(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) This application has been filed by the department seeking recall of our order dated 11.01.2012 passed in group of appeals including Tax Appeal No. 1164 of 2011.
Through this application, the revenue requests that above mentioned order be recalled insofar as it pertains to Tax Appeal No. 1164 of 2011. In the misc. civil application it is contended that the order dated 11.01.2012 be recalled and department may be permitted to amend the tax appeal. However, draft amendment is not presented before us. In any case, counsel for the revenue submitted that the tax appeal was disposed of alongiwth other similar appeals touching the aspect of deduction under Section 80 IB(10) of the Income Tax Act. He submitted that in the present case, the revenue, through oversight, in the memo of tax appeal, did not raise additional question namely with respect to unutilized FSI by the developer which, according to the revenue, cannot form part of the deduction under Section 80 IB (10) of the Act.
We had, with the assistance of the learned counsel for the parties, perused the decision of the tribunal which gives rise to said Tax Appeal No. 1164 of 2011. We notice that before the Tribunal, no such question as is sought to be raised before us was arisen. The entire decision of the tribunal rests on its conclusion on the eligibility of the assessee to seek deduction under Section 80 IB(10) of the Act. While discussing such issue, there is no reference to any unutilized FSI which, according to the revenue, would not clarify further deduction.
In that view of the matter, since the question which the revenue desires to raise in a tax appeal which is already disposed of, does not arise out of the decision of the Tribunal. We see no reason to recall our main order. This misc. civil application is, therefore, dismissed.
[AKIL KURESHI, J.] [SONIA GOKANI, J.] JYOTI Top