Revenue appealed against ITAT order allowing deduction under Section 80IB(10). Court held both legal questions proposed did not raise substantial questions of law given binding precedents and concurrent findings of fact. Appeal dismissed.
Appeal dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(21) ITXA 1218-14
Amk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 1218 OF 2014
The Commissioner of Income –V .. Appellant Vs. M/s. Sukhwani Buildcon .. Respondent.
Mr. Tejveer Singh for the Appellant.
Mr. Jitendra Jain a/w. Mr. Jas Sanghavi i/b PDS Legal for the Respondent.
CORAM : M. S. SANKLECHA AND
A. K. MENON, JJ. DATE : 19th DECEMBER, 2016.
P. C. :
“1. Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in allowing the deduction u/s. 80IB (10) when the Housing Project consisted of commercial area exceeding the maximum area of 2000 sq. ft. as prescribed under section 80IB(10) of the Income Tax Act, 1961?
2. Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in allowing the deduction u/s. 80IB (10) on the issue of violation of Section 80IB(10)(c) when the enquiries made by the A.O. clearly established that the combining of the 3 flats are technically not feasible unless the necessary alteration in basic RCC structure of building is made and which can be made by the builder assessee itself and not by the purchaser?”
1/3
(21) ITXA 1218-14
3. Regarding question No.1
The impugned order of the Tribunal dismisses the Revenue's appeal by following the decision of this Court in the case of Brahma Associates and Others (2011) 239 CTR (Bom) 30 . Mr. Tejveer Singh, learned counsel appearing for the Revenue very fairly states that the issue has also now been concluded by the decision of the Apex Court in CIT Vs.
Sarkar Builders, 375 ITR 392 against the Revenue and in favour of the respondent-assessee. In the above view, question No.1 does not give any rise to the substantial question of law.
4. Regarding question No.2
The impugned order of the Tribunal while dismissing the Revenue's appeal upheld the order dated 07.06.2012 of the Commissioner of Income Tax (Appeals). On the facts the CIT (Appeals) as well as Tribunal found that the respondent-assessee had not sold 3 flats after combining them in one flat having an area of excess of 1500 sq. ft. In fact, it renders a finding of fact that the respondent-assessee had sold 3 independent flats to one buyer, namely, Dr. Oomer K. George. Further before the Authority, Dr. Oomer K. George has also filed evidence affirming that he has purchased 3 flats and combined them all into 1 flat, after purchase. Dr. Oomer K. George also further pointed out that the respondent-assessee had no role to play in his joining the 3 flats into 1
2/3
(21) ITXA 1218-14
flat. In view of the above, concurrent finding of fact the question proposed does not give rise to any substantial question of law. Thus, not entertained.
costs.
[A.K. MENON, J.]
[M. S. SANKLECHA, J.]
3/3
3 issues framed by the court
Whether ITAT justified allowing deduction u/s 80IB(10) when Housing Project had commercial area exceeding 2000 sq. ft.
Whether ITAT justified allowing deduction u/s 80IB(10) regarding violation of 80IB(10)(c) where combining of flats may be technically unfeasible without structural alteration.
Whether the proposed questions give rise to any substantial question of law requiring adjudication by this Court.
Colour shows how this judgement treated each authority
Brahma Associates and OthersFollowed¶18
(2011) 239 CTR (Bom) 30
Sarkar BuildersReferred¶18
CIT Vs. Sarkar Builders, 375 ITR 392
3 provisions across 1 enactments
Commissioner of Income-V
M/s. Sukhwani Buildcon
M. S. SANKLECHA
A. K. MENON
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court