DY. COMMISSIONER OF INCOME TAX, MUMBAI vs. BOMBAY SLUM REDEVELOPMENT CORPORATION PRIVATE LIMITED, MUMBAI

3. On appeal, the Ld. CIT(A) allowed the assessee’s claim. The On appeal, the Ld. CIT(A) allowed the assessee’s claim. The On appeal, the Ld. CIT(A) allowed the assessee’s claim. The reopening was based solely on the premise that the allowability of reopening was based solely on the premise that the allowability of reopening was based solely on the premise that the allowability of deduction under section 80IB(10) in respect of sale of FSI/TDR was deduction under section 80IB(10) in respect of sale of FSI/TDR was deduction under section 80IB(10) in respect of sale of FSI/TDR was pending consideration before the Hon’ble Supreme Court in the pending consideration before the Hon’ble Supreme Court in the pending consideration before the Hon’ble Supreme Court in the case of M/s Sonasha Enterprises M/s Sonasha Enterprises (supra). The Ld. CIT(A), after an The Ld. CIT(A), after an elaborate examination of the judicial record, noted that: elaborate examination of the judicial record, noted that: elaborate examination of the judicial record, noted that:

(i) The issue had already been decided in favour of the assessee The issue had already been decided in favour of the assessee The issue had already been decided in favour of the assessee by the Coordinate Bench of the Tribunal in by the Coordinate Bench of the Tribunal in by the Coordinate Bench of the Tribunal in Sonasha Enterprises; (ii) The said decision stood affirmed by the Hon’ble Bombay High said decision stood affirmed by the Hon’ble Bombay High said decision stood affirmed by the Hon’ble Bombay High Court, which held that no substantial question of law arose; Court, which held that no substantial question of law arose; Court, which held that no substantial question of law arose;

Bombay Slum Redevelopment Bombay Slum Redevelopment 3 Corporation Pvt. Ltd.

The deduction under section 80IB(10) could not be denied The deduction under section 80IB(10) could not be denied The deduction under section 80IB(10) could not be denied merely because an SLP was stated to be pending before the merely because an SLP was stated to be pending before the merely because an SLP was stated to be pending before the Hon’ble Supreme Court. Hon’ble Supreme Court.

3.1 The Ld. CIT(A) further relied upon consistent decisions of the The Ld. CIT(A) further relied upon consistent decisions of the The Ld. CIT(A) further relied upon consistent decisions of the Tribunal, including Aarti Projects and Constructions Aarti Projects and Constructions (supra) (supra), wherein deduction under section 80IB(10) on profits arising from sale of deduction under section 80IB(10) on profits arising from sale of deduction under section 80IB(10) on profits arising from sale of FSI/TDR received in lieu of development of slum rehabilitation FSI/TDR received in lieu of development of slum rehabil FSI/TDR received in lieu of development of slum rehabil projects had been upheld. On this reasoning, the disallowance was projects had been upheld. On this reasoning, the disallowance was projects had been upheld. On this reasoning, the disallowance was deleted.

