Runwal Multihousing Pvt. Ltd, Pune V. Asst Comm of Income-tax, Pune

ITA 1015/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9829 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 17-10-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 10-08-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Additional evidence; Reasonable cause; Difference of opinion; Competent authority; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 133A; 80IB; 10; 2; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1015, 1016 AND 1017/PN/2011 (ASSESSMENT YEARS 2003-04 TO 2005-06) RUNWAL MULTIHOUSING PVT. LTD. 41/12, KARVE ROAD, RUNWAL PLAZA, PUNE 411 004 PAN NO. AAACR 8222Q .. APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE-6, PMT BUILDING, SWARGATE, PUNE. .. RESPO NDENT ASSESSEE BY : SRI NIKHIL PATHAK DEPARTMENT BY : SRI S.K. SINGH DATE OF HEARING : 17 -10-2012 DATE OF PRONOUNCEMENT : 21-11-2012 ORDER PER BENCH : THE ABOVE 3 APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THE SEPARATE ORDERS OF THE CIT(A)-III, PUNE RELATING TO ASSESSME NT YEARS 2003-04 TO 2005-06 RESPECTIVELY. SINCE COMMON GROUNDS ARE TAKEN IN A LL THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A COMPANY ENGAGED IN CONSTRUCTION BUSINESS. ASSESSMENT U/S.143(3) OF TH E INCOME TAX ACT WAS COMPLETED FOR THE YEAR UNDER CONSIDERATION VIDE ASS ESSMENT ORDER PASSED ON 28-03- 2006 WHEREIN THE CLAIM MADE BY THE ASSESSEE U/S.80I B(10) OF THE INCOME TAX ACT AMOUNTING TO RS.3,73,07,730/- IN RESPECT OF PROFIT DERIVED BY THE ASSESSEE FROM ITS PROJECT, NAMELY, RUNWAL PARADISE, WAS ALLOWED. PRI OR TO COMPLETION OF THE ASSESSMENT PROCEEDINGS, A SURVEY ACTION U/S.133A WA S ALSO CARRIED OUT IN CASE OF THE ASSESSEE ON 28-02-2006 IN ORDER TO VERIFY THE E LIGIBILITY OF THE PROJECT TO 2 DEDUCTION U/S.80IB(10). SUBSEQUENTLY, AFTER AMENDM ENT TO THE PROVISIONS OF SEC. 80IB(10) W.E.F. 01-04-2005 WHEREBY CONDITION REGARD ING COMPLETION OF THE HOUSING PROJECT WAS INTRODUCED, ANOTHER SURVEY ACTI ON U/S.133A WAS CARRIED OUT IN CASE OF THE ASSESSEE ON 29-05-2008 TO VERIFY THE AD HERENCE TO THIS CONDITION IN RESPECT OF THE PROJECT IN QUESTION. IN THE CASE OF THE ASSESSEE, THE PROJECT IN RESPECT OF WHICH DEDUCTION U/S.80IB(10) WAS GRANTED, THE FI RST SANCTION WAS GIVEN BY THE LOCAL AUTHORITY ON 12-12-2001 AND AS PER THE CONDIT IONS CONTAINED AT THE RELEVANT POINT OF TIME, THE PROJECT WAS TO BE COMPLETED ON O R BEFORE 31-03-2008. HOWEVER, DURING THE SURVEY, IT WAS OBSERVED BY THE SURVEY TE AM THAT COMPLETION CERTIFICATE IN RESPECT OF THE PROJECT IN QUESTION WAS NOT GRANTED BY THE LOCAL AUTHORITY TILL 31-03- 2008 AND ALSO THAT THE ASSESSEE FAILED TO CONSTRUCT BUILDINGS B AND F WHICH WAS PART OF THE LAYOUT ORIGINALLY SANCTIONED BY THE LOC AL AUTHORITY. ACCORDINGLY, THE ASSESSING OFFICER CAME TO THE INFERENCE THAT THE PR OJECT DID NOT MEET THE NECESSARY CRITERIA PRESCRIBED IN SEC.80IB(10) SO AS TO BE ELI GIBLE FOR DEDUCTION U/S.80IB(10) AND THEREFORE, THE DEDUCTION ALREADY GRANTED OUGHT TO BE WITHDRAWN. HE ACCORDINGLY ISSUED NOTICE U/S.148 AFTER RECORDING T HE FOLLOWING REASONS : 1. THE ASSESSEE COMPANY IS A BUILDER AND DEVELOPER . THE COMPANY HAS UNDERTAKEN VARIOUS PROJECTS, VIZ., RUNWAL PARADISE, RUNWAL LUXOR/TRINITY, RUNWAL EDEN, RUNWAL SINCLAIR & RUNWAL MAESTRO/FLORE NTINE, AND HAS CLAIMED DEDUCTION U/S.80IB(10) DURING THE YEAR. A SURVEY U /S.133A WAS CONDUCTED ON 28- 02-2006 TO VERIFY THE ALLOWABILITY OF SEC.80IB(10) OF THE ACT. DURING SURVEY, IT WAS NOTICED THAT EXCEPT RUNWAL PARADISE, THE AREA O F THESE PROJECTS WERE LESS THAN 1 ACRE (AS PER THE CONDITIONS LAID DOWN IN SEC . 80IB(10) OF THE ACT). THE ASSESSMENT WAS COMPLETED U/S.143(3) ON 28-03-2006. IN THE SCRUTINY ASSESSMENT, DEDUCTION U/S.80IB(10) AMOUNTING TO RS.3,34,34,167/ - WAS ALLOWED TO THE ASSESSEE IN RESPECT OF RUNWAL PARADISE PROJECT. 2. ON VERIFICATION, IT IS NOTICED THAT THE PLAN OF RUNWAL PARADISE PROJECT WAS SANCTIONED BY THE LOCAL AUTHORITY ON 27-07-2001. I N ORDER TO CLAIM DEDUCTION U/S.80IB(10), THE CONSTRUCTION OF HOUSING PROJECT A PPROVED BY THE LOCAL AUTHORITIES, I.E. PUNE MUNICIPAL CORPORATION ON OR BEFORE 01-04-2004 HAD TO BE COMPLETED BEFORE 31-03-2008. DURING THE COURSE OF SURVEY ACTION, THE ASSESSEE COULD NOT PRODUCE COMPLETION CERTIFICATE STATING TH AT THEY HAD APPLIED FOR THE SAME TO THE PUNE MUNICIPAL CORPORATION ON 22-01-200 4. AS PER THE PROVISIONS OF SEC.80IB(10), THE DATE OF COMPLETION OF CONSTRUCTIO N OF THE HOUSING PROJECT IS TO BE TAKEN AS THE DATE ON WHICH THE COMPLETION CERTIF ICATE IS ISSUED BY THE LOCAL AUTHORITIES. THUS, TECHNICALLY, THE ASSESSEE IS NO T ENTITLED FOR CLAIMING DEDUCTION U/S.80IB(10) FOR THE PROJECT RUNWAL PARADISE. 3 3. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE T HAT PROFIT CHARGEABLE TO TAX TO THE EXTENT OF RS.3,34,34,167/- HAS ESCAPED ASSES SMENT WITHIN THE MEANING OF CLAUSE (C) UNDER EXPLN (2) TO SEC.147 OF THE ACT. 3. IN RESPONSE TO NOTICE ISSUED U/S.148 THE ASSESSE E FILED RETURN OF INCOME ON 09-04-2009 UNDER PROTEST STATING THAT CHANGES PURSU ANT TO ASSESSMENT ORDER U/S.143(3) HAVE BEEN INCORPORATED IN THE STATEMENT OF TOTAL INCOME. DURING THE COURSE OF SUCH RE-ASSESSMENT PROCEEDINGS THE AO ASK ED THE ASSESSEE TO EXPLAIN AS TO WHY THE DEDUCTION U/S.80IB(10) SHOULD NOT BE DIS ALLOWED SINCE THE ASSESSEE HAS NOT COMMENCED NOR COMPLETE THE CONSTRUCTION OF BUIL DING B&F IN RUNWAL PARADISE. THE ASSESSEE SUBMITTED THAT AS PER THE C ERTIFICATE GIVEN BY THE ARCHITECT SRI PRAKASH KULKARNI, CONSTRUCTION WORK OF BUILDING A, C, D AND E AND THE ROW HOUSES FROM 1 TO 17 WERE COMPLETED IN ALL RESPECTS AND BUILDINGS WERE READY FOR OCCUPATION. THE ASSESSEE ALSO FURNISHED A FEW COPI ES OF FIRM QUOTATIONS, MSEB RECEIPTS, BILLS FOR TAXES PAYABLE TO PMC ETC. AND SUBMITTED THAT IT HAS DECIDED TO DROP THE CONSTRUCTION OF WING B & F AS IT WAS NOT V IABLE. IT WAS SUBMITTED THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80IB(10) ON P ROFITS OF BUILDINGS A, C, D ANDE AND THE 17 ROW HOUSES. 4. HOWEVER, THE AO WAS NOT CONVINCED WITH THE EXPLA NATION GIVEN BY THE ASSESSEE AND HELD THAT THE DEDUCTION ALREADY ALLOWE D U/S.80IB(10) IN THE ORIGINAL ASSESSMENT HAS TO BE DENIED TO THE ASSESSEE FOR THE FOLLOWING REASONS (PAGE 6 & 7 OF THE ASSESSMENT ORDER) : (1) PROVISIONS OF SECTION 80IB(10) ARE SPECIFIC. THEY ARE NOT VAGUE NOR AMBIGUOUS. EXPLANATION (II) TO SECTION 80IB(10)(A) IS SPECIFIC IN AS MUCH AS IT STATES THAT THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT S HALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSI NG PROJECT IS ISSUED BY THE LOCAL AUTHORITY. THIS EXPLANATION DOES NOT LEAVE ANY RO OM FOR THE ASSESSING OFFICER TO ACCEPT ANY OTHER EVIDENCE. IN SUPPORT OF THE DATE OF COMP LETION OF CONSTRUCTION, OTHER THAN THE COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y, VIZ. THE PUNE MUNICIPAL CORPORATION IN OUR CASE. I AM THEREFORE UNABLE TO PROCEED IN F AVOUR OF THE ASSESSEE ON THE STRENGTH OF THE COMPLETION CERTIFICATES ISSUED BY THE ASSESSEE S ARCHITECT. (2) IT WAS ONLY IN THE COURSE OF THE SECOND SURVEY DATED 29-05-2008 THAT THE DEPARTMENT CAME TO KNOW THAT OUT OF THE SIX BUILDIN GS VIZ, A, B, C, D, E AND F, THE ASSESSEE HAD NOT COMMENCED NOR COMPLETED THE CONSTR UCTION OF THE BUILDING B AND F IN THE RUNWAL PARADISE. IT IS NOT DENIED BY THE ASSES SEE THAT IT HAD NOT INCLUDED THESE TWO 4 BUILDINGS PROPOSED IN ITS PLAN WHEN THE APPROVAL W AS OBTAINED AT THE TIME ISSUE OF COMMENCEMENT CERTIFICATE BY THE PUNE MUNICIPAL CORP ORATION. DURING THE SURVEY ACTION DATED 29-05-2008, THE ASSESSING OFFICER DID NOT COM E ACROSS ANY SPECIFIC CORRESPONDENCE HAVING BEEN MADE BY THE ASSESSEE WITH THE PUNE MUNI CIPAL CORPORATION OR ANY SPECIFIC REVISED PLAN HAVING BEEN SUBMITTED BY THE ASSESSEE TO THE PUNE MUNICIPAL CORPORATION ON OR BEFORE 31-03-2008 IN WHICH IT HAD DELETED THE PROPOSED CONSTRUCTIONS OF BUILDINGS B AND F. A COPY OF THE STATEMENT ON OATH RECORDED OF SHRI PRADEEP AMRUTLAL RUNWAL, MANAGING DIRECTOR OF RUNWAL MULTI HOUSING PVT. LTD ., DURING SURVEY ACTION U/S.133A ON 29-05-2008 IS APPENDED TO THIS ORDER AS ANNEXURE 2. QUESTIONS 12 AND 13 HAVE BEEN PUT TO HIM IN WHICH IMPORTANT PART OF THE ANSWER TO Q.1 2 WAS THAT : YES, I AGREE THAT THE CONSTRUCTION OF BUILDINGS B AND F HAVE NOT BEEN CAR RIED OUT WITH A PERFECT UNDERSTANDING IN THE MIND THAT WE WANTED TO GIVE UP THESE TWO WIN GS. A PERFECT UNDERSTANDING IN THE MIND HAD NOT COME TO THE NOTICE OF THE LOCAL AUTHOR ITY NOR TO THE NOTICE OF THE INCOME TAX DEPARTMENT UNTIL THE SURVEY DATED 29-05-2008 WAS DO NE, AND MORE APTLY NOT ON OR BEFORE 31-03-2008. (3) MERELY BECAUSE THE HOUSING PROJECT STOOD ON A P LOT OF LAND OF 1 ACRE OR MORE, THAT FACT ALONE WOULD NOT ENTITLE THE ASSESSEE TO BECOME ELIGIBLE FOR THE BENEFITS CONFERRED BY SECTION 80IB(10). IT IS NECESSARY THAT ALL THE CON DITIONS TOGETHER HAVE TO BE SATISFIED. (4) THE ASSESSEE HAS RELIED ON TWO DECISIONS OF THE HONBLE APEX COURT TO CLAIM THAT THE BENEFICIAL PROVISIONS SHOULD BE CONSIDERED LIBE RALLY. WITH ALL DUE RESPECTS TO THEIR LORDSHIPS OF THE HONBLE APEX COURT, IT IS TO BE SU BMITTED THAT THE FACTS LEADING TO DECISIONS IN THOSE TWO CASES ARE ALTOGETHER DIFFERE NT FROM THE FACTS IN THE PRESENT CASE. IN THIS CASE, THE SHORTCOMINGS ARE WITH REFERENCE TO T HE FULFILMENT OF THE SPECIFIC BASIC REQUIREMENTS OF SECTION 80IB(10) AS MENTIONED IN TH E EARLIER PARAGRAPHS OF THIS ORDER. (5) AS LONG AS THE SPECIFIC BASIC REQUIREMENTS ARE NOT FULFILLED, QUESTION OF GRANTING ANY BENEFITS UNDER SECTION 80IB(10) DOES NOT ARISE. (6) LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE C ASE, AS STATED HEREINABOVE, IT IS BEYOND DOUBT THAT THE ASSESSEE IS NOT ENTITLED TO T HE BENEFITS OF DEDUCTION UNDER SECTION 80IB(10). HE ACCORDINGLY DENIED THE CLAIM OF DEDUCTION U/S.80 IB(10)MADE BY THE ASSESSEE AMOUNTING TO RS.3,73,07,726/-. 