Deputy Commissioner of Income-tax, Pune V. Anand Ashok Gandhi,

ITA 2004/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1760 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 11-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JADHAV
• Keywords: Retrospective amendment; Additional evidence; Reasonable cause; Competent authority
• Section: 80IB

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , , ' # BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.2004/PN/2014 '% % / ASSESSMENT YEAR : 2010-11 DCIT, CIRCLE - 3, PUNE . / APPELLANT V/S ANAND ASHOK GANDHI, 304, NARAYANN PETH, PUNE 411030 PAN NO.ABJPG1729J . / RESPONDENT / ASSESSEE BY : SHRI KISHOR PHADKE / DEPARTMENT BY : SHRI S.K. JADHAV / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE OR DER DATED 28-07-2014 OF THE CIT(A)-II, PUNE RELATING TO ASSE SSMENT YEAR 2010-11. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND ENGAGED IN THE BUSINESS OF PROMOTERS AND BUILDERS IN THE NAME AND STYLE OF HARSHAD CONSTRUCTIONS. HE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 14-10-2010 DECLARING T OTAL INCOME OF RS.23,78,003/-. DURING THE COURSE OF ASSESSMENT PROCEE DINGS THE AO NOTED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S.8 0IB(10) / DATE OF HEARING :24.05.2016 / DATE OF PRONOUNCEMENT: 27.05.2016 2 ITA NO.2004/PN/2014 AMOUNTING TO RS.3,05,70,196/- IN RESPECT OF HISS HOUSING PRO JECT AT ASHOK NAGAR SITUATED AT SURVEY NO.73/HISSA NO.313 TO 31 8, SAIYYAD NAGAR, HANDEWADI ROAD, HADAPSAR, PUNE. THE AO NOTED THA T THE COMMENCEMENT CERTIFICATE FOR THIS PROJECT WAS RECEIVED BY THE ASSESSEE VIDE CC/9495/G/95 DATED 14-02-2007. AFTER THIS REVISED COMMENCEMENT CERTIFICATES WERE RECEIVED AS FOLLOWS : CC/4416/06 DATED 17-03-2007 CC/3970/09 DATED 29-03-2010 CC/2483/12 DATED 21-11-2012 CC/2483/2012 DATED 27-11-2012 3. THE AO NOTED FROM THE ORIGINAL PLAN PASSED THAT THERE ARE 3 BUILDINGS, VIZ., A, B AND C. HOWEVER, THE ASSESSEE SUBMITTED COMPLETION CERTIFICATES ONLY FOR BUILDINGS B AND C. HE, THERE FORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY DEDUCTION CLAIME D U/S.80IB(10) SHOULD NOT BE DISALLOWED ON ACCOUNT OF THIS FACT . THE AO ALSO ISSUED A COMMISSION U/S.131(1)(D) TO SHRI NITIN LELE (GOVER NMENT REGISTERED VALUER) TO INSPECT THE SITE AND SUBMIT A REPOR T ON THE LINES OF PROVISIONS SPECIFIED U/S.80IB(10). SHRI NITIN LELE SUBMITTED IN HIS REPORT THAT THERE IS NO SEPARATE PLAN OR ANY SUB-DIVISIO N OF PLOT BY THE ASSESSEE TO CLAIM DEDUCTION ONLY FOR BUILDINGS B AND C WHIC H ARE COMPLETE. THE AO REFERRED TO A DECISION OF THE CIT(A) IN T HE CASE OF SUVARNA MUTHA DEVELOPER WHERE PRO-RATA