3.2 The relevant finding of ld CIT(A) is reproduced The relevant finding of ld CIT(A) is reproduced as under: as under:

“6. I have considered the facts of the case and the details submitted 6. I have considered the facts of the case and the details submitted 6. I have considered the facts of the case and the details submitted by the appellant. In this case, assessmen by the appellant. In this case, assessment was completed under t was completed under section 143(3) on 30.12.2016 with an assessed income of Rs. section 143(3) on 30.12.2016 with an assessed income of Rs. section 143(3) on 30.12.2016 with an assessed income of Rs. 8,03,24,790/ 8,03,24,790/-. Subsequently, the case was reopened under section . Subsequently, the case was reopened under section 147 and notice u/s 148 was issued on 30.06.2021 mentioning that 147 and notice u/s 148 was issued on 30.06.2021 mentioning that 147 and notice u/s 148 was issued on 30.06.2021 mentioning that the appellant had claimed a deduction of Rs. the appellant had claimed a deduction of Rs. 17,32,03,590/ 17,32,03,590/- under section 801B on the income from the sale of FSI (Floor Space Index). section 801B on the income from the sale of FSI (Floor Space Index). section 801B on the income from the sale of FSI (Floor Space Index). The case was re The case was re-opened by the Assessing Officer on the basis of the opened by the Assessing Officer on the basis of the fact that the allowability of deduction u/s 801B on this issue in the fact that the allowability of deduction u/s 801B on this issue in the fact that the allowability of deduction u/s 801B on this issue in the case of M/s Sonasha Enterpri case of M/s Sonasha Enterprises is pending before Hon'ble Supreme ses is pending before Hon'ble Supreme Court in SLP vide D.N 11467/2015, however, the matter has not Court in SLP vide D.N 11467/2015, however, the matter has not Court in SLP vide D.N 11467/2015, however, the matter has not reached finality. Thus, the deduction u/s 801B claimed by the reached finality. Thus, the deduction u/s 801B claimed by the reached finality. Thus, the deduction u/s 801B claimed by the appellant required to be disallowed. Accordingly, the assessment was appellant required to be disallowed. Accordingly, the assessment was appellant required to be disallowed. Accordingly, the assessment was completed and Rs. 17,32,0 completed and Rs. 17,32,03,590/- was disallowed by the Assessing was disallowed by the Assessing Officer. Aggrieved by the order of Assessing Officer, the appellant filed Officer. Aggrieved by the order of Assessing Officer, the appellant filed Officer. Aggrieved by the order of Assessing Officer, the appellant filed appeat before the undersigned with various grounds which are dealt appeat before the undersigned with various grounds which are dealt appeat before the undersigned with various grounds which are dealt as under: 7. With respect to Ground No.4, the appellant has raised appeal 7. With respect to Ground No.4, the appellant has raised appeal 7. With respect to Ground No.4, the appellant has raised appeal against the disallowance of deduction of Rs. 17,32,03,590/ gainst the disallowance of deduction of Rs. 17,32,03,590/ gainst the disallowance of deduction of Rs. 17,32,03,590/- u/s 80IB(10) of the Act. The AO has made disallowance u/s u/s 80IB(10) 80IB(10) of the Act. The AO has made disallowance u/s u/s 80IB(10) 80IB(10) of the Act. The AO has made disallowance u/s u/s 80IB(10) of the Act relying on the fact that identical issue is involved in case of of the Act relying on the fact that identical issue is involved in case of of the Act relying on the fact that identical issue is involved in case of M/s Sonasha Enterprises and the same is pending bef M/s Sonasha Enterprises and the same is pending bef M/s Sonasha Enterprises and the same is pending before Hon'ble Supreme Court in SLP vide D.N 11467/2015. In this regard, it is Supreme Court in SLP vide D.N 11467/2015. In this regard, it is Supreme Court in SLP vide D.N 11467/2015. In this regard, it is Bombay Slum Redevelopment Bombay Slum Redevelopment 4 Corporation Pvt. Ltd. worthwhile to mention here that the Hon'ble ITAT in the case of M/s worthwhile to mention here that the Hon'ble ITAT in the case of M/s worthwhile to mention here that the Hon'ble ITAT in the case of M/s Sonasha Enterprises (relied by the AO) vide & Sonasha Enterprises (relied by the AO) vide & Sonasha Enterprises (relied by the AO) vide ITA No.4911 & 4912/Mum/2010 for A.Y 2007 4912/Mum/2010 for A.Y 2007-08 & 2008-09 dated 31.10.20 09 dated 31.10.2011, the revenue has filed appeal before Honb'le ITAT. Further, the Tribunal revenue has filed appeal before Honb'le ITAT. Further, the Tribunal revenue has filed appeal before Honb'le ITAT. Further, the Tribunal vide its pronouncement has rejected the contention of the revenue. The vide its pronouncement has rejected the contention of the revenue. The vide its pronouncement has rejected the contention of the revenue. The relevant portion of the decision of Hon'ble ITAT is furnished as under: relevant portion of the decision of Hon'ble ITAT is furnished as under: relevant portion of the decision of Hon'ble ITAT is furnished as under: These appeals by the revenue are dire These appeals by the revenue are directed against separate orders cted against separate orders both dated 22.3.2010 of the CIT(A) for the AYs 2007 both dated 22.3.2010 of the CIT(A) for the AYs 2007- -08 and 2008-09 respectively. 2 The revenue has raised the following common grounds in these 2 The revenue has raised the following common grounds in these 2 The revenue has raised the following common grounds in these appeals: 1. On the facts and circumstances of the case and in law, the Id.

