THE COMMISSIONER OF INCOME TAX BHOPAL vs. SMT. SAROJ KAPOOR

ITA-13-2013 (THE COMMISSIONER OF INCOME TAX BHOPAL Vs SMT. SAROJ KAPOOR) 09-01-2017 Shri Sanjay Lal, learned counsel for the appellant. Shri G. Purohit, learned Senior Counsel with Shri Abhishek Oswal, for the respondent. This is Revenue's Appeal under Section 260A of the Income Tax Act, 1961, challenging in question the finding of fact recorded by the Commissioner, Appeals and upheld by the Income Tax Tribunal. The Tribunal after reproducing the finding recorded by the Commissioner, Appeals, in para 12 and 13 has given its finding in the following manner :- “12. Against the above order of CIT (A), the revenue is in appeal before us, wherein they are aggrieved for deletion of this allowance made under Section 80 ID (10) in both the years under consideration. The assessee has also filed cross objection, wherein they have alleged action of CIT (A) for confirming re-opening under Section 147. 13. Rival contentions have been heard and record perused. We have also deliberated on the case laws cited by lower authorities in their respective orders as well as case laws referred by the learned authorized representative and learned Senior DR during the course of hearing before us. From the record, we found that the assessee claim for deduction under Section 80 IB(10) was declined by the Assessing Officer on the plea that the assessee is not a developer but merely a contractor and that completion certificate was not obtained within the stipulated time and the area of construction was more than the specified limit of 1500 sq.ft. The learned CIT (A) has elaborately dealt with each and every objection of the Assessing Officer and recorded a detailed finding to the effect that the assessee was not merely a contractor but have developed the entire scheme. The learned CIT(A) has observed that the project was approved by the competent authority prior to 1.4.2004, and construction was started on the project on 8.10.1998. The project was to be completed by 31st March, 2008, whereas, project was completed by 31st March, 2005, and completion Certificate bearing No.542 dated 30.4.2005 was filed before the Assessing Officer. The learned CIT(A) further observed that even Assessing Officer has recorded a finding to the effect that the statement of city planner was recorded, wherein he has confirmed the issue of completion certificate vide letter dtd. 11.11.2008. In view of these findings, the learned CIT(A) had rejected the assessee officers suspicion regarding completion certificate dated 30th April, 2005. On the basis of evidences available on record, the learned CIT(A) has also recorded a finding that the assessee has acted as a builder and developer to the project as a whole and not merely as a contractor. With regard to the area of construction, the learned CIT(A) has recorded a detailed finding to this effect. We also found that departmental valuation officer Shri Amogh Kumar Gupta has also carried out measurement of built up area and stated that built up area as per Bhumi Vikas Rules, 1984 was 1453.17 sq.ft. The relevant finding has also been recorded by the learned CIT(A) in his order with regard to measurement of built up area by the DVO Shri Amogh Kumar Gupta. This finding has not been controverted by the Department. In view of these peculiar facts, we do not find any infirmity in the order of CIT(A) for allowing assessee's claim for deduction under Section 80 IB (10) of the Income Tax Act, 1961. The aforesaid finding recorded concurrently by appellate authorities are pure finding of facts based on due evidence available on record and we find no substantial question of law arises for reconsideration. Accordingly, the appeal stands disposed of. (RAJENDRA MENON) ACTING CHIEF JUSTICE (SMT. ANJULI PALO) JUDGE mrs. mishra