DEDUCTION HAS BEEN DISALLOWED. HE ALSO REFERRED TO THE PROVISIONS OF SECTION 8 0IB(10). THE AO FURTHER NOTED THAT THE DATE OF FIRST APPROVAL OF THE PROJECT IS 14-02- 2007 AND AS SUCH THE FINAL COMPLETION CERTIFICATE HAS TO BE OBTAINED BY 31-03-2012. HOWEVER, THE ASSESSEE OBTAINED COMPLETION C ERTIFICATE OF ONLY BUILDINGS B AND C. THUS, THE TOTAL PROJECT IS INCOMPLE TE. ALSO PLOT FOR BUILDINGS B AND C IS NOT SEPARATED PHYSICALLY ON GROUND NOR TECHNICALLY IT IS SEPARATED BY A SUB-DIVISION PLAN. THE AO , THEREFORE, CONFRONTED THE ASSESSEE ABOUT THE ABOVE FACT AND ASKE D HIM TO EXPLAIN 3 ITA NO.2004/PN/2014 AS TO HOW HE IS ELIGIBLE FOR DEDUCTION U/S.80IB(10). THE SUB MISSION OF THE ASSESSEE THAT BUILDINGS B AND C MAY BE REGARDED AS A STAND-ALONE PROJECT AND DEDUCTION BE GRANTED ON THE SAME WAS REJ ECTED BY THE AO. ACCORDING TO HIM, THERE IS NO SEPARATE PLAN FOR BUILDINGS B AND C. SECTION 80IB(10) TALKS ABOUT PROJECT AND NOT A CLUSTER OF BUILDINGS WHICH SATISFY THE CONDITIONS OF SECTION 80IB(10). THE PROJ ECT WAS THE ONE WHICH WAS SANCTIONED BY THE MUNICIPAL AUTHORITY WHICH INCLUDED BUILDING A. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE THE AO DISALLOWED THE CLAIM OF DEDUCTION OF RS.3,05,70,196/- U/S.80IB(10) OF THE I.T. ACT. 4. BEFORE CIT(A) IT WAS SUBMITTED THAT THE AO REJECTED T HE CLAIM OF DEDUCTION U/S.80IB(10) ON ACCOUNT OF NON-CONSTRUCTION AND NON- COMPLETION OF BUILDING A. THE ASSESSEE FURNISHED AN EVENT CHART OF TH E VARIOUS DATES ON WHICH THE AGREEMENT WITH MRS. NAJMUNISS A KAZI, THE LANDLORD, WAS ENTERED INTO FOR THE PURCHASE OF 232.29 SQ.MT RS OF LAND. IT WAS SUBMITTED THAT THE LANDLORD, I.E. THE SAYYED FAMILY HAD UNDERTAKEN THE RESPONSIBILITY OF EXTENDING POSSESSION OF BU ILDING A LAND. HOWEVER, MRS. KAZI WHO WAS THE OCCUPANT OF THE LAND , DID NOT VACATE THE SAID AREA TILL 2012 FOR WHICH THE ASSESSEE COU LD NOT START CONSTRUCTION OF BUILDING A ON THE SAID LAND. THE ASSESSE E HAD A GENUINE DIFFICULTY IN CONSTRUCTING BUILDING A. BECAUSE OF VAR IOUS PROBLEMS ATTACHED WITH THE LAND ON WHICH THE BUILDING A WA S TO BE CONSTRUCTED IT WAS SUBMITTED THAT IT WAS NOT PRACTICALLY POSSIBLE FOR THE ASSESSEE TO CONSTRUCT BUILDING A. IT WAS ARGUED TH AT IN CASE OF GENUINE DIFFICULTIES THE PROVISIONS OF SECTION 80IB(10) ARE REQ UIRED TO BE CONSIDERED WITH RESPECT TO THE AREAS WHICH SHOULD BE COMPLETED AND A PRUDENT BUSINESSMAN WILL NEVER PREFER TO DELAY CONS TRUCTION OF A SANCTIONED HOUSING PROJECT UNLESS THERE IS SOME COMPELLING REASON. 4 ITA NO.2004/PN/2014 RELYING ON VARIOUS DECISIONS IT WAS SUBMITTED THAT PROPOR TIONATE DEDUCTION SHOULD BE GRANTED TO THE ASSESSEE IN RESPECT OF BUILDINGS WHICH WERE COMPLETED, I.E. BUILDINGS B AND C. 5. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE AND RELYING ON VARIOUS DECISIONS THE LD.CIT(A) ALLOWED THE PRO-RATA DE DUCTION U/S.80IB(10) TO THE ASSESSEE BY OBSERVING AS UNDER : 4.2 I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPEL LANT AND PERUSED MATERIAL ON RECORD. THE ONLY ISSUE CONTESTED RELATES TO THE DISALLOWANCE OF THE CLAIM OF DEDUCTION U/S 80IB(10) ON ACCOUNT OF N ON-COMPLETION OF THE HOUSING PROJECT. THE MATERIAL AND FACTS ON RECORD IND ICATE THAT THE HOUSING PROJECT UNDERTAKEN BY THE APPELLANT WAS FIRST APPROVE D BY THE LOCAL AUTHORITY ON 14.02.2007 VIDE COMMENCEMENT CERTIFICA TE NO. CC/9495/G/95 WHICH CONTAINED BUILDINGS A, B & C. THE SAID PLAN HAS BEEN REVISED SUBSEQUENTLY ON 17.03.2007, 29.03.2010 AND 27. 11.2012. THE APPELLANT COMPLETED THE BUILDINGS B & C COMPRISING OF 28 FLATS AND 42 FLATS RESPECTIVELY FOR WHICH THE OCCUPANCY/COMPLETION CERT IFICATES HAVE ALSO BEEN OBTAINED ON 30.03.2010. THE GOVT. APPROVED VAL UER HAS ALSO EXAMINED THE SAID BUILDINGS AND FOUND THE CONDITIONS U /S. 80IB(10) TO HAVE BEEN FULFILLED WITH RESPECT TO THEM I.E. BUILDI NGS B & C. THE ONLY POINT OF DISPUTE AND REASON FOR THE DISALLOWANCE OF THE CLAI M OF DEDUCTION BY THE ASSESSING OFFICER RELATES TO THE NON-COMPLETION OF BUILD ING 'A' WHICH WAS SANCTIONED ALONG WITH THE OTHER TWO BUILDINGS BY THE LOCAL AUTHORITY. HOWEVER, THE MATERIAL BROUGHT ON RECORD INDICATES TH AT PART OF BUILDING A THAT WAS TO BE CONSTRUCTED WAS ENCROACHING THE LAND I N POSSESSION OF MRS. NAJMUNISSA KAZI. THE FACTS INDICATE THAT THE APPELLANT HAD ENTERED INTO AN AGREEMENT WITH THE SAYYED FAMILY ON 31.08.2005 AND ACQUIRED APPROXIMATELY 9588 SQ. MTRS. OF LAND FROM THEM AND TH E SAYYED FAMILY HAD UNDERTAKEN THE RESPONSIBILITY OF SETTLEMENT WITH MRS. K AZI TO WHOM THEY HAD EARLIER SOLD THE LAND ADMEASURING 232.50 SQ. MTRS . ON 05.08.2003 AND THE SAID LAND WAS TO CONTAIN PART OF BUILDING A THA T WAS TO BE CONSTRUCTED BY THE APPELLANT. THE APPELLANT STARTED THE CONSTRUCT ION OF THE PROJECT ON THE PLAN THAT THE ENTIRE LAND IS TO BE AVAILABLE FOR THE FOR THE PROJECT, HOWEVER, MRS. KAZI SOLD THE LAND TO THE APPELLANT IN THE YEAR 2010 AND THE POSSESSION EXTENDED IN 2012. THE VERY FACT THAT MRS. KAZ I PAID THE MUNICIPAL TAXES OF THE PROPERTY ON THE LAND OWNED AN D OCCUPIED BY HER HAS BEEN PAID TILL 2012 AND THE OLD CONSTRUCTION ON T HE SAID LAND EXISTING TILL 2012. THE COMMENCEMENT CERTIFICATE ISSUED BY THE PMC STIPULATED AND, RESTRICTED THE APPELLANT AS PER CONDITION 11 THAT AN OLD EXISTING CONSTRUCTION ON THE LAND SHALL, BE DEMOLISHED BEFORE