1. On the facts and circumstances of the case and in law, the Id. CIT(A) erred in allowing the claim of deduction u/s. 801B(10) of the I.T. rred in allowing the claim of deduction u/s. 801B(10) of the I.T. rred in allowing the claim of deduction u/s. 801B(10) of the I.T. Act. 1961 made by the assessee even though the Assessing Officer Act. 1961 made by the assessee even though the Assessing Officer Act. 1961 made by the assessee even though the Assessing Officer rejected the claim of such deduction on the grounds: rejected the claim of such deduction on the grounds: i) that the build up area of the 68 shops included in the housing projec i) that the build up area of the 68 shops included in the housing projec i) that the build up area of the 68 shops included in the housing project of tenements exceeded 5% of the aggregate built of tenements exceeded 5% of the aggregate built- -up area of the housing housing housing project. project. project. thereby thereby thereby contravening contravening contravening the the the provisions provisions provisions of Sec. of of Sec. Sec. 801B(10)(d) of the Act. 801B(10)(d) of the Act. ii) that the assessee was a contractor and not a builder and iii) that ii) that the assessee was a contractor and not a builder and iii) that ii) that the assessee was a contractor and not a builder and iii) that the assessee has sold TDR and the s the assessee has sold TDR and the same being movable asset, the ame being movable asset, the provisions of Sec 801B (10) of the Act did not apply being applicable lo provisions of Sec 801B (10) of the Act did not apply being applicable lo provisions of Sec 801B (10) of the Act did not apply being applicable lo the housing projects only. the housing projects only. 2) On the facts and circumstances of the case and in law, the id CIT(A) 2) On the facts and circumstances of the case and in law, the id CIT(A) 2) On the facts and circumstances of the case and in law, the id CIT(A) erred in appreciating that the assessee has not justifi erred in appreciating that the assessee has not justifi erred in appreciating that the assessee has not justified and substantiated substantiated substantiated the the the payment payment payment to to to the above the the above above persons persons persons with with with any any any documentary evidence. documentary evidence.

3. The assessee is a firm engaging in the business of builder and 3. The assessee is a firm engaging in the business of builder and 3. The assessee is a firm engaging in the business of builder and developer. The assessee has developed the housing project under SRA developer. The assessee has developed the housing project under SRA developer. The assessee has developed the housing project under SRA scheme as sectioned by MMRDA. The ass scheme as sectioned by MMRDA. The assessee claimed deduction u/s essee claimed deduction u/s 80IB(10) for the AYs under consideration. The Assessing Officer denied 80IB(10) for the AYs under consideration. The Assessing Officer denied 80IB(10) for the AYs under consideration. The Assessing Officer denied the claim of the assessee mainly on two grounds viz that the assessee the claim of the assessee mainly on two grounds viz that the assessee the claim of the assessee mainly on two grounds viz that the assessee is having commercial establishment in the project which is more than is having commercial establishment in the project which is more than is having commercial establishment in the project which is more than 5% as provided und 5% as provided under clause (d) of sec. 80IB(10) and secondly, the er clause (d) of sec. 80IB(10) and secondly, the assessee is a contractor and not a builder who has sold Transfer of assessee is a contractor and not a builder who has sold Transfer of assessee is a contractor and not a builder who has sold Transfer of Development Right (TDR) which is a moveable asset and the provisions Development Right (TDR) which is a moveable asset and the provisions Development Right (TDR) which is a moveable asset and the provisions of the section does not apply. 3.1 On appeal, the CIT(A) issued a of the section does not apply. 3.1 On appeal, the CIT(A) issued a of the section does not apply. 3.1 On appeal, the CIT(A) issued a remand order and after considering the remand report of the nd order and after considering the remand report of the nd order and after considering the remand report of the Assessing Officer, allowed the claim of the assessee vide the Assessing Officer, allowed the claim of the assessee vide the Assessing Officer, allowed the claim of the assessee vide the impugned order. impugned order.

