1 21 itxal 1015.11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION K INCOME TAX APPEAL (L) NO. 1015 OF 2011 The Commissioner of Income Tax .. Appellant Vs. Shree Ostwal Builders Limited .. Respondent. Mr.Suresh Kumar for the Appellant. CORAM : J.P. DEVADHAR & K.K. TATED, JJ. DATE : 19TH SEPTEMBER, 2011. P.C. 1 Basically two questions of law are raised by the Revenue in this Appeal. The said questions of law read thus: a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in allowing the deduction under section 80IB(10) since the assessee company had constructed residential-cum-commercial complex thus violating one of the precondition laid down under section 80IB(10) of the Income Tax Act, 1961? b) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in allowing the claim of deduction under section 2 21 itxal 1015.11.doc 80IB(10) of the Income Tax Act, 1961 made by the assessee without appreciating the fact that the commencement certified dated 03.08.1998 sanctioned by CIDCO is prior to 01.10.1998 for Oswal Nagari Project? 2 As regards question (a) is concerned, counsel for the Revenue states that said question stands answered against the Revenue by the decision of this court in the case of CIT vs. M/s Brahma Associates reported in 333 ITR 289 (Bom). Accordingly, the first question cannot be entertained. 3 As regards question (b) is concerned, the relevant facts are that, the Assessee who is engaged in the business of Building and Development of Housing Projects had purchased a Project known as Oswal Nagari and Asha Nagar from a third party. On the said project which commenced in March, 2001 the assessee claimed deduction under section 80IB(10) of the Income Tax Act, 1961. The Assessing Officer disallowed the claim of the Assessee on the ground that the Project was originally sanctioned by the CIDCO vide order dated 3rd August, 1998. Since one of the conditions set out in section 80IB(10) of the Income Tax Act, 1961 was that the project should have commenced on or after 1st October, 1998, the Assessing Officer was of the opinion that in the present case, the conditions set out in section 80IB(10) of the Income Tax Act, 1961 were not fulfilled. 3 21 itxal 1015.11.doc 4 The ITAT has recorded a finding of fact that Assessee has purchased the projects in question from M/s Sonal Venture in August, 2001 and that the plan in respect thereof was finally sanctioned by CIDCO vide letter dated 04.01.2002 addressed M/s Sonal Ventures from whom the assessee had purchased the land along with FSI. The Tribunal has recorded a finding that though the original plans were sanctioned prior to 01.10.1998, the plans were revised and the revised plans were sanctioned on 04.01.2002. Thus, the decision of the ITAT that the project commenced after 1st October, 1998 is a decision based on finding of fact. No question of law arises out of the order of ITAT. Accordingly, Appeal is dismissed with no order as to costs. (J.P. DEVADHAR, J.) (K.K. TATED, J.)