Janapriya Engineers Syndicate Limited , Hyderabad V. Dy. Commissioner of Income Tax, Central Circle-1(2), Hyderabad

ITA 1141/Hyd/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5228 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 08-05-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 05-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y V S T SAI
• Keywords: Opportunity of being heard; Retrospective amendment; Set aside
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A ', HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER S .NO. ITA NO. AY APPELLANT RESPONDENT 1 , 2 AND 3 1141, 1142 & 114 3 /H/2017 2009 - 10, 2010 - 11 AND 2011 - 12 JANA PRIYA ENGINEERS SYNDICATE LTD. PAN AAACE4560A) DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 1(2), HYD. 4 & 5 21 7 & 21 8 /H/17 2009 - 10 & 2010 - 11 DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 1(2), HYD. JANAPRIYA ENGINEERS SYNDICATE LTD., HYD. PAN - AAACE4560A) A SSESSEE BY: S HRI A. SRINIVAS RE VENUE BY: S HRI Y.V.S.T. SAI DATE OF HEARING: 08 / 05 / 201 9 DATE OF PRONOUNCEMENT: 15 / 0 5 /201 9 O R D E R PER S. RIFAUR RAHMAN , AM: ALL THESE APPEALS ARE FILED BY THE ASSESSEE AS WELL AS REVENUE FOR AYS 2009 - 10 TO 201 0 - 1 1 AND ASSESSEE FOR THE AY 2011 - 12 . AS IDENTICAL ISSUES ARE INVOLVED IN ALL THESE APPEALS, THEY WERE CLUBBED AN D HEARD TOGETHER AND THEREFORE, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. 2. ON PERUSAL OF RECORD, WE FIND THAT APPEALS IN ITA NOS. 1139 & 1140/HYD/2017 WERE FILED BY THE ASSESSEE WITH A DELAY OF 128 DAYS BEFORE THE TRIBUNAL. IN THIS CONNECTION, ASSESSEE HAS FILED A CONDONATION PETITION ALONG WITH AN AFFIDAVIT WHEREIN IT WAS STATED THAT ITS AR, WHO WAS ENTRUSTED TO FILE THE APPEALS BEFORE THE ITAT, WAS HAVING A SEVERE MEDICAL PROBLEM WHICH RESULTED IN A MAJOR SURGERY TO HIM, DUE TO WHICH, THE APPEALS FILED BELATEDLY. IT WAS THEREFORE SUBMITTED THAT THE DELAY MAY I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 2 BE CONDONED AND ADMIT THE APPEALS FOR HEARING AND ADJUDICATION AS THE REASON IS GENUINE AND NOT WILFUL. 2.1 THE LD. DR ON THE OTHER HAND FILED WRITTEN SUBMISSIONS WHEREIN IT WAS STATED THAT THE GROUNDS CITED FOR THE DELAY ARE THAT THE TASK OF FILING APPEAL WAS ENTRUSTED TO AR AND HE WAS HOSPITALIZED. THE NAME OF THE AR, NOR THE PROOF OF ASSIGNING THE TASK OF FI LING APPEAL AND THE PROOF OF HOSPITALIZATION ARE NOT FILED. FURTHER, IT WAS SUBMITTED THAT WITHOUT PROPER EVIDENCE, THE DELAY MAY KINDLY NOT BE CONDONED. OPPORTUNITY MAY ALSO KINDLY BE GRANTED TO THE REVENUE TO EXAMINE THE PROOF, IF ANY. 3. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE BENCH HAS NOTICED THAT THE LD. AR WHO HAS TO REPRESENT THE CASE IN FACT UNDERGONE THE MEDICAL TREATMENT AS CLAIMED BY THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY A R EASONABLE CAUSE FOR NOT FILING THE APPEALS IN TIME. THEREFORE, WE CONDONE THE DELAY AND ADMIT THE APPEALS FOR HEARING AND ADJUDICATION. ITA NOS. 11 40 & 114 1 /HYD/2017 AND ITA NOS. 21 7 & 21 8 /HYD/2017 BY THE ASSESSEE AND REVENUE, FOR AY 200 9 - 10 & 20 10 - 11 RESPECTIVELY. 4. THESE ARE CROSS APPEALS, DIRECTED AGAINST A COMMON ORDER OF CIT(A) 11, HYDERABAD, DATED 30/08/2016. ITA NO S . 11 40 & 1141 /HYD/2017 . 5. THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS, WHICH ARE COMMON IN BOTH THE APPEALS UNDER CONSIDERATION: 1. THE APPELLATE COMMISSIONER IS ERRED IN CONFIRMING THE DISALLOWANCE MADE BY THE A.O BEING THE CLAIM OF THE ASSESSEE MADE U/S.80LB (10) ON THE PROJECT NAMED AS JP ARCADE, HYDERABAD. I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 3 2. THE APPELLATE COMMISSIONER IS ERRED IN CONFIRMING THE DISALLOWANCE MADE BY THE A.O BEING THE CLAIM OF THE ASSESSEE MADE U/S.8 0IB (10) ON THE PROJECT NAMED AS JP METROPOLIS, HYDERABAD. 3. THE APPELLATE COMMISSIONER ERRED IN SUSTAINING THE ABOVE TWO AD DITIONS ON MISPLACES INTERPRETATION OF EXPLANATION TO SUB - SECTION 10(80IB). 4. ANY OTHER GROUNDS WHICH THE ASSESSEE MAY URGE EITHER BEFORE OR AT THE TIME OF HEARING. 