4. Before us, the Id DR has submitted that the assessee has sold TDR 4. Before us, the Id DR has submitted that the assessee has sold TDR 4. Before us, the Id DR has submitted that the assessee has sold TDR under the SRA scheme and therefore, as per the first under the SRA scheme and therefore, as per the first under the SRA scheme and therefore, as per the first proviso to sec. 80IB(10) the scheme of SRA shall be notified by the Government of 80IB(10) the scheme of SRA shall be notified by the Government of 80IB(10) the scheme of SRA shall be notified by the Government of India. He has submitted that the assessee has not furnished any India. He has submitted that the assessee has not furnished any India. He has submitted that the assessee has not furnished any record to show that the said scheme has been notified by the Govt of record to show that the said scheme has been notified by the Govt of record to show that the said scheme has been notified by the Govt of India. He has further submitted that the India. He has further submitted that the assessee received TDR assessee received TDR against the development of the project under consideration from against the development of the project under consideration from against the development of the project under consideration from MMRDA and the income of the assessee is not directly from the MMRDA and the income of the assessee is not directly from the MMRDA and the income of the assessee is not directly from the development of the project but by sale of TDR, which is not entitled for development of the project but by sale of TDR, which is not entitled for development of the project but by sale of TDR, which is not entitled for deduction u/s 80IB(10) of the Act. deduction u/s 80IB(10) of the Act. He has further submitted that the He has further submitted that the assessee has constructed 68 shops in the housing project which assessee has constructed 68 shops in the housing project which assessee has constructed 68 shops in the housing project which exceeds the prescribed limit of 5%. Even the commercial area in the exceeds the prescribed limit of 5%. Even the commercial area in the exceeds the prescribed limit of 5%. Even the commercial area in the project exceeds 10% of the total constructed aree of the project; project exceeds 10% of the total constructed aree of the project; project exceeds 10% of the total constructed aree of the project; therefore, the assessee i therefore, the assessee is not entitled to the deduction. He has further s not entitled to the deduction. He has further contended that the housing project was sanctioned after 31.3.2005; contended that the housing project was sanctioned after 31.3.2005; contended that the housing project was sanctioned after 31.3.2005; therefore, the amended provisions of sec. 80IB(10) is applicable. He therefore, the amended provisions of sec. 80IB(10) is applicable. He therefore, the amended provisions of sec. 80IB(10) is applicable. He has relied upon the order of the Assessing Officer. has relied upon the order of the Assessing Officer. 4.1. On the other ha 4.1. On the other hand, the Id AR of the assessee has submitted that nd, the Id AR of the assessee has submitted that the housing project was approved on 11.5.2004 which is prior to the housing project was approved on 11.5.2004 which is prior to the housing project was approved on 11.5.2004 which is prior to 31.3.2005 and therefore, the same is governed by the un 31.3.2005 and therefore, the same is governed by the un 31.3.2005 and therefore, the same is governed by the un-amended provisions of sec. 80IB(10) and clause (d) of sec. 801 B is not provisions of sec. 80IB(10) and clause (d) of sec. 801 B is not provisions of sec. 80IB(10) and clause (d) of sec. 801 B is not applicable, as applicable, as the project was approved prior to 1.4.2005. He has the project was approved prior to 1.4.2005. He has further submitted that the Hon'ble High Court, in the case of further submitted that the Hon'ble High Court, in the case of further submitted that the Hon'ble High Court, in the case of Commissioner of Income Commissioner of Income-tax v. Brahma Associates reported in 333 ITR tax v. Brahma Associates reported in 333 ITR 289 has upheld the order of the Tribunal on the point of prospective 289 has upheld the order of the Tribunal on the point of prospective 289 has upheld the order of the Tribunal on the point of prospective amendment by which the clause (d) of sec. 80IB(10) is inserted and ent by which the clause (d) of sec. 80IB(10) is inserted and ent by which the clause (d) of sec. 80IB(10) is inserted and not retrospective. He has further submitted that the assessee has not not retrospective. He has further submitted that the assessee has not not retrospective. He has further submitted that the assessee has not sold out the commercial establishments in the project and all the shops sold out the commercial establishments in the project and all the shops sold out the commercial establishments in the project and all the shops were built as per the instructions and requirement of were built as per the instructions and requirement of were built as per the instructions and requirement of MMRDA for which the assessee did not receive any consideration. The assessee which the assessee did not receive any consideration. The assessee which the assessee did not receive any consideration. The assessee has received TDR only in respect of the residential part of the project. has received TDR only in respect of the residential part of the project. has received TDR only in respect of the residential part of the project. Therefore, the consideration received by the assessee in the form of Therefore, the consideration received by the assessee in the form of Therefore, the consideration received by the assessee in the form of TDR, which was sold by the assessee TDR, which was sold by the assessee and accordingly, the assessee and accordingly, the assessee is entitled for deduction u/s 8018(1). is entitled for deduction u/s 8018(1).

