The ACIT., New Delhi V. M/s. Ansal Housing & Construction Ltd., New Delhi

ITA 1254/DEL/2009

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6316 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-02-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 01-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Deemed to accrue or arise in india; Question of law; Difference of opinion; Competent authority; Revenue expenditure; Capital expenditure; TDS
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 234B; 80IB; 37(1); 139(5); 201; 251; 64; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.3193/DEL/2008 ASSESSMENT YEAR : 2004-05 ANSAL HOUSING & CONSTRUCTION LTD., UGF-15, INDRAPRAKASH BLDG., 21, BARAKHAMBA ROAD, NEW DELHI. VS. ACIT, CENTRAL CIRCLE-20, NEW DELHI. PAN : AAACA 0377 R (APPELLANT) (RESPONDENT) ITA NO.1248/DEL/2009 ASSESSMENT YEAR : 2005-06 ANSAL HOUSING & CONSTRUCTION LTD., UGF-15, INDRAPRAKASH BLDG., 21, BARAKHAMBA ROAD, NEW DELHI. VS. ACIT, CENTRAL CIRCLE-20, NEW DELHI. PAN : AAACA 0377 R (APPELLANT) (RESPONDENT) ITA NO.1254/DEL/2009 ASSESSMENT YEAR : 2005-06 ACIT, CENTRAL CIRCLE-20, NEW DELHI. VS. ANSAL HOUSING & CONSTRUCTION LTD., UGF-15, INDRAPRAKASH BLDG., 21, BARAKHAMBA ROAD, NEW DELHI. PAN : AAACA 0377 R (APPELLANT) (RESPONDENT) 2 ITA NO.1576/DEL/2010 ASSESSMENT YEAR : 2006-07 DCIT, CENTRAL CIRCLE-20, NEW DELHI. VS. ANSAL HOUSING & CONSTRUCTION LTD., UGF-15, INDRAPRAKASH BLDG., 21, BARAKHAMBA ROAD, NEW DELHI. PAN : AAACA 0377 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AJAY VOHRA, SR. ADV., SHRI GAURAV JAIN, ADV. MS. BHAVITA, ADV. DEPARTMENT BY : SHRI S. K. JAIN, SR.DR DATE OF HEARING : 08-02-2017 DATE OF PRONOUNCEMENT : 28-03-2017 O R D E R PER S.V. MEHROTRA, A.M : OUT OF FOUR CAPTIONED APPEALS, TWO APPEALS RELATING TO ASSESSMENT YEARS 2004-05 AND 2005-06 PREFERRED BY THE ASSESSEE AND T HE OTHER TWO APPEALS RELATING TO ASSESSMENT YEARS 2005-06 AND 2006-07 PR EFERRED BY THE DEPARTMENT, WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NO.3193/DEL/2008 (A.Y. 2004-05) : 2. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 27.08.2008 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 1, NEW DELHI, U/S 143(3) 3 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) RE LATING TO ASSESSMENT YEAR 2004-05. 3. BRIEF FACTS OF THE CASE ARE THAT IN THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE CARRIED ON THE BUSINESS OF REAL ESTATE, DE VELOPMENT OF MINI TOWNSHIPS, PROMOTION, DEVELOPMENT AND CONSTRUCTION OF HOUSES, FLATS, VILLAS AND COMMERCIAL COMPLEXES. IT HAD FILED ITS RETURN OF I NCOME DECLARING TOTAL INCOME OF RS.1,58,08,470/- ON 01.11.2004. THE ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS.5,27,28,907/- AFTER MAKING FOLLOWING A DDITIONS :- (A) ADDITION ON ACCOUNT OF NOTIONAL ALV OF UNSOLD F LATS/SPACES RS.1,56,35,782/-. (B) DENIAL OF DEDUCTION U/S 80IB(10) RS.2,12,84,7 40/-. 4. LD. CIT(A) PARTLY ALLOWED ASSESSEES APPEAL. BE ING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US AND HAS TAKEN FOLLO WING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME-TAX ERRED IN SIMILARLY DISMISSING THE GRO UND TAKEN BY THE APPELLANT CHALLENGING THE ACTION OF THE ASSESSING OFFICER IN NOT CONSIDERING THE REVISED COMPUTATION OF INCOME FILED BY THE APPELLANT VIDE L ETTER DATED 21 ST DECEMBER, 2006. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO ALLOW DEP RECIATION U/S 32 OF THE INCOME TAX ACT, 1961 (THE ACT) ON CONSULTATION/ DEVELOPMENT FEES PAID IN THE ASSESSMENT YEAR 2002-03 AS THE SAID FEES WAS HELD TO BE CAPITAL EXP ENDITURE IN THAT YEAR. 3. WITHOUT PREJUDICE AND IN THE ALTERNATIVE, THAT O N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT SHOULD BE HEL D ENTITLED TO CLAIM DEPRECIATION U/S 32 OF THE ACT ON CONSULTATION/ DEVELOPMENT FEES PAI D IN THE ASSESSMENT YEAR 2002-03 AS THE SAID FEES WAS HELD TO BE CAPITAL EXPENDITURE IN THAT YEAR TREATING THE SAID GROUND AS AN ADDITIONAL GROUND RAISED BEFORE THE TR IBUNAL FOR THE FIRST TIME. 4 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO ALLOW DED UCTION OF RS.35,907/- U/S 35D OF THE ACT, AS HAD BEEN ALLOWED IN THE ASSESSMENT YEAR 200 3-04. 5. WITHOUT PREJUDICE AND IN THE ALTERNATIVE, THAT O N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT IS ENTITLED T O CLAIM DEDUCTION OF RS.35,907/- U/S 35D OF THE ACT, AS HAD BEEN ALLOWED IN THE ASSESSME NT YEAR 2003-04 TREATING THE SAID GROUND AS AN ADDITIONAL GROUND RAISED BEFORE THE TR IBUNAL FOR THE FIRST TIME. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO ALLOW CRE DIT OF TDS OF RS.1,43,215/-. 7. WITHOUT PREJUDICE AND IN THE ALTERNATIVE, THAT O N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT IS ENTITLED T O CLAIM CREDIT OF TDS OF RS.1,43,215/- TREATING THE SAID GROUND AS AN ADDITIONAL GROUND RA ISED BEFORE THE TRIBUNAL FOR THE FIRST TIME. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF DEDUCTION U/S 80IB (10) BY THE ASSESSING OFFICER VIDE ORDER DATED 27 TH DECEMBER, 2006 PASSED U/S 143(3) OF THE ACT. 9. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE FINDINGS OF THE ASSESSING OFFICER THAT DEDUCTION U/S 80IB(10) OF THE ACT IS ADMISSIBLE ONLY TO UNDERTAKINGS WHERE DEVELO PMENT OR CONSTRUCTION OF THE HOUSING PROJECT COMMENCED ON OR AFTER 1 ST OCTOBER, 1998. 10. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE FINDINGS OF THE ASSESSING OFFICER THAT THE APPELLANT STARTED DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT PRI OR TO 1 ST OCTOBER, 1998 WITHOUT APPRECIATING THAT THE APPELLANT HAD MERELY COMMENCE D CONSTRUCTION OF A PREPARATORY NATURE ON EXPERIMENTAL SCALE PRIOR TO THAT DATE, WH ICH COULD NOT HAVE BEEN THE BASIS FOR DENYING DEDUCTION U/S 80IB(10) OF THE ACT. 11. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE FINDINGS OF THE ASSESSING OFFICER THAT RESIDENTIAL UNITS CONSTRUCTED BY THE APPELLANT EXCEEDED THE PRESCRIBED MAXIMUM BUILT -UP AREA OF 1000 SQ.FT. THAT TOO, BY RELYING UPON CERTAIN AMENDMENTS MADE BY FINANCE ACT, 2004 WITH PROSPECTIVE EFFECT FROM 1/4/2005 WHICH WERE NOT APPLICABLE TO T HE YEAR UNDER CONSIDERATION. 12. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN HOLDING THAT IN ORDER TO CLAIM DEDUCTION U/S 80I B(10) OF THE ACT, THE ENTIRE HOUSING PROJECT SHOULD HAVE BEEN COMPLETED BEFORE THE PRESC RIBED DATE. 13. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE CHARGING OF INTEREST U/S 234B OF T HE ACT. 14. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AM END, OR VARY THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 5. AS REGARDS GROUND NO.1, LD. COUNSEL FOR THE ASSE SSEE FAIRLY CONCEDED THAT THIS GROUND IS TO BE DECIDED AGAINST THE ASSESSEE B ECAUSE THE DELHI BENCH OF 5 ITAT AND HONBLE DELHI HIGH (ITA NOS.1261 OF 2008, 1278 OF 2008, 1287 OF 2008, 1402 OF 2008 PLACED AT PAGES 1-16 OF PAPER BOOK-II DATED 03.03.2014), IN THE ASESSEES OWN CASE FOR ASSESSMENT YEAR 1994- 95 TO 1998-99, HAS REJECTED THE ASSESSEES PLEA ON THIS COUNT. ACCORDINGLY, GR OUND NO.1 IS DISMISSED. 6. APROPOS GROUND NOS.2 AND 3, LD. COUNSEL POINTED OUT THAT DURING THE ASSESSMENT YEAR 2002-03, THE ASSESSEE INCURRED CONS ULTANCY/ TECHNICAL ASSISTANCE EXPENDITURE TOWARDS EXTENSION OF EXISTIN G BUSINESS OF CONSTRUCTION IN THE FIELD OF HOSPITALITY BY SETTING UP/ RUNNING OF RESTAURANTS. THIS EXPENDITURE WAS CLAIMED AS REVENUE EXPENDITURE BY THE ASSESSEE, WHICH WAS DISALLOWED BY THE ASSESSING OFFICER BY TREATING THE SAME TO BE CA PITAL ASSET. LD. CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER AND ALLOWED T HE DEPRECIATION THEREON. FURTHER, THE APPEAL AGAINST THE ORDER OF LD. CIT(A) WAS UPHELD BY THE DELHI BENCH OF TRIBUNAL, IN APPEAL FOR THE ASSESSMENT YEA RS 2001-02, 2002-03 AND 2003-04, VIDE CONSOLIDATED ORDER DATED 09.09.2011 ( PLACED AT PAGES 17-43 OF PAPER BOOK-II DATED 03.03.2014). 