5. BEFORE CIT(A) APART FROM CHALLENGING THE RE-OPEN ING OF THE ASSESSMENT U/S.147 THE ASSESSEE ALSO CHALLENGED IT ON MERIT. IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAS ERRED IN REJECTING THE CLAIM OF THE ASSESSEE CITING THAT THE COMPLETION CERTIFICATE WAS NOT OBTAINED BEFORE 31-0 3-2008. IT WAS ARGUED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE ASSESSEE HAD COMPLETED THE ABOVE R EFERRED PROJECT BEFORE 31 ST MARCH, 2008 AND THAT THE ASSESSEE HAD, IN FACT, EVE N GIVEN THE POSSESSION OF ALL THE FLATS AND THE CORPORATION HAD ALSO STARTED LEVYING THE TAXES WHICH THE ASSESSING OFFICER HAS NOT DISPUTED. IT WAS ARGUED THAT THE A SSESSEE HAD MADE AN APPLICATION FOR ISSUE OF COMPLETION CERTIFICATE TO THE PMC BEFO RE 31 ST MARCH 2008AND THIS FACT 5 WAS BROUGHT TO THE NOTICE OF THE AO. IT WAS STRONG LY CONTENDED THAT THE PROJECT WAS COMPLETE IN ALL RESPECTS BEFORE 31-03-2008. DE SCRIBING THE PROCESS OF OBTAINING OF THE COMPLETION CERTIFICATE FROM THE LO CAL AUTHORITY AS AKIN TO OBTAINING THE ASSESSMENT ORDER FROM THE ASSESSING OFFICER, TH E ASSESSEE DESPONDENTLY SUBMITTED THAT IT HAS NO POWER TO GET THE COMPLETIO N CERTIFICATE AND IT IS GIVEN BY THE CORPORATION AS PER THEIR OWN PROCEDURE. IT WAS ARGUED THAT IT WAS BEYOND THE CONTROL OF THE ASSESSEE TO GET THE COMPLETION CERTI FICATE BEFORE 31 ST MARCH, 2008 FROM THE CORPORATION AND SIMPLY BECAUSE THE COMPLET ION CERTIFICATE WAS NOT RECEIVED IS NOT A GROUND FOR DISALLOWING THE CLAIM OF THE ASSESSEE WHEN THE PROJECT WAS OTHERWISE, COMPLETE IN ALL RESPECTS AND THEREFO RE, THE ASSESSEE SHOULD BE GRANTED THE DEDUCTION U/S.80IB(10). 5.1 WITHOUT PREJUDICE TO THE ABOVE CONTENTIONS, IT WAS FURTHER SUBMITTED THAT THE CONDITION REGARDING THE COMPLETION OF PROJECT WAS I NTRODUCED W.E.F. A.Y. 2005-06 AND WAS NOT APPLICABLE TO A.Y. 2003-04. IT WAS ARG UED THAT THE ASSESSING OFFICER HAS ERRED IN APPLYING THE SAID CONDITION FOR DENYIN G THE DEDUCTION U/S.80IB(10) FOR A.Y. 2003-04. IT WAS ARGUED THAT EVEN ASSUMING WIT HOUT ADMITTING THAT THE ASSESSEE HAD NOT COMPLETED THE CONSTRUCTION OF THE ENTIRE PROJECT OR HAD NOT RECEIVED THE COMPLETION CERTIFICATE OF THE ENTIRE P ROJECT, STILL THERE IS NO REASON TO DISALLOW THE DEDUCTION FOR THE YEAR UNDER CONSIDERA TION SINCE THE SAID CONDITION WAS NOT APPLICABLE FOR THE PRESENT ASSESSMENT YEAR. IT WAS ACCORDINGLY PLEADED THAT THE DISALLOWANCE OF DEDUCTION CLAIMED BY THE ASSESS EE IN RESPECT OF ITS PROJECT, RUNWAL PARADISE, BE DELETED. 6. HOWEVER, THE CIT(A) WAS ALSO NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. RELYING ON THE DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF ACIT VS.RAJESH JHAVERI STOCK BROKERS (P) LTD. REPOR TED IN 291 ITR 500 AND 6 VARIOUS OTHER DECISIONS HE UPHELD THE REOPENING OF THE ASSESSMENT UNDER THE PROVISIONS OF SECTION 147. 7. SO FAR AS THE MERIT OF THE CASE IS CONCERNED HE UPHELD THE ACTION OF THE AO IN DENYING THE BENEFIT OF DECISION U/S.80IB(10). WHIL E DOING SO HE NOTED THAT THE DEDUCTION IS ALLOWABLE IN RESPECT OF THE AMOUNT OF PROFITS. THE ASSESSEE IN THE INSTANT CASE HAS FORMULATED A SCHEME FOR CONSTRUCTI ON OF 6 UNITS OUT OF WHICH ONLY 4 UNITS WERE COMPLETED TILL THE DATE OF SURVEY ON 2 9-05-2008. THE PROJECT FOR CONSTRUCTION OF 6 UNITS WAS APPROVED BY THE LOCAL A UTHORITY AND INDIVIDUAL UNITS ARE PART OF A PROJECT AND NOT PROJECT BY ITSELF. THERE FORE, SOME OF THE RESIDENTIAL UNITS CANNOT BE TREATED TO BE A SEPARATE PROJECT. THE PR OJECT IN RESPECT OF WHICH DEDUCTION U/S.80IB(10) WAS CLAIMED BY THE ASSESSEE WAS NOT COMPLETED AS PER PLAN ORIGINALLY SANCTIONED BY THE LOCAL AUTHORITY AND TH EREFORE THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S.80IB(10) IN RESPECT OF THE PROJECT NAMED AS RUNWAL PARADISE. 8. DISTINGUISHING THE VARIOUS CASE DECISIONS CITED BEFORE HIM AND RELYING ON THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN TH E CASE OF ACIT VS. VISWAS PROMOTERS PVT. LTD. REPORTED IN 126 ITD 263 HE HELD THAT THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S.80IB(10) IN RESPECT OF THE PROJECT NAMED RUNWAL PARADISE. 9. SO FAR AS THE CONTENTION OF THE ASSESSEE THAT IN CENTIVE PROVISION SHOULD BE INCORPORATED IN A LIBERAL WAY SO AS TO ADVANCE THE OBJECTS FOR WHICH THE BENEFICIAL LEGISLATION IS INTRODUCED IN THE STATUTE, HE NOTED THAT THE ABOVE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED. ACCORDING TO HIM WHEN THE ADMISSIBILITY OF DEDUCTION U/S.80IB(10) IS CIRCUMSCRIBED BY CERTAIN CONDITIONS PROVIDED THEREIN, WHICH INTER-ALIA INCLUDE CONDITIONS THAT PROFIT MUS T BE DERIVED FROM APPROVED HOUSING PROJECT, ISSUE OF COMPLETION CERTIFICATE WI THIN THE STIPULATED TIME BY THE 7 LOCAL AUTHORITY, IT CANNOT BE SAID THAT THE DEDUCTI ON SHOULD BE GRANTED BY LIBERAL CONSTRUCTION OR INTERPRETATION OF SUCH PROVISIONS E VEN WHEN BASIC CONDITIONS FOR DEDUCTION ARE NOT FULFILLED. RELYING ON THE DECISI ON OF HONBLE SUPREME COURT IN THE CASE OF PATEL ENGINEERING CONSTRUCTION (P) LTD. VS. CBDT REPORTED IN 175 ITR 523 AND THE DECISION IN THE CASE OF PADMASUNDARA RA O VS. STATE OF TAMILNADU REPORTED IN 255 ITR 147 HE HELD THAT THE LANGUAGE EMPLOYED IN A STATUTE IS THE DETERMINATIVE FACTOR OF LEGISLATIVE INTENT. THE FI RST AND PRIMARY RULE OF CONSTRUCTION IS THAT THE INTENTION OF THE LEGISLATION MUST BE FO UND IN THE WORDS USED BY THE LEGISLATURE ITSELF. HE ALSO REFERRED TO THE DECISI ON OF THE HONBLE SUPREME COURT IN THE CASE OF BRITANNIA INDUSTRIES LTD. WHEREIN IT HAS BEEN HELD THAT WHEN THE LANGUAGE OF A STATUTE IS CLEAR AND UNAMBIGUOUS, THE COURTS ARE TO INTERPRET THE SAME IN ITS LITERAL SENSE AND NOT TO GIVE A MEANING WHIC H WOULD CAUSE VIOLENCE TO THE PROVISIONS OF THE STATUTE. HE ACCORDINGLY REJECTED THE CLAIM OF DEDUCTION U/S.80IB(10) AND UPHELD THE ORDER OF THE AO. 9.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE RE OPENING U/S.148 WAS JUSTIFIED AND CONSEQUENTLY THE REASSESSMENT ORDER PASSED U/S.147 WAS VALID IN LAW. 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE REOPENING OF THE ASSESSMENT WAS BEYOND FOUR YEARS FROM THE RELEVANT ASSESSMENT YEAR S AND SINCE ALL THE RELEVANT MATERIAL FACTS WERE SUBMITTED BY THE ASSESSEE, THE REOPENING WAS NOT VALID AT ALL. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE REOPENING WAS ON A MERE CHANGE OF OPINION AND HENCE, THE REASSESSMENT WAS NOT JUST IFIED AT ALL. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DENIA L OF THE DEDUCTION OF RS.3,73,07,730/- IN RESPECT OF THE PROJECT RUNWAL P ARADISE ON THE GROUND THAT THE ASSESSEE HAD NOT COMPLETED THE SAID PROJECT BY 31 ST MARCH 2008. 5. THE LEARNED CIT(A) ERRED IN HOLDING THAT SINCE T HE ASSESSEE HAD NOT COMPLETED THE SAID PROJECT BY 31 ST MARCH, 2008 AND ALSO HAD NOT RECEIVED THE COMPLETI ON CERTIFICATE FROM THE LOCAL AUTHORITY TILL THAT DATE, THE ASSESS EE COMPANY WAS NOT ENTITLED TO CLAIM THE DEDUCTION/S.8IB(10). 6. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT : (A) THE ASSESSEE HAD COMPLETED THE CONSTRUCTION OF THE ENTIRE PROJECT AND THE MUNICIPAL TAXES WERE ALSO LEVIED IN RESPECT OF ALL THE UNITS WHICH WERE CONSTRUCTED BY THE ASSESSEE. 8 (B) THE ASSESSEE HAD ALSO MADE AN APPLICATION FOR O BTAINING THE COMPLETION CERTIFICATE TO THE LOCAL AUTHORITY MUCH BEFORE 31-0 3-2008 AND IT WAS BEYOND THE CONTROL OF THE ASSESSEE TO GET THE COMPLETION CERTI FICATE ON OR BEFORE 31-03-2008 AND HENCE, THE ASSESSEE SHOULD NOT HAVE BEEN PENALI ZED FOR NON RECEIPT OF THE COMPLETION CERTIFICATE BEFORE 31-03-2009. (C) THE ASSESSEE HAD CANCELLED THE PLAN FOR CONSTRU CTION OF THE BUILDINGS B & F AND THEY WERE NOT PART OF THE PROJECT AND THIS FA CT WAS CLARIFIED TO THE AO IN THE ASSESSMENT COMPLETED U/S.143(3) AND HENCE, THE CIT( A) ERRED IN HOLDING THAT THE ASSESSEE HAD NOT COMPLETED THE CONSTRUCTION OF THE ENTIRE PROJECT SINCE THE BUILDINGS B &F WERE NOT CONSTRUCTED BY THE ASSESSEE . 7. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THA T THE CONDITION OF COMPLETION OF THE PROJECT BY 31 ST MARCH, 2008 IN RESPECT OF THE PROJECT WHICH WAS ST ARTED PRIOR TO 31 ST MARCH, 2004 WAS INTRODUCED W.E.F., A.Y. 2005-06 AND THEREFORE, THE SAME WAS NOT APPLICABLE TO A.Y. 2003-04 AND HENCE, THE DEDUCTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND THAT THE ASSESSEE HAD NOT COMPLETED THE SAID PROJECT WITHIN THE TIME LIMIT. 8. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSE SSEE SUBMITS THAT THE DEDUCTION OUGHT TO HAVE BEEN ALLOWED PROPORTIONATELY IN RESPE CT OF THE UNITS FOR WHICH THE COMPLETION CERTIFICATE WAS RECEIVED FROM THE LOCAL AUTHORITY TILL 31 ST MARCH, 2008. 10. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIM E OF HEARING DID NOT PRESS THE GROUNDS RELATING TO VALIDITY OF RE-OPENING OF ASSES SMENT PROCEEDINGS FOR WHICH THE LEARNED DR HAS NO OBJECTIONS. ACCORDINGLY THE GROU NDS OF APPEAL NO. 1 TO 3 RELATING TO VALIDITY OF REASSESSMENT PROCEEDINGS AR E DISMISSED. 10.1 SO FAR AS THE OTHER GROUNDS OF APPEAL RELATING TO MERIT OF THE CASE IS CONCERNED HE SUBMITTED THAT THE PROJECT STARTED IN THE YEAR 2001 FOR CONSTRUCTION OF BUILDINGS A TO F AND 17 ROW HOUSES. THE ASSESSEE C ONSTRUCTED A, C, D & E BUILDINGS AND THE 17 ROW HOUSES BUT DID NOT CONSTRU CT BUILDING NOS. B & F SINCE THE SAME WAS NOT FEASIBLE. HE SUBMITTED THAT THE A SSESSEE DID NOT REVISE THE PLAN. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIRST OBJECTION OF CIT(A) IS THAT SINCE THE COMMENCEMENT CERTIFICATE WAS ISSUED PRIOR TO 31-03-2004, THEREFORE, THE PROJECT SHOULD HAVE BEEN COMPLETED BEFORE 31-03 -2008. SINCE THE COMPLETION CERTIFICATE WAS NOT ISSUED BEFORE 31-03-2008, THERE FORE, HE HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S.80IB(10). HE SUBMIT TED THAT THE SECOND OBJECTION OF THE REVENUE IS THAT THE ASSESSEE HAS NOT CONSTRUCTE D BUILDING NO. B AND F, THEREFORE, THE ENTIRE PROJECT HAS NOT BEEN COMPLETE D. 9 11. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESS EE THE ASSESSEE HAD APPLIED TO THE PMC FOR THE COMPLETION CERTIFICATE ON 22-01-200 4. IN THE ORDER PASSED U/S.143(3) THE DEDUCTION CLAIMED U/S.80IB(10) WAS A LLOWED FOR BUILDING NO. A, C, D & E AND THE ROW HOUSES. AT THAT TIME THE ISSUE O F COMPLETION WAS NOT VERIFIED BY THE AO. DURING THE COURSE OF SURVEY, THE STATEM ENT OF THE MANAGING DIRECTOR SRI PRADEEP RUNWAL WAS RECORDED DURING WHICH HE HAD CLARIFIED IN HIS STATEMENT THAT BUILDING NO. B & F WERE DROPPED BEING UNECONOM ICAL. HOWEVER, NO REVISED PLAN WAS SUBMITTED. HE SUBMITTED THAT THE COMPLE TION CERTIFICATE APPLIED ON 22- 01-204 HAS NOT YET BEEN REJECTED. SINCE THE CORPOR ATION HAS STARTED LEVYING MUNICIPAL TAXES AND SINCE THE ASSESSEE HAD ENCLOSED SAMPLE ELECTRICITY BILLS IN THE NAME OF THE FLAT OWNERS AS AN EVIDENCE OF POSSESSIO N, THEREFORE, NOTWITHSTANDING THE NON-RECEIPT OF COMPLETION CERTIFICATE THE ASSES SEE HAS PROVED BEYOND DOUBT THAT BUILDING NO. A, C, D & E AND THE ROW HOUSES HAVE BE EN COMPLETED IN EVERY RESPECT. THEREFORE, THE ASSESSEE HAS COMPLETED THE ABOVE BUILDINGS FOR WHICH THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80IB(10). RE FERRING TO PAGE NOS. 55 TO 61 OF THE PAPER BOOK THE LEARNED COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE DATE-WISE POSSESSION OF THE FLATS TO T HE RESPECTIVE FLAT OWNERS WHICH WAS GIVEN TO THE AO VIDE LETTER DATED 06-11-2009 AS PER PAPER BOOK PAGE NO.45. REFERRING TO PAGE NO. 65 OF THE PAPER BOOK THE LEAR NED COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE TOTAL PLOT A REA OF THE PROJECT WHICH IS 3.30 ACRES. HE SUBMITTED THAT AFTER EXCLUDING THE AREA OF BUILDING B & F WHICH HAS NOT BEEN CONSTRUCTED, THE TOTAL AREA COMES TO 2.41 ACRE S. HE SUBMITTED THAT SINCE THE TOTAL AREA OF THE PROJECT ON WHICH DEDUCTION HAS BE EN CLAIMED U/S.80IB(10) IS MORE THAN 1 ACRE AND SINCE THE ASSESSEE HAS COMPLETED TH E BUILDINGS A, C, D AND E AND 17 ROW HOUSES, THEREFORE, THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80IB(10). 10 12. REFERRING TO THE DECISION OF THE HONBLE GUJARA T HIGH COURT IN THE CASE OF CIT VS. TARNETAR CORPORATION PVT. LTD. VIDE TAX APP EAL NO.1241/2011 ORDER DATED 12-09-2011 THE LEARNED COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE HONBLE HIGH COURT IN THE SAID DECISION HAS HELD THAT IF SUBSTAN TIAL COMPLIANCE TO COMPLETION OF THE CONSTRUCTION IS ESTABLISHED ON RECORD IN A GIVE N CASE THE COURT MAY TAKE THE VIEW THAT MINOR DEVIATION THEREOF WOULD NOT VITIATE THE VERY PURPOSE FOR WHICH THE DEDUCTION WAS BEING MADE AVAILABLE. REFERRING TO T HE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. RAHUL CONSTRUCT ION COMPANY VIDE ITA NO.1250/PN/2009 AND ITA NO.707/PN/2010 ORDER DATED 30-03-2012 FOR A.Y. 2006-07 AND 2007-08 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HELD THAT HOUSING PROJECT DOES NOT NECESSARILY HAVE TO B E VARIOUS GROUP OF BUILDINGS CONSTRUCTED ON THAT PARTICULAR LAND, BUT IT CAN ALS O BE A PARTICULAR BUILDING OR ANY BUILDING WHICH IS PART OF A LARGE PROJECT. IT HAS BEEN FURTHER HELD THAT WHATEVER PORTION OF THE HOUSING PROJECT IS OTHERWISE FOUND T O BE ELIGIBLE HAS TO CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSE OF DEDUCTION U/S. 80IB(10). 13. REFERRING TO THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF CITY DEVELOPMENT CORPORATION VS. ACIT ITA NO. 57 AND 1287/PN/2010 ORDER DATED 27-09-2012 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HELD THAT WHEN DELAY IN ISSUE OF COMPLETION CERTIFICATE BY TH E MUNICIPAL CORPORATION IS NOT ATTRIBUTABLE TO THE ASSESSEE AND THE ASSESSEE HAS C OMPLETED THE CONSTRUCTION AND THE LOCAL AUTHORITY HAS NOT OBJECTED TO THE APPLICATION S FILED BY THE ARCHITECT ON BEHALF OF THE ASSESSEE, THEN IN THAT CASE DEDUCTION U/S.80 IB(10) CANNOT BE DENIED. 13.1 REFERRING TO THE DECISION OF THE BANGALORE BEN CH OF THE TRIBUNAL IN THE CASE OF BRIGADE ENTERPRISES (P) LTD. REPORTED IN 119 TTJ 269 (BANGALORE) HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HELD THA T WHERE SOME OF THE RESIDENTIAL UNITS IN A BIGGER HOUSING PROJECT TREATED INDEPENDE NTLY ARE ELIGIBLE FOR RELIEF 11 U/S.80IB(10), RELIEF SHOULD BE GIVEN PRO-RATA AND S HOULD NOT BE DENIED BY TREATING THE BIGGER PROJECT AS A SINGLE UNIT. IT HAS BEEN H ELD IN THE SAID DECISION THAT IF A PARTICULAR UNIT SATISFIES THE CONDITION OF SECTION 80IB(10), THE ASSESSEE IS ENTITLED TO DEDUCTION AND IT SHOULD BE DENIED IN RESPECT OF THO SE UNITS ONLY WHICH DO NOT SATISFY THE CONDITION. 13.2 REFERRING TO THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF MAGARPATTA TOWNSHIP DEVELOPMENT AND CONSTRUCTION CO . VS. DCIT VIDE ITA NO.822/PN/2011 AND CO. NO.04/PN/2012 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HELD THAT WHATEVER PORTION OF THE HOUSING PROJECT SATISFIES THE CONDITIONS OF THE SECTION 80IB(10) SHOULD BE CONSID ERED AS A HOUSING PROJECT FOR THE PURPOSE OF SECTION 80IB(10). HE ALSO RELIED ON THE FOLLOWING DECISIONS : (A) DY. CIT VS. ADITYA DEVELOPERS - ITA NO. 791 & 792/PN/2008 ORDER DATED 30-01-2012. (B) CIT VS. VANDANA PROPERTIES - TAX APPEAL NO.363 3 OF 2009 WITH TAX APPEAL NO.4361 OF 2010 (BOMBAY HIGH COURT) ORDER DATED 28- 03-2012 (C) KUNDEN REAL ESTATE VS. ITO - ITA NO.1216/PN/201 0 & ITA NO.1057/PN/2011 ORDER DATED 26-06-2012. (D) HINDUSTAN SAMUHA AWAS LTD. VS. ITO ITA NO.945 TO ITA NO. 950/PN/2010 ORDER DATED 30-08-2011. (E) DY. CIT VS. M/S. EKTA HOUSING PVT. LTD. ITA N O.3649/M/09 ORDER DATED 20-05- 2011. (F) SAROJ SALES ORGANISATION VS. ITO REPORTED IN 11 5 TTJ 485 (G) DY. CIT VS. BRIGADE ENTERPRISES (P) LTD. REPORT ED IN 119 TTJ 269 (BANGALORE) (H) MUDHIT MADANLAL GUPTA VS. ACIT REPORTED IN 51 D TR 217 (MUMBAI) HE ACCORDINGLY SUBMITTED THAT SINCE THE ASSESSEE HA S CONSTRUCTED THE AFORESAID BUILDINGS AND ROW HOUSES ON AN AREA OF MORE THAN 1 ACRE AND SINCE HE HAS MADE APPLICATION MUCH PRIOR TO THE SCHEDULE DATE OF COMP LETION WHICH HAS NOT YET BEEN REJECTED AND SINCE THE POSSESSION OF THE FLATS HAVE BEEN GIVEN TO THE RESPECTIVE OWNERS BEFORE 31-03-2008, THEREFORE, THE ASSESSEE I S ENTITLED TO DEDUCTION U/S.80IB(10). 14. THE LEARNED DR ON THE OTHER HAND WHILE SUPPORTI NG THE ORDER OF THE CIT(A) SUBMITTED THAT THE ASSESSEE HAS NOT OBTAINED COMPLE TION CERTIFICATE BEFORE 31-03- 12 2008 AND TWO OF THE BUILDINGS NAMELY B & F ARE NOT CONSTRUCTED. HE SUBMITTED THAT NON-CONSTRUCTION OF TWO BUILDINGS IS A DEVIATI ON FROM THE APPROVED PLAN. THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 80I B(10) THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S.80IB(10). 15. REFERRING TO THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. VISWAS PROMOTERS INDIA LTD. REPORTED IN 12 6 ITD 263 HE SUBMITTED THAT SINCE THE ASSESSEE DOES NOT FULFIL THE CONDITIONS P RESCRIBED U/S.80IB(10) IT IS NOT ENTITLED TO DEDUCTION U/S.80IB(10). AS REGARDS THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. TARNETAR CORPORA TION (SUPRA) HE SUBMITTED THAT THE SAME NOT BEING THE DECISION OF THE JURISDICTION AL HIGH COURT IS NOT BINDING ON THE TRIBUNAL. 16. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS REJ OINDER SUBMITTED THAT THE ASSESSEE HAS NOT DEVIATED FROM THE PLAN SANCTIONED BY THE PMC. IT HAS ONLY DROPPED TWO BUILDINGS OUT OF THE SIX BUILDINGS SANC TIONED BY THE PMC BEING UNECONOMICAL AND WHICH WILL REDUCE THE BEAUTY OF TH E OTHER BUILDINGS. AS REGARDS THE APPLICATION OF THE DECISION OF THE NON-JURISDIC TIONAL HIGH COURT THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT, NAGPUR BENCH IN THE CASE OF CIT VS. GODAVARI DEVI SARAF REPORTED IN 113 ITR 89 SUBMITTED THAT THE HONBLE COURT IN THE SAID DECISION HAS HELD THAT THE LAW DECLARED BY HIGH COURT IN A STATE IS BINDING ON TRI BUNAL IN ANOTHER STATE. REFERRING TO THE SAID DECISION HE SUBMITTED THAT TH E HONBLE COURT IN THE SAID DECISION HAS HELD THAT AN AUTHORITY LIKE AN INCOME- TAX TRIBUNAL ACTING ANYWHERE IN THE COUNTRY HAS TO RESPECT THE LAW LAID DOWN BY THE HIGH COURT, THOUGH OF A DIFFERENT STATE, SO LONG AS THERE IS NO CONTRARY DE CISION OF ANY OTHER HIGH COURT ON THAT QUESTION . SINCE NOTHING HAS BEEN BROUGHT TO THE NOTICE OF THE BENCH AGAINST 13 THE DECISION OF THE HONBLE GUJARAT HIGH COURT, THE REFORE, THE SAME IS BINDING ON THE TRIBUNAL. 17. SO FAR AS THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. VISWAS PROMOTERS (P) LTD. (SUPRA) IS CONCE RNED, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FACTS THEREIN ARE D ISTINGUISHABLE AS IN THAT CASE, THE ASSESSEE HAD COMPLETED 4 HOUSING PROJECT. OUT OF T HOSE 4 PROJECTS, IN 2 PROJECTS ASSESSEE HAD CONSTRUCTED FLATS EXCEEDING 1500 SQ.FT . AND ALSO FLATS OF LESS THAN 1500 SQ.FT. IN AREA. THE ASSESSEE CLAIMED DEDUCTION U/S .80IB(10) IN RESPECT OF FLATS HAVING AREA LESS THAN 1500 SQ.FT. THE AO DENIED SAI D DEDUCTION ON THE GROUND THAT HOUSING PROJECT COMPRISED OF RESIDENTIAL UNITS EXCE EDING 1500 SQ.FT., THUS ALL CONDITIONS STIPULATED IN STATUTE WERE NOT SATISFIED . THE TRIBUNAL JUSTIFIED THE ACTION OF THE AO. HE SUBMITTED THAT THE RATIO OF THE ABOV E DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE WHICH ARE ON DIFFEREN T FOOTING. HE ACCORDINGLY SUBMITTED THAT THE ASSESSEE IS ENTITLED TO DEDUCTIO N U/S.80IB(10) ON THE 4 BUILDINGS AND THE 17 ROW HOUSES. 18. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. WE FIND IN THE INSTANT CASE THE ASSESSEE OBTAINED THE PERMI SSION FOR CONSTRUCTION OF BUILDINGS A, B, C, D, E, F AND 17 ROW HOUSES ON 12- 12-2001. THE ASSESSEE CONSTRUCTED BUILDING NOS. A,C, D AND E AND THE 17 R OW HOUSES AND DROPPED THE IDEA OF CONSTRUCTION OF BUILDING NOS. B AND F BEING UNECONOMICAL AND HAD NOT SUBMITTED ANY REVISED PLAN TO PMC. ALTHOUGH THE AS SESSEE APPLIED FOR COMPLETION CERTIFICATE ON 22-01-2004, THE SAME WAS NOT RECEIVE D BY THE ASSESSEE BEFORE 31-03- 2008. IT IS THE CASE OF THE REVENUE THAT DEDUCTION U/S.80IB(10) CANNOT BE AVAILED OF BY THE ASSESSEE SINCE IT HAS NOT CONSTRUCTED ALL TH E SIX BUILDINGS AND 17 ROW HOUSES 14 FOR WHICH PERMISSION WAS GRANTED AND COMPLETION CER TIFICATE WAS NOT OBTAINED BEFORE 31-03-2008. IT IS THE SUBMISSION OF THE LEA RNED COUNSEL FOR THE ASSESSEE THAT IT HAS CONSTRUCTED BUILDING NOS. A, C, D AND E AND 17 ROW HOUSES AND BUILDING NOS. B & F BEING NOT FEASIBLE WAS NOT CONSTRUCTED A ND THE ASSESSEE HAS DROPPED THE IDEA OF CONSTRUCTION OF THE SAME. IT IS ALSO T HE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IT HAS APPLIED FOR CO MPLETION CERTIFICATE ON 22-01- 2004 AND SINCE THE PMC HAS A LEGAL PROBLEM, WHICH I S SUBJUDICE, THE PMC IS NOT ABLE TO GRANT THE COMPLETION CERTIFICATE. IT IS AL SO THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT CORPORATION HAS START ED LEVYING MUNICIPAL TAXES, THE FLAT OWNERS HAVE STARTED PAYING ELECTRICITY BILLS A ND THE PROJECT ON WHICH BUILDING NOS. A, C, D AND E AND 17 ROW HOUSES ARE CONSTRUCTE D ARE ON A PLOT OF AREA OF MORE THAN 1 ACRE. THEREFORE, THE ASSESSEE IS ENTITL ED TO DEDUCTION U/S.80IB(10) ON THE 4 BUILDINGS AND 17 ROW HOUSES WHICH IT HAS COMP LETED. 19. WE FIND THE MANAGING DIRECTOR SHRI PRADEEP AMRU TLAL RUNWAL IN HIS STATEMENT RECORDED DURING THE COURSE OF SURVEY U/S. 133A HAS REPLIED TO QUESTION NOS. 7, 8, 9, 10 & 12 AS UNDER : Q.7. HAVE YOU RECEIVED THE COMPLETION CERTIFICATE FROM PMC FOR RUNWAL PARADISE PROJECT ? ANS. THE COMPLETION CERTIFICATE FOR ROW HOUSES 7 TO 18 WAS RECEIVED. HOWEVER FOR OTHER BUILDINGS ON RUNWAL PARADISE PROJECT WE HAVE NOT RECEIVED THE COMPLETION CERTIFICATE AS ON TODAY THOUGH WE HAVE APPLIED FOR THE SAME. Q.8. WHETHER THE CONSTRUCTION IS COMPLETED IN RESPE CT OF ALL THE BUILDINGS AS PER REVISED PLAN DATED 10-01-2003, COMMENCEMENT CERTIFI CATE NO.1372? ANS. CONSTRUCTION IS COMPLETED BEFORE 31 ST MARCH 2008 IN THE ENTIRE SCHEME RUNWAL PARADISE TO THE EXTENT THAT WE WANT TO BUILD AND EN JOY THE FSI OF THE PROJECT AND THE AREA USED SO IS ABOVE 1 ACRE. Q.9. IF THE CONSTRUCTION IS COMPLETED BEFORE 31 ST MARCH 2008, WHY YOU HAVE NOT RECEIVED COMPLETION CERTIFICATE FROM PMC FOR ALL BU ILDINGS IN RUNWAL PARADISE PROJECT AS ON TODAY? ANS. THE COMPLETION CERTIFICATE ARE DEEMED RECEIVED SINCE WE HAVE APPLIED FOR THE SAME, BUT SINCE THE MATTER IS SUBJUDICE THE PMC IS NOT ABLE TO GRANT THE COMPLETION CERTIFICATE. THE VERY LOCAL AUTHORITY WHICH IS RES PONSIBLE FOR GRANTING THE COMPLETION CERTIFICATE HAS A LEGAL PROBLEM WHICH IS SUBJUDICE. 15 Q.10. AS STATED ANSWERING THE QUESTION NO.9, PLEASE STATE WHEN YOU HAVE APPLIED FOR COMPLETION CERTIFICATE IN RESPECT OF RUNWAL PARADIS E PROJECT AND ALSO SUBMIT THE RELEVANT APPLICATIONS? ANS. WE HAVE APPLIED FOR COMPLETION CERTIFICATE FOR THE ENTIRE PROJECT. WE ARE SUBMITTING HEREWITH THE APPLICATION FOR COMPLETION CERTIFICATE DATED 22-01-2004VIDE COMMENCEMENT CERTIFICATE NO.1372 DATED 10-01-2002 A S PER ANNEXURE C. THE COPIES OF ANY FURTHER APPLICATION, IF ANY, WE WILL SUBMIT THE SAME ON 2 ND JUNE 2008. Q.12. AS PER REVISED BUILDING LAYOUT SANCTIONED ON 10-01-2003, YOU GOT APPROVAL FOR CONSTRUCTION OF BUILDINGS A TO F AND ROW HOUSES 1 T O 18 IN RUNWAL PARADISE PROJECT. HOWEVER AS SEEN FROM THE LIST OF FLAT HOLDERS SUBMI TTED BY YOU AS ANNEXURE D AND ALSO THE INSPECTION CARRIED OUT AT THE SITE OF RUNW AL PARADISE LOCATED AT S.NO.981, AT PAUD ROAD, KOTHRUD, PUNE, THE CONSTRUCTION OF BUILD INGS B AND F IS YET TO BE COMPLETED. PLEASE GIVE YOUR COMMENT? ANS. YES, I AGREE THAT THE CONSTRUCTION OF BUILDING S B AND F HAVE NOT BEEN CARRIED OUT WITH A PERFECT UNDERSTANDING IN THE MIND THAT WE WA NTED TO GIVE UP THESE TWO WINGS. IN CASE THESE WINGS WOULD HAVE BEEN CONSTRUCTED THEY W OULD HAVE BEEN VERY SHABBY AND BEEN PLACE FOR NON-HYGIENE IN THE ENTIRE PROJECT. LOOKING AT THE MERITS AND DEMERITS THESE WINGS WERE NOT CONSTRUCTED. FURTHER, BUILDIN G JUST ONE FLOOR WAS ECONOMICALLY UNVIABLE. 20. SO FAR AS THE FIRST OBJECTION OF THE REVENUE TH AT COMPLETION CERTIFICATE FROM PMC HAS NOT BEEN OBTAINED BY THE ASSESSEE BEFORE 31 -03-2008 WE FIND THE ASSESSEE THROUGH HIS ARCHITECT VIDE APPLICATION DATED 22-01- 2004 HAS APPLIED TO PMC FOR OCCUPANCY CERTIFICATE. (PAGE 119 OF THE PAPER BOOK) . THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE PMC HAS N OT YET REJECTED THE SAID APPLICATION TILL DATE COULD NOT BE CONTROVERTED BY THE REVENUE. THE FURTHER SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT ALL THE FLAT OWNERS/ROW HOUSE OWNERS HAVE BEEN GIVEN POSSESSION BETWEEN 26- 10-2002 TO 15-01-2007, I.E.PRIOR TO 31-03-2008 COULD NOT BE CONTROVERTED B Y THE LEARNED DR (PAGE 55 TO 63 OF THE PAPER BOOK). THE LEARNED DR ALSO COULD NOT CONTROVERT THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT PMC HAS S TARTED LEVYING MUNICIPAL TAXES AND THE ELECTRICITY METERS ARE IN THE NAME OF THE F LAT OWNERS WHO HAVE STARTED PAYING ELECTRICITY BILLS. 20.1 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF CITY DEVELOPMENT CORPORATION VS. ACIT ITA NO. 57 AND 1287/PN/2010 ORDER DATED 27-09-2012 HAS HELD AS UNDER : 16 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. QUITE CLEARLY, THE DISPUTE IS WITH REGARD TO THE COMPLETION CERTIFICATE OF BUILDI NG 'E' HAVING BEEN ISSUED BY THE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION, ON 5-5-2 008. SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) REQUIRES THAT THE CONSTRUCTION OF THE PROJECT IN QUESTION IS TO BE COMPLETED ON OR BEFORE 31-3-2008. CLAUSE (II) OF EX PLANATION BELOW SECTION 80-IB(10)(A) PRESCRIBES THAT THE DATE OF COMPLETION OF CONSTRUCT ION OF HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. IN THE PRESENT CASE, IT HAS BEEN ISSUED ON 5-5-2008 AND HENCE THE CASE SET UP BY THE REVENUE THAT THE COMPL ETION IS BEYOND THE MANDATED DATE OF 31-3-2008. IN THIS BACKGROUND, WE FIND THAT THERE I S NO DISPUTE THAT THE ASSESSEE APPLIED FOR OBTAINING THE COMPLETION CERTIFICATE IN RESPECT OF BUILDING 'E' ON 12-3-2008. FROM THE DISCUSSION MADE BY THE ASSESSING OFFICER IN THE ASS ESSMENT ORDER, WHEREIN THE FACTUAL ASSERTIONS OF THE ASSESSEE HAVE BEEN REPRODUCED, IT IS QUITE EVIDENT THAT THE ASSESSEE ASSERTED THAT BEFORE 31-3-2008, THE CONSTRUCTION OF BUILDING WAS COMPLETE IN ALL RESPECTS; THAT ELECTRICAL CONNECTION WAS PROVIDED TO EACH FLA T OWNER; ROAD WAS COMPLETE; WATER AND DRAINAGE CONNECTION WAS AVAILABLE; SEWERAGE SYS TEM WAS OPERATING; CLUB HOUSE WAS FUNCTIONAL; ETC. THE ASSESSEE ALSO POINTED OUT THAT THE LOCAL AUTHORITY HAD ALSO INITIATED PROPERTY TAX ASSESSMENTS FOR EACH OF THE FLATS AND THE SAME DEMONSTRATED THAT ALL THE FLATS IN THE BUILDING WERE COMPLETE. IN FACT, IN PARA 6.9 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER NOTICED THAT 'THE FACTS THAT THE FLATS WERE COMPLETED AND POSSESSION GIVEN WILL NOT COME TO THE RESCUE OF THE ASSESSEE'. THE AFORESAID FINDING OF THE ASSESSING OFFICER SUPPORTS THE ASSERTION MADE BY THE ASSESSEE THAT FA CTUALLY SPEAKING CONSTRUCTION OF FLATS IN BUILDING 'E' WAS ALSO COMPLETE AND POSSESSION HA NDED OVER TO THE ACTUAL USER/CUSTOMERS PRIOR TO 31-3-2008. PERTINENTLY, ON THE BASIS OF THE ARCHITECT'S CERTIFICATE CONFIRMING COMPLETION OF CONSTRUCTION OF BUILDING, THE ASSESSEE APPLIED FOR THE COMPLETION CERTIFICATE TO THE PUNE MUNICIPAL CORPOR ATION ON 12-3-2008. IT HAS BEEN POINTED OUT BEFORE US THAT THE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION DID NOT RAISE ANY OBJECTION WITH REGARD TO ASSESSEE'S APPLI CATION AND THE CERTIFICATE FOR BUILDING 'E' WAS THEREAFTER ISSUED ON 5-5-2008. THE MOOT QUE STION IS AS TO WHETHER IN SUCH A SITUATION CAN IT BE SAID THAT THE ASSESSEE'S PROJEC T DID NOT COMPLY WITH THE CONDITION PRESCRIBED IN SUB-CLAUSE (I) OF CLAUSE (A) TO SECTI ON 80-IB(10) OF THE ACT WHEREBY THE CONSTRUCTION WAS TO BE COMPLETED ON OR BEFORE 31-3- 2008. SOMEWHAT SIMILAR SITUATION WAS CONSIDERED BY OUR CO-ORDINATE BENCH IN THE CASE OF HINDUSTAN SAMUTHA AWAS LTD. (SUPRA) WHEREIN ALSO ON THE STRENGTH OF ARCHITECT'S CERTIFICATE, AN APPLICATION FOR OBTAINING COMPLETION CERTIFICATE WAS MOVED TO THE L OCAL AUTHORITY ON 25-2-2008 BUT IN ACTUALITY THE COMPLETION CERTIFICATE WAS ISSUED BY THE LOCAL AUTHORITY ON 10-10-2008. THE TRIBUNAL NOTICED THAT THE DELAY IN ISSUING COMPLETI ON CERTIFICATE WAS NOT ATTRIBUTABLE TO THE ASSESSEE AS NO OBJECTIONS WERE RAISED BY THE LO CAL AUTHORITY. THE TRIBUNAL AFTER CONSIDERING ITS EARLIER DECISIONS IN THE CASE OF M/ S. SATISH BOHRA & ASSOCIATES VS. ACIT IN ITA NO. 713 AND 714/PN/2010 FOR A.Y. 2004-05 AND 2005-06 DATED 7-1-2011; M/S. D.K. CONSTRUCTIONS VS. ITO ITA NO. 243/PN/2010 FOR A.Y. 2006-07; DATED 6-12-2010 AND SANGHVI AND DOSHI ENTERPRISES VS. ITO AND OTHER S ITA NO. 259 TO 263/MDS/2010 DATED 19-5- 2011 FOR A.Y. 2005-06 AND 2006-07 (TM) HAS CONCLUDED AS FOLLOWS: 'FROM THE