Bombay High Court
Commissioner Of Income Tax - 15 vs M/S. Khayati Financial Services on 9 January, 2019
Author: B. P. Colabawalla
Bench: Akil Kureshi, B. P. Colabawalla
903.904.itxa.1987.11..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 1987 OF 2011
WITH
INCOME TAX APPEAL NO. 1414 OF 2012
The Commissioner of Income Tax-15 ..Appellant
Vs.
M/s Khayati Financial Services ..Respondent
Mr. A. R. Malhotra, for the Appellant.
Mr. Atul Jasani, for the Respondent.
CORAM:-AKIL KURESHI &
B. P. COLABAWALLA, JJ.
DATE :- JANUARY 9, 2019.
P. C.:
Both these Appeals are filed by the Revenue and concern the same Assessee. In Income Tax Appeal No. 1987 of 2011 following substantial question has been framed:-
"Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the assessee is entitled to deduction u/s.80IB of Rs. 7,69,27,550/- for A. Y. 2005-06 even though the commercial built up area exceeded 2,000 sq. ft. while the maximum permissible commercial built up is only 2000 sq.ft. which is clearly applicable in terms of clause (d) of Sec. 80IB (10) and effective from1/4/2005?"Aswale 1/3 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:53:34 :::
903.904.itxa.1987.11..doc whereas in Income Tax Appeal No. 1414 of 2012, two questions have been framed which read as under:-
"6.1: Whether on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in holding that assessee is entitled to deduction u/s 80IB of Rs. 4,96,27,406/- for A. Y. 2006-07 even though the commercial built up area exceeded 2000 sq.ft. While the maximum permissible commercial built up area is only 2000 sq. ft. which is clearly applicable in terms of clause (d) of section 80IB (10) effective from 01.04.2005"?
6.2: Whether on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in holding that the shops and flats notwithstanding the fact that the Local Authority had granted the approval for both shops and residential areas in the name of the assessee as sole authorized developers for the shops and flats?"
2 The sole question in Income Tax Appeal No. 1987 of 2011 and the first question in Income Tax Appeal No. 1414 of 2012 are squarely covered by detailed judgment of this Court in the case of Commissioner of Income Tax-16 v/s M/s Happy Home Enterprises, Mumbai reported in 372 ITR 1. The Court held that certain additional conditions imposed by the Legislature for claiming benefits under Section 80IB (10) of the I. T. Act, 1961 by amendment with effect from 1st April, 2005 were prospective in nature and would not apply to the Housing Development Projects in which the developing permission was granted before the said Aswale 2/3 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:53:34 ::: 903.904.itxa.1987.11..doc amendment.
3 We also noticed that the judgment of this Court in the case of Happy Home Enterprises (supra) has been upheld by the Supreme Court in the case of Commissioner of Income Tax v/s Sarkar Builders reported in 375 ITR 392. This question is therefore answered in favour of the Assessee and against the Revenue.
4 In view of this, question no.2 in Income Tax Appeal No. 1414 of 2012 become academic. It is not necessary to answer this question. In the result, the Appeals are disposed of accordingly.
( B. P. COLABAWALLA, J. ) ( AKIL KURESHI , J. ) Aswale 3/3 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:53:34 :::