The Commissioner Of Income Taxchennai v. M/S.mahalakshmi Builders

In the High Court of Judicature at Madras Dated: 12.11.2014 Coram The Honourable Mr.JUSTICE R.SUDHAKARandThe Honourable Mr.JUSTICE R.KARUPPIAH Tax Case (Appeal) Nos.794 to 797 of 2014& connected M.Ps. The Commissioner of Income TaxChennai. .... Appellant in the above T.C.(A)s Vs. M/s.Mahalakshmi Builders,No.560, 3H Century Plaza,Anna Salai, Teynampet,Chennai – 600 018. .... Respondent in the above T.C(A)s APPEALs under Section 260-A of the Income Tax Act against theorder dated 26.02.2013 made in I.T.A.Nos.2180/Mds/2012, C.O.No.25/Mds/2013, in I.T.A.No.2180/Mds/2012, I.T.A.Nos.2181/Mds/2012 &C.O.No.26/ Mds/2013 in I.T.A.No.2181 of 2012 on the file of theIncome Tax Appellate Tribunal, 'B' Bench for the assessment years2007-08 and 2008-09 respectively. Appeal against the order dated 1.8.2012 in I.T.A.No.133/2009-10 ITA-320/2010-11 in GI.No./PA.No.AAYFS6887P for the assessmentyear 2007-2008 and 2008-2009 on the file of the Commissioner ofIncome Tax (Appeals) XII Chennai-34 respectively against the orderdated 22.12.2009 by the Income Tax officer XV (3) Chennai and madein PA.No/GIR - AAJFS 6887P for the assessment year 2007-2008 and2008-2009. For Appellant in all petitions: Mr.J.NaraynanaswamyStanding Counsel for Income Tax For Respondent in all petitions : Mr.R.Sivaraman https://hcservices.ecourts.gov.in/hcservices/ (Delivered by R.SUDHAKAR,J.) The above Tax Case (Appeals) are filed by the Revenue asagainst the order of the Income Tax Appellate Tribunal raising thefollowing substantial questions of law:T.C.(A)Nos.794 to 797 of 2014: "1. Whether on the facts and in the circumstancesof the case, the Tribunal was right in holding that theassessee had satisfied the conditions laid down underSection 80IB(10) and is eligible for deduction underSection 80IB(10)? 2. Whether on the facts and in the circumstancesof the case, the Tribunal was right in holding thatassessee cannot be treated only as a contractor as perthe terms of the agreement between the owner of the landand the assessee for the purpose of claiming benefitunder Section 80IB? 3. Whether on the facts and in the circumstancesof the case, the Tribunal was right in holding thatdeveloper or builder, is eligible for claiming benefitunder Section 80IB(10), and assessee can be treated asdeveloper or builder, eligible for claiming benefitunder section 80IB(10)? 4. Whether on the facts and in the circumstancesof the case, the Tribunal was right in holding thatassessee need not be a building cum developer forclaiming deduction under Section 80IB(10)? 5. Whether on the facts and in the circumstances ofthe case, the Tribunal was right in holding thatassessee need not own the land and then develop cumbuild the housing project of the purpose of claimingdeduction under Section 80IB(10)? 6. Whether on the facts and in the circumstances ofthe case, the Tribunal was right in holding thatassessee is entitled for deduction under Section 80IB(10) even though the construction work was outsourced toa subcontractor? 7. Whether on the factss and in the circumstancesof the case, the Tribunal was right in holding that areaof private terrace had to be excluded from the built uparea of flats in the light of the definition for thearriving at the eligible built up area of 1500 sq.ft.for the purpose of deduction under Section 80IB(10)? https://hcservices.ecourts.gov.in/hcservices/ 8. Whether on the facts and in the circumstancesof the case, the Tribunal was right in holding thatassessee is entitled for the deduction under Section80IB(10) for the housing project with respect to flatswith built up area not exceeding 1500 sq.ft. even thoughin the same housing project, the assessee hadconstructed flats exceeding built up area of 1500 sq.ft.residential flat commercial flat 7. Whether on the factss and in the circumstancesof the case, the Tribunal was right in holding that areaof private terrace had to be excluded from the built uparea of flats in the light of the definition for thearriving at the eligible built up area of 1500 sq.ft.for the purpose of deduction under Section 80IB(10)? https://hcservices.ecourts.gov.in/hcservices/ 8. Whether on the facts and in the circumstancesof the case, the Tribunal was right in holding thatassessee is entitled for the deduction under Section80IB(10) for the housing project with respect to flatswith built up area not exceeding 1500 sq.ft. even thoughin the same housing project, the assessee hadconstructed flats exceeding built up area of 1500 sq.ft.residential flat commercial flat 9. Whether on the facts and in the circumstancesof the case, the Tribunal was right in holding that theprovisions of Section 80IB(10) provide for partialdeduction to the housing project with respect to theresidential flats with built up area of less than 1500sq.ft. where the same project contains flats with builtup area exceeding 1500 sq.ft.?" 2. The assessment in the above cases relate to the assessmentyears 2007-08 and 2008-09. 3. The issues involved in the above Tax Case (Appeals) thatwhether the assessee is entitled to deduction under Section 80IB(10) of the Income Tax Act have already been decided by this Courtin T.C.(A)Nos.581 & 582 of 2011 and 314 & 315 of 2012 dated01.11.2012 in favour of the assessee and against the Revenueholding that for the purpose of considering the deduction, it isnot necessary that the assessee, engaged in developing andconstruction of housing project, should be the owner of theproperty. 4. Hence, following the above-said decision of this Court,the above Tax Case (Appeals) are dismissed and the order of theTribunal stands confirmed. No costs. Consequently, connectedM.P.s are also dismissed. Asst.Registrar (CO) sl /true copy/ Sub Asst. Registrar To 1. The Income Tax Appellate Tribunal, "B" Bench, Chennai. 1a. The Commissioner of Income Tax, Chennai https://hcservices.ecourts.gov.in/hcservices/ 2. The Commissioner of Income Tax (Appeals) XII, Chennai– 600 034. 3. The Income Tax Officer, Business Ward XV(3), Chennai. 4. The SecretaryCentral Board of Direct TaxesNew Delhi 4 ccs to Mr.J. Narayanaswamy St. Counsel, Sr. 53962 to 53965 T.C.(A) Nos.794 to 797 of 2014& connected M.Ps. SSI (CO)kk 21/11