ABOVE, ONCE THIS IS CLEAR THAT THE DATE THAT AP PEARS ON THE ARCHITECT'S COMPLETION CERTIFICATE FILED BEFORE THE LOCAL AUTHORITY IS REL EVANT ONE. IN THE INSTANT CASE, THE SAID DATE IS 25- 3-2008 AND THE ASSESSEE FILED REQUISITE FORM BEFORE THE LOCAL AUTHORITIES INTIMATING THE COMPLETION OF THE PROJECT. THE SAID CERTIFICATE/INTIMATION WAS ACCEPTED BY THE LOCAL AUTHORITY WITHOUT ANY AMENDMENTS OR OBJEC TIONS. LOCAL AUTHORITY HAS NOT RAISED ANY QUERIES ON THE QUALITY CONSTRUCTION OF THE BUIL DING OR THE COMPLETION OF THE SAME AS PER THE PLANS APPROVED BY SUCH AUTHORITY. IN SUCH C IRCUMSTANCES, IN OUR OPINION, THE DELAY IN OBTAINING THE COMPLETION CERTIFICATE ON 10 -10-2008 IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE AND OBTAINING THE SAID CERTIFICATE BEFORE 31-3-2008 IS BEYOND THE CONTROL OF THE ASSESSEE. ASSESSEE'S JOB INCLUDES THE COMPLE TION OF THE BUILDING IN ACCORDANCE WITH THE APPROVED PLANS AND INTIMATION OF THE SAME TO TH E LOCAL AUTHORITY BY WAY OF FILING THE REQUISITE FORMS TOGETHER WITH THE COMPLETION CERTIF ICATE GIVEN BY THE ARCHITECT, THE SPECIALIST IN THE MATTER AND THE ASSESSEE HAS DONE HIS JOB SCRUPULOUSLY IN THIS CASE. HOWEVER, THE LOCAL AUTHORITY HAS NEITHER OBJECTED T O THE SAID APPLICATION OF THE ASSESSEE AND THE ARCHITECT BY RAISING ANY OBJECTIONS FOR ACC EPTED BY ISSUE OF SAID COMPLETION CERTIFICATE TILL 10-10-2008. THEREFORE, THE DELAY I N GRANT OF THE SAID CERTIFICATE IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE. THEREFORE, IN OUR OPINION, THE ASSESSEE IS NOT DEFAULTER ON THIS ACCOUNT AND THUS, THE AO HAS ERRED IN DENYING THE DEDUCTION U/S 80-IB(10) OF THE ACT. 17 ACCORDINGLY, THE ORDER OF THE CIT(A) HAS TO BE REVE RSED. THUS, THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED' 13. THE AFORESAID DECISION OF THE TRIBUNAL IS CLEAR LY APPLICABLE TO THE FACTS OF THE PRESENT CASE ALSO. IN THE PRESENT CASE, THE COMPLETION CERT IFICATE WAS APPLIED FOR BEFORE 31-3- 2008 I.E. ON 12-3-2008. IT IS UNDISPUTABLE THAT THE APPLICATION OF THE ASSESSEE HAS BEEN APPROVED BY THE LOCAL AUTHORITY WITHOUT RAISING ANY AMENDMENT OR OBJECTION, AS HAS BEEN ASSERTED BY THE ASSESSEE ALL ALONG AND THE DELAYED ISSUANCE OF THE COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY ON 5-5-2008, ALBEIT AFTER TH E MANDATED DATE OF 31-3-2008 CANNOT BE ATTRIBUTED TO THE ASSESSEE. IN THIS BACKGROUND OF T HE MATTER, WE THEREFORE, FIND AMPLE FORCE IN THE PLEA OF THE ASSESSEE THAT DENIAL OF DE DUCTION U/S 80-IB(10) ON SUCH SCORE IS UNCALLED FOR. IN CONCLUSION THEREFORE, IN THE INSTA NT FACTUAL BACKGROUND, WE HOLD THAT THE ASSESSEE HAS COMPLIED WITH THE CONDITION OF COMPLET ING THE CONSTRUCTION OF THE PROJECT WITHIN THE MANDATED DATE OF 31-3- 2008 EVEN WITH RE GARD TO BUILDING 'E', FOLLOWING THE PARITY OF THE REASONING LID DOWN IN THE CASE OF HIN DUSTAN SAMUTHA AWAS LTD. (SUPRA). . 14. SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(1 0) OF THE ACT REQUIRES THAT THE UNDERTAKING, DEVELOPING AND BUILDING A HOUSING PROJ ECT 'COMPLETES SUCH CONSTRUCTION' OR BEFORE 31-3-2008. IN THE PRESENT CASE, ASSESSEE HAS FACTUALLY ASSERTED RIGHT FROM THE STAGE OF ASSESSMENT PROCEEDINGS, THAT THE CONSTRUCT ION OF BUILDING 'E' WAS COMPLETE IN ALL RESPECTS AS PER SANCTIONED PLAN AND ALL THE FLATS W ERE HANDED OVER TO THE ACTUAL USERS/CUSTOMERS PRIOR TO 31-3-2008. IN THE BACKGROU ND OF THE AFORESAID FACTUAL POSITION WHICH HAS REMAINED UNCONTROVERTED, IN OUR VIEW, ON A PLAIN READING OF SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) THE CONDITION PRESC RIBED THEREIN IS FULFILLED., INASMUCH AS THE CONSTRUCTION OF BUILDING 'E' WAS COMPLETE BEFOR E 31-3-2008. HOWEVER, ON THE READING OF CLAUSE (II) OF THE EXPLANATION BELOW SEC. 80-IB( 10)(A) OF THE ACT, IT EMERGES THAT THE COMPLETION OF CONSTRUCTION OF A HOUSING PROJECT IS TO BE TAKEN TO BE THE DATE ON WHICH COMPLETION CERTIFICATE IS ISSUED BY THE LOCAL AUTHO RITY, WHICH IN THE PRESENT CASE IS ISSUED ON 5-5-2008 I.E. BEYOND THE STIPULATED DATE OF 31-3 -2008. THE MOOT QUESTION IS IN CASE THE CONDITION OF COMPLETION CONSTRUCTION CONTAINED IN T HE SUBSTANTIVE SECTION 80- 0IB(10)(A)(I) IS FACTUALLY FOUND TO BE COMPLIED WIT H, CAN THE CONTENTS OF THE EXPLANATION CLAUSE (II) THEREOF, ALTER THE SITUATION? CAN AN EX PLANATION APPENDED TO A SECTION, ENLARGE THE SCOPE OF THE MAIN SECTION SO AS TO MAKE IT MORE ONEROUS FOR A TAX- PAYER? BE THAT AS IT MAY, WE DO NOT DWELL ON THIS ASPECT ANY FURTHER, AS THE ASSESSEE HAS BEEN FOUND TO BE ELIGIBLE FOR NECESSARY RELIEF BECAUSE THE CON DITION PRESCRIBED IN SECTION 80- IB(10)(A)(I) OF THE ACT HAS BEEN COMPLIED WITH IN V IEW OF THE STATED PRECEDENTS. WE THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) ON THI S ASPECT AND HOLD THAT THE ASSESSEE CANNOT BE DENIED THE CLAIM OF DEDUCTION U/S 80-IB(1 0) ON THE STRENGTH OF NON-ISSUANCE OF THE COMPLETION CERTIFICATE FOR BUILDING 'E' BY THE PUNE MUNICIPAL CORPORATION BEFORE 31- 3-2008, HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE. 20.2 WE FIND THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. TARNETAR CORPORATION (SUPRA) HAS HELD AS UNDER : WITH RESPECT TO THE SECOND CONTENTION, WE MAY RECO RD THAT THE CONTENTION OF THE REVENUE IS THAT THE ASSESSEE DID NOT COMPLETE THE H OUSING PROJECT WITHIN THE STATUTORY TIME FRAME. UNDER SUB-CLAUSE (I) OF CLAUSE (A) OF SECTION 80IB(10), THE ASSESSEE SINCE HAD GOT APPROVAL FOR THE HOUSING PROJECTS FROM THE LOCA L AUTHORITY BEFORE IST APRIL 2004 WAS REQUIRED TO COMPLETE THE CONSTRUCTION LATEST BY 31 ST MARCH 2008. RELYING ON EXPLANATION (II) TO CLAUSE (I), REVENUE CONTENDS THAT SINCE BU PERMISSION WAS GRANTED AFTER MARCH 2008, THE CONSTRUCTION MUST BE DEEMED TO HAVE BEEN COMPLETED AFTER SUCH DATE. EXPLANATION (II) READS AS UNDER : (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. CIT (APPEALS) AS WELL AS THE TRIBUNAL AFTER DETAILE D DISCUSSION CAME TO THE CONCLUSION THAT SUCH REQUIREMENT WAS NOT MANDATORY IN NATURE. IN THE PRESENT CASE, THE 18 ASSESSEE HAD COMPLETED THE CONSTRUCTION WELL BEFORE THE LAST DATE, NAMELY 31 ST MARCH 2008 AND HAD ALSO SOLD SEVERAL UNITS WHICH WAS COMP LETED AND ACTUALLY OCCUPIED, AND IT ALSO APPLIED FOR BU PERMISSION TO THE LOCAL AUTHORI TY. THE LOCAL AUTHORITY, HOWEVER, FOR TECHNICAL REASONS, AT ONE STAGE REJECTED SUCH APPLI CATION IN THE YEAR 2006 AND THEREAFTER UPON REVISED EFFORTS FROM THE ASSESSEE GRANTED THE SAME BY ORDER DATED 19 TH MARCH 2009. WE HAVE PERUSED THE DETAILED DISCUSSION OF THE CIT( APPEALS) AS WELL AS THE TRIBUNAL ON THE ISSUE. IN PARTICULAR, THE TRIBUNAL NOTED THAT THE CONSTRUCTION WAS COMPLETED IN 2006. APPLICATION FOR BU PERMISSION T O THE MUNICIPAL AUTHORITIES WAS FILED ON 15-02-2006 WHICH WAS REJECTED ON 1-07-06. SEVER AL RESIDENTIAL UNITS WERE OCCUPIED SINCE THE SAME WAS DONE WITHOUT NECESSARY PERMISSIO N. THE ASSESSEE HAD DONE WITHOUT NECESSARY PERMISSION. THE ASSESSEE HAD ALSO PAID P ENALTY AND GOT SUCH OCCUPATION REGULARISED. SEVERAL TENEMENTS WERE SOLD LONG BEFO RE THE LAST DATE. IN THE PRESENT CASE, THEREFORE, THE FACT THAT THE A SSESSEE HAD COMPLETED THE CONSTRUCTION WELL BEFORE 31 ST MARCH 2008 IS NOT IN DOUBT. IT IS, OF COURSE, TRU E THAT FORMALLY BU PERMISSION WAS NOT GRANTED BY THE MUNIC IPAL AUTHORITY BY SUCH DATE. IT IS EQUALLY TRUE THAT EXPLANATION TO CLAUSE (A) TO SECT ION 80IB(10) LINKS THE COMPLETION OF THE CONSTRUCTION TO THE BU PERMISSION BEING GRANTED BY THE LOCAL AUTHORITY. HOWEVER, NOT EVERY CONDITION OF THE STATUTE CAN BE SEEN AS MANDA TORY. IF SUBSTANTIAL COMPLIANCE THEREOF IS ESTABLISHED ON RECORD, IN A GIVEN CASE, THE COURT MAY TAKE THE VIEW THAT MINOR DEVIATION THEREOF WOULD NOT VITIATE THE VERY PURPOS E FOR WHICH DEDUCTION WAS BEING MADE AVAILABLE. IN THE PRESENT CASE, THE FACTS ARE PECULIAR. THE A SSESSEE HAD NOT ONLY COMPLETED THE CONSTRUCTION TWO YEARS BEFORE THE FINAL DATE AN D HAD APPLIED FOR BU PERMISSION. SUCH BU PERMISSION WAS NOT REJECTED ON THE GROUND THAT C ONSTRUCTION WAS NOT COMPLETED, BUT THE SOME OTHER TECHNICAL GROUND. IN THAT VIEW OF T HE MATTER, GRANTING BENEFIT OF DEDUCTION CANNOT BE HELD TO BE ILLEGAL. IN THE RESULT, THE TAX APPEAL IS DISMISSED. 20.3. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF HINDUSTAN SAMUHA AWAS LTD. VS. ITO VIDE ITA NOS 945 TO 950/PN/2010 O RDER DATED 30-08-2011 HAS HELD AS UNDER : 7. WE HAVE CONSIDERED THE ABOVE VIEW POINTS OF THE PARTIES IN DISPUTED. WE FIND THAT IT IS A FACT THAT THE ASSESSEE THROUGH ITS ARCHITEC T HAD FILED APPLICATION WITH THE AMC FOR ISSUANCE OF OCCUPANCY CERTIFICATE ON 25-3-2008. RE QUISITE FEE WAS ALSO PAID BY THE ASSESSEE IN THIS REGARD. AMC DID NOT RAISE ANY OBJE CTION TO THE SAID COMPLETION CERTIFICATE OF THE ARCHITECT. THE OCCUPANCY CERTIFI CATE DT.10-10-2008 HAS BEEN ISSUED BY THE AMC ONLY ON THE BASIS OF THE SAID APPLICATION D T.25-3-2008. IT IS ALSO AN UNDISPUTED FACT THAT ISSUANCE OF OCCUPANCY CERTIFICATE IS THE PREROGATIVE OF THE LOCAL AUTHORITY I.E. AMC AND IN THIS REGARD, THE ASSESSEE HAS NO CONTROL AND IT IS BEYOND THE POWER OF THE ASSESSEE TO MAKE THE AMC ISSUE THE SAID COMPLETION/ OCCUPANCY CERTIFICATE BEFORE 31.3.2008. WHAT WAS UNDER THE POWER AND CONTROL OF THE ASSESSEE WAS ONLY TO MOVE THE AMC FOR COMPLETION CERTIFICATE FULFILLING ALL THE R EQUIREMENTS WITH THE AMC FOR ISSUANCE OF OCCUPANCY CERTIFICATE, WHICH THE ASSESSEE HAS DO NE IN THE PRESENT CASE. THUS, THE DELAY IN ISSUING THE OCCUPANCY CERTIFICATE CANNOT BE ATTR IBUTED ON THE PART OF THE ASSESSEE TO DENY THE CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT ON THE BASIS THAT THE PROJECT WAS NOT COMPLETED BY 31-3-2008, ESPECIALLY WHEN THERE IS NO OBJECTION RAISED BY THE AMC REGARDING DEVIATION IN THE CONSTRUCTION OF THE PROJ ECT APPROVED BY THE AMC. 8. WE HAVE GONE THROUGH THE ORDERS CITED BY THE AS SESSEES REPRESENTATIVE AND FIND RELEVANT PARAGRAPHS ARE REQUIRED TO BE EXTRACTED FO R COMPLETION OF THE ORDER. THEY ARE AS FOLLOWS. 