7. IN ASSESSMENT YEAR 2002-03 BEFORE THE TRIBUNAL, THE ASSESSEE HAD TAKEN FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A)-I HAS ERRED IN TREATING THE EXPENSES OF RS.46,55,570/- IN CURRED ON CONSULTATION/ DEVELOPMENT FEE PAID TO FRANCHISER COMPANIES AS CAP ITAL EXPENDITURE AND IN NOT PROVIDING DEDUCTIONS AS REVENUE EXPENDITURE CLAIMED U/S 37(1) OF THE INCOME TAX ACT, 1961. THE ACTION OF THE CIT(A)-I BEING ARBITRARY, ERRONEO US, UNWARRANTED AND UNJUST MUST BE QUASHED WITH DIRECTIONS FOR RECKONING THE SAME A S REVENUE OUTGOING. 6 THE ASSESSEE HAD ALSO TAKEN FOLLOWING ADDITIONAL GR OUNDS OF APPEAL :- WITHOUT PREJUDICE THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE EXPENDITURE BY WAY OF PAYMENT OF RS.18,75,195/- TO RHW HOTEL MANAG EMENT SERVICES LTD. ON ACCOUNT OF CONSULTATION/ DEVELOPMENT FEES MAY KINDL Y BE DIRECTED TO BE ALLOWED AS DEDUCTION IN THE ASSESSMENT YEAR 2001-02. 8. THE TRIBUNAL CONFIRMED THE ORDER OF LD. CIT(A) O BSERVING AS UNDER :- 16.1 A PERUSAL OF THE FACTS CLEARLY SHOW THAT ASSE SSEE AND THE OPERATORS I.E. M/S RHW HOTEL MANAGEMENT SERVICES LTD., AGREED ON A FOR MULA FOR TWO TYPES OF FEE. THE AMOUNT IN QUESTION FOR A.Y. 2001-02 & 2002-03 WAS O N ACCOUNT OF PROVIDING OF TECHNICAL KNOW-HOW AND EXPERT KNOWLEDGE PRIOR TO TH E COMMENCEMENT. BY OWN ADMISSION OF ASSESSEE IT WAS NOT ENGAGED INTO HOSPI TALITY BUSINESS AND DIVERSIFIED FROM BUSINESS OF CONSTRUCTION OF BUILDINGS. IN THE SE CIRCUMSTANCES, WE SEE NO INFIRMITY IN THE ORDER OF CIT(A), HOLDING THAT THE RESTAURANT BUSINESS WAS A NEW BUSINESS AND EXPENDITURE WAS FOR SETTING UP THE SAM E AND THE EXPENSES WERE NOT ALLOWABLE AS BUSINESS IN NATURE. WE UPHOLD CIT(A) S ORDER. ASSESSEES GROUND NO.1 FOR A.Y. 2002-03 AND ADDITIONAL GROUND IN RESPECT O F ASSESSMENT YEARS 2001-02 & 2002-03 ARE DISMISSED. 9. LD. CIT(A)S ORDER IS PLACED AT PAGES 44 TO 59 O F PAPER BOOK-II AND AT PAGE 52 AFTER UPHOLDING THE ASSESSMENT ORDER, LD. C IT(A) DIRECTED THE ASSESSING OFFICER TO ALLOW DEPRECIATION AS PER RULES. THEREF ORE, IN VIEW OF AFOREMENTIONED DISCUSSION, THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEPRECIATION AS ALLOWED IN THE PAST. IN THE RESULT , GROUND NOS.2 AND 3 ARE ALLOWED FOR STATISTICAL PURPOSES. 10. APROPOS GROUND NOS.6 AND 7, LD. COUNSEL POINTED OUT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE VIDE LETTER DATED 21.12.2006, FILED REVISED COMPUTATION OF INCOME CLAIMING ADDITI ONAL TDS OF RS.50,192/-. THE CERTIFICATES WERE ALSO ANNEXED TO THE SAID LETT ER JUSTIFYING THE CLAIM MADE BY 7 THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER COMPL ETED THE ASSESSMENT U/S 143(3) OF THE ACT, WITHOUT ACKNOWLEDGING THE REVISE D CLAIM OF TDS MADE BY THE ASSESSEE. FURTHER, VIDE LETTER DATED 29.01.200 7 ASSESSEE ALSO FILED RECTIFICATION APPLICATION REQUESTING TO GIVE EFFECT TO THE AFORESAID TDS CLAIMED. HE SUBMITTED THAT LD. CIT(A) ALSO DID NOT CONSIDER THE AFORESAID REVISED COMPUTATION AND COMPLETED THE ASSESSMENT IN ACCORDA NCE WITH THE ORIGINAL RETURN FILED BY THE ASSESSEE. 11. AFTER HEARING BOTH THE PARTIES, WE FIND THAT BE FORE LD. CIT(A) THE ASSESSEE HAD TAKEN FOLLOWING SPECIFIC GROUND OF APPEAL :- (VI.III.II). THAT ON THE LAW, FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX HAS ERRED IN NOT GRANTING CREDIT OF TDS TO RS.1,43,215/- FILED VIDE ITS LETTER DATED 21 ST DECEMBER AND 29 TH DECEMBER, 2006 DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE COMPLETION OF ASSESSMENT U/S 139(5) OF THE ACT. 12. THIS GROUND HAS NOT BEEN ADJUDICATED BY LD. CIT (A) AND, THEREFORE, THIS ISSUE IS RESTORED BACK TO THE FILE OF LD. CIT(A) FO R ADJUDICATION. IN THE RESULT, THESE GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 13. GROUND NOS.8 TO 12 ARE IN RESPECT OF DISALLOWAN CE MADE U/S 80IB(10) OF THE ACT. BRIEF FACTS APROPOS THESE GROUNDS ARE THA T THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) AMOUNTING TO RS.2,12,84,740/ -. THE ASSESSING OFFICER DENIED THE ASSESSEES CLAM FOR THE FOLLOWING REASON S :- (A) THE ASSESSEE DID NOT SATISFY THE CONDITIONS CON TAINED IN CLAUSE (A) TO SECTION 80IB(10) BECAUSE THE PROJECTS COMMENCED CONSTRUCTION PRIOR TO 8 01.10.1998, BEING THE CUT-OFF DATE STIPULATED U/S 8 0IB(10) FOR CLAIMING DEDUCTION UNDER THAT SECTION. (B) THE ASSESSEE DID NOT FULFILL THE CONDITIONS LAI D DOWN IN CLAUSE (C) TO SECTION 80IB(10) BECAUSE MOST OF THE RESIDENTIAL UN IT WERE WITH BUILT-UP AREA EXCEEDING 1000 SQ. FEET, BEING THE SIZE OF HOU SING PROJECT STIPULATED U/S 80IB(10) FOR CLAIMING DEDUCTION UNDER THAT SECT ION. THE ASSESSING OFFICER OBSERVED AS UNDER :- IN REGARD TO CONDITION IN CLAUSE (C) OF SECTION 80 18(10) THAT THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT UP AREA OF 1000 SQ. FEET W ITHIN THE CITIES OF DELHI AND MUMBAI OR WITHIN TWENTY FIVE KILOMETERS FROM TH E MUNICIPAL LIMITS OF THESE CITIES, THE ASSESSEE FILED SANCTIONED PLAN ONLY IN RESPECT OF HOUSING PROJECT AT GHAZIABAD. A PERUSAL OF SAID SANCTION PLAN OF HOUSI NG PROJECT AT GHAZIABAD REVEALED THAT THE SIZE OF THE PLOT IS 200 SQ. METER (APPROX. 2000 SQ. FEET) AND PERMISSIBLE GROUND FLOOR COVERAGE IS 134 SQ. METER (APPROX. 1340 SQ. FEET) THIS FACT ITSELF INDICATES THAT MAXIMUM BUILT UP AR EA OF RESIDENTIAL UNIT PERMISSIBLE AS PER THE BUILDING BY-LAWS WAS BEYOND 1000 SQ. FEET. IN THE HOUSING PROJECT, GOLF LINK-II, ON ENQUIRY, IT WAS F OUND THAT TYPE C & E RESIDENTIAL UNITS WERE WITH BUILT UP AREA OF 1177 AND 1133 SQ. FEET RESPECTIVELY. ENQUIRY FURTHER REVEALED THAT THE ARIAL DISTANCE OF ALL THE THREE PROJECTS ARE WITHIN 25 KILOMETERS. SPCL. ENQUIRY OF AVANTIKA AKRITI HOU SING PROJECT AT GHAZIABAD REVEALED THAT MOST OF THE RESIDENTIAL UNI TS WERE WITH BUILT UP AREA EXCEEDING 1000 SQ. FEET AND SOME OF THEM WERE WITH TWO STOREYED CONSTRUCTION. THE ASSESSEE'S CLAIM THAT BUILT UP AREA OF RESIDENT IAL UNITS ARE LESS THAN 1000 SQ. FEET CANNOT BE ACCEPTED AS THE ASSESSEE HAS TAK EN THE AREA OF VARANDA AND OTHER PROJECTIONS AT 50% & 25 %. THE BUILT UP AREA HAS NOW BEEN DEFINED AND FINANCE (NO.2) ACT, 2002 HAS INSERTED CLAUSE (A) IN SUB SECTION 14 OF SECTION 80I8(10) DEFINING THE MEANING OF BUILT UP AREA AS U NDER:- 80IB(14)(A): 'BUILT-UP AREA' MEANS THE INNER MEASUR EMENTS OF THE RESIDENTIAL UNIT AT THE FLOOR LEVEL, INCLUDING THE PROJECTIONS AND BALCONIES, AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NO T INCLUDE THE COMMON AREA SHARED WITH OTHER RESIDENTIAL UNITS; THIS INSERTION IN SECTION 80IB IS CLARIFICATORY IN NATURE AND IS APPLICABLE FOR ALL PENDING PROCEEDINGS. THE DEFINITION OF BUILT UP AREA, SPOT ENQUIRIES MADE IN THE EARLIER YEAR, SCRUTINY OF SANCTIONED PLAN FI LED AND ALL OTHER FACTS PROVE BEYOND DOUBT THAT THE ASSESSEE DOES NOT FULFILL THE CONDITIONS IN REGARD TO MAXIMUM BUILT UP AREA AS LAID DOWN IN CLAUSE (C) OF SECTION 8018(10). 9 14. LD. CIT(A) CONFIRMED THE ASSESSING OFFICERS AC TION. LD. COUNSEL SUBMITTED THAT THIS ISSUE IS COVERED BY DECISION IN ASSESSEES OWN CASE IN ITA NOS.1922 & 1923/DEL/2005 FOR ASSESSMENT YEARS 2000- 01 & 2001-02 VIDE ORDER DATED 12 TH JUNE, 2009, WHEREIN, THE TRIBUNAL HAS HELD AS UNDE R :- 9. ON A CLOSE READING OF THE PROVISION OF THIS SEC TION, IT WOULD BE EVIDENT THAT THE DEDUCTION UNDER THIS SECTION IS AVAILABLE ON SATISF ACTION OF THE FOLLOWING CONDITIONS: I) THE PROJECT IS APPROVED BY A LOCAL AUTHORITY; II) THE SIZE OF THE PLOT OF LAND IS OF A MINIMUM 1 ACRE; III) THE RESIDENTIAL UNIT SHOULD HAVE A BUILT-UP AR EA NOT EXCEEDING 1,000 SQ. FT. ; IV) THE UNDERTAKING COMMENCES DEVELOPMENT AND CONST RUCTION OF THE HOUSING PROJECT ON OR AFTER 1 ST OCTOBER, 1998 V) THE UNDERTAKING COMPLETES THE DEVELOPMENT AND CO NSTRUCTION BEFORE 31 ST MARCH, 2001. 