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TMI Blog2014 (4) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... agree with the petitioner that they were entitled to deduction as claimed under section 80IB (10) of the Act vide order dated 31st December, 2010 on the ground that petitioner was not entitled to claim deduction having not constructed residential flats on the plots in question. It was this order which was assailed before the CIT (A) where also, the petitioner did not meet with any success and the appeal filed before the CIT(A) was dismissed vide order dated 01st of August, 2012. It is thereafter, the petitioner approached the Income Tax Appellate Tribunal, Indore Bench where also the order of the Assessing officer and the CIT (A) were maintained and the second appeal filed before the Income Tax Appellate Tribunal was dismissed vide order Judgment dated 30th of July, 2013 holding that the petitioner was not entitled to claim deduction under section 80IB(10) of the Act. 4. It was against that judgment, the petitioner approached this High Court which stands dismissed by this High Court vide judgment dated 27th January, 2014. 5. The petitioner is seeking review of the aforesaid judgment passed by us primarily by stating that the appeal filed by them raises substantial question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to such percentage and for such number of assessment years as specified in this section. - [(10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2008 by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from such housing project if,- (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998 and completes such construction, - (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004, but not later than the 31st day of March, 2005 within four years from the end of the financial year in which the housing project is approved by the local authority. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Explanation - for the removal of doubts, it is hereby declared that nothing contained in this sub-section shall apply to any undertaking which executes the housing project as a works contract awarded by any person (including the Central or State Government)... (14) For the purposes of this section,- [(a) "built-up area" means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units;] 8. The Assessing Officer taking note of the provisions contained under section 80IB (10) of the Act held that the said section confirms 100% tax deduction only in respect to profit derived from the housing project undertaken by the assessee subject to following conditions. "a) Development and construction of the housing project must commence on or after 01st October, 1998 and such construction must be completed as under: (i) In case where the housing project is approved before 01st April, 2004, on or before 31st March, 2008. (ii) In case where the housing project is approved between 01st of April, 2004 and 31st March, 2005, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that no substantial question of law was involved in this case, we dismissed the appeal filed by the appellant. Paras 15 and 16 of our judgment are reproduced hereunder for the sake of reference: 15. In this case, the grant of permission with respect to the aforesaid project which would have made the appellant eligible for exemption, requires not only development of the residential plots, but also construction of the plots which admittedly was not done. Construction of residential plots or construction of some plots later on would not qualify the appellant for exemption. Legal position has been clearly understood and complied by the Appellate Authority in the impugned judgment, in as much as it has been referred that reading of sub-section 1 of section 80IB(10) of the Act is clear that deduction was subject to the condition of undertaking, condition of undertaking development and construction of the residential project, thus, the construction and development of the housing project was sine qua non for claim of deduction under section 80IB(10) of the Act, besides fulfillment of other conditions. The Tribunal has rightly observed that in the instant case, it is undisputed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the High Court should have admitted the appeals under section 260-A of the IT Act, 1961 and decided the cases on merit. We, accordingly, allow the appeals, set aside the judgments of the High Court and restore the appeals filed by the appellant on the board of the High Court. We make it clear that we are not expressing any opinion on the merits of the these cases". 16. In the case of Commissioner of Sales Tax, M.P Vs. Hukumchand Mill, Indore (supra), Hon'ble Apex Court has held that 9. For the first time this question had cropped up before a Bench consisting of D.M. Chandrashekhar and M. Santosh, JJ. of Mysore High Court, AIR 1972 Mysore 44. After noticing divergent views of various High Courts and following the test laid down by Rajagopala Ayyangar, J. in M/s. Thungabhadra (supra), it was held that Article 141 of the Constitution of India provide that law declared by the Supreme Court is binding on all Courts within the territory of India. Hence where there is a decision of Supreme Court bearing on a point and where a Court has taken a view on that point which is inconsistent with the decision of the Supreme Court, no elaborate arguments are required to point out suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunals. When some principle of law has been laid down by the Supreme Court, it is the duty of the High Court or Subordinate Courts to follow the decision of the Supreme Court and to ignore the well settled law by a judicial pronouncement of the Supreme Court and to pass order contrary to it would be gross impropriety. It amounts to 'judicial adventurism' as has been held by the Supreme Court at page 462 in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd., (1997) 6 SCC 450. 17. To appreciate the judgment relied upon by the petitioner, we are required to look into the provisions contained under section 260-A of the Act, which reads as under: 260A. Appeal to High Court.- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal [before the date of establishment of the National Tax Tribunal], if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be- (a) filed within one hundred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or before 31st March, 2008. (ii) In case where the housing project is approved between 01st of April, 2004 and 31st March, 2005, within 4 years from the end of the financial year in which the project is approved. (iii) In case, where the housing project is approved after 01st April, 2005, within 5 years from the end of the relevant financial year in which housing project is approved. (b) The housing project must be on the size of a plot of one acre or more (c) The residential units in the project should have maximum built up area of 1000 sq. ft in respect of projects in Delhi, Mumbai and within 25 kms thereof, and 1500 sq ft at other places. (d) The built up area of shops and other commercial shops included in the housing project should not exceed 3 % of the aggregate built up area of the housing project or 5000 sq ft. whichever is more. Prior to amendment, by the Finance Act, 2010, w.e.f. 1.4.2010, the condition was that the built up area of shops and other commercial establishments should not exceed 5 % of the aggregate built up area or 2000 sq ft whichever is less." 19. Admittedly, in this case, petitioner/ appellant having not constructed residential flats and as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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