2014 (10) TMI 625

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.... is filed by the Revenue, namely, Deputy Commissioner of Income Tax, M. K. Road, Mumbai. 2. This common order was passed on 11th July 2011 and both the Revenue as also the Assessee were aggrieved by the order of the Commissioner of Income Tax (Appeals) dated 24th August 2009 to the extent noted in the Tribunal's order under Appeal. The assessment year in question is 2004-2005. 3. The Assessee urged before the Tribunal that the First Appellate Authority erred in law and fact in confirming that the profit earned on sale of flats of Willow Twin Towers, Bliss, Vasant Milestone and Teackwood projects did not qualify for deduction under Section 80IB(10) of the Income Tax Act, 1961 on the alleged ground that the two contiguous flats purchase....

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....ecision dated 29th April 2009 of a Coordinate Bench of the Tribunal in the case of Vandana Properties v/s Assistant Commissioner of Income Tax Income Tax in Appeal No.1253/M/07. The order of the Commissioner of Income Tax(Appeals) has been upheld by the Tribunal to that extent. 7. Mr. Gupta, submits that two substantial questions of law, therefore, arise for determination and consideration in this Appeal. 8. Upon perusal of the questions of law at paragraph no.6.2, we are of the opinion that in the light of the concession given by the Revenue before the Tribunal and since the question being covered by the order passed by the Tribunal's Coordinate Bench in the case of Vandana Properties (Supra),the Appeal cannot be entertained. Even ot....

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....e occupancy certificate and separate agreements of sale for each flat would show that if any alterations are carried out in the flats subsequent to the sale, by the promoter/builder and purchased by the buyer, the responsibility is not that of the Assessee promoter. The deduction cannot be denied after such change consequent on sale of the flat. 12. Mr. Gupta would submit that even if such a contention was raised before the Commissioner, what the Tribunal has done is not to go beyond reproducing the contents of the order passed by it in the case of Emgeen Holdings Pvt Ltd (now Windsor Realty Pvt Ltd) v/s. Deputy Commissioner of Income Tax in Income Tax Appeal No.3594 and 3595/Mum/2009 and Income Tax Appeal No.3647, 3648/Mum/2009. It is onl....

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....red including the statements which have been recorded during the course of survey proceedings. The documents, namely, agreements in relation to these flats should have been referred in extenso by the Tribunal. That having not been done, we are of the view that any expression of opinion by us on the legal question would be academic. It would be, therefore, desirable that we set aside the order passed by the Tribunal and restore the Appeal of the Assessee and Revenue to the file of the Tribunal for a decision afresh in accordance with law. Thus, the grievance of the Assessee as noted in paragraph no.2 of the order under challenge and the grievance of the Revenue with regard to the deduction under Section 80IB(10) of the I. T. Act on the propo....