10. THERE IS NO DISPUTE AS REGARDS FIRST TWO CONDIT IONS, THAT THE PROJECT WAS APPROVED BY A LOCAL AUTHORITY AND THAT THE PROJECT WAS BEING DEVELOPED ON LAND EXCEEDING 1 ACRE. THIS ALSO STANDS CERTIFIED BY TH E AUDITORS AND DETAILS OF WHICH ARE AS UNDER: PROJECT SIZE OF THE LAND DATE OF APPROVAL OF LAY OU T PLAN OF RESIDENTIAL COLONY GOLF LINK I, GREATER NOIDA 100 ACRES 30 TH MAY 1997 GOLF LINK II GREATER NOIDA 38.86 ACRES 11 TH MARCH 1999 AVANTIKA AAKRITI 82.69 ACRES 14 TH OCTOBER, 1996 EAST END LONI 87.10 ACRES 16 TH JANUARY, 1999 11. THE FACT AND INFORMATION AS REGARDS THE THIRD C ONDITION I.E., THE BUILT UP AREA OF EACH RESIDENTIAL UNIT FORMING PART OF THE ELIGIB LE HOUSING PROJECTS, THE CALCULATION OF BUILT-UP AREA, ON THE BASIS OF WHICH PRICE AS CH ARGED FROM CUSTOMERS, AS REFLECTED IN THE DRAWINGS AS CERTIFIED BY THE ARCHITECT, WERE SUBMITTED BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAD COMPUTED SIZE OF EACH RES IDENTIAL FLAT BY TAKING 50% OF THE SIZE OF VERANDAH AND 25% OF PLATFORM BEING APPURTEN ANT TO THE FLAT. BY MAKING THE COMPUTATION AS ABOVE, THE SIZE OF EACH FLAT WORKED OUT TO LESS THAN 1,000 SQ FT. THIS CALCULATION WAS MADE ON THE BASIS OF AGREEMENT ENTE RED WITH CUSTOMERS AS ALSO CERTIFIED BY THE ARCHITECT. THE ASSESSING OFFICER I N THE ASSESSMENT PROCEEDINGS ACCEPTED THE CALCULATION OF BUILT UP AREA SO MADE B Y THE ASSESSEE IN THE ABSENCE OF 10 STATUTORY DEFINITION OF THE SAME. THE COMPLETION CE RTIFICATES OF THE RESIDENTIAL HOUSES PROVIDED BY THE RELEVANT AUTHORITY ALSO APPROVED TH E CONSTRUCTED AREA OF EACH HOUSE. THE LOCAL AUTHORITIES AS PER THE MUNICIPAL BYE LAWS DID NOT CONSIDER THE SIZE OF THE VERANDAH/PLATFORM OR ANY PROJECTION TO THE RESIDENT IAL UNIT AS PART OF THE BUILT UP AREA IN CASE SIZE OF SUCH PROJECTIONS HAVING WIDTH UP TO 1.00 METER. THE SIZE OF SUCH PROJECTIONS WAS COVERED WITHIN THE CONSTRUCTED/BUIL T UP AREA OF THE RESIDENTIAL UNIT, IF THE SAME EXCEEDED 1.00 METER. THE BUILT UP AREA AS PER THE COMPLETION CERTIFICATE IS LESS THAN 1000 SQFT IN ALMOST ALL THE CASES EXCEPT IN CASE OF FOLLOWING FEW HOUSES FORMING PART OF THE HOUSING PROJECT AT EAST END LON I AND AAVANTIKA AAKRITI: S.NO. ( AS PER RECONCILIATION) HOUSE NO. BUILT UP AREA AS PER COMPLETION CERTIFICATE. EAST END LONI 1. A/C 184 1397.49 2. A/C 185 1397.49 7. A/C 1890 1097.93 22 A/D 103 1255.94 23. A/D 104 1255.94 AAVANTIKA AAKRITI 5 AD0/047 1301.91 16 AD0/076 1301.91 66 BDO/269 1301.91 76 BDO/295 1301.91 145 DD1/009 1301.91 148 DD1/012 1301.91 12. SUBSEQUENT TO THE COMPLETION OF ASSESSMENT, THE DEFINITION OF BUILT UP AREA FOR THE PURPOSES OF SECTION 80-IB(10) OF THE ACT WAS IN SERTED IN CLAUSE (A) TO SUB-SECTION (14) THEREOF BY THE FINANCE (NO.2) ACT, 2004, WITH EFFECT FROM 1.4.2005. ASSESSMENT UNDER SECTION 143(3) WAS COMPLETED FOR THE ASSESSME NT YEAR 2000-01 ON 28.3.2003 AND FOR ASSESSMENT YEAR 2001-02 ON 26.3.2004, MUCH BEFORE THE INSERTION OF DEFINITION OF BUILT-UP AREA UNDER SECTION 80IB. THE AMENDMEN T INTRODUCED BY THE FINANCE (NO.2) ACT, 2004 FROM 1-4-2005, SEEMS TO BE SUBSTAN TIVE IN NATURE AND SHALL HAVE EFFECT FOR ASSESSMENT YEARS 2005-06 AND ONWARDS AND NOT PRIOR TO THAT. 13. DEDUCTION UNDER SECTION 80IB(10) OF THE ACT CLA IMED BY THE ASSESSEE, HOWEVER, IS TO BE DISALLOWED AS THE BUILT-UP AREA E XCEEDED 1000 SQ. FEET., AS POINTED ABOVE. EVEN IF SOME FLATS HAVE AREA EXCEEDING 1000 SQ. FEET, THAT WOULD NOT DISENTITLE THE ASSESSEE TO DEDUCTION AND THE PROPORTIONATE DED UCTION ON FLATS WHICH EXCEED THE STATUTORY LIMIT OF 1,000 SQ FT CAN ONLY BE DISALLOW ED, AS HELD IN BENGAL AMBUJA HOUSING DEVELOPMENTS LTD. (ITA NO.1735 AND 1595 /KO L)/07; II) DELHI IRON AND STEEL PVT. LTD. (ITA NO.497/DEL/07) AND III) DCIT VS. BRI GADE ENTERPRISES PVT. LTD (ITA NO.1198/BANG./2007 DATED 29.8.2009. ON THE BALANCE UNITS THE DEDUCTION IS TO BE ALLOWED. .. 11 17. RESPECTFULLY FOLLOWING THE AFORESAID THREE DECI SIONS, WE HOLD THAT THE DEDUCTION TO THE ASSESSEE CAN BE ALLOWED WITH RESPE CT TO THE UNITS WHICH DID NOT EXCEED THE STATUTORY LIMIT OF 1000 SQ.FT. AND THE A SSESSEE WOULD NOT BE ENTITLED TO REDUCTIONS OF THE BUILT UP AREA IN 5 HOUSES IN EAST END LONI AND 6 HOUSES IN AAVANTIKA AAKRITI, AS REFERRED TO IN PARAGRAPH 10 O F THE ORDER AFORESAID. WE ORDER ACCORDINGLY. 18. THE COMPLETION CERTIFICATES ISSUED BY THE RELEV ANT APPROVING AUTHORITIES CERTIFYING THE AREA CONSTRUCTED BY THE ASSESSEE WER E ALSO SUBMITTED BEFORE THE ASSESSING OFFICER. THEREFORE THE NEXT CONDITION OF COMPLETION OF HOUSING PROJECTS BEFORE MARCH 31, 2001, (AS EXTENDED TO MARCH 31, 20 03 BY THE FINANCE ACT, 2000 AND THEREAFTER REMOVED), WAS ALSO COMPLIED WITH. IN FAC T A QUERY TO THE AFORESAID EFFECT WAS SPECIFICALLY RAISED BY THE ASSESSING OFFICER, A ND REPLIED BY THE ASSESSEE VIDE LETTER DATED 15 MARCH 2003 DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2000-01 STATING THAT THE COMPLETION CERTIFICAT ION OF THE HOUSES THAT WERE COMPLETED AFTER THE EARLIER TIME LIMIT OF 31.3.01, BUT BEFORE THE COMPLETION OF ASSESSMENT FOR THE RELEVANT ASSESSMENT YEAR WERE PR ODUCED AND IT WAS HIGHLIGHTED THAT THE PROPOSED AMENDMENT IN SECTION 80-IB(10) SO UGHT TO TOTALLY REMOVE THE TIME LIMIT FOR COMPLETION OF HOUSING PROJECT BEFORE A PA RTICULAR DATE. IT CANNOT THEREFORE BE SAID NO ENQUIRIES WERE MADE BY AO MAKING THE ASSESS MENT ERRONEOUS NOR PREJUDICIAL AND THE CIT IS NOT RIGHT IN OBSERVING SO. 19. THE SUBMISSION OF THE ASSESSEE, AS REGARDS THE LAST CONDITION, THAT CONSTRUCTION OF THE HOUSING PROJECTS WAS TO COMMENCE ON OR AFTER 1.10.98, IS THAT THE DATE OF COMMENCEMENT OF CONSTRUCTION IS TO BE ADJUDGED AFTE R RECEIPT OF RELEVANT STATUTORY APPROVALS. ANY CONSTRUCTION CARRIED OUT BEFORE RECE IPT OF NECESSARY APPROVALS WOULD NOT BE AUTHORIZED. IN ANY CASE, THERE WAS ONLY SIT E DEVELOPMENT BY FILLING OF PITS, LEVELING OF LAND, CONSTRUCTION OF ROADS, WELLS, LAY ING OF SEWERAGE AND ELECTRICITY LINES, ETC. OUT OF THE FOUR HOUSING PROJECTS CONSTITUTING SUBJECT MATTER OF CONSIDERATION IN THE ASSESSMENT YEARS AND THERE IS NO DISPUTE AS REG ARDS COMMENCEMENT OF CONSTRUCTION WITH RESPECT TO TWO HOUSING PROJECTS, VIZ., GOLF LINK II AND EAST END LONI , WHICH COMMENCED AFTER 1.10.98. THE LAY OUT P LAN FOR THE CONSTRUCTION OF THE HOUSING COLONY, GOLF LINK II WAS APPROVED BY THE AP PROVING AUTHORITY ON 11TH MARCH 1999 ITSELF. SIMILARLY, LAY OUT PLAN FOR DEVELOPMEN T OF HOUSING COLONY AT EAST END LONI WAS APPROVED BY THE RELEVANT AUTHORITY ON 16TH JANUARY, 1999. AS REGARDS OTHER TWO HOUSING PROJECTS, VIZ., GOLF LINK I AND AVANTI KA AAKRITI, DATE OF CONSTRUCTION HAS TO BE SEEN FROM THE DATE WHEN THE CONSTRUCTION OF T HE BUILDING PLAN OF EACH HOUSE IS APPROVED BY THE RELEVANT AUTHORITY. THE ASSESSEE HA D SUBMITTED SEQUENCE OF EVENTS BETWEEN ASSESSEE AND THE APPROVING AUTHORITY, AS EL ABORATED ON PAGE 2-7 OF PAPER BOOK. THE RELEVANT CLAUSE OF BUILDING REGULATION PR OVIDES THAT CONSTRUCTION OF RESIDENTIAL BUILDING CAN BE COMMENCED AFTER SUBMISS ION OF THE BUILDING PLAN. IF WITHIN 30 DAYS OF THE RECEIPT OF SUCH PLAN NO ORDER, EITHE R SANCTIONING OR REFUSING SUCH BUILDING PLAN, IS PASSED BY THE APPROVING AUTHORITY , THE PLAN SHALL STAND SANCTIONED ON THE EXPIRY OF THE SAID 30TH DAY. THE APPROVING A UTHORITY HAS A RIGHT TO REFUSE/REJECT THE BUILDING PLAN SUBMITTED BY THE DEVELOPER AND IN THAT CASE, THE DEVELOPER WOULD NEED TO SUBMIT REVISED PLAN. ON A PERUSAL OF THE SE QUENCE OF EVENTS, WE FIND THAT BUILDING PLANS OF EACH HOUSE SUBMITTED BY THE ASSES SEE WERE NOT SANCTIONED AS SUCH BY THE RELEVANT AUTHORITY BEFORE 1.10.98. THE SAME WERE REJECTED AND TIME AND AGAIN MODIFICATIONS IN PLANS WERE PROPOSED BY THE AUTHORI TY. THE APPROVAL OF BUILDING PLAN WAS AFTER 1.10.98 EXCEPT FOR 26 HOUSES IN AVANTIKA AAKRITI PROJECT. 