6. THE ASSESSEE CLAIMED A SUM OF RS.8,33,98,492 / - AS A DEDUCTION U / S.80LB IN A.Y.2009 - 10. THE ASSESSING OFFICER REFERRED TO THE EXAMINATION OF THIS ISSUE IN A.Y.2002 - 03 WHERE A VIEW WAS TAKEN THAT THE ASSESSEE IS NOT ENTITLED FOR SUCH DEDUCTION. HE NOTED THAT THE ASSESSEE HAS NOT PRODUCED ANY NEW INFORMATION IN THIS REGAR D AND, THEREFORE, APPLIED THE CONCLUSIONS DERIVED IN THE ASSESSMENT PROCEEDINGS OF ASSESSMENT YEARS 2002 - 03 TO 2008 - 09 AND DISALLOWED THE CLAIM FOR THE CURRENT YEAR ALSO. 6.1 IN A.Y.2010 - 11 THE ASSESSEE ADMITTED NIL INCOME IN THE RETURN FILED ON 14.10.2010. AFTER COMPUTING A GROSS TOTAL INCOME OF RS.10,17,30,666 / - THE ENT I RE AMOUNT WAS CLAIMED AS A DEDUCTION U / S.80IB(10). THE ASSESSING OFFICER NOTED THAT THERE WAS NO RECORD OF THE PROJECTS BEING COMPLETED BY 31:03.2008. THE RELEVANCE OF THIS DATE IS NOT APPARENT FROM THE ASSESSMENT ORDER. HOWEVER, THE ASSESSING OFFICER ALSO NOT ICED THAT THE AMOUNT OF RS.10,17,30,666 / - ALSO INCLUDES PROFITS FROM CONTRACT WORK UNDERTAKEN FOR J ANA PRIYA TOWNSHIP PVT. LTD. FOR PROJECTS ON WHICH DEDUCTION U / S.80LB WAS BEING CLAIMED BY THEM. SINCE THE DETAILS OF PROFITS EARNED FROM THE CONTRACT WORK WERE NOT FURNISHED AND IN ANY CASE A CONTRACTOR IS NOT ELIGIBLE FOR THE BENEFITS OF SECTION 801B, THE AS SESSING - I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 4 OFFICER DISALLOWED THE ENTIRE CLAIM AND ASSESSED A TOTAL INCOME OF RS.10,17,30,666 / - . 7 WHEN THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), THE CIT(A) , INTER - ALIA, HELD AS UNDER: 5.7 THE PROJECTS REFERRED TO IN THE ABOVE TABLE IN AY 2009 - 10 AS WELL AS 2010 - 11 HAVE BEEN THE SUBJECT OF EXAMINATION IN THE APPELLATE PROCEEDINGS FOR THE IMMEDIATELY PRECEDING AYS 2007 - 08 AND 2008 - 09. THE ENCLOSURES TO WRITTEN SUBMISSIONS DESCRIBED ABOVE ARE PART OF THE SUBMISSIONS CONSIDERED IN THE EARLIER YEARS. BY AN ORDER OF EVEN DATE, JP LAKEVIEW PHASE II WAS FOUND ELIGIBLE FOR THE DEDUCTION IN A.Y, 2007 - 08 AND J P 1ST AVENUE WAS FOUND ELIGIBLE IN A.Y.2008 - 09. SIMILARLY, IN A.Y.2008 - 09 IT WAS HELD ON A CONSIDERATION OF IDENTICAL MATERIAL IN THE CASE OF THE SAME P ROJECTS - JP ARCADIA AND J P METROPOLIS, THAT THE INFORMATION FURNISHED WAS INCOMPLETE, AND DID NOT PERMIT ANY INFERENCE TO BE DRAWN IN RESPECT OF THE NATURE OF THE PROJECT ORIGINALLY APPROVED, NU MBER AND SIZE OF APARTMENTS CONSTRUCTED, EXTENT OF PLOT ON W HICH PROJECT WAS LOCATED, AND DETAILS OF COMMERCIAL ESTABLISHMENTS, IF ANY. FOR THE DETAILED REASONS GIVEN IN THE COMMON ORDER FOR A.Y.2007 - 08 & 2008 - 09, THEREFORE, THE DEDUCTION CLAIMED IN RESPECT OF J P LAKEVIEW PHASE - II AND JP 1ST AVENUE ARE ALLOWED, AND THE DISALLOWANCE OF DEDUCTION CLAIMED IN SO FAR IT PERTAINS TO J P ARCADIA AND J P METROPOLIS DOES NOT WARRANT ANY INTERFERENCE. HOWEVER , AS NOTED ABOVE THE LD. A.R. HAS NOT BEEN ABLE TO FURNISH A PROJECT WISE BREAKUP OF PROFITS ELIGIBLE FOR DEDUCTION U / S.80IB. THE ASSESSING OFFICER IS THEREFORE DIRECTED TO ASCERTAIN THE AMOUNTS FROM THE AUDITOR'S REPORT IN FORM 10 CC B THAT WOULD HAVE BEEN FILED FOR THE RESPECTIVE PROJECTS WITH THE RETURN OF INCOME. 5.8 IT IS SIGNIFICANT THAT IN A.Y.20 1 0 - 11 THE RETURN OF INCOME COMPUTING NIL INCOME AND A 'DEDUCTION OF RS. 1 0,17,30,666/ - U/S. 80IB(10) IS NOW ADMITTEDLY E RRONEOUS IN THE LIGHT OF THE WRITTEN SUBMISSIONS OF T HE LD. A.R. WHEREBY A GGREGATE REDUCTION CLAIMED STANDS REDUCED TO RS. 9 ,65,80 ,840/ - . IT FOLLOWS, THEREFORE, THAT TAXABLE INCOME WITH REFERENCE TO THE GROSS TOTAL INCOME DECLARED IN THE RETURN OF INCOME FILED WOULD STAND AT RS. 51 ,49,826/ - BEFORE RE - COMPUTATION OF THE DEDUCTION I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 5 CLAIMED U/S. 80IB. THIS INCOME SHOULD BE WITH RE FERENCE TO THE NON - 80 IB INCOME WHICH IS NOW DISCLOSED TO BE ON ACCOUNT OF (I) RS.1 5 ,85,06,243 / - BEING ADVANCES FROM CUSTOMERS PERTAINING TO 'SOMSETTY HALLI' TRANSFERRED TO - SALES A /C (II)RS.21,21,56,223/ - BEING CONTRA CT RECEIPTS CREDITED TO THE PROFI T & LOSS A/C VIDE SCHEDULE 9. IT IS SEEN, THEREFORE, THAT THE LD. A.R. WOULD NOW CONTEND THAT THE NON - 80 IB TURNOVER OF RS.37,06,62,466 / - HAS RESULTED IN AN INCOME OF RS.51,49,826 / - . IN THE SCRUTINY PROCEEDINGS THIS ASPECT HAS NOT RECEIVED THE ATTENTION O F THE ASSESSING OFFICER BECAUSE OF DETAILS NOT PRODUCED AS NOTICED IN THE ASSESSMENT ORDER. IT IS SEEN FROM THE SALES BREAKUP FURNISHED WITH THE WRITTEN SUBMISSIONS THAT THE AGGREGATE SALES OF THE 4 PROJECTS CLAIMED ELIGIBLE U / S. 80 IB IS RS.49,31,98,581 / - RESULTED IN A PROFIT OF RS.9,65,80,840 / - , OR 19.58% OF THE SALES TURNOVER. THE PROFITS OF SOMSETTY HALLI PROJECT AND INCOME OFFERED FROM CONTRACT RECEIPTS WILL HAVE TO BE EVALUATED FOR ADEQUACY AND REASONABLENESS IN THIS LIGHT OF THE MATTER. THE ASSESSING OFFICER IS DIRECTED TO DO SO AFTER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE. THIS DIRECTION IS IN TERMS OF EXPLANATION APPENDED TO SECTION 251 OF THE I. T. ACT 1961. 