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TMI Blog2022 (3) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law raised in these appeals were already decided in favour of the appellant by case CIT Vs. Sarkar Builders [ 2015 (5) TMI 555 - SUPREME COURT ]as held that when a housing project is approved, with or without commercial user to the extent permissible under the Rules/Regulations, then, deduction under Section 801B (10) would be allowed - if a project could be approved as a housing project having residential units with permissible commercial user, then it is not open to the income tax authorities to contend that the expression 'housing project' in Section 801B(10) is applicable to projects having only residential units. Also in Umakant Leasing and Financing Company vs. Deputy Commissioner of Income Tax [ 2012 (12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted by this Court by raising the following substantial questions of law: T.C.A. No. 797 of 2010 (i) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in holding that the appellant was not entitled to deduction under Section 80 IB of the Income Tax Act in respect of the housing project undertaken and constructed by it? (ii) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in holding that the relief sought for by the appellant amounted to a review of the order of the Income Tax Appellate Tribunal and not merely a rectification of mistake? T.C.A. No. 870 of 2010 (i) Whether on the facts and in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative of the appellant also appeared before the respondent on 28.11.2005 and submitted documentary evidence. Thereafter, the respondent scrutinised the return of income submitted by the appellant and noticed that the appellant originally claimed deduction of ₹ 28,32,048/- under Section 801B(10) of the Act in respect of the projects undertaken by them titled Marvel Apoorva and Wood Creek County . However, in the revised return of income filed on 03.02.2006, they have restricted their claim of deduction to the project Marvel Apoorva only and claimed deduction of ₹ 68,79,782/- and disclosed net loss of ₹ 35,78,307/-. In the return of income as well as the revised return of income submitted by the appellant, the gross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the above submission, the rectification Petition was ordered by the Commissioner of Income Tax (Appeals) on 02.10.2007 and the claim of the appellant for deduction under section 801B(10) was allowed. Therefore, the appellant withdrew I.T.A. No. 2259/MdS/2007 on 04.04.2008 filed before the Tribunal. As against the order dated 02.10.2007 of the Commissioner of Income Tax (Appeals) allowing the rectification petition of the appellant, the Department has filed I.T.A. No.194/Mds/2008 before the Tribunal. 6. The Tribunal, after considering the materials made available, has allowed the appeal filed by the Department in I.T.A. No. 194/Mds/2008 on 10.07.2009, setting aside the order dated 02.10.2007 passed by the Commissioner of Income Tax (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these appeals are taken up for consideration, the learned counsel for the appellant submitted that the questions of law raised in these appeals were already decided in favour of the appellant by the Honourable Supreme Court in ( CIT Vs. Sarkar Builders) reported in 375 ITR 392 . In that it was held by the Honourable Supreme Court that when a housing project is approved, with or without commercial user to the extent permissible under the Rules/Regulations, then, deduction under Section 801B (10) would be allowed. In other words, if a project could be approved as a housing project having residential units with permissible commercial user, then it is not open to the income tax authorities to contend that the expression 'housing proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant would contend that the appellant is entitled to recall the order of the Tribunal, by which they were permitted to withdraw the appeal. 11. The learned Senior Standing Counsel appearing for the respondent has not disputed the ratio laid down in the above decisions. However, he would submit that the applicability of the above decisions have to be examined by the Tribunal and it cannot be gone into by this Court in these Tax Case Appeals. Therefore, he prayed this Court to remand the matter to the Tribunal for fresh consideration. 12. In view of the above submissions of the learned counsel for both sides, the impugned orders passed by the Tribunal are set aside. The matters are remanded to the Tribunal for passing appropriate ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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