12 .......... 21. IN VIEW OF THE AFORESAID TWO DECISIONS, WE ARE OF THE OPINION THAT DEDUCTION UNDER SECTION 80-IB(10) HAS BEEN RIGHTLY ALLOWED ON HOUSING PROJECTS BECAUSE THE BUILDING PLANS OF THE RESIDENTIAL UNITS WERE APPROV ED AFTER 1.10.98 ONLY AND THE CONSTRUCTION HAS TO BE DEEMED TO HAVE BEEN COMMENCE D ON OR AFTER THE DATE OF APPROVAL ITSELF. .. 23. WE HOLD THEREFORE THAT CIT IS NOT RIGHT IN HOLD ING THAT AO FAILED TO MAKE ENQUIRIES OR TO APPLY HIS MIND AND ALLOWED DEDUCTIO N UNDER SECTION 80IB(10) OF THE ACT. WE THEREFORE VACATE HIS ORDER AND RESTORE THAT OF THE AO. IT IS, HOWEVER, EXCEPT FOR THE CONSTRUCTION FOUND TO BE IN EXCESS BUILT UP AREA OVER 1000 SQ. FT. AS AFORESAID AND IN RESPECT OF WHICH THE ASSESSEE WOULD NOT ENTI TLED TO DEDUCTION. 15. THUS, THE CLAIM HAD BEEN DENIED IN RESPECT OF U NITS MENTIONED IN PARA 11 OF THE ABOVE TRIBUNALS ORDER. LD. COUNSEL FURTHER POINTED OUT THAT THIS DECISION HAS BEEN APPROVED BY HONBLE DELHI HIGH COURT WHERE IN IT HAS BEEN HELD AS UNDER :- 14. WE ARE NOT PERSUADED TO TAKE A VIEW DIFFERENT FROM THE VIEW TAKEN BY THE TRIBUNAL. A CLEAR FINDING WAS RECORDED BY THE TRIB UNAL THAT THE ASSESSEE HAD FILED THE DETAILS AND CALCULATIONS ABOUT THE BUILT-UP AREA OF THE RESIDENTIAL UNITS. IT WOULD BE UNREASONABLE TO HOLD THAT THE ASSESSING OFFICER IGN ORED THOSE DETAILS. MOREOVER THE STATUTORY AUDITORS HAD CLEARLY MENTIONED THE DATES OF APPROVAL OF THE LAY OUT PLAN OF THE RESIDENTIAL COLONIES. THE ASSESSING OFFICER WA S THUS MADE AWARE OF THE DATES ON WHICH THE APPROVALS WERE GRANTED IN RESPECT OF EACH OF THE FOUR HOUSING PROJECTS. THE MORE IMPORTANT ASPECT WAS THE APPLICABILITY OF CLAU SE (A) OF SECTION 80IB(10). ON THIS ASPECT THE TRIBUNAL HELD THAT ANY CONSTRUCTION CARR IED OUT BEFORE THE RECEIPT OF NECESSARY APPROVALS WOULD BE UNAUTHORIZED AND COULD NOT BE RECOGNIZED. IT WAS FOUND BY THE TRIBUNAL THAT IN ANY CASE THERE WAS ON LY SITE DEVELOPMENT BY FILLING OF PITS, LEVELING OF LAND, CONSTRUCTION OF ROADS; WELL S, LAYING OF SEWERAGE AND ELECTRICITY LINES ETC. FURTHER THERE WAS NO DISPUTE REGARDING T HE DATE OF COMMENCEMENT OF CONSTRUCTION WITH RESPECT TO THE PROJECTS, NAMELY, GOLF LINK-IL AND EAST END LONI. THE TRIBUNAL HAS FOUND THAT BOTH THESE PROJEC TS COMMENCED AFTER 1 ST OCTOBER, 1998. WITH REGARD TO THE OTHER TWO PROJECT S, NAMELY, GOLF LINK-I AND AVANTIKA AKRUTI, THE TRIBUNAL HELD THAT THE DATE OF COMMENCEMENT OF CONSTRUCTION HAD TO BE RECKONED FROM THE DATE WHEN THE CONSTRUCTION OF THE BUILDING PLAN OF EACH PROJECT WAS APPROVED BY THE C ONCERNED AUTHORITY. ON EXAMINATION OF THE DETAILS OF THE CHRONOLOGICAL EVE NTS FURNISHED BY THE ASSESSEE, IT WAS HELD BY THE TRIBUNAL THAT THE BUILDING PLANS OF EACH HOUSE SUBMITTED BY THE ASSESSEE WERE NOT SANCTIONED AS SUCH BY THE COM PETENT AUTHORITY BEFORE 1 ST OCTOBER, 1998. THEY WERE REJECTED AND TIME AND AGAI N MODIFICATIONS WERE 13 PROPOSED BY THE AUTHORITY; FINALLY THE APPROVALS OF THE BUILDING PLANS WERE ISSUED AFTER 1 ST OCTOBER, 1998, EXCEPT FOR 26 HOUSES IN AVANTIKA AK RUTI PROJECT. THE TRIBUNAL HAS ALSO REFERRED TO CERTAIN ORDERS OF THE PUNE AND BOMBAY BENCHES OF THE TRIBUNAL WHERE THE DATE OF APPROVAL BY THE COMPETENT AUTHORITY WAS CONSIDERED CRUCIAL TO DETERMINE THE DATE OF COM MENCEMENT OF DEVELOPMENT OR CONSTRUCTION. THIS DISCUSSION OF THE TRIBUNAL SH OWS THAT THE DETERMINATION OF THE QUESTION AS TO WHEN THE UNDERTAKING COMMENCED D EVELOPMENT AND CONSTRUCTION, IN THE ABSENCE OF ANY STATUTORY PRESC RIPTION, HAS TO BE DECIDED IN A PRAGMATIC AND REASONABLE WAY. IT WOULD HAVE BEEN AN ENTIRELY DIFFERENT ISSUE HAD THERE BEEN A STATUTORY PRESCRIPTION OF WHAT WOU LD BE THE DATE OF COMMENCEMENT OF CONSTRUCTION OR DEVELOPMENT. IT IS CERTAINLY A DEBATABLE ISSUE ON WHICH MORE THAN ONE PLAUSIBLE VIEW IS REAS ONABLY POSSIBLE AND MERELY BECAUSE THE ASSESSING OFFICER HAS TAKEN ONE PLAUSIB LE VIEW, IT CANNOT BE SAID THAT THE ASSESSMENT IS ERRONEOUS OR PREJUDICIAL TO THE INTER EST OF THE REVENUE. THIS POSITION STANDS WELL SETTLED BY THE JUDGMENTS OF THE SUPREME COURT CITED SUPRA. THE TRIBUNAL APPLIED THE TESTS LAID DOWN IN THESE JUDGMENTS TO THE CASE. 16. LD. COUNSEL FURTHER REFERRED TO THE DECISION OF HONBLE DELHI HIGH COURT IN ASSESSEES OWN CASE IN ITA NOS.210, 214, 215 & 2 50/2012, ORDER DATED 19.07.2013 IN REGARD TO REGULAR ASSESSMENTS FOR ASS ESSMENT YEARS 2000-01 AND 2001-02, WHEREIN, THE HONBLE DELHI HIGH COURT HELD IN PARA 3 AS UNDER :- 3. IN VIEW OF ABOVE OBSERVATIONS WHICH ALSO INDICA TES THAT THIS COURT WAS SATISFIED THAT APPROVAL OF THE BUILDING PLANS WERE ISSUED AFTER 1.10.1998 EXCEPT IN RESPECT OF 26 HOUSES IN AVANTIKA AAKRUTI PROJECT, T HIS COURT IS NOT PERSUADED THAT ANY SUBSTANTIAL QUESTION OF LAW ARISES AND IS NOT INCLI NED TO TAKE A DIFFERENT VIEW FROM THE ONE TAKEN IN ITA 480/2010, 485/2010 AND 437/2011. THE REVENUES APPEAL SO FAR AS THEY URGED THIS GROUND IS INSUBSTANTIAL AND, THEREF ORE, REJECTED. 17. IN VIEW OF THE ABOVE DECISION, LD. COUNSEL SUBM ITTED THAT PROJECTS COVERED ARE EAST END LONI, AVANTIKA, AAKRITI, GOLF LINK I A ND GOLF LINK II. HE SUBMITTED THAT THE FOLLOWING FACTS STAND CONFIRMED :- (A) THE CONSTRUCTION OF ALL THE HOUSING PROJECTS EF FECTIVELY COMMENCED AFTER THE STATUTORY DATE OF 01.10.1998 AND, THEREFO RE, DEDUCTION U/S 80IB(10) WAS RIGHTLY CLAIMED AND ALLOWED IN THE ORI GINAL ASSESSMENT 14 PROCEEDINGS, EXCEPT 26 HOUSES IN AVANTIKA AAKRITI P ROJECTS AND, THEREFORE, PROPORTIONATE DEDUCTION WAS ALLOWED. (B) THE BUILT-UP AREA OF HOUSES IN THE PROJECT, EXC EPT 5 HOUSES IN EAST END LONI AND 6 HOUSES IN AAVANTIKA AAKRITI, DID NOT EXCEED THE STATUTORY LIMIT OF 1000 SQ. FT., AS PER THE COMPLETION CERTIF ICATE ISSUED BY THE APPROPRIATE AUTHORITY AND, THEREFORE, DEDUCTION COU LD NOT BE DISALLOWED IN RESPECT OF SUCH HOUSES. LD. COUNSEL FURTHER REFERR ED TO THE DECISION OF THE TRIBUNAL FOR ASSESSMENT YEARS 1999-2000, 2001-02 TO 2003-04 VIDE ITA NOS.4277/DEL/2009, 4817/DEL/2005, 3304/DEL/2007 DAT ED 19.07.2013 AND ITA NO.3192/DEL/2008 AND 4595/DEL/2005 DATED 03 .03.2014. HE REFERRED TO PARA 5 OF THE TRIBUNALS ORDER, WHEREIN , FOLLOWING THE DECISION FOR ASSESSMENT YEAR 2000-01 AND 2001-02, TRIBUNAL H AS UPHELD THE ORDER OF LD. CIT(A) FOR ALL THE THREE YEARS. HE POINTED OUT THAT THE PROJECTS COVERED BY THIS DECISION WERE EAST END LONI, AS UND ER :- 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENT OF THE LEA RNED COUNSEL FOR THE ASSESSEE THAT THE ISSUE IN QUESTION, IN RESPECT OF PROJECTS - GOL F LINK I & II, GREATER NOIDA AND AVANTIKA AAKRITI, IS COVERED BY EARLIER ORDERS DATE D 12-6-2009 OF THE ITAT IN ASSESSEE'S OWN CASE IN ITA NOS. 1922 & 1923/DEL/200 5 FOR A.Y. 2000-01 AND 2001- 02, INTER ALIA, GIVING FOLLOWING OBSERVATIONS: '17. RESPECTFULLY FOLLOWING THE AFORESAID THREE DEC ISIONS, WE HOLD THAT THE DEDUCTION TO THE ASSESSEE CAN BE ALLOWED WITH RESPE CT TO THE UNITS WHICH DID NOT EXCEED THE STATUTORY LIMIT OF 1000 SQ. FT. AND THE ASSESSEE WOULD NOT BE ENTITLED TO REDUCTIONS OF THE BUILT UP AREA IN 5 HO USES IN EAST END LONI AND 6 HOUSES IN AVANTIKA AAKRITI, AS REFERRED TO IN PARAG RAPH 10 OF THE ORDER AFORESAID. WE ORDER ACCORDINGLY. .... 15 21. IN VIEW OF THE AFORESAID TWO DECISIONS, WE ARE OF THE OPINION THAT DEDUCTION UNDER SECTION 80-IB(10) HAS BEEN RIGHTLY ALLOWED ON HOUSING PROJECTS BECAUSE THE BUILDING PLANTS OF THE RESIDEN TIAL UNITS WERE APPROVED AFTER 1.10.98 ONLY AND THE CONSTRUCTION HAS TO BE D EEMED TO HAVE BEEN COMMENCED ON OR AFTER THE DATE OF APPROVAL ITSELF. 