C OMMENCING THE WORK. THUS' THE APPELLANT WHO HAD ALREADY UNDERTAKEN THE PROJECT AND STARTED ITS CONSTRUCTION WAS PROHIBI.TED TO CARRY OUT C ONSTRUCTION OF BUILDING 'A' AS THE PART OF LAND AREA OF 232 SQ. MTRS. OWNED BY MRS, KAZI WAS SOLD ONLY ON 01.11.2010 AND POSSESSION HANDED OVER AT A MUCH LATER DATE IN 2012. MOREOVER, THE APPELLANT WOULD HAVE RE QUIRED A FRESH, COMMENCEMENT CERTIFICATE TO START CONSTRUCTION OF BU ILDING 'A', AS THE TIME OF ONE YEAR HAD ALREADY LAPSED BEFORE THE DATE OF OR IGINAL SANCTION GIVEN IN FEBRUARY 2007, I.E. 14.02.2007 AND SUBSEQUENT REVISION S AND THE LAYOUT SANCTIONED REQUIRED TO COMMENCE WORK WITHIN ONE YEAR . THUS THE MATERIAL ON RECORD DO POINT TO THE FACT THAT THE AP PELLANT HAD GENUINE DIFFICULTY IN CONSTRUCTING BUILDING 'A' ON THE SAID L AND. IN SUCH 5 ITA NO.2004/PN/2014 CIRCUMSTANCES, COURTS AND TRIBUNALS HAVE TAKEN A VIEW OF ALLOWING DEDUCTION BY CONSIDERING THE COMPLETED AREAS OF BUILD INGS, WHICH SATISFIED THE CONDITION SPECIFIED U/S. 80IB(10). 4.3 SO FAR AS THE CONTENTION OF THE ASSESSING OFFICER T HAT ONLY THE B & C BUILDINGS TO HAVE BEEN COMPLETED AND OCCUPANCY CERTIFICATES OBTAINED LEAVING THE A BUILDING INCOMPLETE AND NOT COMPLETED HAVING LED TO NON- COMPLETION OF THE HOUSING PROJECT, IT IS SEEN THAT THE PLOT AREA OF THE BUILDINGS 'B &C' IS 5967 SQ.MTRS WHICH IS MORE THAN O NE ACRE AND THE AFORESAID TWO BUILDINGS HAVE COMPLIED WITH ALL THE C ONDITIONS AS STIPULATED IN SECTION 80IB(10) AS IS EVIDENT FROM THE OBSERVATION AS REPORTED BY THE GOVT. APPROVED VALUER SHRI NITIN LELE. 4.3.1. HENCE, THE CLAIM OF THE APPELLANT THAT THE B UILDINGS, B AND C HAVING BEEN DULY COMPLETED ON OR BEFORE 31.03.2012 AND ALSO SATISFIES THE CONDITION OF SECTION 80IB(10) ARE ELIGIBLE FOR DEDU CTION U/S. 80IB(10) OF THE ACT ON A PROPORTIONATE BASIS IF THE ENTIRE PROJEC T IS TAKEN AS ONE FINDS SUPPORT FROM SEVERAL JUDICIAL PRECEDENTS ALSO RELI ED UPON BY THE APPELLANT. 4.4. IN THE CASE AT BRIGADE ENTERPRISES (P) LTD. (SUP RA), THE FACTS WERE THAT THE ASSESSEE FORMED A SINGLE PROJECT BY NAME 'BRIG ADE, MILLENNIUM' COMPRISING A TOTAL AREA OF 22 ACRES AND 19 GUNTAS IN S URVEY. NOS. 44, 45 AND, 51/1 OF BANGALORE SOUTH TALUKA. THIS MACRO PROJ ECT COMPRISED CERTAIN HOUSING BLOCKS, COMMUNITY HALL ETC. AS ITS MIC RO COMPONENTS. IT COMPRISED, AMONG OTHER THINGS, 5 RESIDENTIAL BLOCKS BY NAME MAYFLOWER, CASSIA, MAGNOLIA, JACARANDA AND LABURNUM. APPROVAL HA D BEEN OBTAINED FROM BDA ON 24-5-2002. THE ASSESSEE TOOK TWO BLOCKS SEPA RATELY, VIZ., MAYFLOWER AND CASSIA, AND CLAIMED THE BENEFIT OF DEDU CTION U/S. 80IB OF THE ACT IN RESPECT OF THE SAID TWO BLOCKS, CLAIMING