9. BEFORE US, T HE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2007 - 08 AND 2008 - 09 IN ITA NOS. 1139 & 1140/HYD/2017 AND OTHERS VIDE ORDER DATED 23/01/2019. 10. LD. DR, ON THE OTHER HAN D FILED WRITTEN SUBMISSIONS AND THE SAME ARE EXTRACTED AS UNDER: 4. IT IS HUMBLY SUBMITTED THAT IN THE PRESENT CASE, THE ASSESSEE DID NOT OBTAIN THE CO MPLETION CERTIFICATE WITHIN THE SPECIFIED TIME. ALL THE LETTERS FILED FROM GRAM PANCHAYAT AND MUNICIPAL AUTHORITIES (ISSUED AFTER SEVERAL YEARS OF THE ALLEGED COMPLETION) STATING THAT THE HOUSES ARE OCCUPIED AND MUNICIPAL ASSESSMENT IS DONE I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 6 WOULD NOT BE TAKEN AS COMPLIANCE TO THE SPECIFIC PROVISIONS OF THE INCOME TAX ACT, WHICH MANDATE FILING OF COMPLETION C ERTIFICATE. FROM THE LETTERS FILED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES, IT IS CLEAR THAT COMPLETION CERTIFICATES WERE NOT OBTAINED. IT IS HUMBLY SUBMITTED THAT THE DECISION OF HON'BLE ITAT IN CASE OF THE ASSESSEE FOR EARLIER YEARS (A.Y 2007 - 08 & 2 008 - 09) DATED 23/01/2019 IS IN CONTRADICTION TO THE DECISION OF THE SAME BENCH IN THE CASE OF SAINATH ESTATES PVT LTD. IN THE CASE OF SAINATH ESTATES PVT LTD ([2013] 32 TAXMANN.COM 7 (HYDERABAD - TRIB.)) IT WAS HELD THAT APPLICATION MADE FOR COMPLETION CER TIFICATE AND CERTIFICATE OF LICENSED ARCHITECT ARE NOT SUBSTITUTE FOR THE COMPLETION CERTIFICATE OF THE LOCAL AUTHORITY (KIND REFERENCE IS INVITED TO PARAGRAPH 13 OF THE DECISION). THE DECISION DATED 23/01/2019 ALSO DOES NOT LAY DOWN THE CORRECT LAW FOR TH E FOLLOWING REASONS. 5. IT IS HUMBLY SUBMITTED THAT WHEN THE PROVISIONS OF UNAMBIGUOUS AND MANDATE PRODUCTION OF COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY SHOWING COMPLETION OF THE PROJECT BEFORE A PARTICULAR DATE, SUCH A CERTIFICATE CANNOT BE SUBS TITUTED WITH OTHER CORRESPONDENCE LIKE LETTERS. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF GLOBAL REALITY [2015] 62 TAXMANN.COM 204 (MADHYA PRADESH). THE HON'BLE HIGH COURT DISCUSSED THE ISSUE A T LENGTH AND HELD THAT ISSUE OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY BEFORE THE SPECIFIED DATE IS MANDATORY. PARAGRAPHS 24 TO 26 (RELEVANT PORTION) ARE REPRODUCED BELOW FOR THE KIND CONSIDERATION OF HON'BLE ITAT. '24. THE NEXT QUESTION THAT NEEDS TO BE ANSWERED, IS, WHETHER THE STIPULATION IN SECTION 80 IB (10) ( A) CAN BE SAID TO BE DIRECTORY. CONSIDERING THE PRODIGIOUS BENEFIT OFFERED IN TERMS OF SECTION 80 IB TO THE ASSESSEE ( HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR); AND THE PURPOSE UNDERLYING THE SAME - WHICH IS INTER ALIA BURDEN ON THE PUBLIC EXCHEQUER DUE TO WAIVER OF COMMENSURATE REVENUE - THE STIPULATION FOR OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUTHOR ITY BEFORE THE CUT OFF DATE, MUST BE CONSTRUED AS MANDATORY. THE FACT THAT COMPLIANCE OF THAT CONDITION IS DEPENDENT ON THE MANNER IN WHICH THE PROPOSAL IS PROCESSED BY THE LOCAL AUTHORITY, THE PROVISION CANNOT BE CONSTRUED AS A DIRECTORY REQUIREMENT. IT IS A SUBSTANTIVE PROVISION MANDATING ISSUANCE OR GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE OR SPECIFIED I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 7 TIME, AS A PRECONDITION TO GET THE BENEFIT OF TAX DEDUCTION. ELSE, IT W ILL THEN BE OPEN TO THE ASSESSEE TO RELY ON OTHER CIRCUMSTANCES OR EVIDENCE TO PLEAD THAT THE HOUSING PROJECT IS COMPLETE - REQUIRING ENQUIRY INTO THOSE MATTERS BY THE TAX AUTHORITIES - SANS A COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY IN THAT B EHALF. A PRIORI, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE IS SUFFICIENT, WOULD LEAD TO UNCERTAINTY ABOUT THE DATE OF COMPLETION OF THE PROJECT WHICH IS THE HALLMARK FOR AVAILING OF THE BENEFIT OF TAX DEDUCTION. ONLY WITH THIS INTENT THE LEGISLATURE IN ITS WI SDOM HAS PREDICATED THAT, 'THE COMPLETION OF CONSTRUCTION' OF THE HOUSING PROJECT IS TAKEN TO BE 'THE DATE ON WHICH' THE COMPLETION CERTIFICATE 'IS