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2017 (1) TMI 819 - BOMBAY HIGH COURT

2017 (1) TMI 819 - BOMBAY HIGH COURT - TMI - Appeal admitted on : - iii) Whether on the facts and circumstances of the case and in law, the Tribunal was justified in holding that the benefit of Section 80IB(10) of the Act can be made available to the assessee on a prorata basis? - (iv) Whether on the facts and circumstances of the case and in law, the Tribunal was correct in holding that assessee shall be entitled to deduction under Section 80IB(10) even though assessee has not completed .....

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. Mr. Tejveer Singh, learned Counsel for the Revenue urges the following common reframed questions of 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 even though project exceeds the limits of commercial area of 2000 sq. ft. as prescribed in section 80IB(10), it would not apply to this project as this project was approved prior to 1.4.2005? (ii) Whether on the facts and circumstances of the case and in .....

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s of the case and in law, the Tribunal was correct in holding that assessee shall be entitled to deduction under Section 80IB(10) even though assessee has not completed construction of two offices in wing B1? (v) Whether on the facts and circumstances of the case and in law, the Tribunal was correct in holding that assessee shall be entitled to deduction under Section 80IB(10) even though audit report was not submitted along with Return of Income? (vi) Whether on the facts and circumstances of t .....

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s and circumstances of the case and in law, the Tribunal was correct in holding that assessee is entitled to deduction under Section 80IB(10) ignoring the fact that during the course of survey, it was noticed that assessee has violated the sanction plan ? 3. Regarding question (i) : (a) Mr. Tejveer Singh, learned Counsel for the Revenue very fairly states that the issue raised herein stands concluded against the Revenue by the decision of the Apex Court in Commissioner of Income Tax Vs. Sarkar B .....

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the Tribunal has categorically held that the issue before it is only with regard to the benefit of Section 80IB(10) of the Act being granted to building nos. A4 to A8 and not in respect of Building nos. A1 to A3. (c) Thus, the question as proposed by the Revenue does not arise from the impugned order of the Tribunal. Thus, not entertained. 5. Regarding question no.(v) : (a) The impugned order of the Tribunal while allowing the respondent assessee's appeal has held that the Auditor's Repo .....

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tion of law. Thus, not entertained. 6. Regarding question (vi) : (a) The impugned order of the Tribunal has while allowing the respondent assessee's appeal has held that balcony, terrace and garden area are not includible in builtup area of projects sanctioned prior to 1st April, 2005. (b) Mr. Tejveer Singh, learned Counsel for the Revenue very fairly states that the issue raised herein stands concluded against the Revenue and in favour of the respondent assessee by the decision of this Cour .....

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ng project, which were approved / regularised after construction. (b) The impugned order of the Tribunal on this issue relied upon the decision of its coordinate bench in ITO Vs. Mahaveer Calyx 26 Taxmann.com 181. In the above case, it has been held that where the assessee has constructed some excess area, then that originally sanctioned, the deduction under Section 80IB(10) of the Act should not be denied, if such work has been regularised by the authorities later. (c) In the present facts, the .....

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