5. We have considered the rival contention and perused the relevant 5. We have considered the rival contention and perused the relevant 5. We have considered the rival contention and perused the relevant material on record. The first objection raised by the Id DR that the SRA material on record. The first objection raised by the Id DR that the SRA material on record. The first objection raised by the Id DR that the SRA scheme was not notified by CBDT, it has to be scheme was not notified by CBDT, it has to be seen that this objection seen that this objection has not been raised by the Assessing Officer either while passing the has not been raised by the Assessing Officer either while passing the has not been raised by the Assessing Officer either while passing the assessment order or during the remand report. Further, we note that assessment order or during the remand report. Further, we note that assessment order or during the remand report. Further, we note that the assessee never sought any relaxation in the conditions under the assessee never sought any relaxation in the conditions under the assessee never sought any relaxation in the conditions under clause (a) or (b) of sec. 80 clause (a) or (b) of sec. 80IB(10) by virtue of first proviso therefore, IB(10) by virtue of first proviso therefore, when the assessee has not claimed any benefit under the proviso, the when the assessee has not claimed any benefit under the proviso, the when the assessee has not claimed any benefit under the proviso, the question of the scheme of SRA, as notified or not, does not arise. question of the scheme of SRA, as notified or not, does not arise. question of the scheme of SRA, as notified or not, does not arise.

Bombay Slum Redevelopment Bombay Slum Redevelopment 6 Corporation Pvt. Ltd.