ISSUED' BY THE LOCAL AUTHORITY. TO INTERPRET IT TO INCLUDE AN EX POST FACTO CERTIFICATE OR SUCH CERTIFICATE ISSUED BY THE LOCAL AUTHORITY AFTER THE CUT OFF DATE, WOULD NOT ONLY RESULT IN REWRITING OF THE EXPRESS PROVISION AND RUN CONTRARY TO THE UNAMBIGUOUS POSITION PRONOUNCED IN THE SECTION, BUT ALSO DOING VIOLENCE TO THE LEGISLATIVE INTENT. FOR, EXPLANATION {I I)WILL THEN HAVE TO BE READ AS 'DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE AS CERTIFIED BY THE LOCAL AUTHORITY IN THAT BEHALF', IRRESPECTIVE OF THE DATE OF ISSUANCE OF SUCH CERTIFICATE BY THE LOCAL AUTHORITY. IN DEED, IN A GIVEN CASE IF THE ASSESSEE IS ABLE TO SUBSTANTIATE THAT THE COMPLETION CERTIFICATE 'WAS IN FACT ISSUED' BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, BUT COULD NOT BE PRODUCED BY HIM WITHIN TIME DUE TO REASONS BEYOND HIS CONTROL, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE OF THE PROVISION CAN BE TESTED. ANY OTHER INTERPRETATION WOULD RESULT NOT ONLY IN UNCERTAINTY (IN FINALIZATION OF ASSESSMENT PROCEEDINGS DUE TO NON - ISSUANCE OR DELAYED ISSUANCE OF SUCH CERTIFICATE BY THE LOCAL AUTHORITY AND PRONE TO MANIPULATIONS AT THE END OF THE LOCAL AUTHORITY); BUT ALSO HAVE TO YIELD TO THE SUBJECTIVE SATISFACTION OF THE ASSESSING AUTHORITY AND OF INVESTING WIDE DISCRETION IN THAT AUTHORITY, WHICH, EVENTUALLY, MAY ONLY END UP IN GETTING EMBROILED IN LITIGATION. IF THE ASSESSEE HAS FAILED TO COMPLY WITH THE CONDITION OF OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, HE MUST TAKE THE CONSEQUENCE THEREFOR AND OF DENIAL OF THE BENEFIT OF TAX DEDUCTION OFFERED TO HIM ON THAT COUNT. 25. WE CANNOT BE OBLIVIOUS OF THE FACT THAT THE MUNICIPAL LAWS OF DIFFERENT STATES ARE NOT UNIFORM IN RESPECT OF PROCEDURE FOR ISSUANCE OF COMPLETION CERTIFICATE. TO WIT, IN SOME STATES, THE DISPENSATION PROVIDED IS TO ISSUE PARTIAL OR FULL OCCUPATION C ERTIFICATE; AND THEREAFTER ISSUE I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 8 COMPLETION CERTIFICATE AFTER REMOVAL OF ALL THE DEFICIENCIES POINTED OUT BY THE LOCAL AUTHORITY. IN SOME STATES, THE MUNICIPAL LAW MAY PROVIDE FOR ISSUING PARTIAL OR FULL COMPLETION CERTIFICATE. THE REQUIREMENT OF COMPLETIO N CERTIFICATE ISSUED BY THE LOCAL AUTHORITY, AS ENVISAGED IN SECTION 80 IB (10) ( A) OF THE INCOME TAX ACT, WHICH IS A CENTRAL ENAC TMENT DEALING WITH THE SPECIAL SUBJECT OF TAXATION, HOWEVER, IS, OF ONLY ONE CERTIFICATE - WHICH IS FUL L /COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE. THAT IS TO LEND CREDENCE TO THE FACTUM OF COMPLETION OF THE ENTIRE HOUSING PROJECT IN ALL RESPECTS AS PER THE APPROVAL GRANTED BY THE LOCAL AUTHORITY. IT CAN BE SAFELY ASSUMED THAT THE LEGISLATURE WAS CONSCIOUS OF THIS POSITION, FOR WHICH, EXPRESS PROVISION HAS BEEN MADE AS TO THE MEANING OF THE DATE OF COMPLETION OF THE HOUSING PROJECT LINKED TO THE 'DATE ON WHICH' COMPLETION CERTIFICATE 'IS ISSUED' BY THE 'LOCAL AUTHORITY', AS PREDICATED IN EXPLANATIO N(II) THEREUNDER. 26. WE ACCORDINGLY HOLD THAT ISSUANCE OF COMPLETION CERTIFICATE, AFTER THE CUT OFF DATE BY THE LOCAL AUTHORITY BUT, MENTIONING THE DATE OF COMPLETION OF PROJECT BEFORE THE CUT OFF DATE, DOES NOT FULFIL THE CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 8018 (10) READ WITH EXPLANATION (II) THEREUNDER. WE REJECT THE ARGUMENT OF THE ASSESSEE THAT THE EFFECT OF AMENDED CLAUSE (A) OF SUB - SECTION 10 OF SECTION 8018, WHICH HAS COME INTO FORCE WITH EFFECT FROM 1ST APR IL, 2005, HAS RETROSPECTIVE EFFECT OR THAT IT IS UNJUST IN ANY MANNER OR INCAPABLE OF COMPLIANCE AT AL/. SIMILARLY, THE REQUIREMENT OF SECURING COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE IS NOT DIRECTORY, IN VIEW OF THE E XPRESS PROVISION IN SECTION 80 IB (10)(0) AND THE EXPLANATION (II) THEREUNDER. THE COMPLETION CERTIFICATE GRANTED BY THE LOCAL AUTHORITY MUST BEAR THE DATE OF HAVING BEEN ISSUED BEFORE THE CUT OFF DATE. 27. THAT TAKES US TO THE ARGUMENT OF THE ASSESSEE THA T THE STIPULATION IN SECTION 80 IB (10)( A ) OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, CANNOT BE APPLIED IN THE CASE OF ASSESSEE FOL L OWING THE WORK IN PROGRESS ACCOUNTING METHOD. IN OUR OPINION, THE PROVISION IN THE FORM OF SECTION80 IB (10)(A), APPLIES UNIFORMLY TO ALL THE ASSESSEE S BE IT FOLLOWING WORK IN PROGRESS ACCOUNTING METHOD OR OTHERWISE. THE BENEFIT OF