasion for any substantial question of law can arise. Therefore, we see no reason to entertain question (d). 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)