Accordingly, we do not find any merit in the objection raised by the Id Accordingly, we do not find any merit in the objection raised by the Id Accordingly, we do not find any merit in the objection raised by the Id DR. 5.1 As regards the objection regarding the commercial mmercial e 5.1 As regards the objection regarding the commercial mmercial e 5.1 As regards the objection regarding the commercial mmercial e establishment is concerned, as per remand report, the Assessing establishment is concerned, as per remand report, the Assessing establishment is concerned, as per remand report, the Assessing Officer has accepted the fact that the project was approved vide Officer has accepted the fact that the project was approved vide Officer has accepted the fact that the project was approved vide agreement dt 11.5.2004; therefore, the preamendment of provis agreement dt 11.5.2004; therefore, the preamendment of provis agreement dt 11.5.2004; therefore, the preamendment of provision of sec. 80IB(10) are applicable. Accordingly, in view of the decision of the sec. 80IB(10) are applicable. Accordingly, in view of the decision of the sec. 80IB(10) are applicable. Accordingly, in view of the decision of the jurisdictional High in the case of Brahma Associates (supra), there is jurisdictional High in the case of Brahma Associates (supra), there is jurisdictional High in the case of Brahma Associates (supra), there is no bar of commercial establishment in the housing project for availing no bar of commercial establishment in the housing project for availing no bar of commercial establishment in the housing project for availing deduction u/s 80IB(10) prior to t deduction u/s 80IB(10) prior to the insertion of clause (d) w.r.f he insertion of clause (d) w.r.f 1.4.2005. The Hon'ble High Court in para 33 has observed as under: 1.4.2005. The Hon'ble High Court in para 33 has observed as under: 1.4.2005. The Hon'ble High Court in para 33 has observed as under: "In the absence of any provisions under the Income "In the absence of any provisions under the Income "In the absence of any provisions under the Income-tax Act, the Tribunal was not justified in holding that up to March 31, 2005 Tribunal was not justified in holding that up to March 31, 2005 Tribunal was not justified in holding that up to March 31, 2005 deduction under section 80 deduction under section 80- IB(10) would be allowable to projects IB(10) would be allowable to projects approved by the local authority having residential building with approved by the local authority having residential building with approved by the local authority having residential building with commercial user up to 10 per cent. of the total builtup area of the plot." commercial user up to 10 per cent. of the total builtup area of the plot." commercial user up to 10 per cent. of the total builtup area of the plot." Therefore, when the project was approved prior to 1.4.2005 then, there Therefore, when the project was approved prior to 1.4.2005 then, there Therefore, when the project was approved prior to 1.4.2005 then, there is no bar for allowing deduction u/s 801B once the residential project ar for allowing deduction u/s 801B once the residential project ar for allowing deduction u/s 801B once the residential project has been approved by the local authorities. has been approved by the local authorities. 5.2 As regard the last contention of the revenue is that the assessee is 5.2 As regard the last contention of the revenue is that the assessee is 5.2 As regard the last contention of the revenue is that the assessee is not a builder and the income received by sale of TDR and not by sale not a builder and the income received by sale of TDR and not by sale not a builder and the income received by sale of TDR and not by sale of housing project is concerned, we find that there is no dispute about sing project is concerned, we find that there is no dispute about sing project is concerned, we find that there is no dispute about the fact that the assessee received the TDR as a consideration against the fact that the assessee received the TDR as a consideration against the fact that the assessee received the TDR as a consideration against the development of the project in question. We further note that the the development of the project in question. We further note that the the development of the project in question. We further note that the TDR was received only for residential portion of t TDR was received only for residential portion of the housing project he housing project and not for the commercial establishment. Thus, when the TDR and not for the commercial establishment. Thus, when the TDR and not for the commercial establishment. Thus, when the TDR received by the assessee was immediately sold and the sale received by the assessee was immediately sold and the sale received by the assessee was immediately sold and the sale consideration was shown as receipt from the housing project, then, consideration was shown as receipt from the housing project, then, consideration was shown as receipt from the housing project, then, there is no other element in the said receipt agai there is no other element in the said receipt against the sale of TDR nst the sale of TDR other than the income from housing project. other than the income from housing project. 5.3 It is not the case of the revenue that the assessee sold the TDR 5.3 It is not the case of the revenue that the assessee sold the TDR 5.3 It is not the case of the revenue that the assessee sold the TDR after appreciation of the value and therefore, the entire amount cannot after appreciation of the value and therefore, the entire amount cannot after appreciation of the value and therefore, the entire amount cannot be treated as sale consideration of the housing pro be treated as sale consideration of the housing project. The assessee ject. The assessee has given the details of the receipts of TDR and sale of the TDR as in has given the details of the receipts of TDR and sale of the TDR as in has given the details of the receipts of TDR and sale of the TDR as in the same year and immediately after receiving from the MMDRA. the same year and immediately after receiving from the MMDRA. the same year and immediately after receiving from the MMDRA. Therefore, there is no element of any appreciation in the value in the Therefore, there is no element of any appreciation in the value in the Therefore, there is no element of any appreciation in the value in the sale consideration. In view of th sale consideration. In view of the above facts and circumstances of the e above facts and circumstances of the case, we do not find any reason to interfere with the order of the Id case, we do not find any reason to interfere with the order of the Id case, we do not find any reason to interfere with the order of the Id CIT(A) for both the AYs. 6 In the result, the appeals filed by the CIT(A) for both the AYs. 6 In the result, the appeals filed by the CIT(A) for both the AYs. 6 In the result, the appeals filed by the revenue are dismissed. revenue are dismissed. 7.1 Further, aggrieved by the order of Hon'ble ITAT, the 7.1 Further, aggrieved by the order of Hon'ble ITAT, the 7.1 Further, aggrieved by the order of Hon'ble ITAT, the revenue has preferred appeal before Hon'ble Bombay High Court on the same issue preferred appeal before Hon'ble Bombay High Court on the same issue preferred appeal before Hon'ble Bombay High Court on the same issue