DEDUCTION UNDER THIS PROVISION CAN BE AVAILED BY THE ASSESSEE FOL L OWING THE WORK IN PROGRESS ACCOUNTING METHOD, PR OVIDED HE HAS COMPLIED WITH THE STIPULATION OF HAVING PRODUCED COMPLETION CERTIFICATE I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 9 ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE IN HIS CASE. 6. IT IS HUMBLY SUBMITTED THAT DECISION OF A NON - JURISDICTIONAL HIGH COURT IS B INDING ON THE HON'BLE ITAT WHEN THERE IS NO DECISION OF THE JURISDICTIONAL HIGH COURT TO THE CONTRARY. ALSO, WHEN THE PROVISIONS ARE MANDATORY, HON'BLE ITAT HAS NO POWER TO REDUCE THE RIGOURS OF THE PROVISIONS. IT IS ALSO HUMBLY SUBMITTED THAT A HOUSING PR OJECT CANNOT BE DIVIDED IN PIECEMEAL MANNER TO CLAIM DEDUCTION U/S 80 IB AS THE PROVISIONS OF THE ACT PERMIT DEDUCTION FOR A SINGLE PROJECT. THERE CANNOT BE MANY COMPLETION CERTIFICATES FOR A SINGLE PROJECT. THE ASSESSEE CANNOT CLAIM DEDUCTION YEAR AFTER Y EAR. 7. IT IS ALSO HUMBLY SUBMITTED THAT BEFORE THE LOWER AUTHORITIES, THE ASSESSEE DID NOT EVEN SUBMIT PROJECT WISE DETAILS OF INCOME AND EXPENDITURE. THEREFORE, THERE IS VIOLATION EVEN IN COMPLYING WITH THE BASIC REQUIREMENTS OF THE PROVISIONS. IT IS A LSO NOT KNOWN WHETHER THE ASSESSEE COMPLIED WITH THE REQUIREMENTS OF SECTION 80 I B(10 ) IN TERMS OF SIZE OF THE PROJECT, SIZE OF THE FLATS AND AREA MEANT FOR SHOPS AND COMMERCIAL ESTABLISHMENTS. THIS IS NOT A CASE WHERE NO OPPORTUNITY WAS GRANTED TO THE ASSE SSEE AT LOWER LEVELS. WHEN THE ASSESSEE FAILED TO DISCHARGE THE ONUS ON HIM BEFORE THE LOWER AUTHORITIES, HE CANNOT SEEK RELIEF FROM HON'BLE ITAT. 8. IT IS HUMBLY SUBMITTED THAT EXEMPTION PROVISIONS HAVE TO BE CONSTRUCTED LITERALLY AND THERE IS NO ROOM F OR LATERAL OR LIBERAL INTERPRETATION. ALSO, THE BENEFIT OF LIBERAL INTERPRETATION, IF ANY SHALL FLOW TO REVENUE. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF THE CONSTITUTIONAL BENCH OF HON'BLE SUPREME COURT IN THE CASE OF DILIP KUMAR AND COMPANY & OTHERS (DECISION DATED 30/07/2018 IN CA NO: 3327 OF 2007), WHEREIN IT WAS HELD THAT THE BENEFIT OF ANY DOUBT OR AMBIGUITY SHALL BE IN FAVOUR OF REVENUE. AT PARAGRAPH 52 OF THE SAID DECISION, THE HON'BLE APEX COURT HELD AS FOLLOWS: TO SUM UP, WE ANSWER THE REFERENCE HOLDING AS UNDER (1) EXEMPTION NOTIFICATION SHOULD BE INTERPRETED STRICTLY; THE BURDEN OF PROVING APPLICABILITY WOULD BE ON THE ASSESSEE TO SHOW THAT HIS CASE COMES WITH THE PARAMETERS OF THE EXEMPTION CLAUSE OR EXEMPTION NOTIFICATION. I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 10 (2 ) WHEN THERE IS AMBIGUITY IN EXEMPTION NOTIFICATION WHICH IS SUBJECT TO STRICT INTERPRETATION, THE BENEFIT OF SUCH AMBIGUITY CANNOT BE CLAIMED BY THE SUBJECT/ASSESSEE AND IT MUST BE INTERPRETED IN FAVOUR OF THE REVENUE (3) THE RATIO IN SUN EXPORT CASE (S UPRA) IS NOT CORRECT AND ALL THE DECISION WHICH TOOK SIMILAR VIEW AS IN SUN EXPORT CASE (SUPRA) STANDS OVERRULED'. IN LIGHT OF THE ABOVE, THE APPEALS OF THE ASSESSEE MAY KINDLY BE DISMISSED AND APPEALS OF THE DEPARTMENT MAY KINDLY BE ALLOWED. 1 1 . CON SIDERED THE RIVAL SUBMISSIONS AND PERUSE THE MATERIAL ON RECORD. WE FIND THAT SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE US IN ASSESSEES OWN CASE FOR AY 2007 - 08 AND 2008 - 09 (SUPRA) WHEREIN THE COORDINATE BENCH HELD AS UNDER: 8.4 CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT ASSESSEE HAS ONLY SUBMITTED THE LETTERS BEFORE CIT(A) TO CLAIM THE DEDUCTION IN PRO - RATA BASIS. AS PER THE FINDINGS OF LD. CIT(A), THESE LETTERS DO NOT GIVE ANY DETAILS AB OUT THE STAGE OF COMPLETION, SIZE OF THE FLAT TO ASCERTAIN WHETHER THESE PROJECTS SATISFY THE CONDITIONS SPECIFIED IN SECTION 80IB(10). THEREFORE, WE DIRECT THE AO TO COLLECT INFORMATION ABOUT THE STAGE OF COMPLETION OF THE PROJECTS AND SIZE OF THE FLATS. IF IT IS WITHIN THE NORMS, AO SHOULD GIVE PRO - RATA DEDUCTION U/S 80IB(10). THIS IS ACCEPTED LAW AS FAR AS ALLOWING PRO - RATA DEDUCTION U/S 80IB(10). CONSIDERING THE PRECEDENTS, EVEN THE COORDINATE BENCH OF PUNE ITAT IN THE CASE OF ANAND GANDHI IN ITA NO. 20 04/PN/2014, ORDER DATED 27/05/2016 HAS ADJUDICATED THE ISSUE AS BELOW: 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE IN THE INSTANT CASE IS AN INDIVIDUAL AND ENGAGED IN THE ACTIVITY OF PROMOTERS AND BUILDERS IN THE N AME AND FASHION OF 'HARSHAD CONSTRUCTIONS'. DURING THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE HAS CONSTRUCTED A HOUSING PROJECT AT ASHOK NAGAR, HANDEWADI ROAD, HADAPSAR, PUNE. THE COMMENCEMENT CERTIFICATE FOR THIS PROJECT WAS RECEIVED BY THE ASSESSEE ON 14 - 02 - 2007 WHICH WAS SUBSEQUENTLY I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 11 REVISED ON VARIOUS DATES. AS PER THE ORIGINAL PLAN PASSED BY THE MUNICIPAL AUTHORITIES, THERE ARE THREE BUILDINGS, VIZ., A, B AND C. THE ASSESSEE HAS SUBMITTED THE COMPLETION CERTIFICATE ONLY FOR BUILDINGS B AND C BUT DID NOT FURNISH THE COMPLETION CERTIFICATION FOR BUILDING A ON THE GROUND THAT THE SAME WAS NOT CONSTRUCTED. SINCE THE PLAN WAS SANCTIONED FOR BUILDINGS A, B AND C AND THE ASSESSEE HAS COMPLETED ONLY BUILDINGS B AND C AND BUILDING A WAS NEVER CONSTRUCTED, THE AO REJECTED THE ITA NO.2004/PN/2014 CLAIM OF DEDUCTION OF RS.3,05,70,196/ - MADE BY THE ASSESSEE U/S.80IB(10). IN APPEAL THE LD.CIT(A) FOLLOWING VARIOUS DECISIONS ALLOWED THE CLAIM OF PRO - RATA DEDUCTION IN RESPECT OF BUILDINGS B AND C WHICH WERE COMPLETED. 10. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) GRANTING PRO - RATA DEDUCTION TO THE ASSESSEE IN RESPECT OF BUILDINGS B AND C WHICH WERE COMPLETED. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. KUMAR COMPANY WHILE DECIDING IDENTICAL ISS UE HAD ALLOWED THE CLAIM OF PRO - RATA DEDUCTION BY OBSERVING AS UNDER : '12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED T HE VARIOUS DECISIONS CITED BEFORE US. THE ONLY DISPUTE IN THE IMPUGNED GROUNDS RAISED BY THE ASSESSEE IS REGARDING ALLOWABILITY OF PRO - RATA DEDUCTION U/S.80IB(10) IN RESPECT OF THE HOUSING PROJECT 'KUMAR PADMALAYA' WHERE ADMITTEDLY SOME OF THE UNITS HAVE N OT BEEN COMPLETED BEFORE 31 - 03 - 2008. ACCORDING TO THE REVENUE, FOR CLAIMING DEDUCTION U/S.80IB(10) THE ASSESSEE HAS TO FULFIL ALL THE CONDITIONS LAID DOWN IN SECTION 80IB(10) AND THERE IS NO CONCEPT OF PRO - RATA DEDUCTION. ACCORDING TO THE ASSESSEE IT IS EN TITLED TO PRO - RATA DEDUCTION U/S.80IB(10) IN RESPECT OF THE UNITS WHICH FULFILL THE CONDITIONS LAID DOWN IN SECTION 80IB(10). 13. WE FIND THE HON'BLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS PVT. LTD. (SUPRA) WHILE ALLOWING PROPORTIONATE DEDUCTION U/S.80IB(10) HAS OBSERVED AS UNDER : 14. ON THE FACTS ADMITTED BY THE REVENUE, IN THE PROJECTS'AGRINI' AND 'VAJRA', THERE ARE NUMBER OF FLATS WHICH ARE BELOW 1500 SQ.FT., AND THE RELEVANT BUILT - UP AREA EQUIREMENT IS SPECIFIED UNDER SECTION 80IB(10)(C) OF THE INCOME TAX ACT. THUS, THE BUILT - UP AREA IN SOME OF THE FLATS IN BOTH THESE PROJECTS ARE IN I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 12 EXCESS OF 1500 SQ.FT., I.E., 32 FLATS IN AGRINI AND ONLY ONE FLAT IN VAJRA AND THAT THE ASSESSEE HAD NOT CLAIMED ANY DEDUCTION ON THIS. WE HOLD THAT THE TRIBUNAL IS NOT CORRECT IN ITS VIEW, THAT BY REASON OF THESE UNITS BEING IN EXCESS OF 1500 SQ.FT., THE ENTIRE CLAIM OF THE ASSESSEE IN RESPECT OF THESE TWO PROJECTS WOULD STAND REJECTED UNDER SECTION 80IB(10) OF THE INCOME TAX ACT. THUS, GOING BY THE DEFINITION OF 'HOUSING PROJECT' UNDER EXPLANATION TO SECTION 80HHBA OF THE ACT AS REFERRED TO ABOVE AS THE CONSTRUCTION OF 'ANY BUILDING' AND THE WORDINGS IN SECTION 80IB(10) OF THE ACT, THE QUESTION OF REJECTION IN ENTIRETY OF THE PROJECT ON ACCOUNT OF ANY ONE OF THE BLOCKS NOT COMPLYING WITH THE CONDITIONS, DOES NOT ARISE. EVEN IN THE CASE OF EACH ONE OF THE BLOCKS, WHEREVER THERE ARE FLATS WHICH SATISFIED THE CONDITIONS PARTICULARLY OF THE NATURE STATED UNDER SECTION 80IB(10)(C) OF THE ACT, WE HAVE ALREADY UPHELD THE CASE OF THE ASSESSEE IN T.C.NOS.1348 AND 1349 OF 2007 DATED 10.10.2012 FOR GRANT OF RELIEF UNDER SECTION 80IB(10) OF THE ACT ON A PROPORTIONATE BASIS, BY FOLLOWING THE DECISION OF THE BOMBAY HIGH COURT REPORTED IN ITA NO.2004/PN/2014 [2011] 333 ITR 289 (C IT VS. BRAHMA ASSOCIATES). THUS APPLYING THE DECISION OF THIS COURT IN T.C.NOS.1348 AND 1349 OF 2007 DATED 10.10.2012, WE HOLD THAT THE ASSESSEE IS ENTITLED TO SUCCEED BOTH ON THE PRINCIPLE OF PROPORTIONALITY AS WELL AS BY REASON OF THE CONSTRUCTION ON THE MEANING OF THE EXPRESSION 'HOUSING PROJECT' AS REFERRING TO CONSTRUCTION OF ANY BUILDING AND THE WORDINGS IN SECTION 80IB(10) OF THE ACT. IN THE CIRCUMSTANCES, WE HOLD THAT THE MERE FACT THAT ONE OF THE BLOC KS HAVE UNITS EXCEEDING