19 A. EXTRACT FROM THE DECISION OF THE TRIBUNAL IN THE C ASE OF M/S. SATISH BORA & ASSOCIATES VIDE ITA NOS. 713 & 714/PN/2010 19. . 1. IN THE CASE OF PMC, THE COMPLETION CERTIFICATE I N PRESCRIBED FORM ISSUED BY THE LICENSED ARCHITECT ETC. WHO HAS SUPERVISED T HE CONSTRUCTION IS FURNISHED WITH FOUR SETS OF COMPLETION PLAN UNDER RULE 7.6 OF THE DC RULES OF THE PMC. THEREAFTER PMC IS REQUIRED TO RETURN ONE OF THE SE TS DULY CERTIFIED AS COMPLETION PLAN TO THE OWNER ALONG WITH THE ISSUE OF FULL OCCU PANCY CERTIFICATE AFTER INSPECTION OF THE WORK UNDER RULE 7.7 OF THE DC RUL ES. SINCE EXPLATION (II) TO SECTION 80IB(10)(A) OF THE I.T. ACT REQUIRES COMPLE TION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY TO BE TAKEN AS THE DATE OF COMPLETI ON OF THE CONSTRUCTION, A GENERAL UNDERSTANDING IN OUR VIEW IS THAT A COMPLE TION CERTIFICATE WHICH IS ISSUED BY THE LOCAL AUTHORITY AFTER CONDUCTING INSP ECTIONS OF CONSTRUCTION BY IT. IN CASE OF PMC, IT IS ONLY OCCUPANCY CERTIFICATE WHICH IS ISSUED ALONGWITH CERTIFIED COMPLETION PLAN AFTER INSPECTION OF THE C ONSTRUCTION BY IT, WE HAVE TREATED THE DATE OF ISSUANCE OF SUCH OCCUPANCY CERT IFICATE ALONGWITH CERTIFIED COMPLETION PLAN AS THE DATE OF COMPLETION CERTIFICA TE OF THE CONSTRUCTION FOR THE REQUIREMENT OF EXPLANATION (II) TO SECTION 80IB(10) (A) OF THE I.T. ACT. 2. SINCE INFACT PMC DO NOT ISSUE OCCUPANCY CERTIFIC ATE GENERALLY IN TIME AND WITH THIS UNDERSTANDING THE LEGISLATURE HAVE A LSO INTRODUCED A DEEMING PROVISION OF 21 DAYS TO PUT CONSTRAINT UPON PMC, WE AFTER DETAILED DELIBERATION IN PRECEDIGN PARAGRAPHS HAVE COME TO A CONCLUSION THAT IN CASE OF SMALL OBJECTIONS OF PMC RAISED AFTER EXPIRY OF DEEMING PERIOD OF 21 DAYS UNDER RULE 7.7 OF DC RULES UNDER PMC, THE DATE WHEN THE APPLICANT ACQUIR ED DEEMING SANCTION WILL BE TREATED AS THE DATE OF COMPLETION (OCCUPANCY) CERTI FICATE TO MEET OUT THE REQUIREMENT OF EXPLANATION (II) TO SECTION 80IB (10 )(A) OF THE ACT. WE HAVE ALREADY DISCUSSED HEREINABOVE WHAT WOULD BE THE SMA LL OBJECTIONS. IN BRIEF THOSE OBJECTIONS WHICH DO NOT AFFECT THE MAIN PROJECT AND ARE GENERALLY TEMPORARY CONSTRUCTIONS. 20. WE THUS WHILE SETTING ASIDE ORDERS OF THE AUTHO RITIES BELOW DIRECT THE A.O TO ALLOW THE CLAIMED DEDUCTION U/S. 80IB(10) OF THE I.T. ACT 1961 IN THE ASSESSMENT YEARS UNDER CONSIDERATION TREATING THE R EQUIRED DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT AS THE DATE WHE N ABOVE DISCUSSED DEEMING PROVISION PERIOD OF 21 DAYS EXPIRED I.E. 20.11.20. B. EXTRACT FROM THE DECISION OF THE TRIBUNAL IN TH E CASE OF SANGHVI & DOSHI ENTERPRISE VIDE ITA NO. 259 TO 263/MDS/2010 24. NEXT OBJECTION OF THE ASSESSING OFFICER IS THAT THE PROJECT HAD TO BE COMPLETED ON OR BEFORE 31.03.2008 AND SINCE THE ASS ESSEE DID NOT FURNISH THE COMPLETION CERTIFICATE, THE ASSESSEE IS NOT ELIGIBL E FOR DEDUCTION. THE OBJECTION IS TO THE EFFECT THAT THE COMPLETION CERTIFICATE FROM CMDA IS DATED 13.6.2008, I.E. THREE MONTHS AFTER THE DUE DATE FOR COMPLETING THE PROJECT. IN THIS CONNECTION, IT HAS TO BE NOTED THAT THE COMPLETION CERTIFICATE IS TO BE ISSUED BY THE LOCAL AUTHORITY. THE QUESTION IS, WHETHER CMDA CAN BE CO NSIDERED TO BE A LOCAL AUTHORITY OR NOT. THIS ISSUE HAD COME UP BEFORE TH E CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF JAIN HOUSING & CONSTRUCTIO NS LTD. IN ITA NO.1369/MDS/2009 DATED 5.2.2010. IN THAT CASE, ASS ESSEE WAS DENIED DEDUCTION IN THE ABSENCE OF COMPLETION CERTIFICATE BY THE CMD A BUT COMPLETION CERTIFICATE ISSUED BY THE CORPORATION OF CHENNAI WAS PLACED ON RECORD. THE TRIBUNAL IN PARAGRAPH 3.5 OF ITS ORDER STATED THAT THE PROJECT LAYOUT PLAN MAY BE REQUIRED TO BE APPROVED BY THE CMDA BUT AS FAR AS THE CONSTRUCT ION OF THE BUILDING IS CONCERNED, THE LOCAL AUTHORITY, I.E. THE CORPORATIO N OF CHENNAI IS THE APPROPRIATE AUTHORITY TO REGULATE THE CONSTRUCTION AS PER THE B UILDING BYE-LAWS AND SANCTION PLANS. WHEN IT IS NOT DISPUTED THAT THE CORPORATIO N IS THE LOCAL AUTHORITY, CERTIFICATE ISSUED BY IT CANNOT BE DISREGARDED. TH E ASSESSEE HAS PLACED ON RECORD THE COMPLETION CERTIFICATE ISSUED BY THE CORPORATIO N BY WAY OF ADDITIONAL 20 EVIDENCE. SINCE THE ALLOWABILITY OF THE ENTIRE DED UCTION DEPENDS ON ALL THE CONDITIONS BEING FULFILLED DEDUCTION DEPENDS ON ALL THE CONDITIONS BEING FULFILLED, WE ADMIT THIS ADDITIONAL EVIDENCE. THE CERTIFICATE CLEARLY MENTIONS THAT THE BUILDING WAS INSPECTED ON 23.11.2007 AND THAT IT IS FOUND TO BE SATISFIED THE BUILDING PERMIT CONDITIONS. WE MAY ALSO MENTIONS THAT THE ROLE OF CMDA IS QUITE DISTINCT FROM THAT OF THE CORPORATION. CMDA LOOKS AT THE PLANS FROM THE PERSPECTIVE OF THE DEVELOPMENT AND URBANISATION OF THE CITY AS A WHOLE. ON THE OTHER HAND, THE ROLE OF THE CORPORATION WHILE ISSU ING COMPLETION CERTIFICATE IS TO SEE THAT THE UNIT IS HABITABLE IN ALL RESPECTS LIKE CIVIC AMENITIES AND SO ON. EVEN FOR THE SAKE OF ARGUMENT IF THE CMDA CERTIFICATE IS TO BE CONSIDERED, THEN IN THAT CASE, THE ASSESSEE DID APPLY FOR THE COMPLETION CER TIFICATE TO CMDA CERTIFICATE ON 13.3.2006. IT IS A DIFFERENT MATTER THAT CMDA RAIS ED CERTAIN OBJECTIONS AND THE MATTER WENT UPTO THE HONBLE HIGH COURT ALSO. HOW EVER, THE FACT REMAINS THAT THE PROJECT WAS COMPLETED MUCH BEFORE THE DUE DATE, MAY BE WITH CERTAIN DEFECTS. ALSO, IT HAS TO BE NOTED THAT THE CMDA CERTIFICATE IS DATED 13.6.2008, I.E. ONLY TWO MONTHS AND THIRTEEN DAYS BEYOND THE DUE DATE. IT I S INCONCEIVABLE THAT THE TYPE OF DEFECTS WHICH WERE POINTED OUT BY THE CMDA COULD HA VE BEEN RECTIFIED IN SUCH A SHORT PERIOD. BE THAT AS IT MAY, THE HONBLE HIGH COURT ALSO RATIFIED THE DEVIATIONS AND DIRECTED THE CMDA TO CONSIDER THE EX PLANATION OF THE ASSESSEE. ALL THESE FACTS GO TO POINT THAT THE PROJECT WAS IN DEED COMPLETED BEFORE THE 31.3.2008. THUS, THIS GROUND ALSO HAS NO FORCE TO DENY THE ASSESSEE THE IMPUGNED DEDUCTION. C EXTRACT FROM THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. D.K.CONSTRUCTION VIDE ITA 243/IND/2010 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREF ULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND RELEVANT MATERI AL PLACED ON RECORD TOWARDS WHICH OUR ATTENTION WAS INVITED DURING THE COURSE O F HEARING BY THE LD. AUTHORIZED REPRESENTATIVE AND THE LD. SENIOR D.R. PROVISIONS OF SECTION 80IB ALLOWS CLAIM FOR DEDUCTION IN RESPECT OF HOUSING PROJECT, WHICH HAS BEEN APPROVED PRIOR TO 1.4.2004 AND ALSO COMPLETED BEFORE 31.3.2008. DUR ING THE COURSE OF ASSESSMENT WITH REGARD TO ASSESSEES CLAIM OF DEDUCTION U/S 80 IB IN RESPECT OF ITS D.K.HONEY HOMES PROJECT, THE AO HAS ASKED THE ASSESSEE TO FUR NISH THE CERTIFICATE OF COMPLETION OF THIS PROJECT M/S. D.K.HONEY HOMES. T HE AO ALSO DIRECTLY CALLED INFORMATION FROM THE LOCAL AUTHORITIES BY ISSUING S UMMONS U/S.133(6) AND A LETTER WAS ISSUED BY THE COMPETENT AUTHORITY DATED 11 TH NOVEMBER, 2008, CONFIRMING THAT NO COMPLETION CERTIFICATE HAS BEEN ISSUED BY T HIS OFFICE. ACCORDINGLY, THE ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB WAS DECLIN ED. SECTION 80IB CLEARLY DEFINES THE DATE OF COMPLETION AS DATE OF COMPLETI ON OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WH ICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITIES, IT MEANS LOCAL AUTHORITIES IS COMPETENT TO CERTIFY THE DATE OF COMPLETION OF HOUSING PROJECT. THE DATE OF ISSUE OF SUCH LETTER BY THE L OCAL AUTHORITIES IS NOT SO CRUCIAL BUT IT SHOULD HAVE CLEARLY MENTIONED THE DATE OF CO MPLETION OF PROJECT. WHEN THE PROJECT IS COMPLETED ON 31.3.2008 AND THE ASSESSEE HAS INFORMED REGARDING SUCH COMPLETION, THE LOCAL AUTHORITIES MAY TAKE ITS OWN TIME FOR ISSUE OF CERTIFICATE, WHICH MAY BE EVEN AFTER 6-7 MONTHS, BUT THE LETTER SO ISSUED BY THE LOCAL AUTHORITIES SHOULD CLEARLY MENTION THE DATE OF COMP LETION OF SUCH PROJECT. MERELY BECAUSE SUCH CERTIFICATE IS ISSUED AFTER GAP OF 8-9 MONTHS OR EVEN ONE YEAR, WILL NOT ADVERSELY AFFECT THE ASSESSEE IF IT HAS MENTION ED CLEARLY THE DATE OF COMPLETION OF PROJECT PRIOR TO 31.3.2008. ONCE THE LETTER F OR COMPLETION OF PROJECT IS GIVEN BY THE ASSESSEE TO THE LOCAL AUTHORITY, IT IS THE D UTY OF THE LOCAL AUTHORITY TO VERIFY PHYSICALLY THE PROJECTS STATED TO BE COMPLET ED FROM ITS OWN PARAMETERS. THIS PROCESS MAY TAKE TIME AND, THEREFORE, THE DATE OF ISSUE OF LETTER IS NOT SO CRUCIAL TO DETERMINE THE ASSESSEES ELIGIBILITY FOR CLAIM OF DEDUCTION AS PER EXPLANATION (II) OF SECTION 80IB(10)(A) OF THE INCO ME-TAX ACT, 1961. WHAT IS CRUCIAL IS DATE MENTIONED IN THE LETTER SO ISSUED C ERTIFYING COMPLETION OF THE PROJECT. THUS, THE DATE OF ISSUE OF LETTER IS NOT IMPORTANT, BUT THE DATE MENTIONED IN THE LETTER CERTIFYING COMPLETION OF PROJECT IS I MPORTANT. WE, THEREFORE, DO NOT FIND MAY MERIT IN THE OBSERVATION OF THE LOWER AUTH ORITIES TO THE EFFECT THAT THE 21 DATE OF COMPLETION SHALL BE TAKEN THE DATE ON WHICH CERTIFICATE IS PHYSICALLY ISSUED BY THE LOCAL AUTHORITIES. 