Bombay Slum Redevelopment Bombay Slum Redevelopment 7 Corporation Pvt. Ltd. which was contested before Hon'ble ITAT. However, the Hon'ble which was contested before Hon'ble ITAT. However, the Hon'ble which was contested before Hon'ble ITAT. However, the Hon'ble Bombay High Court vide of 2012 dated 31.10.2014 has Bombay High Court vide of 2012 dated 31.10.2014 has Bombay High Court vide ITA No. 1391 of 2012 dated 31.10.2014 has dismissed the appeal of the revenue on the issue dismissed the appeal of the revenue on the issue of disallowance u/s of disallowance u/s 80IB(10)(d) and hence allowed the appeal of the assessee. The 80IB(10)(d) and hence allowed the appeal of the assessee. The 80IB(10)(d) and hence allowed the appeal of the assessee. The relevant portion of the decision of Hon'ble Bombay High Court is relevant portion of the decision of Hon'ble Bombay High Court is relevant portion of the decision of Hon'ble Bombay High Court is incorporated as under: incorporated as under: In this case, the only argument of the learned Advocate appearing in In this case, the only argument of the learned Advocate appearing in In this case, the only argument of the learned Advocate appearing in support of this support of this Appeal is that the Tribunal should not have allowed the Appeal is that the Tribunal should not have allowed the Respondent-Assessee's claim. Assessee's claim.

2. The Tribunal by the impugned order dated 8 June 2012 has held 2. The Tribunal by the impugned order dated 8 June 2012 has held 2. The Tribunal by the impugned order dated 8 June 2012 has held that the objection raised by the Assessing Officer that the Respondent that the objection raised by the Assessing Officer that the Respondent that the objection raised by the Assessing Officer that the Respondent will not be entitled to deduction u will not be entitled to deduction under Section 801B(10)(d) cannot be nder Section 801B(10)(d) cannot be sustained. Upon scrutiny of the entire materials including the sustained. Upon scrutiny of the entire materials including the sustained. Upon scrutiny of the entire materials including the agreement, it is apparent that the Respondent agreement, it is apparent that the Respondent-Assessee cannot be Assessee cannot be termed as a mere contractor. He is a developer and claiming rights in termed as a mere contractor. He is a developer and claiming rights in termed as a mere contractor. He is a developer and claiming rights in the land/immoveable pro the land/immoveable property, that is how he proceeded to execute perty, that is how he proceeded to execute necessary agreements and appoint agents to carry out the necessary agreements and appoint agents to carry out the necessary agreements and appoint agents to carry out the construction.

Bombay Slum Redevelopment Bombay Slum Redevelopment 8 Corporation Pvt. Ltd. years, Hon'ble ITAT has upheld the claim of said deduction u/s. years, Hon'ble ITAT has upheld the claim of said deduction u/s. years, Hon'ble ITAT has upheld the claim of said deduction u/s. 80IB(10) of the Act. Subsequently the Dept. filed appeal before Hon'ble 80IB(10) of the Act. Subsequently the Dept. filed appeal before Hon'ble 80IB(10) of the Act. Subsequently the Dept. filed appeal before Hon'ble Bombay High Court against the orders of Tribunal raising the qu Bombay High Court against the orders of Tribunal raising the qu Bombay High Court against the orders of Tribunal raising the question that profits derived by assessee from housing project are eligible for that profits derived by assessee from housing project are eligible for that profits derived by assessee from housing project are eligible for deduction u/s.801B(10) of I.T. Act. Hon'ble Bombay High Court has deduction u/s.801B(10) of I.T. Act. Hon'ble Bombay High Court has deduction u/s.801B(10) of I.T. Act. Hon'ble Bombay High Court has dismissed this appeal of the Dept. vide its order dated 09/01/2013 dismissed this appeal of the Dept. vide its order dated 09/01/2013 dismissed this appeal of the Dept. vide its order dated 09/01/2013 relying on its earlier decision dated 20/03/2 relying on its earlier decision dated 20/03/2012 in case of Vandana 012 in case of Vandana Properties. Thereafter, the Dept. preferred SLP before Hon'ble Supreme Properties. Thereafter, the Dept. preferred SLP before Hon'ble Supreme Properties. Thereafter, the Dept. preferred SLP before Hon'ble Supreme Court. These matters were tagged along with other matters. The Court. These matters were tagged along with other matters. The Court. These matters were tagged along with other matters. The Hon'ble Supreme Court has dismissed the SLP vide its order dated Hon'ble Supreme Court has dismissed the SLP vide its order dated Hon'ble Supreme Court has dismissed the SLP vide its order dated 30/04/2015. Thus the decision of H 30/04/2015. Thus the decision of Hon'ble Bombay High Court has on'ble Bombay High Court has attained finality.