BUILT - UP AREA OF 1500 SQ.FT, PER SE, WOULD NOT RESULT IN NULLIFYING THE CLAIM OF THE ASSESSEE FOR THE ENTIRE PROJECTS. CONSEQUENTLY, IN RESPECT OF EACH OF THE BLOCKS, THE ASSESSEE IS ENTITLED TO HAVE THE BENEFIT OF DEDUCTION IN RESP ECT OF RESIDENTIAL UNITS SATISFYING THE REQUIREMENT UNDER SECTION 80IB(10)(C) OF THE ACT. IN S O HOLDING, WE ALSO AGREE WITH THE DECISION OF THE BOMBAY HIGH COURT REPORTED IN [2012] 206 TAXMAN 584 ( CIT V. VANDANA PROPERTIES ), WHICH WAS DECIDED BY THE BOMBAY HIGH COURT ON SIMILAR LINES AS IN THE ASSESSEE'S CASE BEFORE US. I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 13 15. IN THE LIGHT OF THE ABOVE REASONING, WE HAVE NO HESITATION IN ALLOWING THE CASES CASES FILED BY THE ASSESSEE IN RESP ECT OF ASSESSMENT YEARS 2004 - 05, 2005 - 06, 2006 - 07, 2007 - 08 AND 2008 - 09, THEREBY ANSWERING THE SUBSTANTIAL QUESTIONS OF LAW IN FAVOUR OF THE ASSESSEE, THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION IN RESPECT OF ALL THE BLOCKS FORMING PART OF THE P ROJECTS CALLED AGRINI AND VAJRA, BUT TO THE EXTENT OF EACH OF THE BLOCKS SATISFYING THE CONDITIONS UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSEE WOULD BE ENTITLED TO THE RELIEF ON A PROPORTIONATE BASIS.' 14. WE FIND FOLLOWING THE ABOVE DECISION THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF PADMAVATI DEVELOPERS (SUPRA) HAS DECIDED THE ISSUE OF PR O - RATA DEDUCTION IN FAVOUR OF THE ASSESSEE BY HOLDING THAT ASSESSEE IS ENTITLED TO PRO - RATA DEDUCTION IN RESPECT OF THE RESIDENTIAL UNITS WHICH HAVE COMPLIED WITH THE CONDITIONS AND WERE ELIGIBLE FOR THE DEDUCTION U/S.80IB(10). THE RELEVANT OBSERVATION OF THE TRIBUNAL AT PARAS 36 TO 38 OF THE ORDER READ AS UNDER : '36. NOW, COMING TO THE SECOND HOUSING PROJECT IN SECTOR NO.7. ADMITTEDLY, THE ASSESSEE IN ASSESSMENT YEAR 2006 - 07 HAS COMPLETED ONLY 2 BUILDINGS I.E. Q - 1, Q - 2 AND SOME FLATS IN ASSESSMENT YEAR 20 07 - 08. THE BUILDING COMPRISED IN P - 1 TO P - 6 AND THE ROW HOUSES HAVE NOT BEEN CONSTRUCTED BY THE ASSESSEE TILL THE DATE OF SURVEY AND UPTO 31.03.2008. 37. THE HON'BLE MADRAS HIGH COURT IN VISWAS PROMOTERS PVT. LTD. VS. ACIT, (2013) 255 CTR 149 (MAD.) HAVE L AID DOWN THAT WITHIN A COMPOSITE HOUSING PROJECT, WHERE THERE ARE ELIGIBLE AND INELLIGIBLE UNITS, THE ASSESSEE CAN CLAIM DEDUCTION IN RESPECT OF ELIGIBLE UNITS IN THE PROJECT AND EVEN WITHIN THE BLOCK, THE ASSESSEE IS ENTITLED TO CLAIM PROPORTIONATE RELIEF AGAINST THE UNITS SATISFYING THE EXTENT OF BUILT - UP AREA. 38. SIMILAR PROPOSITION HAS BEEN LAID DOWN BY THE BANGALORE BENCH OF THE TRIBUNAL IN DCIT VS. BRIGADE ENTERPRISES (P.) LTD., (2008) 119 TTJ 269 (BANG) AND THE PUNE BENCH OF THE TRIBUNAL IN RUNWAL MULTIHOUSING PVT. LTD. VS. ACIT IN ITA NOS.1015, 1016 AND 1017/PN/2011 RELATING TO ASSESSMENT YEARS 2003 - 04 TO 2005 - 06, ORDER DATED 21.11.2012. FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 14 THE ASSESSEE IS ENTITLED TO PRO - RATA DEDUCTION IN RESPECT OF RESIDENTIAL UNITS IN THE HOUSING PROJECT NO.7, WHICH HAVE COMPLIED WITH THE CONDITIONS AND WERE ELIGIBLE FOR THE DEDUCTION UNDER SECTION 80 - IB(10) OF THE ACT. HOWEVER, THE SAID DEDUCTION IS ALLOWABLE TO THE ASSESSEE ONLY IN RESPECT OF UNITS CONSTRUCTIO N OF WHICH HAS BEEN COMPLETED UPTO 31ST MARCH, 2008. ACCORDINGLY, WE DIRECT THE ITA NO.2004/PN/2014 ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE IN THIS REGARD IN ASSESSMENT YEARS 2006 - 07 AND 2007 - 08 AND IF THE ASSESSEE HAS FULFILLED THE AFORESAID CONDITIONS UNDER SECTION 80 - IB(10) OF THE ACT, PRO - RATA DEDUCTION UNDER THE SAID SECTION COUL D BE ALLOWED TO THE ASSESSEE IN RELATION TO THE BUILDINGS / FLATS COMPLETED IN SECTOR NO.7. CONSEQUENTLY, THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS PARTLY ALLOWED.' 15. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE ASSESSEE IS ENTITLED TO PRO - RATA DEDUCTION IN RESPECT OF THE BUILDINGS/UNITS OF THE HOUSING PROJECT 'KUMAR PADMALAYA' WHICH HAVE COMPLIED WITH THE CONDITIONS LAID DOWN IN SECTION 80IB(10) OF THE ACT. IN OTHER WORDS, THE AO CANNOT REJECT THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ENTIRE PROJECT FOR NON - COMPLETION OF THE FEW BUILDINGS. WE THEREFORE SET ASIDE THE ORDER OF LD.CIT(A) AND DIRECT THE AO TO ALLOW PRO - RATA DEDUCTION CLAIMED U/S.80IB (10) IN RESPECT OF PROJECT 'KUMAR PADMALAYA'. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. 8.5 WITH REGARD TO COMPLETION CERTIFICATES, IT IS ENOUGH THAT ASSESSEE FILES THE COMPLETION CERTIFICATE ON BLOCK - WISE OR HANDING OVER PROOF TO THE F LAT OWNERS. CONSIDERING THE ABOVE DECISION, WE DIRECT THE AO TO DECIDE THE ISSUE AS PER THE ABOVE SAID DIRECTION S AND ACCORDINGLY, GROUND RAISED BY THE ASSESSEE IS ALLOWED. 11.1 BEFORE US, LD. DR RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CAS E OF DILIP KUMAR AND CO. & OTHERS 9SUPRA) AND SUBMITTED THAT EXEMPTION PROVISION HAS TO BE CONSTRU ED LITERALLY ; THERE IS NO ROOM FOR LIBERAL INTERPRETATION. WE NOTICE THAT THE ABOVE DECISION OF HONBLE SUPREME COURT IS ON THE SUBJECT OF INTERPRETING THE EXEMPTION NOTIFICATION, NOT ON THE EXEMPTION PROVISIONS IN THE ACT. YES, W HILE INTERPRETING, I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 15 THE ELIGIBILITY OF EXEMPTION HAS TO BE INTERPRETED LITERALLY, BUT, WHEN EXTENDING BENEFITS OF THE PROVISION, IT HAS TO BE DONE LIBERALLY. THEREFORE, THE RATIO IN S UN EXPORT CASE IS STILL VALID. 11.2 THEREFORE, FOLLOWING THE DECISION OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR AYS 2007 - 08 AND 2008 - 09, WE DIRECT THE AO TO DECIDE THE ISSUE AS PER THE SAID DIRECTIONS AND ACCORDINGLY, GROUNDS RAISED THE ASSESSEE ON THIS ISSUE ARE ALLOWED. 1 2 . ITA NO. 21 7 & 21 8 /HYD/2017 FOR AY 200 9 - 10 & 20 10 - 11 BY THE REVENUE 1 3 . IN TH E S E APPEAL S , THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL , WHICH ARE COMMON IN BOTH THE APPEALS UNDER CONSIDERATION : 1. THE CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/ S 80IB WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT FURNISHED COMPLETION CERTIFICATES AND LETTERS ISSUED BY MUNICIPAL AUTHORITIES AS HELD BY THE HON'BLE ITAT IN THE CASE OF M/S SAINATH ESTATES PVT. LTD (ITA NO.299,300,379 & 380/HYD/2012 DT. 08.02.2013). 2. THE CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE COMPANY IS ELIGIBLE FOR DEDUCTION U/S 80IB (10) WITHOUT APPRECIATING THE FACT THAT APART FROM NON - FURNISHING OF COMPLETION CERTIFICATE, THE ASSESSEE HAS ALSO NOT ESTABLISHED THE FULFILMENT OF OTHE R STATUTORY CONDITIONS LAID DOWN I.E. SIZE OF THE PLOT, BUILT UP AREA OF INDIVIDUAL FIAT, BUILT UP AREA OF SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS IN RESPECT OF PROJECTS COMPLETED AT BANGALORE AND THE ORDER OF CIT(A) IS SILENT ON THE ISSUE. 3 . ANY OTHE R GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 1 4 . AS REGARDS GROUND NOS. 1 & 2 REGARDING CLAIM OF DEDUCTION U/S 80IB, FOLLOWING THE CONCLUSIONS DRAWN IN I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 16 ASSESSEES APPEAL S FOR AY S 2009 - 10 & 2010 - 11 VIDE PARA 11 TO 11.2 ( SUPRA), WE DISMISS THE GROUN DS RAISED BY THE REVENUE. 1 5 . IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED AND THE APPEALS OF THE REVENUE ARE DISMISSED. ITA NO. 1143/ H YD/2017 FOR AY 2011 - 12 16. THE CIT(A) DISMISSED THE APPEAL ON THE GROUND THAT THERE WAS A DELAY OF 55 DAYS IN FILING THE APPEAL BEFORE HIM AND THERE WAS NO EXPLANATION GIVEN FOR THE DELAY IN FILING THE APPEAL. 17. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE INTEREST OF JUSTICE, WE REMIT THIS APPEAL BACK TO THE FILE OF THE CIT(A) W ITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO ASSESSEE TO SUBMIT REASONS FOR DELAY AND ADMIT THE APPEAL AS PER LAW. HE MAY DISPOSE OF THE APPEAL ON MERITS ALSO, AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER. 18. IN THE RESULT, THIS APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE RESULT, APPEALS IN ITA NO. 1141 & 1142/HYD/2017 ARE ALLOWED, APPEAL IN ITA NO. 1143/HYD/2017 IS ALLOWED FOR STATISTICAL PURPOSES AND APPEALS IN ITA NO. 2 17 & 218/HYD/2017 ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 15 TH MAY , 201 9 . SD/ - ( P. MADHAVI DEVI ) JUDICIAL MEMBER SD/ - ( S. RIFAUR RAHMAN ) ACCOUNTANT MEMBER HYDERABAD, DATED 15 TH MAY , 201 9 I.T.A. NO. 11 41 /HYD/1 7 AND OTHERS JANAPRIYA ENGINEERS SYNDICATE LTD., HYD . 17 KV COPY FORWARDED TO: 1. M/S JANAPRIYA ENGINEERS SYNDICATE LTD., , 8 - 2 - 120/86/1, KEERTHI AND PRICE TOWERS, ROAD NO. 2, BANJARA HILLS, HYDERABAD 500 034. 2 . DCIT, CENTRAL CIRCLE, HYD. 3 . CIT (A) - 11 , HYDERABAD 4. PR. CIT (CENTRAL) , HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE