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2015 (4) TMI 105 - BOMBAY HIGH COURT

2015 (4) TMI 105 - BOMBAY HIGH COURT - TMI - Revision u/s 263 - disallowance if the deduction under section 80IB(10) - The Tribunal has concluded that the assessee had offered an explanation that the plan was approved by the Pune Municipal Corporation on the condition of making available an approach road - Held that:- In the circumstances and with this stand that the assessee was supported by the Tribunal's order, then, we do not see as to how the Commissioner could have exercised powers und .....

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view.

Thus such finding of the Tribunal and being consistent is not required to be gone into under section 260A of the I.T. Act as it is clear that the orders of the assessing officer and the Commissioner, do not raise any substantial question of law. The Tribunal has applied its mind to the entire issue and found that the assessee had placed necessary and requisite material before the assessing officer. The assessing officer took a view on the basis of these material and that view ca .....

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Adv. Mr Sham Walve & Mr Vipal A Bajpayee For the Respondent : Mr Mihir Naniwadekar ORDER P.C. 1. This appeal of the revenue challenges the order passed by the Income Tax Appellate Tribunal Bench at Pune dated 29th February, 2012 (Annexure-E). 2. The assessment year in question is 2004-05. The assessee, a partnership firm working as a developer filed return of income on 31st October, 2004 declaring Nil income. The assessee had undertaken development and construction of residential project at .....

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ctions of the Commissioner and disallowed the deduction under section 80IB(10) of the Act to the extent of ₹ 47,95,506/-. That order of the assessing officer is dated 29th December, 2009. 4. Thus, aggrieved by the aforesaid order, appeal was preferred by the assessee which came to be allowed. 5. Mr.Vimal Gupta, learned senior counsel appearing for the revenue in support of the appeal submits that the Tribunal's order in setting aside the order of the Commissioner is erroneous. The Comm .....

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ach road was not included. A separate agreement dated 20th February, 2004 was made with the same landlords for an area of 5 Are so as to have a right of approach road for the project. This right was given to the assessee without any consideration and the same was also not registered. Even the location of 5 Are of land is not identified in the said agreement. In such circumstances. He rightly concluded that the assessing officer was in complete error in relying upon this agreement. If the agreeme .....

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ssioner of Income Tax reported in (2000) 243 ITR 83, does not apply. 6. On the other hand, Mr.Naniwadekar in support of the order of the Tribunal submits that in the subsequent decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax V/s. Max India Ltd. reported in [2007] 295 ITR (SC) 282 wherein it has been clarified how if two views are possible, an order under section 263 of the I.T. Act cannot be sustained. Mr.Naniwadekar relied upon paragraphs 11 and 12 of the ord .....

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ssessment and allowing the deductions had verified the correctness of the claim of the assessee, which also included his personal visit to the site. The Commissioner could not have termed this order as erroneous and prejudicial to the interest of the revenue. It is not a case of mis-application of law or non application of mind. The Tribunal has concluded that the assessee had offered an explanation that the plan was approved by the Pune Municipal Corporation on the condition of making available .....

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