Income tax appeals filed by the Commissioner of Income Tax challenging a Tribunal order regarding the nature of share received by an assessee company.
Both Income Tax Appeals were dismissed without any order on 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.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 1837 OF 2014 WITH INCOME TAX APPEAL NO. 1865 OF 2014
The Commissioner of Income Tax-III Pune .. Appellant v/s. M/s. Sanand Properties Pvt. Ltd. .. Respondent
Mr. Tejveer Singh for the appellant
Mr. J.D. Mistri, Senior Counsel a/w Mr. B.V. Jhaveri and Abhishek Tilak for the respondent
CORAM : M.S. SANKLECHA & A.K. MENON, J.J.
DATED : 24th MARCH, 2017. P.C.
1961 (the Act) challenge the common order dated 21st March, 2014 passed by the Income Tax Appellate Tribunal (the Tribunal). The common impugned order is in respect of Assessment Years 2008-09 and 2009-10.
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law for our consideration :-
(i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in holding that 35% share received by assessee company (SPPL) was not in nature of overriding title to the revenue generated by the AOP but only share of profit of SPPL in the AOP?
(AOP). This AOP being assessed to tax in the name and style of M/s. Fortaleza Developers (AOP). It consists of two members one being M/s. Raviraj Kothari and Co. and the other being the respondent assessee. For the subject assessment years, M/s. Fortaleza Developers (AOP) had offered to tax its income on the account of construction of a housing project and claimed benefit of deduction under Section 80IB(10) of the Act. However, the Revenue disputed the benefit of the deduction claimed under Section 80IB(10) of the Act to the extent of the profits paid to respondent assessee as not being its share of profits. In appeal, the Tribunal by order dated 13th September, 2013 allowed the appeal of M/s. Fortaleza Developers (AOP) for the subject assessment years. This was by following its order dated 12th October, 2012 on identical issue for A.Y. 2007-08 passed after consideration of clause 7 of the Agreement dated 29th April, 2003 constituting M/s. Fortaleza Developers (AOP). It held that the amount paid to the
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respondent assessee was its profits in M/s. Fortaleza Developers (AOP).
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2014 were dismissed by this Court on 3rd October, 2016. Following the finding of fact arrived at by the Tribunal in the case of M/s. Fortaleza Developers (AOP) for the subject assessment years that there was no surrender of development rights by the respondent assessee to it and that respondent assessee herein received only its share of profits would hold good even in the present appeal. This is so as the finding of fact and the interpretation of clause 7 of the Agreement dated 29th April, 2003 will not change depending upon the assessee concerned. In fact, the High Court in its order dated 3rd October, 2016 placed reliance upon its earlier order dated 9th April, 2015 in appeal filed by the Revenue from the order of the Tribunal for Assessment Year 200708 in respect of M/s. Fortaleza Developers (AOP), which was dismissed by this Court on 9th April, 2015.
costs.
(A.K. MENON, J.)
(M.S. SANKLECHA, J.)
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1 provisions across 1 enactments
Commissioner of Income Tax-III Pune
M/s. Sanand Properties Pvt. Ltd.
M.S. Sanklecha
A.K. Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
