1 itxal457-11+ agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.457 OF 2011 AND INCOME TAX APPEAL (L) NO.458 OF 2011 The Commissioner of Income Tax - II, Thane ..Appellant. Versus Akash Land Developers ..Respondent. Mr.Suresh Kumar for the appellant. Mr.Ajay R. Singh for the respondent. CORAM : J.P. Devadhar & A.A. Sayed, JJ. DATE : 29th July, 2011. P.C. : 1. In these two appeals, the question raised by the Revenue is whether the Income Tax Appellate Tribunal was justified in holding that the reopening of the assessment was without jurisdiction. 2. Appeal (L) No.457 of 2011 relates to the assessment year 2001-02, wherein the reopening of the assessment is beyond four years from the end of relevant assessment year. In Appeal (L) No.458 of 2011, the reopening of the assessment is within four years from the end of the relevant assessment year. 2 itxal457-11+ 3. In both these cases, the reopening of the assessment is based on the fact that the Tribunal, subsequently, has held in the case of Laukik Developers that the deduction under Section 80IB is not allowable on the profits derived from a housing project approved by a local authority which includes user of FSI for commercial purposes. The decision of the Income Tax Appellate Tribunal in the case of Laukik Developers has not been approved by this Court in the case of Commissioner of Income TAx V/s. Brahma Associates reported in 333 ITR 289. In the case of Brahma Associates (supra), it is held by this Court that in the absence of any bar under the Income Tax Act, 1961, if the housing project approved by the local authority includes user of FSI for commercial purposes, then the benefit under Section 80IB(10) cannot be denied to the assessee. 4. In this view of the matter, no fault can be found with the order of the Income Tax Appellate Tribunal in quashing the reassessment proceedings. Accordingly, both the appeals are dismissed with no order as to costs. (A.A. Sayed, J.) (J.P. Devadhar, J.)