9. FROM THE ABOVE, ONE THIS IS CLEAR THAT THE DATE THAT APPEAR ON THE ARCHITECTS COMPLETION CERTIFICATE FILED BEFORE THE LOCAL AUTHO RITY IS A RELEVANT ONE. IN THE INSTANT CASE, THE SAID DATE IS 25-3-2008 AND THE ASSESSEE F ILED REQUISITE FORM BEFORE THE LOCAL AUTHORITIES INTIMATING THE COMPLETION OF THE PROJEC T. THE SAID CERTIFICATE/ INTIMATION WAS ACCEPTED BY THE LOCAL AUTHORITY WITHOUT ANY AMENDME NTS OR OBJECTIONS. LOCAL AUTHORITY HAS NOT RAISED ANY QUERIES ON THE QUALITY CONSTRUCT ION OF THE BUILDING OR THE COMPLETION OF THE SAME AS PER THE PLANS APPROVED BY SUCH AUTHORIT Y. IN SUCH CIRCUMSTANCES, IN OUR OPINION, THE DELAY IN OBTAINING THE COMPLETION CERT IFICATE ON 10-10-2008 IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE AND OBTAINING THE SAID CERTIFICATE BEFORE 31.3.2008 IS BEYOND THE CONTROL OF THE ASSESSEE. ASSESSEES JOB INCLUDE S THE COMPLETION OF THE BUILDING IN ACCORDANCE WITH THE APPROVED PLANS AND INTIMATION O F THE SAME TO THE LOCAL AUTHORITY BY WAY OF FILING THE REQUISITE FORMS TOGETHER WITH THE COMPLETION CERTIFICATE GIVEN BY THE ARCHITECT, THE SPECIALIST IN THE MATTER AND THE ASS ESSEE HAS DONE HIS JOB SCRUPULOUSLY IN THIS CASE. HOWEVER, THE LOCAL AUTHORITY HAS NEITHER OBJECTED TO THE SAID APPLICATION OF THE ASSESSEE AND THE ARCHITECT BY RAISING ANY OBJECTION S NOR ACCEPTED BY ISSUE OF SAID COMPLETION CERTIFICATE TILL 10.10.2008. THEREFORE, THE DELAY IN GRANT OF THE SAID CERTIFICATE IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE. THER EFORE, IN OUR OPINION, THE ASSESSEE IS NOT DEFAULTER ON THIS ACCOUNT AND THUS, THE AO HAS ERRE D IN DENYING THE DEDUCTION U/S 80IA(10) OF THE ACT. ACCORDINGLY, THE ORDER OF THE CIT(A) HAS TO BE REVERSED. THUS, THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED . 20.4. IN VIEW OF THE ABOVE DECISIONS WE ARE OF THE CONSIDERED OPINION THAT SINCE THE ASSESSEE HAS DONE WHATEVER POSSIBLE ON HIS PART , I.E. DULY APPLIED TO PMC FOR ISSUE OF COMPLETION CERTIFICATE, HANDED OVER POSSES SION OF THE FLATS/ROW HOUSES TO THE RESPECTIVE BUYERS, PMC HAS STARTED LEVYING MUNI CIPAL TAXES AND ELECTRICITY BILLS PAID BY RESPECTIVE OWNERS, THEREFORE, DEDUCTION U/S .80IB(10) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE CANNOT BE DENIED TO THE A SSESSEE FOR NON-RECEIPT OF COMPLETION CERTIFICATE FROM PMC BEFORE 31-03-2008 W HICH WAS BEYOND THE CONTROL OF THE ASSESSEE. THIS VIEW OF OURS IS FORTIFIED BY OUR DECISION IN THE CASE OF M/S. RAMSUKH PROPERTIES VS. DCIT VIDE ITA NO.84/PN/2011 ORDER DATED 25-07-2012 FOR A.Y. 2007-08 (WHEREIN BOTH OF US ARE PARTIES) W HEREIN IT HAS BEEN HELD AS UNDER: 6. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT THE ASSESSEE IS A FIRM ENGAGED IN BUSINESS OF BUILDER A ND PROMOTER. THE ISSUE BEFORE US IS REGARDING ALLOWABILITY OF DEDUCTION U/S.80IB(10) OF THE ACT ON PARTIALLY COMPLETE PROJECT. THE ASSESSING OFFICER HAS DENIED THE DEDUCTION ON T HE GROUND THAT PROJECT WAS NOT COMPLETE WITHIN THE STIPULATED TIME. THERE IS NO D ISPUTE WITH REGARD TO OTHER CONDITIONS LAID U/S.80IB(10) OF THE ACT, I.E., COMMENCEMENT OF PROJECT, AREA OF LAND OF PROJECT, ETC. ASSESSEES HOUSING PROJECT WAS APPROVED VIDE COMMEN CEMENT CERTIFICATE NO.3837/04 DATED 13.01.2005 OUT OF WHICH COMPLETION CERTIFICAT E WAS OBTAINED AND FURNISHED BEFORE THE ASSESSING OFFICER FOR 173 OUT OF 205 FLATS. SA ME WAS REJECTED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). THE REQUEST FOR GRANT ING WHOLE DEDUCTION IN RESPECT OF 22 WHOLE PROJECT HAS RIGHTLY BEEN REJECTED BECAUSE DED UCTION U/S.80IB(10) COULD NOT BE GRANTED TO ASSESSEE ON INCOMPLETE CONSTRUCTION AT R ELEVANT POINT OF TIME. REGARDING PROPORTIONATE DEDUCTION IN RESPECT OF 173 OF 205 FL ATS OF PROJECT COMPLETED AS RECOGNIZED BY LOCAL AUTHORITY, I.E., PMC IN ITS COMPLETION CER TIFICATE NO.BCO/03/01333 DATED 31.03.2008, THE LD. AUTHORISED REPRESENTATIVE HEAVI LY RELIED ON DECISION OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (SUPRA), BRIGADE EN TERPRISES P. LTD. (SUPRA), AIR DEVELOPER (SUPRA), SHETH DEVELOPERS (SUPRA) AND ALS O G.V.CORPORATION (SUPRA), WHEREIN DEDUCTION U/S.80IB(10) WAS DENIED AS SIZE OF SOME O F THE RESIDENTIAL UNITS EXCEEDED PRESCRIBED LIMIT AS LAID DOWN U/S.80IB(10) OF THE A CT. ABOVE MENTIONED DECISIONS ARE APPLICABLE IN THEIR OWN SPHERE, I.E. ON POINT OF EX CESS AREA OF SOME OF THE FLATS WHICH HOLD GOOD IN ITS OWN SPHERE. HOWEVER, IN CASE BEFORE US , DEDUCTION U/S.80IB(10) OF THE ACT HAS BEEN REJECTED ON THE GROUND THAT CONDITION OF C OMPLETION OF PROJECT BEFORE THE DUE DATE I.E., 31.03.2008 AS LAID DOWN U/S.80IB(10)(C) OF THE ACT, HAS NOT BEEN COMPLIED BY ASSESSEE WHICH IS BASIC CONDITION FOR ALLOWABILITY OF DEDUCTION U/S.80IB(10) OF THE ACT. WE FIND THAT IN CASE OF JOHAR HASSAN ZOJWALLA (SUPR A), WHEREIN CONDITION OF COMPLETION AS LAID DOWN IN SECTION 80IB(10)(A) COULD NOT BE CO MPLIED WITH BECAUSE OF A STAY BEING GRANTED BY MRTP COURT. THUS FAULT OF INCOMPLETION O F CONSTRUCTION WAS NOT ATTRIBUTABLE TO ASSESSEE. IN CASE SUCH A CONTINGENCY EMERGES W HICH MAKES THE COMPLIANCE WITH PROVISION IMPOSSIBLE, THEN BENEFIT BESTOWED ON AN A SSESSEE CANNOT BE COMPLETELY DENIED. SUCH LIBERAL INTERPRETATION SHOULD BE USED IN FAVOU R OF ASSESSEE WHEN HE IS INCAPACITATED IN COMPLETING PROJECT IN TIME FOR THE REASONS BEYON D HIS CONTROL. IN CASE BEFORE US, AS STATED ON BEHALF OF ASSESSEE, THAT ASSESSEE SUBMITT ED CERTAIN MODIFICATIONS/RECTIFICATIONS FOR TOP FLOORS OF BUILDING. THE SAID MODIFICATION/ RECTIFICATION COULD NOT BE COMPLETED AS LOCAL AUTHORITY COULD NOT APPROVE THE MODIFICATION AS THEIR FILES HAVE BEEN TAKEN OVER BY CONCERN INTELLIGENCE DEPARTMENT FOR INVESTIGATION O F VIOLATION OF URBAN LAND CEILING ACT APPLICABLE TO LAND IN QUESTION AT RELEVANT POINT OF TIME. THIS FACT HAS NOT BEEN DISPUTED ON BEHALF OF REVENUE. THUS, ASSESSEE WAS PREVENTED BY SUFFICIENT REASONABLE CAUSE WHICH COMPELLED THE IMPOSSIBILITY ON PART OF THE ASSESSEE TO HAVE COMPLETION CERTIFICATE IN TIME. IT IS SETTLED LEGAL POSITION THAT THE LAW ALWAYS GI VE REMEDY AND THE LAW DOES WRONG TO NO ONE. WE AGREE TO PROPOSITION PUT FORWARD BY LD. DE PARTMENTAL REPRESENTATIVE THAT PLAIN READING OF SECTION 80IB(10) OF THE ACT SUGGESTS ABO UT ONLY COMPLETION OF CONSTRUCTION AND NO ADJECTIVE SHOULD BE USED ALONGWITH THE WORD COMPLETION. THIS STRICT INTERPRETATION SHOULD BE GIVEN IN NORMAL CIRCUMSTAN CES. HOWEVER, IN CASE BEFORE US, ASSESSEE WAS PREVENTED BY REASONABLE CAUSE TO COMPL ETE CONSTRUCTION IN TIME DUE TO INTERVENTION OF CID ACTION ON ACCOUNT OF VIOLATION OF PROVISIONS OF URBAN LAND CEILING ACT APPLICABLE TO LAND IN QUESTION. ASSESSEE WAS IN CAPACITATED TO COMPLETE THE SAME IN TIME DUE TO REASONS BEYOND HIS CONTROL. ASSESSEE S HOULD NOT SUFFER FOR SAME. THE REVISION OF PLAN IS VESTED RIGHT OF ASSESSEE WHICH CANNOT BE TAKEN AWAY BY STRICT PROVISIONS OF STATUTE. THE TAXING STATUTE GRANTING INCENTIVES FO R PROMOTION OF GROWTH AND DEVELOPMENT SHOULD BE CONSTRUED LIBERALLY AND THAT PROVISION FO R PROMOTING ECONOMIC GROWTH HAS TO BE INTERPRETED LIBERALLY. AT THE SAME TIME, RESTRI CTION THEREON TOO HAS TO BE CONSTRUED STRICTLY SO AS TO ADVANCE THE OBJECT OF PROVISION A ND NOT TO FRUSTRATE THE SAME. THE PROVISIONS OF TAXING STATUTE SHOULD BE CONSTRUED HA RMONIOUSLY WITH THE OBJECT OF STATUE TO EFFECTUATE THE LEGISLATIVE INTENTION. IN VIEW OF A BOVE FACTS AND CIRCUMSTANCES, WE HOLD THAT ASSESSEE IS ENTITLED FOR BENEFIT U/S.80IB(10) OF THE ACT IN RESPECT OF 173 FLATS COMPLETED BEFORE PRESCRIBED LIMIT. THE ASSESSING OF FICER IS DIRECTED ACCORDINGLY. 7. AS A RESULT, THE APPEAL OF THE ASSESSEE IS DISPO SED OFF AS INDICATED ABOVE. IN THE LIGHT OF THE ABOVE DISCUSSION THE ORDER OF T HE CIT(A) DENYING BENEFIT OF DEDUCTION U/S.80IB(10) FOR NON-RECEIPT OF COMPLETIO N CERTIFICATE IS SET-ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE AL LOWED. 23 21. SO FAR AS THE SECOND GRIEVANCE OF THE REVENUE T HAT BUILDING NOS. B AND F ARE NOT CONSTRUCTED AND THEREFORE THE PROJECT HAS N OT BEEN COMPLETED AS PER THE APPROVED PLAN, WE FIND THE BUILDINGS A, C, D, E AND THE 17 ROW HOUSES ARE CONSTRUCTED ON A PLOT AREA OF MORE THAN 1 ACRE, NON E OF THE FLATS/ROW HOUSES IS BEYOND 1500 SQ.FT. AND THE COMPLETION THEREOF HAS B EEN OVER BEFORE 31-03-2008 IN VIEW OF OUR FINDINGS ABOVE. 21.1 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. RAHUL CONSTRUCTION CO. VS. ITO - ITA NO.1250/PN/2009 AND ITA NO.707/PN/2010 ORDER DATED 30-03-2012 HAS HELD AS UNDER : 8. CONSIDERING THE ABOVE SUBMISSION, AND HAVING GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON, WE FIND THAT THE ISSUE INVOL VED IS AS TO WHETHER THE ASSESSEE HAD COMPLETED THE HOUSING PROJECT WITH IN THE PRESCRIBED TIME LIMIT SINCE THE DATE OF FIRST APPROVAL OF THE PROJECT BY THE PMC. 9. TO DECIDE THE ABOVE ISSUE, IT IS NECESSARY TO D ECIDE FIRSTLY AS TO WHAT WOULD BE FIRST DATE OF APPROVAL OF THE HOUSING PROJECT BY THE PMC TO COMPUTE THE TIME LIMIT PRESCRIBED FOR COMPLETION OF THE PROJECT TO TAKE BENEFIT OF DEDUCTION U/S. 80 IB (10) OF THE A CT. THERE IS NO DISPUTE ON SOME MATERIAL FACTS THAT OUT OF 16 BUIL DINGS IN THE HOUSING PROJECT OF THE ASSESSEE ONLY 11 BUILDINGS WERE COMP LETED WITHIN THE PRESCRIBED TIME LIMIT UPTO 31 ST MARCH 2008. THE LAY OUT PLAN IN RESPECT OF ENTIRE COMPLEX WAS SANCTIONED BY PMC VIDE ORDER NO. DPO/45/D/646 DATED 3.4.2003 AND THE BUILDING PLAN W AS SANCTIONED VIDE COMMENCEMENT CERTIFICATE NO. 4269 DT. 29.4.20 03. ADMITTEDLY, THE TERM HOUSING PROJECT HAS NOT BEEN DEFINED IN THE INCOME TAX ACT BUT IN THE CONTEXT OF DEDUCTION U/S. 80IB(10) AN EXPLANATION HAS BEEN PROVIDED BELOW CLAUSE (A) TO S UB-SECTION (10) TO SECTION 80 IB. FOR A READY REFERENCE, THE SAID EXP LANATION IS BEING REPRODUCED HEREUNDER : (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PR OJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHIC H THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPR OVED BY THE LOCAL AUTHORITY. (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS I SSUED BY THE LOCAL AUTHORITY. THE VERY READING OF ABOVE EXPLANATION (I), IT MAKES CLEAR THAT FOR THE ELIGIBILITY OF THE DEDUCTION PROVIDED U/S. 80 IB ( 10) OF THE ACT, THE DATE ON WHICH BUILDING PLAN OF SUCH HOUSING PROJECT HAS BEEN FIRSTLY APPROVED BY THE LOCAL AUTHORITY WILL BE TREATED AS APPROVAL IN RESPECT 24 OF THE HOUSING PROJECT. WHEN WE READ EXPLANATION ( II) WITH EXPLANATION (I) IT MAKES CLEAR THAT COMPLETION OF C ONSTRUCTION OF SUCH BUILDING PLAN FIRST APPROVED BY THE LOCAL AUTHORITY WILL BE TAKEN THE DATE OF COMPLETION OF CONSTRUCTION OF SUCH BUILDING PLAN WHEN COMPLETION CERTIFICATE HAS BEEN ISSUED BY THE LOCA L AUTHORITY. IN OTHER WORDS, IN CLAUSE (I) OF THE EXPLANATION, IT HAS BEE N MADE CLEAR THAT WOULD BE THE HOUSING PROJECT, FIRST APPROVAL OF WH ICH, BY THE LOCAL AUTHORITY WOULD BE TAKEN AS STARTING POINT OF THE H OUSING PROJECT AND IN CLAUSE NO. (II), IT HAS BEEN MADE CLEAR THAT WH AT WOULD BE THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING P ROJECT ISSUED BY LOCAL AUTHORITY TO COMPUTE THE PRESCRIBED TIME LIMI T FOR VERIFICATION OF ELIGIBILITY OF ASSESSEE FOR THE CLAIMED DEDUCTION. IN VIEW OF THE ABOVE EXPLANATION, WE FIND SUBSTANCE IN THE CONTENTION O F THE LD. A.R. THAT APPROVAL OF THE HOUSING PROJECT AND APPROVAL OF BU ILDING PLAN ARE TWO DIFFERENT CONCEPTS. THE BANGALORE BENCH OF THE TRI BUNAL IN THE CASE OF DCIT VS. BRIGADE ENTERPRISES (P) LTD. (SUPRA) HAS H ELD THAT PLAN FOR DEVELOPMENT IS ONLY A WORK ORDER AND NOT FINAL PLA N SANCTIONED BY THE LOCAL AUTHORITY. FOR ANY PROJECT, THERE COULD NOT HAVE BEEN A PLAN WITHOUT SUBMISSION OF THE DETAILED BUILDING PLANS, BY THE ARCHITECT AND WHAT REQUISITE DETAILS REQUIRED TO BE SUBMITTED FOR APPROVAL OF THE BUILDING PLANS BY THE LOCAL AUTHORITY. IN THE CASE OF SAROJ SALES ORGANIZATION VS. ITO (SUPRA), BEFORE MUMBAI BENCH, ALMOST SIMILAR FACTS AS BEFORE US WERE THERE. THE COMMENCEMENT CE RTIFICATE IN RESPECT OF SIX WINGS IN BLOCK N WAS SEPARATELY RECEIVED BY THE ASSESSEE AND ALL THE FLATS IN BLOCK WERE LESS THA N 1000 SQ.FT. IT WAS HELD BY THE TRIBUNAL THAT IT IS NOT UPON TO THE RE VENUE TO INCLUDE BLOCK BC AS PART OF BLOCK N JUST TO DENY RELIEF TO T HE ASSESSEE U/S. 80 IB(10). THE TRIBUNAL OBSERVED THAT BLOCK BC WAS MEANT FOR HIGHER STRATA OF THE SOCIETY HAD BEEN KEPT SEPARATELY BY ASSESSEE IN ALL THE RESPECT, ASSESSEE HAD NOT CLAIMED RELIEF U/S. 80IB IN RESPECT OF BLOCK BC . IN THE CASE OF MUDHIT MADANLAL GUPTA VS. AC IT (SUPRA ) BEFORE THE MUMBAI BENCH, IT HAS BEEN HELD THAT THE HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VARIOUS GROUP OF BUILDINGS CONSTRUCTED ON THAT PARTICULAR LAND, BUT IT CAN ALSO BE A PARTICULAR BU ILDING OR ANY BUILDING WHICH IS PART OF A LARGE PROJECT. IT HAS BEEN FURT HER HELD THAT WHATEVER PORTION OF THE HOUSING PROJECT IS OTHERWIS E FOUND TO BE ELIGIBLE HAS TO BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSE OF DEDUCTION U/S. 80 IB (10) OF THE ACT. SIMILAR VIEW HAS BEEN EXPRESSED BY MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF VAND ANA PROPERTIES VS. ACIT (SUPRA). 10. IN VIEW OF ABOVE DISCUSSION, WE COME TO THE CON CLUSION THAT FOR VERIFICATION OF ELIGIBILITY OF BENEFIT CLAIMED U/S. 80 IB (10) OF THE ACT BY THE ASSESSEE ON BUILDINGS A1 TO A5 IN ATUL NAGA R AND BUILDINGS B1 TO B6 IN RAHUL NISARG CO-OPERATIVE HOUSING SOCIET Y LTD., THE ASSESSING AUTHORITY HAS TO VERIFY AS TO WHEN THE B UILDING PLANS FOR THESE BUILDINGS WERE FIRSTLY APPROVED BY THE LOCAL AUTHORITY AND TAKING THE SAID DATE OF APPROVAL A STARTING POINT, HE H AS TO VERIFY AS TO WHETHER THESE BUILDINGS WERE COMPLETED WITHIN THE P RESCRIBED TIME LIMIT I.E. 31 ST MARCH 2008 ON THE BASIS OF THE COMPLETION CERTIFIC ATE IN RESPECT OF SUCH HOUSING PROJECT ISSUED BY THE PMC . WHEN WE EXAMINE THE FACTS OF THE PRESENT CASE UNDER THE ABO VE BACKGROUND, WE FIND THAT THE AUTHORITIES BELOW HAVE NOT DISPUTED THE FACT FURNISHED IN THIS REGARD BY THE ASSESSEE THAT UNDER THE PROJECT ATUL NAGAR CONSISTING OF BUILDINGS A1 TO A5, THE FIRST BUILDIN G PLAN FOR A TYPE WAS APPROVED BY THE PMC ON 29.4.2003 VIDE COMMENCEMENT CERTIFICATE NO. 4269 (PAGE NO. 4 OF THE PAPER BOOK). HOWEVER, A CTUAL CONSTRUCTION OF A TYPE BUILDING WAS EXECUTED AS PER THE REVISED PLAN VIDE NO. C.C. 4101/27/6/2003 (PAGE NO. 5 OF THE PAP ER BOOK). THE SIZE OF THE PLOT ON WHICH THE A TYPE BUILDING I.E. A1 TO A6 HAVE BEEN CONSTRUCTED IS 1,39,466 SQ.FT. THE PROJECT A TYPE BUILDING I.E. A1 TO A5 CONSISTS OF 360 RESIDENTIAL UNITS AND THE CONSTR UCTION HAS BEEN COMPLETED BETWEEN 10.1.2005 TO 31.8.2005 (PAGE NOS. 6 TO 9 OF PAPER 25 BOOK). THE AUTHORITIES BELOW HAVE ALSO NOT DISPUTE D THIS MATERIAL FACT THAT RESIDENTIAL UNITS HAS A MAXIMUM BUILT UP AREA OF 1500 SQ.FT. LIKEWISE, THESE MATERIAL FACTS THAT B GROUP BUILDIN GS IN RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LTD., HAVE BEEN CONST RUCTED ON LAND AREA OF 138203 SQ.FT., HAS NOT BEEN DENIED BY THE A UTHORITIES BELOW. THEY HAVE ALSO NOT DENIED THESE MATERIAL FACTS THAT THE FIRST BUILDING PLAN WAS SANCTIONED ON 29.4.2003 VIDE COMMENCEMENT CERTIFICATE NO. 4269 ISSUED BY THE PMC (PAGE NO. 16 OF THE PAPE R BOOK). THE OTHER MATERIAL FACTS LIKE ACTUAL CONSTRUCTION WAS EXECUTED AS PER THE REVISED PLAN SANCTION ON 20 TH MARCH 2004 VIDE CC NO. 2225 (PAGE NO. 17), THE PROJECT CONSISTS OF 396 FLATS AND CONSTR UCTION OF THESE FLATS HAVE BEEN COMPLETED ON 14.7.2006 AS PER THE COMPLE TION CERTIFICATE ISSUED BY THE PMC (PAGE NOS. 13 TO 18 OF PAPER BOOK ) ARE NOT IN DISPUTE. THE AUTHORITIES BELOW HAVE ALSO NOT DENIE D THAT BUILT UP AREA OF EACH OF THESE FLATS DOES NOT EXCEED 1500 SQ.FT. IT IS ALSO NOT IN DISPUTE THAT BOTH THE PROJECTS ARE ENTIRELY A RESID ENTIAL PROJECT AND THERE IS NO COMMERCIAL AREA THEREIN. UNDER THE AB OVE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE IS VERY MUCH E NTITLED TO THE CLAIMED DEDUCTION U/S. 80 IB (10) OF THE ACT ON THE BUILDINGS A1 TO A5 IN ATUL NAGAR AND BUILDINGS B1 TO B6 IN RAHUL N ISARG CO-OPERATIVE HOUSING SOCIETY LTD. THE ISSUE IS THEREFORE DECID ED IN FAVOUR OF THE ASSESSEE. WE THUS WHILE SETTING ASIDE THE ORDERS O F THE AUTHORITIES BELOW ON THE ISSUE, DIRECT THE A.O TO ALLOW THE CLA IMED DEDUCTION U/S. 80 IB(10) IN QUESTION. THE RELATED GROUNDS ARE ACC ORDINGLY ALLOWED. 21.2 WE FIND THAT BANGALORE BENCH OF THE ITAT IN TH E CASE OF DY.CIT VS. BRIGADE ENTERPRISES (P) LTD. [119 TTJ 269 (BANG.)] HAS OBSERVED AS UNDER : DEDUCTION UNDER S.80IB INCOME FROM DEVELOPING AND BUILDING HOUSING PROJECT DIFFERENT UNITS OF A GROUP PROJECT WHERE SOME OF THE RESIDENTIAL UNITS IN A BIGGER HOUSING PROJECT, TREATED INDEPENDENTLY, ARE ELIGIBL E FOR RELIEF UNDER S.80IB(10), RELIEF SHOULD BE GIVEN PRO RATA AND SHOULD NOT BE DENIED B Y TREATING THE BIGGER PROJECT AS A SINGLE UNIT, MORE SO, WHEN ASSESSEE OBTAINED ALL SA NCTIONS, PERMISSIONS AND CERTIFICATES FOR SUCH ELIGIBLE UNITS SEPARATELY ASSESSEE UNDER TOOK A DEVELOPMENT PROJECT IN AN AREA OF 22 ACRES 19 GUNTAS CONSISTING OF 5 RESIDENTIAL B LOCKS, ROW HOUSES, OAK TREE PLACE, A CLUB, A COMMUNITY CENTRE, A SCHOOL AND A PARK AND C LAIMED DEDUCTION UNDER S. 80IB(10) IN RESPECT OF TWO RESIDENTIAL UNITS ONLY WHICH IF T AKEN SEPARATELY, WERE ELIGIBLE FOR THE RELIEF AO TREATED THE ENTIRE PROJECT AS A SINGLE UNIT AND DENIED RELIEF UNDER S.80IB(10) IN ENTIRETY CIT(A) ALLOWED RELIEF UNDER S. 80IB(10) TREATING THE SAID TWO UNITS AS INDEPENDENT UNITS JUSTIFIED MATERIAL ON RECORD SHOWED THAT THE VARIOUS LOCAL AUTHORITIES DULY INSPECTED THE PLOT AND SANCTIONED PLAN FOR EACH OF THE BLOCKS SEPARATELY GROUP HOUSING APPROVAL WAS APPROVAL OF A MASTER P LAN AS A CONCEPT FURTHER, THE USE OF THE WORDS RESIDENTIAL UNITS IN CL.(C) OF S.80I B(10) MEANS THAT DEDUCTION SHOULD BE COMPUTED UNIT-WISE THEREFORE, IF A PARTICULAR UNI T SATISFIES THE CONDITION OF S.80IB, THE ASSESSEE IS ENTITLED FOR DEDUCTION AND IT SHOULD BE DENIED IN RESPECT OF THOSE UNITS ONLY WHICH DO NOT SATISFY THE CONDITIONS AGAIN, THE AC COUNTING PRINCIPLES WOULD ALSO MANDATE RECOGNITION OF PROFITS FROM EACH UNIT SEPAR ATELY. 21.3 IN VIEW OF THE ABOVE DECISIONS, WE ARE OF THE CONSIDERED OPINION THAT WHATEVER PORTION COMPLETED BY THE ASSESSEE WHICH SA TISFIES THE CONDITIONS PRESCRIBED U/S.80IB(10) IS ELIGIBLE FOR DEDUCTION. THE VARIOUS DECISIONS RELIED ON BY THE REVENUE ARE DISTINGUISHABLE AND NOT APPLICAB LE TO THE FACTS OF THE PRESENT CASE. WE ACCORDINGLY HOLD THAT THE ASSESSEE IS ELI GIBLE FOR DEDUCTION U/S.80IB(10) 26 IN RESPECT OF BUILDING NO. A,C,D, E AND THE 17 ROW HOUSES. THE GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ACCORDINGLY ALLOWED. 22. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY-ALLOWED. ITA NO. 1016/PN/2011 AND ITA NO.1017/PN/2011 (A.Y. 2004-05 & 2005-06): 23. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUN DS RAISED BY THE ASSESSEE IN THE ABOVE APPEALS ARE IDENTICAL TO THE GROUNDS RAIS ED BY THE ASSESSEE IN ITA NO.1015/PN/2011. WE HAVE ALREADY DECIDED THE ISSUE S AND THE GROUNDS RAISED BY THE ASSESSEE HAVE BEEN PARTLY ALLOWED. FOLLOWING T HE SAME RATIO, THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY-ALLOWED. 24. IN THE RESULT, ALL THE THREE APPEALS FILED BY T HE ASSESSEE ARE PARTLY-ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 21 ST DAY OF NOVEMBER 2012. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTAN T MEMBER PUNE, DATED THE 21 ST NOVEMBER 2012 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. DEPARTMENT 3. CIT(A)-III, PUNE 4. D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER // TRUE COPY // SENI OR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE