M/s. CHD Developers Ltd., New Delhi V. DCIT, New Delhi

CO 77/DEL/2013

• Counselvise Citation: [2014] 123 COUNSELVISE.COM (IT) 0146 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARWINDER KAUR
• Keywords: Depreciation; Rule of consistency; Retrospective amendment; Wrong claim; Competent authority
• Section: 80IB; 131; 10

Judgement Text

ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES B NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO. 560/DEL/2013 ASSTT.YEAR: 2009-10 ITA NO. 769/DEL/2013 ASSTT.YEAR: 2008-09 DCIT, VS CHD DEVELOPERS LTD., CIRCLE-3(1), 11, BHIKAJI CAMA PLACE, NEW DELHI. NEW DELHI-110015 C.O. NO. 76/DEL/2013 (IN ITA NO. 560/DEL/2013) ASSTT.YEAR: 2009-10 C.O. NO. 77/DEL/2013 (IN ITA NO. 769/DEL/2013) ASSTT.YEAR: 2008-09 CHD DEVELOPERS LTD., VS DCIT, CIRCLE 3(1), NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KAPIL GOEL ADV. RESPONDENT BY: SMT. PARWINDER KAUR, SR. DR O R D E R PER CHANDRAMOHAN GARG, J.M. THE ABOVE CAPTIONED APPEALS AS WELLS RESPECTIVE CR OSS OBJECTIONS HAVE BEEN PREFERRED AGAINST THE ORDER OF THE CIT(A)-VI, NEW DELHI DATED 02.11.2012 ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 2 IN APPEAL NO. 199/10-11 AND 137/11-12 FOR AY 2008-0 9 AND 2009-10 RESPECTIVELY . 2. WE NOTE THAT IT IS APPARENT FROM THE RECORD THAT THE GROUNDS RAISED BY THE REVENUE IN BOTH THE APPEALS ARE SIMILAR EXCEPT QUAN TUM OF ADDITION. THE GROUNDS RAISED BY THE REVENUE IN ITA NO. 769/DEL/20 13 (FOR AY 2008-09) READ AS UNDER:- 1. WHETHER THE LD. CIT(A) HAS ERRED ON FACTS AND I N LAW IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DEDUCTION U/S 80LB AMOUNTING TO RS. 2,94,36,539/- (A) THE ASSESSEE HAS VIOLATED THE AREA RESTRICTION OF 1500 SQ. FT. IF EVEN ONE RESIDENTIAL UNIT VIOLATES THIS CONDITIO N THE ENTIRE PROJECT WILL NOT BE ELIGIBLE FOR DEDUCTION U/S 801 B. (B) ASSESSEE HAS NOT FURNISHED AUDIT REPORT U/S 10C CB DESPITE SPECIFIC REQUIREMENTS AS PER SECTION 801A(7) OF THE LT. ACT, 1961 WHICH IS ALSO APPLICABLE TO SECTION 801B. (C) THE ASSESSEE HAS NOT FURNISHED ANY COMPLETION C ERTIFICATE FROM THE COMPETENT AUTHORITY. IN PLACE OF FILING TH E COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY. 02. WHETHER THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE ON ACCOUNT W2RONG CLAIM OF DEPRECIATION ON COMPUTER ACCESSORIES AND PERIPHERAL S AMOUNTING TO RS. 19,990/- IGNORING THE FACTS THAT O NLY THE COMPUTERS AND COMPUTER SOFTWARE ARE ELIGIBLE FOR DE PRECIATION OF 60% AND THE SAME CANNOT BE EXTENDED TO COMPUTER ACCESSORIES AND PERIPHERALS. 3. BRIEFLY STATED THE FACTS GIVING RISE TO THESE AP PEALS AND COS ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF HOSP ITALITY AND REAL ESTATE. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME AND SUB SEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESS MENT, THE AO NOTED THAT THE ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 3 APPELLANT COMPANY HAS CLAIMED DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) AMOUNTING TO RS.2,94,36,53 9/- IN AY 2008-09 AND RS.31,54,753 IN AY 2009-10 IN RESPECT OF ITS HOUSIN G PROJECT AT SRI KRISHNA LOK, VRINDAVAN, MATHURA, UP. DURING THE COURSE OF ASSESSMENT, AO FURTHER NOTED THAT THE PROJECT OF THE ASSESSEE VIZ. SRI KRI SHNA LOK WAS HAVING AREA OF LESS THAN 1500 SQ. FT. THE AO TOOK A VIEW THAT EVE N IF ONE RESIDENTIAL UNIT VIOLATES PRESCRIBED CONDITION, THE ENTIRE PROJECT W ILL NOT BE ELIGIBLE FOR DEDUCTION U/S 80IB. THE AO ALSO OBSERVED THAT THE ASSESSEE H AD NOT FURNISHED THE AUDIT REPORT U/S 10CCB OF THE ACT DESPITE SPECIFIC REQUIR EMENT AS PER SECTION 80IA(7) OF THE ACT WHICH ALSO APPLIED TO SECTION 80IB OF TH E ACT. THE AO ALSO NOTICED THAT THE ASSESSEE COMPANY FAILED TO FURNISH ANY COM PLETION CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY AND THE AO DISALLOWED THE E NTIRE AFORESAID CLAIM OF DEDUCTION U/S 80IB OF THE ACT AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. THE AO ALSO MADE ADDITION OF RS.19,990 AND RS.12915 RESPECTIVELY IN BOTH THE ASSESSMENT YEARS ON ACCOUNT OF EXCESS CLAIM OF COMP UTER DEPRECIATION. 4. BEING AGGRIEVED BY THE ABOVE ASSESSMENT ORDER, T HE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WHICH WAS ALLOWED ON BOTH THE ABOVE ISSUES. NOW, THE AGGRIEVED REVENUE IS BEFORE THIS TRIBUNAL IN TH IS SECOND APPEAL WITH THE GROUNDS AS REPRODUCED HEREINABOVE. ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 4 GROUND NO.1 5. APROPOS GROUND NO. 1, LD. DR SUBMITTED THAT THE CIT(A) HAS ERRED IN FACT AND ON LAW IN DELETING THE ADDITION ON ACCOUNT OF D EDUCTION U/S 80IB IF THE ACT BECAUSE THE ASSESSEE HAS VIOLATED THE AREA RESTRICT ION OF 18 SQ FT AND IT IS WELL- SETTLED PROPOSITION THAT IF EVEN ONE RESIDENTIAL UN IT VIOLATES THE CONDITION OF THE ACT, THEN THE ENTIRE PROJECT WILL NOT BE ELIGIBLE F OR CLAIMED DEDUCTION U/S 80IG OF THE ACT. LD. DR FURTHER CONTENDED THAT DESPITE SEVERAL OPPORTUNITIES, THE ASSESSEE HAD FAILED TO FURNISH AUDIT REPORT U/S 10C CB OF THE ACT AS PER REQUIREMENT OF SECTION 80IA (7) OF THE ACT. LD. DR STRENUOUSLY POINTED OUT THAT THE ASSESSEE HAS NOT FURNISHED ANY COMPLETION CERTI FICATE ISSUED BY THE COMPETENT AUTHORITY, THEREFORE, THE AO RIGHTLY DENI ED DEDUCTION AND EXEMPTION U/S 80IB OF THE ACT. THE DR FINALLY PRAYED THAT TH E IMPUGNED ORDERS MAY BE SET ASIDE BY RESTORING THAT OF THE AO. 6. REPLYING TO THE ABOVE, LD. COUNSEL OF THE ASSESS EE SUPPORTED THE IMPUGNED ORDER AND PLACED COPY OF THE DECISION OF H ONBLE HIGH COURT OF DELHI DATED 22.1.2014 IN ITA NO. 298/2013 CHD DEVELOPERS LTD. FOR AY 2007-08 REPORTED AS 362 ITR 117 (DEL) AND SUBMITTED THAT TH E CIT(A) GRANTED RELIEF FOR THE ASSESSEE BY FOLLOWING THE DECISION OF ITAT DELH I B BENCH DATED 26.9.2012 IN ITA NO. 2902 AND 4694/DEL/2010 FOR AY 2006-07 AND 2007-08 AND SUBMITTED THAT THE CIT(A) HAS SIMPLY FOLLOWED T HE DECISION OF THE TRIBUNAL DATED 26.9.2012 (SUPRA) AND THERE IS NO ERROR OR AM BIGUITY IN THE IMPUGNED ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 5 ORDERS. LD. COUNSEL FURTHER CONTENDED THAT THE ORD ER OF THE TRIBUNAL DATED 26.9.2012 FOR AY 2007-08 HAS BEEN UPHELD AND APPROV ED BY JURISDICTIONAL HIGH COURT OF DELHI THROUGH ORDER DATED 22.1.2014 (SUPRA ). LD. COUNSEL SUPPORTED THE IMPUGNED ORDERS AND SUBMITTED THAT THE AO ADOPT ED A HYPER TECHNICAL APPROACH FOR REJECTING THE CLAIM OF THE ASSESSEE FO R DEDUCTION U/S 80IB OF THE ACT WHICH WAS DELETED BY THE CIT(A) ON COGENT AND R EASONABLE GROUNDS. LD. COUNSEL VEHEMENTLY CONTENDED THAT IF CIT(A) IS FOLL OWING ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASES PERTAINING TO THE IMMEDIATELY PREVIOUS YEARS ON THE SIMILAR ISSUE AND FACTS, THEN THE REVENUE CA NNOT TAKE A DIFFERENT OR DEVIATED STAND WITHOUT ANY SUBSTANTIAL AND STRONG R EASON. 7. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS AND VIGILANT PERUSAL OF THE RELEVANT MATERIAL PLACED ON RECORD BEFORE US , AT THE OUTSET, WE NOTE THAT THE ITAT B BENCH, DELHI DELETED THE ADDITIONS MAD E BY THE AO DENYING THE CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT FOR AY 20 06-07 AND 2007-08. WE FURTHER NOTE THAT THE CIT(A) HAS GRANTED RELIEF ON SIMILAR ISSUE FOR AY 2008-09 AND 2009-10 FOLLOWING THE DECISION OF THE TRIBUNAL DATED 26.9.2012 (SUPRA). FROM THE COPY OF THE ORDER OF THE HONBLE HIGH COUR T OF DELHI DATED 22.1.2014 (SUPRA), WE RESPECTFULLY NOTE THAT THE ORDER OF THE TRIBUNAL FOR AY 2007-08 ON THE SIMILAR ISSUE HAS BEEN APPROVED BY THE HIGH COU RT WITH FOLLOWING OBSERVATIONS AND CONCLUSION:- ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 6 10. IN THE PRESENT CASE CONCEDEDLY THE APPROVAL F OR THE PROJECT WAS GIVEN BY THE MATHURA VRINDAVAN DEVELOPM ENT AUTHORITY ON 16.03.2005. CLEARLY THE APPROVAL RELAT ED TO THE PERIOD PRIOR TO 2005, I.E. BEFORE THE AMENDMENT, WH ICH INSISTED ON ISSUANCE OF THE COMPLETION CERTIFICATE BY THE EN D OF THE 4 YEAR PERIOD WAS BROUGHT INTO FORCE. WE ARE IN FULL AGREEMENT WITH THE GUJARAT HIGH COURT THAT THE APPLICATION OF SUCH STRINGENT CONDITIONS, WHICH ARE LEFT TO AN INDEPEND ENT BODY SUCH AS THE LOCAL AUTHORITY WHO IS TO ISSUE THE COM PLETION CERTIFICATE, WOULD HAVE LED TO NOT ONLY HARDSHIP BU T ABSURDITY. AS A CONSEQUENCE, WE ARE OF THE OPINION THAT THE RE ASONING AND CONCLUSIONS OF THE KARNATAKA HIGH COURT AND THE GUJARAT HIGH COURT ARE FULLY APPLICABLE TO THE FACTS OF THI S CASE. THE TRIBUNAL WAS NOT, THEREFORE, IN ERROR OF LAW WHILE HOLDING IN FAVOUR OF THE ASSESSEE. 8. FROM A CAREFUL READING OF THE ORDER OF THE TRIBU NAL DATED 26.9.2012 FOR BOTH THE ASSESSMENT YEARS, WE OBSERVE THAT THE TRIB UNAL HAS GRANTED RELIEF TO THE ASSESSEE BY HOLDING THAT AS PER SUB-SECTION 10 OF S ECTION 80IB OF THE ACT, THE HOUSING PROJECTS WHICH WERE APPROVED BEFORE 31 ST DAY OF MARCH, 2008, THE BENEFIT WILL BE HUNDRED PER CENT SUBJECT TO FULFILM ENT OF CERTAIN CONDITIONS. HOWEVER, THIS CONDITION WAS SUBSTITUTED BY FINANCE (NO.2) ACT OF 2009 WITH EFFECT FROM 1.4.2009 WHICH HAS BEEN FURTHER EXPLAIN ED BY SUB-CLAUSE (II) TO EXPLANATION REGARDING COMPLETION CERTIFICATE. THE TRIBUNAL FURTHER HELD THAT SINCE THE APPROVAL WAS GRANTED TO THE ASSESSEE ON 1 .4.2005, THEREFORE, THE ASSESSEE IS NOT EXPECTED TO FULFILL THE CONDITIONS WHICH WERE NOT ON THE STATUTE WHEN SUCH APPROVAL WAS GRANTED TO THE ASSESSEE. 9. FROM THE IMPUGNED ORDERS OF THE CIT(A), WE OBSER VE THAT THE CIT(A) GRANTED RELIEF FOR THE ASSESSEEE DISMISSING THE ACT ION OF THE AO, WHICH DENIED ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 7 DEDUCTION U/S 80IB OF THE ACT TO THE ASSESSEE, WITH FOLLOWING OBSERVATIONS, FINDINGS AND CONCLUSION:- 5. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS M ADE BY THE ID. AR AND HAVE GONE THROUGH THE ASSESSMENT ORD ER. IT IS SEEN THAT THE AO HAS DISALLOWED THE CLAIM OF DEDUCT ION U/S 80IB OF THE I.T.ACT IN RESPECT OF SHRI KRISHNA LOK PROJECT AT VIRANDVAN OF THE APPELLANT COMPANY MAINLY ON TWO RE ASONS: FIRSTLY, THAT THE AFORESAID PROJECT OF THE APPELLA NT COMPANY IS HAVING AREAS OF MORE THAN 1500 SQ.FT. AN D EVEN IF ONE RESIDENTIAL UNIT OF A PROJECT VIOLATES THIS CON DITION THE ENTIRE PROJECT WOULD NOT BE ELIGIBLE FOR DEDUCTION U/S 80IB. SECONDLY, THE APPELLANT COMPANY FAILED TO FURNISH COMPLETION CERTIFICATES FROM THE COMPETENT AUTHORIT Y IN RESPECT OF ITS AFORESAID PROJECT. IT IS OBSERVED TH AT THE AO WAS GUIDED IN MAKING THE AFORESAID DISALLOWANCE FROM TH E PREVIOUS ASSESSMENT ORDERS IN THE CASE OF THE APPELLANT COMP ANY FOR THE AY. 06-07 AND 07-08. 5.1 IT IS FURTHER OBSERVED THAT THE DISALLOWANCES MADE IN RESPECT OF THE AFORESAID PROJECT OF THE APPELLANT C OMPANY U/S 80LB HAS BEEN DELETED BY THE HON'BLE ITAT 'B' BENCH DELHI IN ITS CONSOLIDATED ORDER ON 26.9.2012 IN RESPECT OF A Y. 06-07 THE DEPARTMENTAL APPEAL WAS REJECTED BY THE HON'BLE ITA T IN ITA NO. 2902/DE1/10. THE RELEVANT EXTRACTS OF THE AFORE SAID ORDER OF THE HON'BLE ITAT IS REPRODUCED BELOW FOR REFERE NCE: 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE A LSO PERUSED THE SANCTION PLAN AND AREA OF EACH UNIT LIK E BED ROOMS, TOILET, KITCHEN, DRAWING ROOM, BALCONY, POWE R ROOM AND STORE ETC. WE FIND THAT IF THE TOTAL AREA AS PE R APPROVED PLAN IS EXAMINED, IT COMES TO 1386.03 SQ. FT. (AS P ER SANCTION PLAN), AND THE TOTAL SALEABLE AREA/SUPER AREA IS 14 92.43 SQ. FT., WHICH IN ALL FAIRNESS IS BELOW THE PRESCRIBED LIMIT OF 1500 SQ. FT. SO FAR AS THE COMMON AREA OR STAIR CASE IS CONCERNE D, IT CANNOT BE INCLUDED IN THE BUILT UP AREA OF AN INDIV IDUAL UNIT AS THE SAME IS TO BE USED BY ALL THE RESIDENTS/ INHABI TANTS. IF THE DEFINITION OF BUILT UP AREA AS MENTIONED IN SUB-C LAUSE (A) OF SUB-SECTION (14) OF SECTION 80-IB, IS ANALYZED, IT SPEAKS ABOUT ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 8 THE INNER MEASUREMENT OF THE RESIDENTIAL UNIT AT TH E FLOOR LEVEL, INCLUDING THE PROJECTIONS AND BALCONIES, AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COMMON AREA SHARED WITH OTHER RESIDENTIAL UNITS. THE STAIR CASE DEFINITELY COMES UNDER THE COMMON POOL USED BY ALL THE INHABITANTS, THEREFORE, IT CANNOT BE INCLUDED IN TH E BUILT UP AREA. EVEN OTHERWISE THE ASSESSING OFFICER NOTED FR OM THE DETAILS SUBMITTED BY THE ASSESSEE THAT THREE TYPES OF FLATS WERE SOLD BY THE ASSESSEE AND IN THE TYPE A CATEG ORY THE AREA IS 1386.03 SQ. FT., WHEREAS IN TYPE B THE TO TAL AREA IS 1122.48 SQ. FT., AND IN TYPE C FLAT, THE TOTAL AR EA IS 811.84 SQ. FT. PER FLAT. THESE DETAILS WERE SUBMITTED BY THE A SSESSEE VIDE LETTER DATED 12-12-2008 BEFORE THE LD. CIT(A) AND E ARLIER BEFORE THE ASSESSING OFFICER. SUCH DETAILS HAVE BEEN REPRODUCED AT PAGE 4 OF TH E IMPUGNED ORDER. THERE IS A FACTUAL RECORDING THAT S TAIR CASE IS COMMON AREA BETWEEN THE TWO ADJACENT FLATS MEASURIN G 8.172 SQ. MTS. AND IF THIS AREA IS REDUCED FROM THE TOTAL AREA OF THE UNIT THEN CERTAINLY IT COMES BELOW THE PRESCRIB ED LIMIT OF 1500 SQ. FT. THIS BEING THE FIRST YEAR OF CLAIMING DEDUCTION U/S 80-IB(10) OF THE ACT, WHEREIN THE ASSESSING OFFICER HIMSELF NOTE D THAT ASSESSEES 48 UNITS OF TYPE-A FLATS; 90 UNITS OF TY PE-B & TYPE- C UNITS WERE UNDER CONSTRUCTION, THE ASSESSING OFFI CER HIMSELF COMPUTED THE BUILT UP AREA BY INCLUDING THE STAIR C ASE AREA, THEREFORE, IT EXCEEDED THE PRESCRIBED LIMIT. SUCH F ACTUAL FINDING RECORDED IN THE IMPUGNED ORDER WAS NOT CONT ROVERTED BY THE REVENUE BY BRINGING ANY POSITIVE MATERIAL ON RECORD. IN VIEW OF THESE FACTS WE ARE OF THE CONSIDERED OPINIO N THAT THE ASSESSEE IS CLEARLY ENTITLED FOR SUCH DEDUCTION. TH EREFORE, WE FIND NO JUSTIFICATION TO INTERFERE WITH THE CONCLUS ION DRAWN IN THE IMPUGNED ORDER, WHICH IS AFFIRMED. 5.2 SIMILAR ISSUE WAS ALSO ADJUDICATED UPON BY THE HONBLE ITAT IN RESPECT OF AY 2007-08 IN THE APPELLANTS CA SE IN ITA NO. 4694/DEL/10 DATED 26.9.2012. FOR READY REFEREN CE THE RELEVANT EXTRACTS OF THE ORDER OF THE HONBLE ITAT IS REPRODUCED BELOW:- ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 9 8.4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE DECLARED TAXABLE INCOME OF RS. 5, 97,15,620/- IN ITS RETURN FILED ON 31-10-2007. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THE ASSESSEE CLAIMED DEDUCTI ON OF RS.5,19,92,472/- U/S 80-IB(10). THE ASSESSING OFFIC ER ASKED THE ASSESSEE TO GIVE JUSTIFICATION FOR CLAIMING SUCH DE DUCTION. LD. ASSESSING OFFICER DENIED THE CLAIM ON TWO COUNTS- F IRSTLY, THE BUILT UP AREA OF THE UNIT IS ABOVE PRESCRIBED LIMIT OF 1500 SQ. FT. AND SECONDLY FOR EARLIER ASSESSMENT ORDER IDENTICAL DEDUCTION WAS CLAIMED BY THE ASSESSEE AND THE ASSESSEE VIOLAT ED THE CONDITIONS STIPULATED U/S 80-IB(10) IN TYPE A FLAT S. ULTIMATELY, THE LD.ASSESSING OFFICER DENIED SUCH DEDUCTION TO T HE ASSESSEE. THE ASSESSEE FILED VARIOUS DOCUMENTS BEFORE THE ASS ESSING OFFICER AND THE SAME WERE EXAMINED BY HER. FINALLY THE LD. ASSESSING OFFICER CONCLUDED THAT THE CONDITIONS LAI D DOWN U/S 80-IB(10) WERE NOT SATISFIED, THEREFORE, THE CLAIM OF DEDUCTION COULD NOT BE ALLOWED TO THE ASSESSEE. 8.5. ON APPEAL BEFORE THE LD. CIT(A) THE CLAIM OF T HE ASSESSEE WAS EXAMINED AND ULTIMATELY THE ASSESSMENT ORDER WA S UPHELD. THE AGGRIEVED ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 8.6. IF THE TOTALITY OF FACTS AVAILABLE ON RECORD A ND THE ASSERTION MADE BY THE LD. RESPECTIVE COUNSELS ARE KEPT IN JUX TAPOSITION, BROADLY THE LD. CIT(A) IS INFLUENCED BY THE SALE TR ANSACTIONS WITH RAJASTHAN GLOBAL SECURITIES LTD., WHEREIN PURSUANT TO SUMMONS U/S 131 ISSUED TO RAJASTHAN GLOBAL SECURITIES LTD., IT WAS CONFIRMED THAT THE AMOUNT OF RS. 5,36,89,920/- WAS PAID TO THE ASSESSEE AS ADVANCE FOR PURCHASE OF 37 FLATS IN KRI SHNALOK PROJECT. HOWEVER, WHAT IT MAY THE MOOT ISSUE TO BE ADJUDICATED BY US PERTAINS TO SEC. 80-IB(10). WE FURTHER FIND T HAT AS CONTAINED IN PARA 1.2 (PAGE 5) OF THE IMPUGNED ORDE R, THE LD. CIT(A) HAS EXAMINED THE SUBMISSIONS OF THE ASSESSEE AND THE REASON OF DENIAL OF DEDUCTION TO THE ASSESSEE BY TH E LD.ASSESSING OFFICER. THE RELEVANT PORTION FROM THE IMPUGNED ORDER IS REPRODUCED HEREUNDER: IT WAS FURTHER SUBMITTED THAT ADDL. CIT WRONGLY TR IES TO PROVE THAT SALE WITH M/S. RAJASTHAN GLOBAL SECURITIES LTD . (RGSL) ARE NOT ACCOUNTED FOR PROPERLY AND UNDUE PROFIT HAS ARI SEN ON ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 10 ACCOUNT OF 80-IB WHEREAS THESE ARE NORMAL BUSINESS TRANSACTIONS UNDERTAKEN BY ASSESSEE COMPANY WITH M/ S RAJASTHAN GLOBAL SECURITIES LTD. HAVING NO MUTUAL R ELATION WHATSOEVER. THE ASSESSING OFFICER HAS OBJECTED TO T HE ISSUE OF PREFERENTIAL SHARES AND ITS VALUATION. THE ASSESSEE COMPANY HAS ISSUED PREFERENTIAL SHARES TO VARIOUS PERSONS AS PE R SEBI GUIDELINES AND APPROVAL OF BOMBAY STOCK EXCHANGE. T HE ASSESSEE COMPANY IS A LISTED COMPANY AND DOES NOT A H ANY DISCRETION ABOUT THE ISSUE PRICE AND REQUIRE TO ISS UE SHARES THROUGH PREFERENTIAL ALLOTMENT ONLY AT THE RATE AS PER SEBI GUIDELINES AND APPROVED BY STOCK EXCHANGE. DURING T HE YEAR THE ASSESSEE COMPANY HAS CALCULATED AVERAGE MARKET PRIC E AS PER GENERAL MEETING, CERTIFICATION BY STATUTORY AUDITOR ETC., HAS SUBMITTED TO BOMBAY STOCK EXCHANGE AND HAS ISSUED T HE PREFERENTIAL SHARE AFTER GETTING APPROVAL FROM BOMB AY STOCK EXCHANGE. THESE ARE NORMAL BUSINESS TRANSACTIONS BE CAUSE THESE ARE ISSUED AS PER SEBI AND STOCK EXCHANGE GUI DELINES. THESE SHARES ARE ISSUED TO A NUMBER OF COMPANIES AN D INDIVIDUALS AND NOT ONLY TO RGSL. VALUATION OF THES E SHARES ARE DONE AS PER SEBI AND STOCK EXCHANGE GUIDELINES WHIC H WERE AS PER AVERAGE MARKET RATS AND APPROVED BY BOARD OF DI RECTORS AND GENERAL MEETING OF CHD, STATUTORY AUDITOR AND B OMBAY STOCK EXCHANGE APPROVAL. THERE IS NO CLOSE OR REMOT E NEXUS BETWEEN CHD AND RGSL. THERE IS NO COMMON RELATION A MONG THE DIRECTORS OR MAJOR SHARE HOLDERS. SINCE CHD IS LISTED COMPANY IT HAS NO CONTROL OVER MARKET RATE OR GUIDE LINES OF SEBI AND STOCK EXCHANGE. IT IS IMMATERIAL FOR CHD W HAT ITS SHAREHOLDER DOES WITH THEIR INVESTMENTS. AS REGARD ASSESSING OFFICER S OBSERVATION THAT THE ASSESSEE HAS BOOKED SUBSTANTIAL SALES WITH RESPECT TO NON 80-IB PROJECT AND HAS BOO KED SUBSTANTIAL SALES WITH RESPECT TO 80-IB PROJECT, IT WAS SUBMITTED THAT THESE ARE NORMAL BUSINESS TRANSACTIONS WHICH C HD HAS UNDERTAKEN DURING THIS YEAR FOR EARNING PROFITS IN 80-IB PROJECT AS WELL AS NON 80-IB PROJECTS. 