30. In view of the above discussion, we do not find attained finality.

30. In view of the above discussion, we do not find attained finality.

by the appellant become academic quantum, the other grounds raised by the appellant become academic quantum, the other grounds raised by the appellant become academic and hence need no separate need no separate adjudication.” Before us, the Ld. counsel for the assessee submitted that the 4. Before us, the Ld. counsel for the assessee submitted that the Before us, the Ld. counsel for the assessee submitted that the assessee had challenged the very initiation of reassessment assessee had challenged the very initiation of reassessment assessee had challenged the very initiation of reassessment proceedings by filing a writ petition before the Hon’ble Bombay High proceedings by filing a writ petition before the Hon’ble Bombay High proceedings by filing a writ petition before the Hon’ble Bombay High the Hon’ble High Court, vide order in Court. It was submitted that Court. It was submitted that the Hon’ble High Court, vide order in Bombay Slum Redevelopment Bombay Slum Redevelopment 9 Corporation Pvt. Ltd.

Writ Petition No. 2611 of 2024, has quashed the notice issued Writ Petition No. 2611 of 2024, has quashed the notice issued Writ Petition No. 2611 of 2024, has quashed the notice issued under section 148 as well as all consequential proceedings, under section 148 as well as all consequential proceedings, under section 148 as well as all consequential proceedings, including the reassessment order. Consequently, it was contended including the reassessment order. Consequently, it was contended including the reassessment order. Consequently, it was contended that the present appeal filed that the present appeal filed by the Revenue has become purely by the Revenue has become purely academic.

“1. We are informed by counsel for Petitioner/s that these 1. We are informed by counsel for Petitioner/s that these 1. We are informed by counsel for Petitioner/s that these Petitions will be covered by the judgment in Hexaware Petitions will be covered by the judgment in Hexaware Petitions will be covered by the judgment in Hexaware Technologies L Technologies Limited v. Assistant Commissioner of Income Tax imited v. Assistant Commissioner of Income Tax Circle 15(1)(2) Mumbai and Ors.' Counsel for Respondent/s Circle 15(1)(2) Mumbai and Ors.' Counsel for Respondent/s Circle 15(1)(2) Mumbai and Ors.' Counsel for Respondent/s concur.

Bombay Slum Redevelopment Bombay Slum Redevelopment 10 Corporation Pvt. Ltd.

In this view of the matter, the grounds In this view of the matter, the grounds raised by the Revenue, raised by the Revenue, which seek to challenge the deletion of disallowance made in the which seek to challenge the deletion of disallowance made in the which seek to challenge the deletion of disallowance made in the reassessment order, are rendered merely academic. It is well settled reassessment order, are rendered merely academic. It is well settled reassessment order, are rendered merely academic. It is well settled that appellate authorities do not decide academic or infructuous that appellate authorities do not decide academic or infructuous that appellate authorities do not decide academic or infructuous issues. In view of the binding or issues. In view of the binding order of the Hon’ble Bombay High der of the Hon’ble Bombay High Court quashing the reassessment proceedings, we hold that no Court quashing the reassessment proceedings, we hold that no Court quashing the reassessment proceedings, we hold that no adjudication on merits is called for in the present appeal. adjudication on merits is called for in the present appeal. adjudication on merits is called for in the present appeal.