ITO, CHENNAI V. A.L.Homes, CHENNAI

ITA 1427/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5922 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 02-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Keywords: Retrospective amendment; Tax effect
• Section: 234B

Judgement Text

, C/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL C/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A.NO.1427 /MDS./2017 ( ASSESSMENT YEARS : 2010-11) THE INCOME TAX OFFICER NON-CORPORATE WARD 15(1) CHENNAI-34. VS. M/S A.L. HOMES 22, 2 ND STREET, NEHRU NAGAR ADYAR, CHENNAI - 20 [PAN AAMFA 0169 J] ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.B.SAGADEVAN, JCIT, DR / RESPONDENT BY : MR.S.SRIDHAR, ADVOCATE ! ' / DATE OF HEARING : 31.10.2017 #$%& ! ' /DATE OF PRONOUNCEMENT : 31.10.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-15, CHENN AI, DATED 28.02.2017 AND PERTAINS TO ASSESSMENT YEAR 2010-11. ITA NO.1427/MDS/2017 2 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS F OR CONSIDERATION. I. THE ORDER OF LD.CIT(A) IS CONTRARY TO LAW AND F ACTS OF THE CASE. 2. THE LD CIT(A) ERRED IN DIRECTING THE AO TO DELET E THE DISALLOWANCE OF RS.19,99,981/- U/S 801B(10). 2.1 THE LD CIT(A) FAILED TO APPRECIATE THAT NEW CON DITION WAS INTRODUCED UNDER CLAUSE (E) AND (F) OF SECTION 801B(10) WHICH READS AS UNDER- NOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUSING PROJECT IS ALLOTTED TO ANY PERSON NOT BEING AN INDIVIDUAL PROVISIONS OF SECTION 801B(10(F) READS AS UNDER:- IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUSING PROJECT IS ALLOTTED TO A PERSON BEING AN INDIVIDUAL NO OTHER RESIDENTIAL UNIT IN SU CH HOUSING PROJECT IS ALLOTTED TO ANY OF THE FOLLOWING PERSONS NAMELY: I) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHILDR EN OF SUCH INDIVIDUAL II) THE HUF IN WHICH SUCH INDIVIDUALS IS THE KARTA III) 2.3 THE LD CIT (A) FAILED TO APPRECIATE THAT THIS ISSUE ARISES VIDE RAP OBJECTION. AS PER CIRCULAR NO.21/2015 WHICH STATES AS UNDER THE ABOVE ISSUE SHOULD BE CONTESTED ON MERITS NOTW ITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3 CIRCULAR NO 21/2015 OR THERE IS NO TAX EFFECT. PARA 8(C) WHERE RAP IN.. THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 3. THE MAIN ISSUE FOR MY CONSIDERATION IS WITH REG ARD TO APPLICABILITY OF AMENDED PROVISIONS OF THE SECTION 80IB(10)(F) OF THE ACT. ITA NO.1427/MDS/2017 3 4. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FIR M HAD CLAIMED A SUM OF ` 19,99,981/- AS DEDUCTION U/S. 80IB(10)(F) OF THE AC T FOR ASSESSMENT YEAR UNDER CONSIDERATION. DURING THE COU RSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT IN THE ALLOTMENT OF THE FOLLOWING UNITS VIZ.A2/304, A5/302, A3/103, A7/201, B2/103 AND B4/103, THERE HAS BEEN VIOLATION OF THE RELEVANT PR OVISIONS OF THE SECTION 80IB(10(F) OF THE ACT, WHICH ENVISAGE THAT NOT MORE THAN ONE RESIDENTIAL UNIT IN THE ELIGIBLE HOUSING PROJECT WH OULD BE ALLOTTED TO ANY ONE