22. IT SHOULD NOT BE LOST SIGHT THAT THESE ARE THE REVISION PROCEEDINGS AND IN SUCH PROCEEDINGS THE ALLOWANCE OF DEDUCTION UNDE R SECTION 80IB(10) TO THE ASSESSEE COULD NOT BE REVISED AS THE ISSUE IN ANY C ASE, WAS DEBATABLE AND ONE OF THE POSSIBLE VIEWS WAS TAKEN BY THE ASSESSING OF FICER WHILE GRANTING DEDUCTION TO THE ASSESSEE. IT WAS ALSO ALLOWED BY T HE CIT(APPEALS) IN THE SUCCEEDING ASSESSMENT YEARS VIZ. 2002-03 AND 2003-0 4. THE REVISION OF IMPUGNED ASSESSMENT ORDERS AS SOUGHT TO BE MADE BY THE CIT, WHILE EXERCISING JURISDICTION UNDER SECTION 263, WOULD IN SUCH A CASE BE MERELY A DIFFERENCE OF OPINION AND HENCE NOT AMENABLE TO THE REVISION JURISDICTION UNDER SECTION 263 OF THE ACT, IN VIEW OF SUPREME CO URT DECISION IN THE CASES OF MALABAR INDUSTRIAL CO. LTD. VS. CIT 243 ITR 83(SC) AS ALSO LATER DECISION IN CIT V. MAX INDIA LTD . 295 ITR 282 (SC). 23. WE HOLD THEREFORE THAT CIT IS NOT RIGHT IN HOLD ING THAT AO FAILED TO MAKE ENQUIRIES OR TO APPLY HIS MIND AND ALLOWED DED UCTION UNDER SECTION 80IB(10) OF THE ACT. WE THEREFORE VACATE HIS ORDER AND RESTORE THAT OF THE AO. IT IS, HOWEVER, EXCEPT FOR THE CONSTRUCTION FOUND T O BE IN EXCESS BUILT UP AREA OVER 1000 SQ. FT. AS AFORESAID AND IN RESPECT OF WH ICH THE ASSESSEE WOULD NOT ENTITLED TO DEDUCTION.' 5.1. RESPECTFULLY FOLLOWING THE ITAT ORDER IN ASSES SEE'S OWN CASE, WE UPHOLD THE ORDER OF CIT(A) ON THIS ISSUE. IN THE RESULT, REVEN UE'S APPEAL BEING ITA NO. 4277/DEL/09 FOR A.Y. 1999-2000 IS DISMISSED. ITA NO . 3192/DEL/08 (ASSESSEE'S APPEAL FOR A.Y. 2001-02: 18. LD. COUNSEL POINTED OUT THAT AS FAR AS PROJECTS GREEN GRADE I AND GREEN GRADE II ARE CONCERNED, THE SAME COMMENCED IN ASSES SMENT YEAR 2003-04 AND, THEREFORE, THERE WAS NO DISPUTE REGARDING ITS COMME NCEMENT PRIOR TO 01.10.1998. IN THIS REGARD, LD. COUNSEL REFERRED T O PAGE 42 OF PAPER BOOK-II, WHEREIN, THE TRIBUNALS ORDER IN ITA NO.3304/DEL/20 07 FOR ASSESSMENT YEAR 2003-04 IS CONTAINED, WHEREIN, THE GROUND RAISED BY THE REVENUE BEFORE THE TRIBUNAL WAS AS UNDER :- 16 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB(10) OF THE I.T. ACT, 1961 A MOUNTING TO RS.3,34,10,717/-. 19. THE TRIBUNAL RECORDED FOLLOWING FINDING IN PARA 34 OF ITS ORDER AS UNDER :- 34. APROPOS GROUND NO.3 I.E. DEDUCTION U/S 80-IB(1 0), FOLLOWING THE EARLIER HISTORY OF ITAT JUDGMENTS IN ASSESSEES OWN CASE, WE UPHOLD THE ORDER OF CIT(A) ALLOWING DEDUCTION U/S 80-IB(10) TO THE ASSESSEE. 20. IN REGARD TO GREEN GLADE-I PROJECT, LD. COUNSEL REFERRED TO REPORT IN FORM NO.10CCB CONTAINED AT PAGE 148 OF PAPER BOOK, WHERE IN, DATE OF COMMENCEMENT OF OPERATION HAS BEEN MENTIONED AS UND ER :- DEVELOPMENT OF THE TOWNSHIP PROJECT OF WHICH THE S AID HOUSING PROJECT IS PART, COMMENCED IN THE FINANCIAL YEAR 1996-97. CONSTRUCT ION OF HOUSES COMMENCED IN THE FINANCIAL YEAR 2001-02. THE INITIAL ASSESSMENT YEA R FROM WHEN CLAIM WAS BEING CLAIMED HAS BEEN REFERRED TO AS ASSESSMENT YEAR 200 3-04 21. LD. COUNSEL REFERRED TO PAGE 152A, WHEREIN, THE APPROVAL FOR ERECTION OF RESIDENTIAL BUILDING-8, GOLF LINK-I, GREATER NOIDA IS CONTAINED. HE FURTHER REFERRED TO PAGE 153, WHEREIN, THE PROFITABILITY RE GARDING GREEN GLADE-I AS ON 31.03.2004 HAS BEEN COMPUTED. LD. COUNSEL FURTHER REFERRED TO PAGE 156 OF PAPER BOOK, WHEREIN, THE FORM NO.10CCB IN REGARD TO GREEN GLADE-II (GOLF LINK-II) HOUSING PROJECT IS CONTAINED, WHEREIN, THE DATE OF COMMENCEMENT OF OPERATION BY UNDERTAKING HAS BEEN INDICATED :- DEVELOPMENT OF THE TOWNSHIP PROJECT OF WHICH THE S AID HOUSING PROJECT IS PART COMMENCED IN THE FINANCIAL YEAR 1996-97. CONSTRUCT ION OF HOUSES COMMENCED IN THE FINANCIAL YEAR 2001-02 AND THE INITIAL ASSESSMENT Y EAR FROM WHEN CLAIM WAS MENTIONED IN ASSESSMENT YEAR 2003-04 17 22. FROM THE ABOVE ORDERS, LD. COUNSEL SUBMITTED TH AT ALL THESE PROJECTS HAVE BEEN CONSIDERED VIZ. EAST END LONI, AVANTIKA AAKRIT I, GOLF LINK-I, GOLF LINK- II, GREEN GLADE-I AND GREEN GLADE-II. LD. COUNSEL POINTED OUT THAT AS FAR AS GREEN GLADE-I AND GREEN GLADE-II PROJECTS ARE CONCE RNED THEY ARE SECOND PHASE OF CONSTRUCTION OF HOUSING PROJECT IN GOLF LINK-I A ND GOLF LINK-II RESPECTIVELY. PERMISSION FOR ERECTION OF RESIDENTIAL HOUSES IN TH E AFORESAID PROJECTS WAS GRANTED ON 31.03.2001 AND 01.05.2002 RESPECTIVELY A ND, THEREFORE, THE QUESTION OF SAID PROJECTS NOT SATISFYING THE CONDITION OF SE CTION 80IB(10) DOES NOT ARISE. HE FURTHER POINTED OUT THAT THE BUILT-UP AREA OF EA CH HOUSE IN THE AFORESAID PROJECTS WAS LESS THAN 1000 SQ.FT.. HE POINTED OUT THAT THE DEDUCTION U/S 80IB(10) FOR THE AFORESAID PROJECTS WAS DISALLOWED WITHOUT GOING INTO THE DETAILS OF SATISFACTION OF AFORESAID VARIOUS CONDITIONS BY SIMPLY FOLLOWING THE ASSESSMENT ORDER FOR THE EARLIER YEARS. HE SUBMITT ED THAT THE DEDUCTION FOR THE AFORESAID PROJECTS WAS ALSO CLAIMED IN THE ASSESSME NT YEAR 2003-04 WHICH HAS BEEN UPHELD IN THE ORDER PASSED BY THE ITAT FOR THA T YEAR WHICH HAS BEEN SUBSEQUENTLY CONFIRMED BY HONBLE HIGH COURT. LD. COUNSEL FURTHER SUBMITTED THAT IN SO FAR AS THE ISSUE REGARDING NON-FILING OF COMPLETION CERTIFICATE IS CONCERNED, THE REQUIREMENT OF COMPLETION OF ELIGIBL E PROJECTS PRIOR TO THE SPECIFIED DATE AND, CONSEQUENTIALLY, REQUIREMENT OF OBTAINING CERTIFICATE WAS INTRODUCED U/S 80-IB(10) BY THE FINANCE (NO.2) ACT, 2004 W.E.F. 01.04.2005. HE SUBMITTED THAT CONSIDERING THE PROJECTS UNDER CO NSIDERATION STARTED PRIOR TO 18 01.04.2005, THE AFORESAID AMENDMENT BEING PROSPECTI VE IN NATURE, WAS NOT APPLICABLE FOR COMPUTATION OF DEDUCTION U/S 80IB(10 ). IN THIS REGARD, HE HAS PLACED RELIANCE ON THE FOLLOWING DECISIONS :- CIT V. SARKAR BUILDERS: 375 ITR 392 (SC) CIT V. VEENA DEVELOPERS: 277 CTR 297 (SC) CIT V. CHD DEVELOPERS LTD.: 362 ITR 177 (DEL.), (AS SESSMENT YEAR INVOLVED WAS A Y 2007-08) CIT V. HAPPY HOME ENTERPRISES & KANAKIA SPACES PVT. LTD.: ITA NO. 201 & 308/2012 (BORN. HC) CIT V. ITTINA PROPERTIES (P) LTD.: I.T.A. NOS. 556 OF 2013 (KAR,)(HC) (ASSESSMENT YEAR INVOLVED WAS A Y 2004-05 TO 2007-0 8) BHUMIRAJ HOMES LTD V DY CIT: 11 ITR(TRIB.) 699: (MU M) (TRIB) DCIT V. M/S SHAH BUILDERS & DEVELOPERS: ITA NO. 3195 & 3I96/MURN/2010 (DATED: MAY 6, 2011) (MUM. TRIB.) ITO V. VELENTINE DEVELOPERS: ITA NO. 6901 & 8469/MUM/2010 (MUM. TRIB.) / 31 ITR( TRIB) 452: A Y 2006-07 AND 2007-08 HAWARE CONSTRUCTIONS (P ) LTD V. ITO ( 2011) 64 DTR 251 ( MUM) (TRIB) ACIT V. MAGNETE ENTERPRISES: ITA NO. 5802/MUM/2012 (MUM. TRIB.) ITO V. YASH DEVELOPERS: ITA NOS. 809/MUM/ 2011 & 3644/MUM/2012 (MUM. TRIB.) RAJ REALITY V. DCIT: 152 ITD 716 (INDORE TRIB.) ITO V. KURA HOMES P. LTD.: 151 ITD 31 (HYD. TRIB.) DCIT V. MANGALAM ESTATES: 148 ITD 446 (CHENNAI TRIB .) ACIT V. STERLING ESTATES & PROPERTIES: ITA NO. 316, 336/ MDS/2013 (MAD. TRIB.) 23. HE, THEREFORE, SUBMITTED THAT CONDITIONS OF FIL ING THE COMPLETION CERTIFICATE OF ALL THE PROJECTS IS NOT RELEVANT FOR THE PURPOSE OF CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT FOR THE PROJECTS UNDER CONSIDERATION. LD. COUNSEL FURTHER SUBMITTED THAT ANALOGY CAN BE DRAWN FROM THE FOLLOWING CASES RENDERED IN THE CONTEXT OF INSERTION OF DEFINITION OF BUILT-UP AREA OR STATUTORY LIMIT ON COMMERCIAL AREA BY THE SAME ACT W.E.F. 01. 