8.7. IF THE AFORESAID IS ANALYZED, WE FIND THAT THE GRIEVANCE OF THE REVENUE IS THAT THE SALES MADE TO M/S RAJASTHAN GLOBAL SECURITIES LTD. ARE NOT PROPERLY ACCOUNTED FOR AND UNDUE PROFIT HAS ARISEN ON ACCOUNT OF SEC. 80-IB, WHEREAS THE CL AIM OF THE ASSESSEE IS THAT IT IS A NORMAL BUSINESS TRANSACTIO N AND THE ASSESSEE HAS NO MUTUAL RELATION WHAT-SO-EVER WITH M /S RAJASTHAN GLOBAL SECURITIES LTD. SO FAR AS THE BUIL T UP AREA IS CONCERNED, AS HAS BEEN ALLEGED BY THE REVENUE THAT IT IS BEYOND ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 11 THE PRESCRIBED LIMIT OF 1500 SQ. FT., WE HAVE PERUS ED THE SANCTION PLAN, SUBMISSIONS BEFORE THE ASSESSING OFF ICER AS WELL AS BEFORE THE LD. CIT(A) AND THE BREAK UP DIMENSION S ADDUCED BY THE ASSESSEE. SUCH BREAK UP EVEN HAS BEEN REPROD UCED AT PAGES 7 & 8 OF THE IMPUGNED ORDER, AS PER WHICH THE TOTAL AREA HAS BEEN CLAIMED BY THE ASSESSEE AT 1492.43 SQ. FT. 8.8. ANOTHER POINT MENTIONED IN THE ASSESSMENT ORDE R FOR DENYING DEDUCTION BY THE ASSESSING OFFICER IS THAT THE ASSESSEE DID NOT FILE THE BIFURCATION. HOWEVER, WE FIND THAT SUCH BIFURCATION WAS DULY FILED BY THE ASSESSEE THAT TOO ROOM-WISE OF ALL THE UNITS. STILL THE DEDUCTION WAS DENIED ON TH E PRESUMPTION THAT THE BASIS OF ARRIVING AT SUCH FIGURE WAS NOT A DDUCED BY THE ASSESSEE. WE ARE NOT IN AGREEMENT WITH THE FINDING OF THE ASSESSING OFFICER ON TWO COUNTS- FIRSTLY, THE APPRO VAL WAS GRANTED BY THE COMPETENT AUTHORITY; AND SECONDLY SU CH BIFURCATION IS AS PER SANCTIONED PLAN WHICH WAS FIL ED BEFORE THE ASSESSING OFFICER. UNCONTROVERTEDLY SUCH BIFURCATIO N WAS FILED DURING ASSESSMENT STAGE, FIRST APPELLATE STAGE AND EVEN BEFORE US. IT IS ALSO NOT IN DISPUTE THAT THE APPROVAL WAS GRA NTED BY THE COMPETENT AUTHORITY TO THE ASSESSEE ON 16-3-2005 ME ANING THEREBY THE PROJECT WAS APPROVED BEFORE THE AMENDME NT INSERTED/ SUBSTITUTED BY FINANCE (NO.2) ACT OF 2004 , W.E.F. 1-4- 2005. PRIOR TO ITS SUBSTITUTION, SUB-SECTION (10), AS AMENDED BY THE FINANCE ACT, 2000, W.E.F. 1-4-2001 AND FINANCE ACT 2003 WITH RETROSPECTIVE EFFECT FROM 1-4-2002, READ AS UN DER: (10) THE AMOUNT OF PROFITS IN CASE OF AN UNDERTAKI NG DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31ST DAY OF MARCH, 2005 BY A LOCAL AUTHORITY, SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEA R RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF, - (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCTOBER, 1998; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WH ICH HAS A MINIMUM AREA OF ONE ACRE; AND (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP ARE A OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WITHIN TWEN TY-FIVE ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 12 KILOMETERS FROM THE MUNICIPAL LIMITS OF THESE CITIE S AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEET ATANY OTHER P LACE. 8.9. IF THE AFORESAID POSITION OF LAW EXISTING AT T HE TIME WHEN THE PLAN WAS SANCTIONED/ APPROVAL WAS GRANTED TO TH E ASSESSEE IS ANALYZED , THERE WAS NO CONDITION LIKE PRODUCTIO N OF COMPLETE CERTIFICATE. THIS IS A SETTLED LEGAL PROPO SITION OF LAW THAT THE LAW EXISTING AT THE PARTICULAR POINT OF TI ME WILL BE APPLICABLE UNLESS AND UNTIL IT IS SPECIFICALLY MADE RETROSPECTIVE BY THE LEGISLATURE. THE SUBSTITUTION SO MADE, IS TH EREFORE, APPLICABLE PROSPECTIVELY AND NOT RETROSPECTIVELY. T HERE IS AN UNCONTROVERTED FACT THAT APPROVAL WAS GRANTED TO TH E ASSESSEE ON 16-3-2005, CONSEQUENTLY THE ASSESSEE WAS EXPECTE D TO COMPLETE THE PROJECT ON OR BEFORE 31-3-2009. NOW TH E QUESTION ARISES WHETHER THE PROJECT WAS COMPLETED BY THE ASS ESSEE WITHIN TIME. AS IS EVIDENT FROM THE LETTER OF THE A SSESSEE DATED 5-11-2008 ADDRESSED TO THE VICE CHAIRMAN MATHURA VRINDAVAN DEVELOPMENT AUTHORITY, ON WHICH THE SEAL AND SIGNATURE OF THE CONCERNED AUTHORITY IS AFFIXED (PA GE 28 OF THE PAPER BOOK), IT HAS BEEN SPECIFICALLY REQUESTED THA T THE CONSTRUCTION HAS BEEN COMPLETED AND FURTHER REQUEST HAS BEEN MADE FOR GRANT OF COMPLETION CERTIFICATE OF PHASE-I , MEANING THEREBY, IF NOT EARLIER, THE PROJECT WAS PRESUMED T O BE COMPLETE AS ON 5-11-2008 BECAUSE THE CONCERNED DEVE LOPMENT AUTHORITY HAS NEITHER SAID THAT THE PROJECT WAS NOT COMPLETE NOR COMPLETION CERTIFICATE WAS ISSUED TO THE ASSESS EE. IN THE ABSENCE OF ANY VARIATION OR ALLEGATION IF SUCH CERT IFICATE IS NOT ISSUED TO THE ASSESSEE, WHETHER THE ASSESSEE CAN BE PENALIZED FOR THE ACT OF AN AUTHORITY ON WHICH IT HAS NO CONT ROL, THE OBVIOUS REPLY IS THAT FOR THE FAULT OF OTHERS ANYBO DY SHOULD NOT BE PENALIZED, MORE SPECIFICALLY WHEN THE PROJECT WA S APPROVED ON 16-3-2005. THEREFORE, THE LAW APPLICABLE AS ON D ATE WILL BE APPLICABLE TO THE ASSESSEE. IT IS NOT EXPECTED THAT THE ASSESSEE WILL DEMOLISH THE CONSTRUCTION WORK WHICH IS ALREAD Y IN PROGRESS AND AGAIN COMPLY WITH THE DIRECTION OF THE LAW WHICH WAS INSERTED ON A LATER DATE WHICH IS PROSPECTIVE I N NATURE. IF THE INTENTION OF THE LEGISLATURE WOULD HAVE BEEN TO MAKE IT EFFECTIVE FROM RETROSPECTIVE EFFECT, NOTHING PREVEN TS THE LEGISLATURE TO DO SO. 8.10. IF THE ISSUE IS ANALYZED IN THE LIGHT OF CASE LAWS CITED BEFORE US, WE FIND THAT THE HONBLE KARNATAKA HIGH COURT VIDE JUDGMENT DATED 29 TH FEBRUARY 2012 IN THE CASE OF CIT & ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 13 ANOTHER VS. M/S ANRIYA PROJECT MANAGEMENT SERVICES PVT. LTD. (ITA NO. 138 OF 2010), CONSIDERED THE DECISION LIKE CIT & ORS. VS. G.R. DEVELOPERS (ITA NO. 355/2009) AND HELD THA T DEFINITION OF BUILT UP AREA WAS INSERTED BY FINANCE (NO.2) ACT OF 2004, WHICH CAME INTO EFFECT FROM 1-4-2005, IS P ROSPECTIVE IN NATURE AND HAS NO APPLICATION TO THE HOUSING PRO JECTS WHICH WERE APPROVED BY LOCAL AUTHORITY PRIOR TO THAT DATE , STRONGLY SUPPORTS THE CASE OF THE ASSESSEE. IT WAS HELD BY T HE HONBLE HIGH COURT THAT THE ASSESSEE WAS ENTITLED TO HUNDRE D PER CENT BENEFIT OF SEC. 80-IB(10). 8.11. ANOTHER CASE CITED WAS FROM VISAKHAPATNAM BEN CH OF THE ITAT IN THE CASE OF M/S VISHNU BUILDERS VS. ACI T (ITA NOS. 178, 179 & 180/VIZAG/2011), ORDER DATED 27TH J ULY 2011. IN THAT CASE ALSO, COMPLETION CERTIFICATE WAS NOT F ILED BEFORE THE ASSESSING OFFICER AND THE PROOF OF MUNICIPAL TA X ASSESSMENT OF VARIOUS FLAT OWNERS ESTABLISHING THAT THE HOUSING PROJECT WAS COMPLETED BEFORE SEPTEMBER 2008 WAS FIL ED. SINCE THERE WAS NO PRACTICE OF ISSUING THE PROJECT COMPLE TION CERTIFICATE, THEREFORE, IT WAS HELD THAT IT WAS NOT A CONDITION PRECEDENT OF FILING THE COMPLETION CERTIFICATE FOR ALLOWING DEDUCTION U/S 80-IB(10) OF THE ACT. 8.12. IN THE CASE OF CIT VS. TARNETAR CORPORATION ( TAX APPEAL NO. 1241 OF 2011), THE HONBLE GUJARAT HIGH COURT V IDE JUDGMENT DATED 12-9-2012, OBSERVED THAT THE CONFIRM ATION ISSUED BY MUNICIPAL AUTHORITIES WAS FILED ON 15-2-2 006 AND WAS REJECTED ON 1-7-2006. THE ASSESSEE ALSO PAID PE NALTY FOR REGULARIZATION OF THE UNITS. SINCE CONSTRUCTION WAS COMPLETED WELL BEFORE 31ST MARCH 2008, THE OUTER LIMIT FOR SU CH CONSTRUCTION AND THE PERMISSION WAS NOT GRANTED BY THEY MUNICIPAL AUTHORITY, IT WAS HELD THAT FULFILLING OF EVERY CONDITION IS NOT MANDATORY AND IF THERE IS A SUBSTA NTIAL COMPLIANCE, THE MINOR DEVIATION THEREOF WOULD NOT V ITIATE THE VERY PURPOSE OF DEDUCTION. 8.13. THE ITAT DELHI BENCH G IN THE CASE OF ACIT VS. SURENDRA DEVELOPERS ETC. (ITA NOS. 2743 TO 2745 & I TA NOS. 3056 TO 3058/DEL/2010) VIDE ORDER DATED 1-8-2012, H ELD THAT WHEREIN THE ASSESSEE APPLIED FOR COMPLETION CERTIFI CATE BEFORE THE LOWER AUTHORITIES IN TIME AND SUCH CERTIFICATE WAS NOT ISSUED BY THE LOCAL AUTHORITY, SUCH NON-ISSUANCE WA S BEYOND THE CONTROL OF THE ASSESSEE. WHILE COMING TO THIS C ONCLUSION THE ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 14 BENCH ALSO CONSIDERED ANOTHER CASE OF M/S GIRIJA CO LONIZERS (ITA NOS. 2417 TO 2422/DEL/11 ORDER DATED 9-12-20 11). 8.14. THE LD. SR. D.R. ALSO PLACED RELIANCE UPON TH E DECISION OF THE TRIBUNAL OF CHENNAI BENCH IN ACIT VS. VISWAS PR OMOTERS P. LTD. (2010) 005 ITR (TRIB) 0449 ON THE ISSUE OF BUILT UP AREA NOT EXCEEDING 1500 SQ. FT. IT WAS HELD THAT IF THIS CONDITION IS NOT FULFILLED, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION. HOWEVER, WE FIND THAT IN THE PRESENT APPEAL, THE BU ILT UP AREA IS BELOW THE PRESCRIBED LIMIT OF 1500 SQ. FT. THERE FORE, THIS DECISION MAY NOT HELP THE REVENUE BEING DISTINGUISH ABLE ON FACTS. 8.15. IF THIS ISSUE IS ANALYZED WITH THE VIEW POINT OF RULE OF CONSISTENCY, WE ARE OF THE CONSIDERED OPINION THAT THOUGH THE PRINCIPLE OF RES-JUDICATA IS NOT APPLICABLE TO THE INCOME-TAX PROCEEDINGS, YET FOR THE SAKE OF CONSISTENCY AND FO R THE PURPOSES OF FINALITY IN ALL LITIGATIONS, INCLUDING LITIGATION ARISING OUT OF FISCAL STATUTES, EARLIER DECISIONS O N THE SAME QUESTION SHOULD NOT BE REOPENED UNLESS SOME FRESH F ACTS ARE BROUGHT ON RECORD IN SUBSEQUENT ASSESSMENT YEAR. FO R A.Y. 2006-07, EVEN THE LD. CIT(A) DECIDED THE ISSUE IN F AVOUR OF THE ASSESSEE, WHICH WAS CONFIRMED BY THE TRIBUNAL (SUPR A), THEREFORE, UNLESS AND UNTIL ANY NEW MATERIAL FACTS ARE BROUGHT ON RECORD, THE REVENUE IS NOT PERMITTED TO TAKE A U TURN, WHILE DENYING THE CLAIMED DEDUCTION TO THE ASSESSEE , THAT TOO ON SAME FACTS AND CIRCUMSTANCES. OUR VIEW IS FORTIF IED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT V. A.R.J. SECURITY PRINTERS 264 ITR 276 (DEL.); AND THE RATIO LAID DOWN IN CIT VS. NEO POLY PACK (P) LTD. 2 45 ITR 492 (DEL.); BERGER PAINTS INDIA LTD. VS. CIT 266 ITR 99 (SC); CIT VS. LAGAN KALA UPVAN 259 ITR 489 (DEL.); AND UNION OF INDIA & OTHERS VS. KAUMUDINI NARAYAN DALAL & ANOTHER 249 ITR 219 (SC). FROM THIS ANGLE ALSO, THE ASSESSEE IS HAV ING A STRONG CASE IN ITS FAVOUR. 8.16. LEAVE APART, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS EXPECTED TO COMPLETE THE PROJECT AS PER THE APPROVED PLAN AT A PARTICULAR POINT OF TIME AND THE ASSESSEE IS NOT EXPECTED TO DO OR TO FULFILL THE CONDITIONS WHI CH ARE NOT IN EXISTENCE AT THE RELEVANT POINT OF TIME OR MADE COM PULSORY AFTER MAKING SOME AMENDMENT IN THE ACT FROM THE FUT URE DATE. SINCE THE ASSESSEE WAS TO COMPLETE THE PROJECT ON O R BEFORE 31- 3-2009 AND REQUEST WAS DULY MADE WITH THE COMPETENT ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 15 AUTHORITY ON 5-11-2008 MENTIONING THAT THE PROJECT HAS BEEN COMPLETED AND COMPLETION CERTIFICATE MAY BE ISSUED AND IF THE SAME IS NOT ISSUED BY THE COMPETENT AUTHORITY THE A SSESSEE SHOULD NOT BE PENALIZED FOR THE SAME UNLESS AND UNT IL SOME CONTRARY FACTS ARE BROUGHT ON RECORD EVIDENCING THA T THE ASSESSEE CONTRAVENED THE CONDITIONS CONTAINED IN TH E APPROVAL GRANTED BY SUCH COMPETENT AUTHORITY. AS PER SUB-SEC TION (10) OF SEC. 80-IB, THE HOUSING PROJECT WHICH WERE APPRO VED BEFORE 31ST DAY OF MARCH, 2008, THE BENEFIT WILL BE HUNDRE D PER CENT SUBJECT TO FULFILLMENT OF CERTAIN CONDITIONS. HOWEV ER, THIS CONDITION WAS SUBSTITUTED BY THE FINANCE (NO.2) ACT OF 2009 WITH EFFECT FROM 1-4-2009, WHICH HAS BEEN FURTHER E XPLAINED BY SUB-CLAUSE (II) TO THE EXPLANATION REGARDING COMPLE TION CERTIFICATE. HOWEVER, SINCE THE APPROVAL WAS GRANTE D TO THE ASSESSEE ON 1-4-2005, THEREFORE, THE ASSESSEE IS NO T EXPECTED TO FULFILL THE CONDITIONS WHICH WERE NOT ON THE STATUT E WHEN SUCH APPROVAL WAS GRANTED TO THE ASSESSEE. THEREFORE, TH E APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED. 9. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED IN PART AND THAT OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 26-09-2012. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TH E HONBLE ITAT THE AO IS DIRECTED TO ALLOW DEDUCTION U/S 80IB AS CLAIMED BY THE APPELLANT COMPANY. HOWEVER, THE AO IS DIRECTED TO VERIFY WHETHER THE APPELLANT COMPANY HA S CLAIMED ANY DOUBLE DEDUCTION IN RESPECT OF CERTAIN FLATS WH ICH WERE EARLIER SOLD OUT TO M/S RAJASTHAN GLOBAL SECURITIES LTD. IN AY 2007-08. IF ANY DEDUCTION HAS BEEN CLAIMED IN RESP ECT OF SUCH FLATS WHICH IF BOUGHT BACK CLAIMED TO BE SOLD DURIN G THE RELEVANT ASSESSMENT YEAR, THE SAME SHALL NOT BE ELI GIBLE FOR DEDUCTION U/S 80IB. 10. ON THE BASIS OF FOREGOING DISCUSSION AND IN THE PECULIAR FACTUAL MATRIX OF THE EXTANT CASE, AS WE HAVE ALREADY OBSERVED THAT T HE HONBLE JURISDICTIONAL HIGH COURT OF DELHI IN ITS ORDER DATED 22.1.2014 (S UPRA) HAS UPHELD THE ORDER OF THE TRIBUNAL FOR AY 2007-08 WHICH ALLOWED APPEAL OF THE ASSESSEE ON THE ISSUE AND GRANTED RELIEF FOR THE ASSESSEE BY DIRECTING TH E AO TO ALLOW DEDUCTION U/S ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 16 80IB OF THE ACT. FROM THE ORDER OF THE TRIBUNAL DA TED 26.9.2012 (SUPRA), WE ALSO OBSERVE THAT IN REVENUE APPEAL IN ITA NO. 2902 /DEL/2010 FOR AY 2006-07, B BENCH OF DELHI TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE BY UPHOLDING THE ORDER OF THE CIT(A) WHICH DELETED THE ADDITION MADE BY THE AO DISMISSING THE CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT FOR A Y 2006-07. 11. ON THE BASIS OF FOREGOING DISCUSSION AND IN THE LIGHT OF ORDER OF HONBLE JURISDICTIONAL HIGH COURT OF DELHI DATED 22.1.2014 (SUPRA) IN ASSESSEES OWN CASE FOR AY 2007-08, WE REACH TO A CONCLUSION THAT THE CIT(A) WAS QUITE JUSTIFIED AND REASONABLE IN FOLLOWING THE ORDER OF THE ITAT B BENCH FOR AY 2006-07 AND 2007-08 (SUPRA) AND WE ARE UNABLE TO SE E ANY VALID REASON TO INTERFERE WITH THE SAME. ACCORDINGLY, GROUND NO.1 OF REVENUE IN BOTH THE APPEALS BEING DEVOID OF MERITS IS DISMISSED. GROUND NO. 2 OF THE REVNEUE 12. LD. DR CONTENDED THAT THE CIT(A) HAS ERRED IN D ELETING THE ADDITION MADE ON ACCOUNT OF WRONG CLAIM OF DEPRECIATION ON COMPUT ER ACCESSORIES AND PERIPHERALS IGNORING THE FACT THAT ONLY THE COMPUTE R AND COMPUTER SOFTWARE ARE ELIGIBLE FOR DEPRECIATION OF 60% AND THE SAME CANNO T BE EXTENDED TO COMPUTER ACCESSORIES AND PERIPHERALS. LD. DR PRAYED THAT TH E IMPUGNED ORDER MAY BE SET ASIDE BY RESTORING THAT OF THE AO ON THIS ISSUE. ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 17 13. LD. COUNSEL FOR THE ASSESSEE SUPPORTING THE IMP UGNED ORDERS SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS BSE S RAJDHANI POWER LTD. DATED 31.8.2010 IN ITA NO. 1266/2010 AND HE HAS DRA WN OUR ATTENTION TOWARDS OPERATIVE PARA 6.3 AND 6.4 OF THE IMPUGNED ORDERS O F THE CIT(A). 14. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISS IONS AND PERUSAL OF THE IMPUGNED ORDER, WE OBSERVE THAT THE CIT(A) GRANTED RELIEF FOR THE ASSESSEE WITH FOLLOWING CONCLUSION:- 6.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS O F ID. AR AND HAVE GONE THROUGH THE ASSESSMENT ORDER. I FI ND THAT THE SIMILAR ISSUE WAS INVOLVED IN THE CASE OF CIT VS. B SES RAJDHANI POWERS LTD. IN ITA NO.1266/2010 WHEREIN VI DE ORDER DT.31.8.201 0, HON'BLE DELHI HIGH COURT HAS H ELD AS UNDER:- WE ARE IN AGREEMENT WITH THE VIEW OF THE TRIBUNAL THAT COMPUTER ACCESSORIES AND PERIPHERALS SUCH AS, PRINT ERS, SCANNERS AND SERVER ETC. FORM AN INTEGRAL PART OF T HE COMPUTER SYSTEM. IN FACT, THE COMPUTER ACCESSORIES AND PERIP HERALS CANNOT BE USED WITHOUT THE COMPUTER. CONSEQUENTLY, AS THEY ARE THE PART OF THE COMPUTER SYSTEM, THEY ARE ENTIT LED TO DEPRECIATION AT THE HIGHER RATE OF 60%'. 6.4 RESPECTFULLY FOLLOWING THE DECISION OF HON'BL E DELHI HIGH COURT, ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION ON THIS ACCOUNT. 15. IN VIEW OF ABOVE, WE ARE INCLINED TO HOLD THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF H ONBLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF BSES RAJDHANI POWERS LTD. (SUPRA) AND HENCE CIT(A) WAS JUSTIFIED IN DELETING THE IMPUGNED ADDIT IONS AND WE ARE UNABLE TO ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 18 SEE ANY AMBIGUITY OR PERVERSITY IN THE IMPUGNED ORD ERS IN THIS REGARD AND THUS WE UPHOLD THE SAME. ACCORDINGLY, GROUND NO. 2 OF T HE REVENUE IN BOTH THE APPEALS IS ALSO DISMISSED. C.O. OF THE ASSESSEE 16. LD. COUNSEL OF THE ASSESSEE FAIRLY ACCEPTED THA T THAT THE ASSESSEE HAS FILED CROSS OBJECTIONS JUST TO SUPPORT THE IMPUGNED ORDER AND TO ALLEGE ASSESSMENT ORDER AND IF REVENUE IS NOT GETTING ANY RELIEF IN I TS APPEALS, THEN THE ASSESSEE IS NOT INTERESTED IN PRESSING THE CROSS OBJECTIONS. L D. DR CONTENDED THAT COS OF THE ASSESSEE ARE BASELESS AND HAVE BEEN FILED WITHO UT ANY SUBSTANCE AND BASIS JUST TO SUPPORT WRONG AND ERRONEOUS ORDER OF THE CI T(A), THEREFORE, THE SAME MAY BE REJECTED IN TOTO. 17. IN VIEW OF ABOVE SUBMISSIONS, WE ARE OF THE CON SIDERED OPINION THAT SINCE WE HAVE DISMISSED APPEAL OF THE REVENUE FOR BOTH TH E YEARS BY THE EARLIER PART OF THIS ORDER, THEREFORE, IN VIEW OF SUBMISSIONS OF TH E LD. COUNSEL OF THE ASSESSEE, COS OF THE ASSESSEE DO NOT REQUIRE ANY DETAILED ADJ UDICATION AND WE DISMISS THE SAME AS INFRUCTOUS. 18. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE AND BOTH THE COS OF THE ASSESSE ARE DISMISSED IN THE MANNER AS INDICATED ABOVE. ITA NO. 560/D/2013 & 769/D/2013 ASSTT.YEAR: 2009-10, 2008-09 19 ORDER PRONOUNCED IN THE OPEN COURT ON 22.12.2014. SD/- SD/- (J.S. REDDY) (CHANDRAMOHA N GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 22ND DECEMBER, 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER AS STT. REGISTRAR