PERSON OR HIS/HER SPOUSE OR CHILDREN OR TO HUF IN WHICH SUCH PERSON IS KARTA. THEREFORE, THE AO HAD NOT ALLOWED THE CLAIM OF DEDUCTION U/S. 80IB(10) OF THE ACT IN VIEW OF INSE RTION OF SUB-CLAUSE (E) & (F). FURTHER, THE CONTENTION OF THE ASSESSEE WAS THAT RELEVANT CLAUSES (E) & (F) WERE INTRODUCED WITH EFFECT FROM A.Y 2010-11 AND NOT APPLICABLE TO A.Y 2009-10. HOWEVER, THE AO HAS NOT GRANTED SAID DEDUCTION U/S.80IB(10)(F) OF THE ACT. AGGRIEVED BY THE ORDER OF LD. ASSESSING OFFICER, THE ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). 4.1 ON APPEAL, LD.CIT(A) GRANTED DEDUCTION TO THE ASSESSEE U/S.80IB(10)(F) OF THE ACT AND OBSERVED AS FOLLOWS :- ITA NO.1427/MDS/2017 4 THE RELEVANT CLAUSE OF S.80IB(10)(F) OF THE ACT HAS ALSO BEEN EXAMINED. THIS CLAUSE HAS BEEN INSERTED BY THE FINANCE ACT, 2009 A PPLICABLE W.E.F. 01/04/2010. AS RIGHTLY CONTENDED BY THE APPELLANT, THESE NEW PR OVISIONS CANNOT BE APPLIED RETROSPECTIVELY UNLESS SPECIFICALLY MENTIONED IN TH E ACT. THE ELIGIBLE PROJECT OF THE APPELLANT WAS APPROVED IN JUNE 2006 AND DURING THE F.Y. 2008-09, IT HAD REACHED THE STAGE OF COMPLETION. THEREFORE, THE EFF ECT OF ANYTHING INTRODUCED IN THE ACT AT A LATER STAGE, CANNOT BE ANTICIPATED IN ADVANCE. THE CLAUSE (F) TO SUB- SECTION (10) TO SEC.8OLB WAS INSERTED BY FINANCE (N O.2) ACT 2009 AND CAME INTO FORCE FROM 01-04-2010. THE BILL WAS PASSED AND GOT LEGAL FORCE FROM 19-08-2009. PRIOR TO THE INSERTION OF CLAUSE (F), THERE WAS NO RESTRICTION IN THE ALLOTMENT OF MORE THAN ONE APARTMENT TO AN INDIVIDUAL OR ANY OTH ER PERSONS MENTIONED IN THE SAID CLAUSE. HENCE, BY INSERTION OF THIS CLAUSE, A RESTRICTION IN SELLING THE APARTMENTS IS SOUGHT TO BE MADE. HONBLE CALCUTTA H IGH COURT IN DCIT V CENTRAL CONCRETE AND ALLIED PRODUCTS LTD [1999] 236 ITR 595 HAS HELD THAT: SUBSTANTIVE LAW IS THAT PART OF LAW WHICH CREATES, DEFINES AND REGULATES RIGHTS AS OPPOSED TO ADJECTIVE OR REMEDIAL LAW WHIC H PRESCRIBES THE METHOD OF ENFORCING THE RIGHTS AND OBTAINING REDRES S FOR THEIR INVASION.[SEE BLACKS LAW DICTIONARY] PROCEDURAL LA W MEANS THE MODE OF ITA NO.1427/MDS/2017 5 PROCEDURE BY WHICH THE LEGAL RIGHTS ARE ENFORCED AS DISTINGUISHED FROM THE SUBSTANTIVE LAW WHICH GIVES OR DEFINES THE RIGH TS. 20..AMENDMENTS TO SUBSTANTIVE LAW ARE TREATED AS PR OSPECTIVE, WHILE AMENDMENTS TO PROCEDURAL LAW ARE TREATED AS RETROSP ECTIVE, EVEN IF THE AMENDMENT WERE TO BE ONLY PROSPECTIVE. WHEN CONSIDE RED IN THE LIGHT OF THE DECISION OF THE CALCUTTA HIGH COURT, IT IS CLEAR TH AT THE CLAUSE (F) INSERTED IS SUBSTANTIVE IN NATURE AND HENCE, CAN BE APPLIED ONL Y PROSPECTIVELY. AHMEDABAD ITAT IN THE CASE OF PATEL JASHWANTHLAL A & PATEL AM CHAND N V ITO [2015] 43 CCH 004! [2015] 38 ITR 135 HAS HELD THAT PROVISION IS APPLICABLE ONLY IN RESPECT OF ALLOTMENT MADE AFTER I 9-08-2009. 21. IN THE CASE OF THE PRESENT APPELLANT, THE IMPUG NED FLATS WERE ALLOTTED TO THOSE PERSONS IN THE F.Y.2006-07, THE UDS WAS REGISTERED DURING THE F.Y.2006-07 AND EVEN THE HANDING OVER HAD TAKEN PLACE DURING THE F. Y.2007-08. THEREFORE, THERE WAS NO SCOPE FOR THE APPELLANT TO ABIDE BY THE PROV ISIONS OF THE ACT WHICH HAD TAKEN PLACE MUCH AFTER THE DATE OF ALLOTMENT ETC. H ENCE, UNDER THESE CIRCUMSTANCES, THE LOGIC OF HAVING RETROSPECTIVE EF FECT OF AMENDED SECTION COULD NOT BE APPREHENDED. IN VIEW OF THE ABOVE FACTS AND THE CIRCUMSTANCES OF THE CASE, I DO NOT FIND ANY FORCE IN THE FINDING OF THE AO THAT THE APPELLANT HAD FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 80 LB(10) OF THE ACT. HENCE, THE AO IS DIRECTED TO GRANT DEDUCTION OF RS.19,99,981/- U/S 8 0 LB(10) OF THE ACT TO THE APPELLANT AND, ACCORDINGLY, DELETE THE ADDITION. AGAINST THE ORDER OF LD.CIT(A), NOW THE REVENUE IS IN APPEAL BEFORE US. ITA NO.1427/MDS/2017 6 5. AFTER HEARING BOTH THE PARTIES, IN MY OPINION, SIMILAR ISSUE CAME FOR CONSIDERATION BEFORE THE CO-ORDINATE BENCH OF PUNE TRIBUNAL IN THE CASE OF DCIT, PUNE VS. M/S.VARUN DE VLOPERS IN ITA NO.2030/PN/2013 VIDE ORDER DATED 27.10.2014 FOR ASS ESSMENT YEAR 2010-11 WHEREIN IT HAS BEEN HELD AS UNDER:- 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. IN THE FACTS OF THE PRESENT CASE BEFORE US, THE ASSESSEE H AD ALLOTTED ONE FLAT IN FINANCIAL YEAR 2007-08 IN THE HOUSING PROJECT TO ON E SHRI GURUDAS ANDAR AND HIS SON. THE SAID FLAT WAS ALLOTTED ON 03-11-20 07 AS PER THE SALE DEED PLACED AT PAGE 86 OF THE PAPER BOOK. THEREAFTER THE WIFE OF SHRI GURUDAS ANDAR, MRS. NALINI ANDAR BOOKED ANOTHER FLAT IN THE SAID FLAT BY PAYING AN ADVANCE OF RS.5,00,000/-. THE SAID CHEQUE WAS PAID ON 16-06-2009 AND HAS BEEN CREDITED TO THE ACCOUNT OF THE ASSESSEE ON 16-06-2009. THE COPY OF ACCOUNT OF MRS. NALINI ANDAR IN THE BOOKS OF THE ASSESSEE IS PLACED AT PAGE 82 OF THE PAPER BOOK AND THE COPY OF THE BANK STATEMENT EVIDENCING THE CREDIT OF RS.5,00,000/- IS PLACED AT PAGE 83 OF THE PAPER BOOK. THEREAFTER THE STAMP DUTY WAS PAID ON 26-06-2009 AN D THE AGREEMENT TO SALE THE SAID FLAT WAS ENTERED INTO BETWEEN THE PAR TIES ON 07-07-2009. THE COPY OF THE SALE DEED IS PLACED AT PAGE 28 OF THE P APER BOOK AND COPY OF THE EVIDENCE OF PAYMENT OF STAMP DUTY IS PLACED AT PAGE 27 OF THE PAPER BOOK. THE ISSUE ARISING BEFORE US IS WHERE THE ASSE SSEE HAD ALLOTTED TWO SEPARATE FLATS TO MEMBERS OF THE SAME FAMILY, WHETH ER THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT COULD B E ALLOWED TO THE ASSESSEE, IN VIEW OF THE AMENDED PROVISIONS OF CLAU SE (F) TO SECTION 80IB(10) OF THE ACT. 10 17. THE FINANCE BILL FOR AMENDING THE PROVISIONS OF SECTION 80IB(10) WAS INTRODUCED ON 06-07-2009 AND THE FINANCE (NO. 2) AC T, 2009 PASSED ON 19- ITA NO.1427/MDS/2017 7 08-2009 INSERTED CLAUSES (E) AND (F) TO SECTION 80I B(10) OF THE ACT. THE SAID PROVISIONS WERE INSERTED W.E.F. 01-04-2010. TH E RELEVANT PROVISIONS OF CLAUSE (F) TO SECTION 80IB(10) OF THE ACT READS AS UNDER: SECTION 80IB(10): THE AMOUNT OF DEDUCTION IN THE C ASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31ST DAY OF MARCH, 2009 BY A LOCAL AUTHORITY SHALL BE HUNDRED P ER CENT OF THE PROFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESS MENT YEAR FROM SUCH HOUSING PROJECT IF - (A) (B) (C) (D) (E) (F) IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUSI NG PROJECT IS ALLOTTED TO A PERSON BEING AN INDIVIDUAL, NO OTHER RESIDENTIAL UN IT IN SUCH HOUSING PROJECT IS ALLOTTED TO ANY OF THE FOLLOWING PERSONS, NAMELY :- (I) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHILD REN OF SUCH INDIVIDUAL, (II) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIV IDUAL IS THE KARTA, (III) ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA. EXPLANATION FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY TO ANY UN DERTAKING WHICH EXECUTES THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT). 18. UNDER THE SAID CLAUSE (F) TO SECTION 80IB(10) O F THE ACT, IT IS PROVIDED THAT WHERE A RESIDENTIAL UNIT IN THE HOUSING PROJEC T IS ALLOTTED TO A PERSON ITA NO.1427/MDS/2017 8 BEING AN INDIVIDUAL, THEN NO OTHER RESIDENTIAL UNIT IN SUCH HOUSING PROJECT SHALL BE ALLOTTED TO ANY INDIVIDUAL OR THE SPOUSE O R THE 11 MINOR CHILDREN OF SUCH INDIVIDUAL, THE HINDU UND IVIDED FAMILY, IN SUCH INDIVIDUAL IS THE KARTA OR ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE SPOUSE OR THE MINOR CHILDREN OR THE HINDU UNDIVIDED FAMILY. IN OTHER WORDS IF AN INDIVIDUAL, HAD BEEN ALLOTTED A RESIDENTIAL U NIT IN ANY HOUSING PROJECT THEN SUCH INDIVIDUAL OR THE SPOUSE OF SUCH INDIVIDU AL OR THE MINOR CHILDREN OF SUCH INDIVIDUAL INCLUDING THE HINDU UNDIVIDED FA MILY IN WHICH HE IS THE KARTA OR ANY PERSON REPRESENTING ABOVE SAID PERSON ARE NOT ENTITLED TO BE ALLOTTED ANY OTHER RESIDENTIAL UNIT, IN SUCH HOUSIN G PROJECT. AND IN CASE OF VIOLATION OF THE SAID PROVISIONS OF THE ACT, THE AS SESSEE WHO HAD SO ALLOTTED THE FLATS TO SUCH PERSONS, SHALL NOT BE ENTITLED TO CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE SAID PROVISIONS WE RE INSERTED BY THE FINANCE (NO. 2) ACT, 2009 W.E.F. 01-04-2010. 19. NOW COMING TO THE FACTS OF THE PRESENT CASE, TH E ASSESSEE HAD ALLOTTED ONE FLAT TO SHRI GURUDAS ANDAR IN THE FINANCIAL YEA R 2007-08 THEREAFTER THE WIFE OF SHRI GURUDAS ANDAR I.E. MRS. NALINI ANDAR H AD BOOKED ANOTHER FLAT IN JUNE, 2009 AGAINST WHICH AN ADVANCE OF RS.5,00,0 00/- WAS PAID WAS RECEIVED BY THE ASSESSEE ON 26-06-2009. FURTHER STA MP DUTY IN RESPECT OF THE SALE OF SAID FLAT WAS PAID ON 26- 06-2009 AND T HE AGREEMENT TO SALE BETWEEN THE PARTIES WAS EXECUTED ON 07-07-2009. THE FINANCE BILL WAS PASSED ON 19-08-2009 I.E. AFTER MTHE EXECUTION OF A GREEMENT TO SELL BETWEEN THE PARTIES ON 07-07-2009. THE FINANCE BILL WAS INTRODUCED ON 07- 06-2009 BUT WAS PASSED ONLY ON 19-08-2009 I.E. AFTE R THE DATE OF EXECUTION OF AGREEMENT TO SELL BETWEEN THE ASSESSEE AND MRS. NALINI ANDAR, WIFE OF SHRI GURUDAS ANDAR, WHERE THE TRANSACTION WAS COMPL ETED PRIOR TO INSERTION