04.2005, WHEREIN, IT HAS BEEN HELD THAT, THE AFORESAID AMENDMENT BEING PROSP ECTIVE IN NATURE, WILL NOT 19 APPLY, WHILE COMPUTING THE DEDUCTION ON PROJECT APP ROVED PRIOR TO THE AFORESAID DATE, NOTWITHSTANDING THE ASSESSMENT YEAR INVOLVING THE CLAIM OF DEDUCTION AS UNDER :- BRAHMA ASSOCIATES V. JCIT 333 ITR 289 (BOM.) CIT V. JOGANI CONSTRUCTIONS: 217 TAXMAN 95 (BOM. HC ) CIT V. SHREENATHJI CONSTRUCTIONS: 220 TAXMAN 154 (G UJ. HC) MANAN CORPORATION V. ACIT: 255 CTR 415 (GUJ. HC) (A Y 2006-07) ITO VS. CHHEDA CONSTRUCTION CO.: ITA NO. 2764/MUM/2 009 (MUM. TRIB.) (A Y2005-06) BHUMIRAJ HOMES LTD V DY CIT: II ITR(TRIB.) 699: (MU M) (TRIB) ITO V. YASH DEVELOPERS: ITA NOS. 809/MUM/ 2011 & 36 44/ MUM/2012 (MUM. TRIB.) (AY 2007-08 & 2008-09) DCIT V. M/S SHAH BUILDERS & DEVELOPERS: ITA NO. 6250/MUM12010 (AY 2007- 08) ITO V. VELENTINE DEVELOPERS: ITA NO. 6901 & 8469/MU M/2010 (MUM. TRIB.) / 31 ITR(TRIB) 452: A Y 2006-07 AND 2007-08 HAWARE CONSTRUCTIONS (P) LTD V. ITO (2011) 64 DTR 2 51 (MUM) (TRIB) ACIT V. MAGNETE ENTERPRISES: ITA NO. 5802/MUM/2012 (MUM. TRIB.) DCIT V. MANGALAM ESTATES: 37 TAXMANN.COM 288 (MAD. TRIB.) (AY 2004-05 TO 2008-09) ACIT V. STERLING ESTATES & PROPERTIES: ITA NO. 316, 336/ MDS/2013 (MAD. TRIB.) 24. LD. COUNSEL FURTHER SUBMITTED THAT, IN ANY VIEW OF THE MATTER, ALL THE PROJECTS WERE COMPLETED BEFORE THE TERMINAL DATE OF COMPLETION AND COMPLETION CERTIFICATES WERE ALSO RECEIVED FOR THE MAJORITY OF THE UNITS/HOUSES. THEREFORE, DEDUCTION COULD NOT BE DENIED IN RESPECT OF THESE U NITS. AS REGARDS THE BALANCE UNITS, LD. COUNSEL POINTED OUT THAT THE ASSESSEE HA D FILED THE APPLICATION FOR OBTAINING OF COMPLETION CERTIFICATE AFTER THE COMPL ETION OF THE UNIT/ HOUSE AND COMPLETION CERTIFICATE WAS NOT ISSUED BY THE LOCAL AUTHORITY. HE POINTED OUT THAT AS PER THE APPLICABLE LAWS, IF NO OBJECTION IS POIN TED OUT BY THE LOCAL AUTHORITY WITHIN 45 DAYS FROM THE DATE OF FILING THE APPLICAT ION, THE COMPLETION CERTIFICATE 20 WILL BE DEEMED TO HAVE BEEN ISSUED. HE, THEREFORE, SUBMITTED THAT THIS CONDITION WAS ALSO SATISFIED IN ASSESSEES CASE. HE PLACED R ELIANCE ON THE FOLLOWING DECISIONS FOR THE PROPOSITION THAT IF THE COMPLETIO N CERTIFICATE HAS BEEN ISSUED SUBSEQUENTLY, THE SAME WOULD RELATE BACK TO THE ACT UAL DATE OF COMPLETION :- TARNETAR CORPORATION: 362 ITR 174/210 TAXMAN 206 (G UJ. HC) CIT V. ITTINA PROPERTIES: ITA NOS. 556/2013/227 TAXMAN 236 (MAG.) [TS-461- HC-2014 (KAR HC)] SANGHVI & DOSHI ENTERPRISE V. ITO: 141 TTJ I (CHENN AI 'A')(TM) [CONFIRMED BY MADRAS HIGH COURT @ 255 CTR 156 (MAD.)] GLOBAL REALITY V. ITO (2002) 134 ITO 407 (INDORE)(T RIB.) D. K. CONSTRUCTION VS. ITO, ITA NO. 243/IND/2010 , DT. 6.12.2010, ITAT INDORE BENCH, BCAJ P. 24, VOL. 42-B, PART 5, FEBRUARY 2011 . (TRIB.) RNS INFRASTRUCTURE LTD. V. DY. CIT: [2012] 54 SOT 9 4 (BANGALORE -TRIB.) SIDDHIVINAYAK KOHINOOR VENTURE [TS-590-ITAT-2013(PU N)]/159 TTJ 390 25. LD. DR RELIED ON THE ORDER OF LD. CIT(A). 26. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORD OF THE CASE. SECTION 80IB(10) PRIOR TO ITS SUBSTITUTION BY THE FINANCE (NO.2), 2004 W.E.F. 01.04.2005 AS AMENDED BY THE FI NANCE ACT, 2000 W.E.F. 01.04.2001 AND FINANCE ACT, 2003 W.E.F. 01.04.2002 READ AS UNDER :- (10) THE AMOUNT OF PROFITS IN CASE OF AN UNDERTAKI NG DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE THE 31 ST DAY OF MARCH, 2005 BY A LOCAL AUTHORITY, SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF,- 27. AS PER EXPLANATION TO SECTION 80IB(10), THE DAT E 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 P ROJECT IS ISSUED BY THE LEGAL AUTHORITY. THE FIRST OBJECTION RAISED BY THE ASSES SING OFFICER WAS THAT THE 21 DEVELOPMENT AND CONSTRUCTION HAD ALREADY COMMENCED PRIOR TO 01.10.1998. THIS OBJECTION WAS CONFIRMED BY LD. CIT(A). AS FAR AS THIS OBJECTIONS IS CONCERNED, WE FIND THAT THIS ISSUE IS COVERED BY OR DER DATED 24.09.2012 OF HONBLE DELHI HIGH COURT IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2000-01 AND 2001-02 PROJECTS COVERED EAST END LONI, AVANTIKA AAKRITI, GOLF LINK-I, GOLF LINK-II, GREEN GLADE-I AND GREEN GLADE -II. FURTHER, BY TRIBUNALS ORDER IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEA RS 1999-2000, 2002-03 AND 2003-04 VIDE ITA NOS.4277/DEL/2009, 4817/DEL/2005, 3304/DEL/2007 DATED 19.07.2013 AND ITA NO.3192/DEL/2008 AND 4595/DEL/20 05 DATED 03.03.2014, THIS ISSUE IS COVERED IN RESPECT OF FOLLOWING PROJE CTS EAST END LONI, AVANTIKA AAKRITI, GOLF LINK-I, GOLF LINK-II, GREEN GLADE-I A ND GREEN GLADE-II. 28. AS FAR AS PROJECTS GREEN GLADE-I AND GREEN GLAD E-II ARE CONCERNED, THE ASSESSEE HAS POINTED OUT THAT THEY ARE SECOND PHASE OF CONSTRUCTION OF HOUSING PROJECT IN GOLF LINK-I AND GOLF LINK-II RESPECTIVEL Y. LD. COUNSEL POINTED OUT THAT THE PERMISSION FOR ERECTION OF RESIDENTIAL HOU SES IN THE AFORESAID PROJECTS WAS GRANTED ON 31 ST MARCH, 2001 AND 04 TH MAY, 2002 RESPECTIVELY AND, THEREFORE, THE QUESTION OF SAID PROJECTS NOT SATISF YING THE CONDITIONS OF CLAUSE (A) OF SECTION 80IB(10) DOES NOT ARISE. THESE FACTS AR E NOT CONTROVERTED BY THE LD. DR AND, THEREFORE, THERE COULD NOT BE ANY DISPUTE A S REGARDS NON-COMPLIANCE OF CLAUSE (A) TO SECTION 80IB(10). NOW, COMING TO THE SECOND GROUND FOR REJECTION OF ASSESSEES CLAIM ON THE GROUND OF SOME UNITS BEI NG OF MORE THAN 1000 SQ.FT., 22 WE FIND THAT THIS ISSUE HAS ALSO BEEN CONSIDERED IN EARLIER YEARS APPEAL AND PROPORTIONATE DEDUCTION WAS ALLOWED. THEREFORE, FO R THE SAKE OF BREVITY, WE DO NOT REPEAT THE SAME. AS FAR AS THE THIRD ISSUE REG ARDING NON-FULFILLING OF THE CONDITION OF COMPLETION OF UNITS IS CONCERNED, THE CONTENTION OF LD. COUNSEL IS THAT THE AMENDMENT IS PROSPECTIVE. HOWEVER, HE HAS ALSO POINTED OUT THAT IN THE CASE OF ASSESSEE, ALL THE PROJECTS WERE COMPLETED B EFORE THE TERMINAL DATE OF COMPLETION AND COMPLETION CERTIFICATE WERE ALSO REC EIVED FOR MAJORITY OF THE UNITS/HOUSES. THEREFORE, WE DO NOT CONSIDER IT NEC ESSARY TO GO INTO THE ISSUE REGARDING AMENDMENT BEING PROSPECTIVE OR NOT. THE CLAIM OF ASSESSEE IS THAT ACTUALLY IT HAS COMPLIED WITH THE CONDITION AS PER AMENDED PROVISIONS. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THIS ASPECT AND ALLOW THE CLAIM IN ACCORDANCE WITH LAW. IN THE RESULT, THIS GROUND IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 29. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1254/DEL/2009 (A.Y. 2005-06) : 30. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 23.01.2009 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 1, NEW DELHI, U/S 143(3) OF THE ACT RELATING TO ASSESSMENT YEAR 2005-06. 23 31. THE ASSESSEE HAD FILED RETURN OF INCOME DECLARI NG TOTAL INCOME OF RS.5,35,53,249/-. THE BUSINESS ACTIVITIES OF THE A SSESSEE COMPANY DURING THE YEAR CONTINUED TO BE THE SAME AS IN EARLIER YEARS I .E. REAL ESTATE, DEVELOPMENT OF MINI TOWNSHIPS, PROMOTION, DEVELOPMENT AND CONSTRUC TION OF HOUSES, FLATS, VILLAS AND COMMERCIAL COMPLEXES, ETC.. THE ASSESSI NG OFFICER NOTICED THAT ASSESSEE WAS THE OWNER AND WAS HAVING POSSESSION OF VARIOUS COMMERCIAL AND RESIDENTIAL FLATS AND SPACES ETC. WHICH WERE LYING IN ITS STOCK IN TRADE AS ON 31 ST MARCH, 2003. HE NOTED THAT THE ASSESSEE HAD NOT DI SCLOSED ANY INCOME FROM HOUSE PROPERTY IN RESPECT OF THESE PROPERTIES. THE ASSESSEE IN ITS REPLY SUBMITTED THAT THE SPACES/FLATS FORM PART OF STOCK IN TRADE OF THE COMPANY AND THE SAME ARE FOR BUSINESS PURPOSES TO BE KEPT IN SE LF POSSESSION TILL THE TIME THEY WERE SOLD. IT WAS POINTED OUT THAT THE VACANT POSS ESSION THEREOF IS HANDED OVER TO THE BUYERS AT THE TIME OF THEIR SALE. THE ASSES SEES CONTENTIONS WERE THAT THE FLATS/SPACES BEING IN SELF OCCUPATION FOR THE PURPO SES OF COMPANYS BUSINESS, THE PROFITS OF WHICH WERE CHARGEABLE TO INCOME-TAX UNDE R THE PROFITS AND GAINS OF BUSINESS OR PROFESSION, NO NOTIONAL ALV THEREOF COU LD BE ASSESSED/CHARGED TO TAX U/S 22 OF THE ACT. THE ASSESSING OFFICER DID N OT ACCEPT THE ASSESSEES CONTENTION FOR THE REASON THAT THE ASSESSEE WAS THE OWNER OF THE PROPERTIES AND AS SUCH, NOTIONAL ANNUAL LETTING VALUE HAD TO BE AS SESSED WITHIN MEANING OF PROVISIONS U/S 23 OF THE ACT IN ASSESSEES HANDS PA RTICULARLY AS THE ISSUE WAS 24 PENDING ADJUDICATION BEFORE THE HONBLE DELHI HIGH COURT IN THE EARLIER YEARS OF THE ASSESSEE. HE, ACCORDINGLY, MADE AN ADDITION OF RS.57,54,533/- AS UNDER :- NOTIONAL ALV AS COMPUTED ABOVE 82,20,761.04 LESS : 30% FOR REPAIRS 24,66,228.31 NET NOTIONAL ALV 57,54,532.73 32. LD. CIT(A) FOLLOWING THE ORDERS FOR ASSESSMENT YEAR 2004-05 DELETED THE ADDITION MADE BY ASSESSING OFFICER. BEING AGGRIEVE D, THE DEPARTMENT IS IN APPEAL BEFORE US AND HAS TAKEN FOLLOWING GROUNDS OF APPEAL :- 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN GRANTING RELIEF OF RS.57,54,532,73 ON ACCOUNT OF NOTIONAL ANNUAL LETTING VALUE OF FLATS HELD AS CLOSING STOCK. 33. LD. COUNSEL AT THE OUTSET SUBMITTED THAT THE IS SUE HAS BEEN DECIDED AGAINST THE ASSESSEE BY HONBLE DELHI HIGH COURT VIDE ORDER DATED 31 ST OCTOBER, 2012 IN ASSESSEES OWN CASE, WHEREIN, IT HAS BEEN HELD A S UNDER :- 13. IN THE PRESENT CASE, THE ASSESSEE IS ENGAGED I N BUILDING ACTIVITIES. IT ARGUES THAT FLATS ARE HELD AS PART OF ITS INVENTORY OF STO CK IN TRADE, AND ARE NOT LET OUT. THE FURTHER ARGUMENT IS THAT UNLIKE IN THE OTHER INSTAN CES, WHERE SUCH BUILDERS LET OUT FLATS, HERE THERE IS NO LETTING OUT AND THAT DEEMED INCOME WHICH IS THE BASIS FOR ASSESSMENT UNDER THE ALV METHOD, SHOULD NOT BE ATTR IBUTED. THIS COURT IS OF THE OPINION THAT THE ARGUMENT, THOUGH ATTRACTIVE, CANNO T BE ACCEPTED. AS REPEATEDLY HELD, IN EAST INDIA, SULTAN, AND KARANPURA, THE LEVY OF I NCOME TAX IN THE CASE OF ONE HOLDING HOUSE PROPERTY IS PREMISED NOT ON WHETHER T HE ASSESSEE CARRIES ON BUSINESS, AS LANDLORD, BUT ON THE OWNERSHIP. THE INCIDENCE OF CHARGE IS BECAUSE OF THE FACT OF OWNERSHIP. UNDOUBTEDLY, THE DECISION IN VIKRAM COTT ON INDICATES THAT IN EVERY CASE, THE COURT HAS TO DISCERN THE INTENTION OF THE ASSES SEE; IN THIS CASE THE INTENTION OF THE ASSESSE WAS TO HOLD THE PROPERTIES TILL THEY WERE S OLD. THE CAPACITY OF BEING AN OWNER WAS NOT DIMINISHED ONE WHIT, BECAUSE THE ASSESSEE C ARRIED ON BUSINESS OF DEVELOPING, BUILDING AND SELLING FLATS IN HOUSING ESTATES. THE ARGUMENT THAT INCOME TAX IS LEVIED NOT ON THE ACTUAL RECEIPT (WHICH NEVER AROSE IN THI S CASE) BUT ON A NOTIONAL BASIS, I.E. ALV AND THAT IT IS THEREFORE NOT SANCTIONED BY LAW, IN THE OPINION OF THE COURT IS MERITLESS. ALV IS A METHOD TO ARRIVE AT A FIGURE ON THE BASIS OF WHICH THE IMPOST IS TO 25 BE EFFECTUATED. THE EXISTENCE OF AN ARTIFICIAL METH OD ITSELF WOULD NOT MEAN THAT LEVY IS IMPERMISSIBLE. PARLIAMENT HAS RESORTED TO SEVERAL O THER PRESUMPTIVE METHODS, FOR THE PURPOSE OF CALCULATION OF INCOME AND COLLECTION OF TAX. FURTHERMORE, APPLICATION OF ALV TO DETERMINE THE TAX IS REGARDLESS OF WHETHER A CTUAL INCOME IS RECEIVED; IT IS PREMISED ON WHAT CONSTITUTES A REASONABLE LETTING V ALUE, IF THE PROPERTY WERE TO BE LEASED OUT IN THE MARKETPLACE. IF THE ASSESSEES CO NTENTION WERE TO BE ACCEPTED, THE LEVY OF INCOME TAX ON UNOCCUPIED HOUSES AND FLATS W OULD BE IMPERMISSIBLE WHICH IS CLEARLY NOT THE CASE. 14. AS FAR AS THE ALTERNATIVE ARGUMENT THAT THE ASS ESSEE ITSELF IS OCCUPIER, BECAUSE IT HOLDS THE PROPERTY TILL IT IS SOLD, IS CONCERNED , THE COURT DOES NOT FIND ANY MERIT IN THIS SUBMISSION. WHILE THERE CAN BE NO QUARREL WITH THE PROPOSITION THAT 'OCCUPATION' CAN BE SYNONYMOUS WITH PHYSICAL POSSESSION, IN LAW, WHEN PARLIAMENT INTENDED A PROPERTY OCCUPIED BY ONE WHO IS CARRYING ON BUSINES S, TO BE EXEMPTED FROM THE LEVY OF INCOME TAX WAS THAT SUCH PROPERTY SHOULD BE USED FO R THE PURPOSE OF BUSINESS. THE INTENTION OF THE LAWMAKERS, IN OTHER WORDS, WAS THA T OCCUPATION OF ONES OWN PROPERTY, IN THE COURSE OF BUSINESS, AND FOR THE PU RPOSE OF BUSINESS, I.E. AN ACTIVE USE OF THE PROPERTY, (INSTEAD OF MERE PASSIVE POSSESSIO N) QUALIFIES AS 'OWN' OCCUPATION FOR BUSINESS PURPOSE. THIS CONTENTION IS, THEREFORE , REJECTED. THUS, THIS QUESTION IS ANSWERED IN FAVOUR OF THE REVENUE, AND AGAINST THE ASSESSEE. 34. LD. COUNSEL POINTED OUT THAT ASSESSEE HAS FILED SLP BEFORE THE HONBLE SUPREME COURT AGAINST THE DECISION OF HONBLE DELHI HIGH COURT, WHICH IS PENDING FOR DISPOSAL. HE FURTHER POINTED OUT THAT SUBSEQUENT TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE ASSESSEES OWN CASE FOR EARLIER YEARS, THE LEGAL POSITION REGARDING TAXABILITY OF RENTAL INCOME HAS BEEN ALTERED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 09 TH APRIL, 2015 IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. VS. CIT, (2015) 373 I TR 673 (SC), WHEREIN, THE APEX COURT, WHILE CONSIDERING THE EARLIER DECISIONS OF THE APEX COURT ON THE SAME ISSUE, HELD, THAT, WHERE AN ASSESSEE IS INCORP ORATED TO COMMERCIALLY EXPLOIT THE HOUSE PROPERTY, WHICH IS CARRIED ON AS BUSINESS ACTIVITY, THE RENTAL INCOME EARNED IN PURSUANCE OF SUCH BUSINESS WOULD B E ASSESSABLE AS BUSINESS INCOME AND NOT AS INCOME FROM HOUSE PROPERTY. HE F URTHER POINTED OUT THAT THIS 26 VIEW HAS BEEN REITERATED BY THE HONBLE SUPREME COU RT IN THE RECENT DECISION OF RAYALA CORPORATION (P.) LTD. VS. ACIT IN CIVIL APPE AL NOS.6437 TO 6441 OF 2016. HOWEVER, LD. COUNSEL FAIRLY POINTED OUT THAT THE HO NBLE DELHI HIGH COURT, BY ORDER DATED 26 TH JULY, 2016, PASSED IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 1994-95, REPORTED AT 389 ITR 373, H AS SUMMARILY REJECTED THE AFORESAID RELIANCE PLACED BY THE ASSESSEE ON THE DE CISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES (SU PRA), ON THE GROUND THAT THE MAIN OBJECT OF THE ASSESSEE, IN THE PRESENT CASE, W AS NOT LETTING OUT OF PROPERTIES, AS LAID DOWN BY THE APEX COURT IN CHENNAI PROPERTIE S WHERE THE MAIN OBJECT OF ASSESSEE WAS HOLDING THE PROPERTIES AND EARNING INC OME BY LETTING OUT PROPERTIES. LD. COUNSEL POINTED OUT THAT THE HONB LE SUPREME COURT HAS ADMITTED THE SLP FILED BY THE ASSESSEE AGAINST THE DECISION OF HONBLE HIGH COURT DATED 19.09.2016. IN THE ALTERNATIVE, LD. CO UNSEL SUBMITTED THAT SECTION 23 AND 24 OF THE ACT RELATING TO COMPUTATION OF ANNUAL LETTING VALUE OF RESIDENTIAL PROPERTY WERE AMENDED BY THE FINANCE ACT, 2001 W.E. F. 01.04.2002 I.E. ASSESSMENT YEAR 2002-03. HE POINTED OUT THAT THE A MENDED PROVISIONS WERE APPLICABLE TO THE YEAR UNDER CONSIDERATION AND WERE NOT SUBJECT MATTER BEFORE THE HONBLE HIGH COURT IN THE AFORESAID DECISION OF THE ASSESSEE FOR THE PRECEDING YEARS. HE SUBMITTED THAT IN TERMS OF THE AMENDED PROVISIONS OF SECTION 23(1)(C), WHERE A RESIDENTIAL PROPERTY REMA INS VACANT DURING, INTER-ALIA, 27 WHOLE OF THE PREVIOUS YEAR AND OWING TO SUCH VACANC Y ACTUAL RENT RECEIVED OR RECEIVABLE (WHICH WOULD BE NIL IN CASE OF TOTAL RES IDENTIAL PROPERTY VACANT THROUGHOUT THE YEAR) IS LESS THAN THE FAIR RENT, TH EN SUCH FORMER AMOUNT SHALL BE DEEMED AS ANNUAL LETTING VALUE FOR THE PURPOSES OF SECTION 22 OF THE ACT. HE RELIED ON THE DECISION IN THE CASE OF PREMSUDHA EXP ORTS (P.) LTD. VS. ACIT, 110 ITD 158. HE ALSO RELIED ON THE FOLLOWING DECISIONS :- (I) SHAKUNTALA DEVI VS. DDIT, 31 CCH 32 (BANG.) (II) KAMAL MISHRA VS. ITO, 19 SOT 251 (DEL.) (III) ACIT VS. DR. PRABHA SANGHI, 139 ITD 504 (DEL .) (IV) VIKAS KESHAV GARUD VS. ITO, 160 ITD 7 (PUNE-T RIB.) (V) S.M. CHANDRASHEKAR VS. ITO, 76 TAXMAN.COM 278 (BANG.-TRIB.) (VI) CIT VS. JOY JACOB, 151 ITR 19 (KERALA) 35. LD. COUNSEL FURTHER POINTED OUT THAT THE PROPER TIES AT SL. NOS.12, 13 AND 14 WERE MERELY FARM LANDS, ON WHICH NO RESIDENTIAL UNIT HAS BEEN CONSTRUCTED. ACCORDINGLY, ANNUAL LETTING VALUE CANNOT BE DETERMI NED IN RESPECT OF SUCH FARM LANDS IN TERMS OF SECTION 22 OF THE ACT. 36. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORD OF THE CASE. AS FAR AS ASSESSEES CLAIM OF TAXABILITY OF IMPUGNED PROPERTY BEING STOCK-IN-TRADE UNDER THE HEAD INCOME FROM BUSINESS IS CONCERNED, THE SAID ISSUE STANDS DECIDED AGAINST TH E ASSESSEE BY THE DECISION OF HONBLE DELHI HIGH COURT IN ASSESSEES OWN CASE, AS NOTED EARLIER, IN THE 28 ARGUMENTS ADVANCED BY LD. COUNSEL FOR THE ASSESSEE. THEREFORE, AS RIGHTLY SUBMITTED BY LD. COUNSEL FOR THE ASSESSEE, THE INCO ME IS TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE ASSESSEES AL TERNATE CLAIM IS THAT IF THE INCOME IS TO BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY THEN SINCE SECTION 23 GOT SUBSTITUTED BY THE FINANCE ACT, 2001 W.E.F. 01.04.2002, THEREFORE, FOR ASSESSMENT YEAR 2005-06, THE ANNUAL VALUE HAS T O BE DETERMINED IN ACCORDANCE WITH THE AMENDED PROVISIONS OF SECTION 2 3(1)(C) WHICH READS AS UNDER :- 23. (1) FOR THE PURPOSES OF SECTION 22, THE ANNUAL VALU E OF ANY PROPERTY SHALL BE DEEMED TO BE . (C) WHERE THE PROPERTY OR ANY PART OF THE PROPERTY IS LET AND WAS VACANT DURING THE WHOLE OR ANY PART OF THE PREVIOUS YEAR AND OWING TO SUCH VACANCY THE ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER IN RESPECT THER EOF IS LESS THAN THE SUM REFERRED TO IN CLAUSE (A), THE AMOUNT SO RECEIVED OR RECEIVABLE : PROVIDED THAT THE TAXES LEVIED BY ANY LOCAL AUTHORITY IN RE SPECT OF THE PROPERTY SHALL BE DEDUCTED (IRRESPECTIVE OF THE PREVIOUS YEAR IN W HICH THE LIABILITY TO PAY SUCH TAXES WAS INCURRED BY THE OWNER ACCORDING TO THE METHOD O F ACCOUNTING REGULARLY EMPLOYED BY HIM) IN DETERMINING THE ANNUAL VALUE OF THE PROP ERTY OF THAT PREVIOUS YEAR IN WHICH SUCH TAXES ARE ACTUALLY PAID BY HIM. EXPLANATION.FOR THE PURPOSES OF CLAUSE (B) OR CLAU SE (C) OF THIS SUB-SECTION, THE AMOUNT OF ACTUAL RENT RECEIVED OR RECEIVABLE BY THE OWNER SHALL NOT INCLUDE, SUBJECT TO SUCH RULES 27 AS MAY BE MADE IN THIS BEHALF, THE AMOUNT OF RENT WHICH THE OWNER CANNOT REALIZE. 37. A BARE READING OF THIS CLAUSE MAKES IT CLEAR TH AT THIS PROVISION IS APPLICABLE IN RESPECT OF LET OUT/ LETIABLE PROPERTY . HOWEVER, IN THE PRESENT CASE, ADMITTEDLY, THE ASSESSEE WAS HOLDING VARIOUS COMMER CIAL AND RESIDENTIAL FLATS AND SPACES FOR BEING SOLD TO THE PROSPECTIVE BUYERS . THE ASSESSEE IN ITS REPLY, 29 INTER-ALIA, CLEARLY STATED THAT SPACES/FLATS FORMED PART OF STO CK-IN-TRADE OF THE ASSESSEE COMPANY AS THE SAME WAS FOR BUSINESS PURPO SES AND WAS KEPT IN SELF POSSESSION TILL THE TIME IT WAS SOLD. IT WAS FURTH ER STATED THAT THE VACANT POSSESSION THEREOF WAS HANDED OVER TO THE BUYERS ON SALE. THUS, THE ASSESSEE NEVER CLAIMED THAT THE PROPERTIES WERE LETIABLE PRO PERTIES AND, THEREFORE, ASSESSEE CANNOT GET THE BENEFIT OF SECTION 23(1)(C) . THE NEXT OBJECTION OF LD. COUNSEL FOR THE ASSESSEE IS IN REGARD TO DETERMINAT ION OF ANNUAL LETTING VALUE IN RESPECT OF FARM LANDS. 38. WE FIND THAT NO FINDINGS HAVE BEEN RECORDED IN THIS REGARD BY LOWER REVENUE AUTHORITIES, AS TO WHETHER ANNUAL LETTING V ALUE COULD BE DETERMINED IN RESPECT OF SUCH FARM LANDS IN TERMS OF SECTION 22 O R NOT. WE MAY OBSERVE THAT IF THERE WAS NO BUILDING ON FARM LANDS THEN IT WILL NO T COME WITHIN THE AMBIT OF SECTION 22. ON THIS ASPECT, THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE ISSUE AFRESH. 39. IN THE RESULT, THE GROUND RAISED BY THE DEPARTM ENT IS ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF AFOREMENTIONED OBS ERVATIONS. ITA NO.1248/DEL/2009 (A.Y. 2005-06) : 40. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 23.01.2009 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 1, NEW DELHI, U/S 143(3) OF THE ACT RELATING TO ASSESSMENT YEAR 2005-06. 30 41. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL)-I HAS ERRED IN UPHOLDING THE DISALLOWANCE OF DEDUCTION U/S 80IB(10) AMOUNTING TO RS.2,43,22,929/- MADE BY THE ASSESSING OFFICER VIDE ASSESSMENT ORDER DATED 20 TH DECEMBER, 2007. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN UPHOLDING THE FINDINGS OF THE ASSESSING OFFICER THAT THE APPELLANT STARTED DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT PRI OR TO 1 ST OCTOBER, 1998 WITHOUT APPRECIATING THAT THE APPELLANT HAD MERELY COMMENCED CONSTRUCTION OF A PREPARATORY NATURE ON EXPERIMENTAL SCALE PRIOR TO T HAT DATE, WHICH COULD NOT HAVE BEEN THE BASIS FOR DENYING DEDUCTION U/S 80IB(10) OF THE ACT. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN UPHOLDING THE FINDINGS OF THE ASSESSING OFFICER THAT RESIDENTIAL UNITS CONSTRUCTED BY THE APPELLANT EXCEEDED THE PRESCRIBED MAXIMUM BU ILT-UP AREA OF 1000 SQ. FT. IN RESPECT OF OLD PROJECTS COMMENCED PRIOR TO 31 ST MARCH, 2005 THAT TOO, BY RELYING UPON CERTAIN AMENDMENTS MADE BY THE FINANCE ACT, 20 04 WITH PROSPECTIVE EFFECT FROM 1/4/2005 WHICH WERE NOT APPLICABLE TO THE PROJECT UNDER CONS IDERATION. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN UPHOLDING THE CHARGING OF INTEREST U/S 234B OF T HE ACT. 5. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AME ND, OR VARY THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 42. THE IMPUGNED ISSUE HAS BEEN CONSIDERED BY US WH ILE DECIDING THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2004-05 VIDE ITA NO.3193/DEL/2008 WHILE DISPOSING OF GROUNDS NO.8 TO 12 OF THE SAID A SSESSMENT YEAR. THE DECISION FOR ASSESSMENT YEAR 2004-05 SHALL APPLY MUTATIS-MUTANDIS IN THIS ASSESSMENT YEAR ALSO. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1576/DEL/2010 (A.Y. 2006-07) : 43. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 08.01.2010 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 1, NEW DELHI, U/S 143(3) OF THE ACT RELATING TO ASSESSMENT YEAR 2006-07. 31 44. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APP EAL :- 1. THE ORDER OF THE LD. CIT(APPEALS) IS NOT CORREC T IN LAW AND FACTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS.57,89, 199/- MADE BY AO ON ACCOUNT OF NOTIONAL ALV IN RESPECT OF UNSOLD SPACES FLATS TREA TING THE SAME AS INCOME FROM HOUSE PROPERTY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN ALLOWING PART RELIEF TOWARDS CLAIM UNDER SECTION 80-IB(10) WHEN THERE IS SUBSTANTIAL EVIDENCE THAT THE ASSESSEE COM PANY HAD MADE INVESTMENT TO THE EXTENT OF RS.103,01,73,852/- PRIOR TO 01.04.1998 IN ALL THESE PROJECTS AS ALSO ADMITTED TO HAVE LAUNCHED THESE PROJECTS IN THE ANNUAL REPOR TS OF 1996-97. 4. WHETHER THERE WAS ANY MATERIAL EVIDENCE BEFORE L EARNED CIT(A) TO HOLD THAT THE THREE PROJECTS WERE LAUNCHED AFTER 01.10.98 AND WERE COMPLETED ON OR BEFORE 31.03.2008. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY/ ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING O F THE APPEAL. 45. AS FAR AS GROUND NO.2 IS CONCERNED, THIS ISSUE HAS BEEN CONSIDERED BY US WHILE DECIDING THE DEPARTMENTAL APPEAL VIDE ITA NO. 1254/DEL/2009 FOR ASSESSMENT YEAR 2005-06. THE DECISION FOR ASSESSME NT YEAR 2005-06 SHALL APPLY MUTATIS-MUTANDIS IN THIS ASSESSMENT YEAR ALSO. ACCORDINGLY, THIS G ROUND IS ALLOWED FOR STATISTICAL PURPOSES. 46. VIDE GROUND NOS.3 AND 4, THE DEPARTMENT IS PRIM ARILY ASSAILING THE FINDINGS OF LD. CIT(A) REGARDING PROJECTS BEING LAU NCHED AFTER 01.10.1998 AND COMPLETED ON OR BEFORE 31 ST MARCH, 2008. AS FAR AS LAUNCHING OF THE PROJECT AFTER 01.10.1998 IS CONCERNED, WE HAVE NOTED IN ASS ESSMENT YEAR 2004-05 IN DETAIL THAT THIS OBJECTION OF ASSESSING OFFICER WAS NOT CORRECT IN VIEW OF THE DECISION OF THE HONBLE DELHI HIGH COURT IN ASSESSE ES OWN CASE FOR ASSESSMENT YEARS 2000-01 AND 2001-02 ORDER DATED 24.09.2012 (S UPRA). AS FAR AS THE 32 COMPLETION CERTIFICATE IN THE VARIOUS PROJECTS IS C ONCERNED, WE DIRECT THE ASSESSING OFFICER TO VERIFY IT AFRESH IN VIEW OF DE TAILED DISCUSSION MADE EARLIER. ACCORDINGLY, THE APPEAL OF THE REVENUE FOR THE ASSE SSMENT YEAR 2006-07 IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. 47. RESULTANTLY, BOTH THE APPEALS OF THE ASSESSEE A ND REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF MARCH, 2017. SD/- SD/- (SUDHANSHU SRIVASTAVA) (S.V. MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28-03-2017. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI