IN HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Income Tax Appeal No.21/2010 (Commissioner of Income Tax (Central) Civil Lines, Nagpur .vs. M/s Chintamani Builders, Wardha Road, Nagpur.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. Anand Parchure, Advocate for Appellant. Mr. K.P. Dewani, Advocate for Respondent. CORAM : M.S. Sanklecha & Manish Pitale, JJ. DATED : July 13, 2017. 1. This appeal under Section 260-A of Income Tax Act, 1961( Act) challenges order date 5.6.2009 passed by Income Tax Appellate Tribunal (Tribunal). This appeal relates to Assessment Year 2005-2006. 2. This appeal was admitted on 02.12.2010 on following substantial question of law:- "Whether on facts and in circumstances of case, ITAT is correct in law, in holding that assessee is entitled to deduction u/s 80IB(10), without ascertaining as to whether housing project in question was completed by assessee within time-frame stipulated under sub- section (10) of section 80IB of Act?" 3. We note that impugned order of Tribunal has dismissed revenue's appeal by placing reliance upon order of its coordinate Bench in respect of same respondent-assessee for ::: Uploaded on - 17/07/2017 ::: Downloaded on - 18/07/2017 09:22:39 ::: 2 ITL21 10.odt assessment year 2004-2005. In particular, impugned order relies upon para 7.1 of order passed by Tribunal relating to assessment year 2004-2005 and same reads as under:- "In our considered opinion, sequence of facts i.e. acquiring piece of land for proposed implementation of housing projects, getting approval of layout plan for entire land, wide publication in Brochure for dwelling houses in project, subsequent plotting of same and construction of dwelling house on such plot all should be considered together. Once we consider entire facts and sequence of events in totality, it is evident that assessee developed housing project. Merely because two separate agreements were entered into, once for sale of plot and other for construction thereon, it cannot be said that both agreements were independent agreements. assessee has sold "Bungalow", i.e. plot of land with construction thereon. Sale price was of "Bungalow". No buyer had any option to purchase only plot and did not get "Bungalow" constructed thereon from assessee. Merely because transaction of sale of bungalow was completed through two agreements entered into simultaneously, it cannot be said that assessee did not develop housing project. In our opinion, C.I.T. (A) on facts and circumstances of case has rightly held that assessee has sold tenements to buyer by executing two agreements to split its sale consideration towards plot of land and construction of dwelling unit. In view of above, we uphold order of C.I.T. (A) and dismissed revenue's appeal. ::: Uploaded on - 17/07/2017 ::: Downloaded on - 18/07/2017 09:22:39 ::: 3 ITL21 10.odt When it was shown to learned DR, he did not have any proper rebuttal on same. Accordingly, issue is treated to have been covered in favour of assessee and against Revenue." 4. question as formulated does not arise from order of Tribunal. impugned order of Tribunal rejected appeal of revenue on ground that respondent did not develop housing project because transaction of sale of bungalow was completed through two agreements. It did not deal with issue with regard to completion of project within time-frame provided in sub-section (10) of Section 80IB of Act nor is it shown to us to have been raised before Tribunal. 5. Therefore, question does not arise out of impugned order of Tribunal for it be considered by this Court as held by this Court in CIT .vs. Tata Chemicals- 256 I.T.R.395. This question does not give rise to substantial question of law. 6. Accordingly, appeal is dismissed. No order as to costs. JUDGE JUDGE halwai ::: Uploaded on - 17/07/2017 ::: Downloaded on - 18/07/2017 09:22:39 ::: Commissioner of Income-tax (Central), Nagpur v. Chintamani Builder