OF CLAUSE (F) TO SECTION 80IB(10) OF THE ACT BY THE FINANCE (NO.2) ACT, 2009, THE SAME PROVISIONS CANNOT BE APPLIED IN ORDER TO D ENY THE DEDUCTION U/S. ITA NO.1427/MDS/2017 9 80IB(10) OF THE ACT. IN THE FIRST INSTANCE THE SAID FINANCE (NO.2) ACT, 2009 HAS BEEN MADE EFFECTIVE FROM 01-04-2010 AND EVEN OT HERWISE THE SAID PROVISIONS CAN AT BEST BE MADE EFFECTIVE FROM THE D ATE OF ITS INTRODUCTION I.E. PASSING OF THE FINANCE (NO. 2) ACT, 2009 I.E. ON 19-08-2009. 20. THE AMENDED PROVISIONS HAVING BEEN INTRODUCED O N A LATER DATE CANNOT BE APPLIED TO THE TRANSACTIONS COMPLETED BEFORE THE SAID PROVISIONS WERE INTRODUCED WERE AMENDED AS THE ASSESSEE CANNOT BE E XPECTED TO DO DEEDS WHICH ARE IMPOSSIBLE. THE HON'BLE SUPREME COU RT IN THE CASE OF KRISHNASWAMY S. PD. V. UNION OF INDIA (SUPRA) OBSER VED AS UNDER: 9. THE OTHER RELEVANT MAXIM IS, LEX NON COGIT AD I MPOSSIBILIA THE LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERF ORM. THE LAW ITSELF AND ITS ADMINISTRATION IS UNDERSTOOD TO DISCLAIM AS IT DOES IN ITS GENERAL APHORISMS, ALL INTENTION OF COMPELLING IMPOSSIBILIT IES, AND THE ADMINISTRATION OF LAW MUST ADOPT THAT GENERAL EXCEPTION IN THE CON SIDERATION OF PARTICULAR CASES. [SEE U. P. S. R. T. C. V. IMTIAZ HUSSAIN [20 06] 1 SCC 380, SHAIKH SALIM HAJI ABDUL KHAYUMSAB V. KUMAR [2006] 1 SCC 46, MOHAMMED GAZI V. STATE OF M. P. [2000] 4 SCC 342 AN D GURSHARAN SINGH V. NEW DELHI MUNICIPAL COMMITTEE [1 996] 2 SCC 459]. 21. FURTHER THE HON'BLE MADRAS HIGH COURT IN THE CA SE OF CIT VS. REVATHI EQUIPMENT LTD., 298 ITR 67 (MAD.) WHILE CONSIDERING THE ISSUE OF RETROSPECTIVE AMENDMENT INTRODUCED IN RELATION TO T HE LEVY OF INTEREST UNDER SECTIONS 234A AND 234B OF THE ACT OBSERVED AS UNDER : HELD, DISMISSING THE APPEAL, THAT THE ASSESSEE HAD PAID ADVANCE TAX AFTER DEDUCTING THE PAYMENT MADE UNDER THE VOLU NTARY RETIREMENT SCHEME. IN VIEW OF THE DECISIONS OF THE JURISDICTIO NAL HIGH COURT THE ITA NO.1427/MDS/2017 10 ASSESSEE WAS ALLOWED TO DEDUCT EXPENDITURE INCURRED ON PAYMENT TO WORKERS TOWARDS VOLUNTARY RETIREMENT SCHEME. SINCE SECTION 35DDA WAS INTRODUCED BY THE FINANCE ACT, 2001, WITH EFFECT FR OM APRIL 1, 2001, AND RECEIVED ASSENT ON MAY 11, 2001, THE ASSESSEE COULD NOT HAVE ENVISAGED THAT IT WOULD BECOME LIABLE FOR PAYMENT OF TAX EVE N AGAINST VOLUNTARY RETIREMENT PAYMENTS, WHICH WERE OTHERWISE ALLOWABLE . FURTHER THE ASSESSEE HAD PAID A SUM OF RS. 90,00,000 ON AUGUST 6, 2001, AS SELF- ASSESSMENT TAX, I. E., MUCH BEFORE THE FILING OF TH E RETURN ON OCTOBER 30, 2001, WHICH ALSO PROVED THE BONA FIDES OF THE ASSES SEE. ON THE ABOVE TWO GROUNDS THE TRIBUNAL ACCEPTED THE CASE THAT THE ASS ESSEE WAS NOT SUBJECT TO ADVANCE TAX. THE FINDINGS OF THE TRIBUNAL WERE B ASED ON VALID MATERIALS AND EVIDENCE AND DID NOT WARRANT INTERFERENCE. 22. APPLYING THE RATIO LAID DOWN BY THE HON'BLE SUP REME COURT IN THE CASE OF KRISHNASWAMY S. PD. V. UNION OF INDIA (SUPRA) AN D HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. REVATHI EQUIPMENT LTD. (SUPRA), WE HOLD THAT THE ASSESSEE IS ENTITLED TO CLAIM OF DEDUCTION UNDE R SECTION 80IB(10) OF THE ACT IN RESPECT OF THE FLAT ALLOTTED TO MRS. NALINI ANDAR I.E. SECOND RESIDENTIAL UNIT ALLOTTED IN THE SAME PROJECT TO TWO MEMBERS OF THE SAID FAMILY. 23. WE, FURTHER FIND THAT THE CBDT VIDE CIRCULAR NO . 5 OF 2010 DATED 03-06- 2010 IN THE EXPLANATORY NOTE TO THE PROVISIONS OF F INANCE (NO. 2) ACT, 2009 HAD CLARIFIED THE APPLICABILITY OF THE AMENDED PROV ISIONS OF THE ACT, OBSERVING AS UNDER: 33.8 APPLICABILITY THESE AMENDMENTS HAVE BEEN MAD E APPLICABLE WITH EFFECT FROM 1ST APRIL, 2010 AND WILL ACCORDINGLY MA PPLY IN RELATION TO ASSESSMENT YEAR 2010-11 AND SUBSEQUENT YEARS. THE A MENDMENTS RELATE TO RESTRICTIONS ON SPECIFIC TRANSACTIONS (I.E., ALL OTMENT OF RESIDENTIAL UNITS). THEREFORE, THEY WOULD APPLY TO TRANSACTIONS AFTER A SPECIFIED DATE DURING ITA NO.1427/MDS/2017 11 THE YEAR. SINCE THE FINANCE (NO.2) ACT, 2009 BECAME LAW ON 19TH AUGUST, 2009, THE RESTRICTIONS REGARDING ALLOTMENT OF RESID ENTIAL UNITS SHALL NOT APPLY IN RESPECT OF ALLOTMENTS MADE BEFORE 19.08.2009. 24. IN THE TOTALITY OF THE ABOVE FACTS AND CIRCUMST ANCES, WE HOLD THAT THE AMENDED CLAUSE (F) TO SECTION 80IB(10) OF THE ACT A RE TO BE APPLIED W.E.F. 19-08-2009 AND CANNOT BE USED TO DENY THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE RESIDENTIAL U NIT ALLOTTED PRIOR TO THE COMING INTO OPERATION OF AMENDED PROVISIONS I.E. CL AUSE (F) INSERTED TO SECTION 80IB(10) OF THE ACT. ACCORDINGLY, WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE GROUNDS OF APPEAL NO. 3 AND 4 RAISE D BY THE REVENUE. 25. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. 6. IN THE PRESENT CASE, AS RIGHTLY POINTED OUT BY THE LD.CIT(A) IN PARA 21, THE FLATS WERE ALLOTTED IN T HE F.Y 2006-07, THE UDS WAS REGISTERED DURING THE F.Y 2006-07 AND E VEN THE HANDING OVER HAD TAKEN PLACE DURING THE F.Y.2007-08 , BEING SO, THE PROVISIONS OF THE SECTION 80IB(10)(F) OF THE AC T CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. THE SAID PROVISIONS, WHICH WAS GOT INTO STATUTE BOOK BY FINANCE (NO.2) A CT, 2009 WITH EFFECT FROM 01-04-2010 AND EVEN OTHERWISE THE SAID PROVISIONS CAN AT BEST BE MADE EFFECTIVE FROM THE D ATE OF ITS INTRODUCTION I.E. PASSING OF THE FINANCE (NO. 2) AC T, 2009 I.E. ON 19-08-2009. ITA NO.1427/MDS/2017 12 7. IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL, I AM INCLINED TO DISMISS THE GROUND TAKEN BY THE REVENUE IN ITS A PPEAL AND ALSO MAKE IT CLEAR THAT GROUND NO.2.3 DOES NOT REQU IRE ANY SEPARATE ADJUDICATION AS THE ISSUE ON MERIT IS COVE RED IN FAVOUR OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUS ION OF HEARING ON 31 ST OCTOBER, 2017. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 31 ST OCTOBER, 2017 . K S SUNDARAM. ' ( )!*+ ,+%! / COPY TO: 1 . / APPELLANT 3. ' ' -! () / CIT(A) 5. +0 1 )!)23 / DR 2. / RESPONDENT 4. ' ' -! / CIT 6. 1 45 6 / GF