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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 ..... adjudication by the Court – the assessee have sold the plots instead of constructing the residential houses which was essential for the purpose of claiming deduction, was not entitled to deduction - appeal before the High Court is maintainable with respect to any judgment where the High Court is satisfied that the case involves the substantial question of law – section 260A(3) of the Act leaves no room for doubt that if the appeal before the HC does not involve any substantial question of law or that High Court is not satisfied that the appeal involves any substantial question of law, then there is no necessity for the High Court to frame substantial question of law and to answer the same thereafter - the entire controversy raised by the assessee was factual in nature and does not contain any legal issue – Decided against Assessee. - Review Petition No. 79/2014 - - - Dated:- 14-3-2014 - Shantanu Kemkar And M. C. Garg,JJ. For the Appellant : Mr. P. M. Choudhary, learned counsel JUDGMENT Per M. C. Garg, J. Present Review Petition has been filed by the petitioner who was appellant in I.T.A no. 83/2013 and was aggrieved of the judgment passed by the Income Tax Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company filed its return of income for AY 2008-09 electronically on 29th Sept, 2008 declaring its total income as NIL. While filing the said return, th80IB (10) of the Income Tax Act, 1961, in respect of the Income derived by the company from the eligible housing project of Omaxe City Indore at village Mayakhedi, Dist Indore. The assessee had undertaken the development and construction of the housing project at Indore in collaboration with M/s Omaxe Ltd and Shradha Buildcon Pvt ltd. on an area of land admeasuring 36.074 Hectare i.e. 89.14 acre. The housing project undertaken by the petitioner company consisted of development of housing sites as well as development and construction of the residential units. Since the assessee company was following percentage completion method of accounting, revenue was recognized only on sale of housing sites during the impugned assessment year. Since according to petitioner, it satisfied all the conditions of section 80IB (10) of the Act, it was eligible for deduction under that section. The petitioner claimed that the petitioner was eligible for deduction in respect of the profits derived on the activity of development and construction of the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometers from the municipal limits of these cities and one thousand and five hundred square feet at any other place; and (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three per cent of the aggregate built-u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi, 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. 9. It is not in dispute that the aforesaid conditions with respect to raising residential flats in terms of the aforesaid section were not complied with by the petitioner. What they did, only raised infrastructural facilities i.e. building of roads etc and not raised residential houses, in as much as, admittedly they sold the residential plots inspite of constructing residential houses. It was in these circumstances, the Assessing Officer held that since the petitioner did not comply with the conditions qualifying them to claim exemption, rejected their plea of exemption. It was this order, which was upheld by CIT(A) as well as by the Income Tax Appellate Tribunal in second a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal and it is not the case where any interpretation of the law is required or needs any clarification at this level. Hence we are of the considered view that in this case, there is no substantial questions of law raised by the appellant which requires admission of the appeal filed by the appellant. Consequently, present appeal filed by the appellant is dismissed. 13. Learned counsel for the petitioner seeking review of the impugned judgment has relied upon the following judgments. a) M. Janardhana Rao Vs. Joint Commissioner of Income Tax (Civil Appeal no. 4232 to 4242 5322 of 2003 and 755 to 766 of 2005 dated 28th of January, 2005) reported in 273 ITR 50 (SC) b) Commissioner of Income Tax Vs. Ajay Vijay Traders (Civil Appeal nos. 872 to 877 of 2001 dated 25th of January, 2001) 248 ITR 100 (SC) c) Commissioner of Sales Tax, M.P Vs. Hukumchand Mill, Indore reported in (2004) 3 STJ 700 (MP (FB) 14. In the judgment delivered in the case of M. Janardhana Rao (Supra), the Hon'ble Apex Court discussed the scope and procedure of section 260-A of the Income Tax Act. Observations made in that judgment is as follows: On an appeal under section 260-A, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in by reason of oversight on the part of the Court. The view taken by the Mysore Division Bench has been accepted by the Full Bench of Himachal Pradesh, AIR 1981 HP 1. The Full Bench formulated two question for the decision. First question was whether any subsequent decision of the Supreme Court or Larger Bench taking a different or contrary view on a point of law is good ground for review. Presently we are not concerned with the first question which was answered in negative but are more concerned with second question. The second question was whether taking a view on a point while pronouncing decision by the Court, contrary to the existing decision of the Supreme Court or High Court is good ground for review. While dealing with second question, the Full Bench in Paragraphs 15 and 16 held as under:- 15. The second part of the question relates to a situation where a Court has failed to notice an existing contrary decision of the High Court or the Supreme Court on a point covered by its judgment. Now failure to notice a decision on a question of law of the Supreme Court, which is the law of the land under Article 141 of the Constitution, is not the same thing as failure to notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in subsection (1). (7) Save as otherwise pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s instead of constructing the residential houses which was essential for the purpose of claiming deduction, was not entitled to deduction. 20. Bare perusal of section 260-A of the Act as quoted above clearly goes to show that appeal before the High Court is maintainable with respect to any judgment where the High Court is satisfied that the case involves the substantial question of law. Sub-section 3 of the aforesaid provision also emphasizes the aforesaid point because what the aforesaid Sub-section 3 says that only the High Court is satisfied that the substantial question of law was involved in any case, then only the High Court was required to formulate the same and then answer it. 21. Perusal of the scheme of aforesaid section of the Income Tax Act leaves no room for doubt that if the appeal before the High Court does not involve any substantial question of law or that High Court is not satisfied that the appeal involves any substantial question of law, then there is no necessity for the High Court to frame substantial question of law and to answer the same thereafter. 22. Basic submission of learned counsel for the petitioner is that in this case since the infrastruct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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