THEM TO BE SEPARATE PROJECTS, AS ONLY THE SAID TWO BLOCKS COULD FULFILL TH E REQUIREMENTS PRESCRIBED U/S.80IB OF THE ACT. THE AO, HOWEVER, DENI ED THE CLAIM OF DEDUCTION U/S.80IB TREATING BRIGADE MILLENNIUM AS ONL Y ONE PROJECT. THE TRIBUNAL, AFTER CONSIDERING THE FACTS, OBSERVED THAT T HE USE OF THE WORDS 'RESIDENTIAL' UNITS' MEANS THAT DEDUCTION SHOULD BE COM PUTED UNIT-WISE. THEREFORE, IF A PARTICULAR UNIT SATISFIES THE CONDITIO NS OF SEC.80IB, THE ASSESSEE IS ENTITLED FOR DEDUCTION. THEREFORE, THE TRIBU NAL UPHELD THE ORDER OF LD. CIT(A) IN ALLOWING DEDUCTION U/S.80IB(1 0) IN RESPECT OF TWO BLOCKS AS CLAIMED BY THE ASSESSEE. 4.4.1 IN ITO VS AIR DEVELOPERS (SUPRA) THE TRIBUNAL HE LD THAT 'ASSESSING OFFICER IS DIRECTED TO DETERMINE THE BUILT UP AREA O F THE RESIDENTIAL UNITS BY APPLYING THE DEVELOPMENT CONTROL REGULATION, 2000 A ND TO ALLOW PROPORTIONATE DEDUCTION U/S.80IB(10) IF HE FINDS THAT THE BUILT UP AREA OF SOME OF THE RESIDENTIAL UNITS EXCEED 1500 SQ.FT.' 4.4.2 IN SHETH DEVELOPERS (SUPRA) THE MUMBAI ITAT HEL D AS REGARDS THE A PROJECT ASSESSEE IS ELIGIBLE FOR RELIED ON PRO-RATA BA SIS IN RESPECT OF THE FLATS WHICH DID NOT HAVE A BUILT UP AREA EXCEEDING 1 000 SQ.FT. QUANTUM OF DEDUCTION IN RESPECT OF THE FLATS WHICH HAVE BUILT UP AREA LESS THAN 1000 SQ.FT., HAS TO BE WORKED OUT ON PRO-RATA BASIS AO ACC ORDINGLY DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE AND ALLOW THE DEDUCTIO N ON PRO-RATA BASIS IN RESPECT OF FLATS IN A PROJECT. 4.4.3 IN THE CASE OF G.V. CORPORATION VS. ITO (SUPRA), THE ASSESSEE, AT THE REQUEST OF PURCHASERS, JOINED SOME OF ITS FLAT/RESIDENTIA L UNITS, AS A RESULT OF WHICH BUILT UP AREA OF THOSE FLATS EXCEEDED 1,000 SQ.FT. DEDUCTION WAS 6 ITA NO.2004/PN/2014 DENIED U/S.80IB(10) ON THE GROUND THAT THE AFORESAID ACT OF THE ASSESSEE RESULTED IN VIOLATION OF THE PROVISIONS OF SEC.80IB(10) . THE TRIBUNAL, FOLLOWING THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES VS. JT. CIT (2009) 119 ITD 255, HELD THAT DE DUCTION COULD NOT BE TOTALLY DENIED AND IT WOULD BE ELIGIBLE FOR PROPORT IONATE DEDUCTION. 4.4.4 IN THIS REGARD THE DECISION OF THE PUNE ITAT IN THE CASE OF RAHUL CONSTRUCTION CO. VS. ITO, ITA NO.1250/PN/2009 AND ITA NO.707/PN/2010 DATED 30-03-2012 HELD AS UNDER : '9, THERE IS NO DISPUTE ON, FROM MATERIAL FACTS THAT OUT OF 16 BUILDINGS IN THE HOUSING PROJECT OF THE ASSESSEE ONLY 11 BUILDINGS WERE COMPLETED WITHIN THE PRESCRIBED TIME-L IMIT UP TO 31-3-2008. THE LAYOUT PLAN IN RESPECT OF ENTIRE COMP LEX WAS SANCTIONED BY PMC VIDE ORDER DATED 3-4-2003 AND THE BUILDING PLAN WAS SANCTIONED VIDE, COMMENCEMENT CERTIFICATE DA TED 29- 4-2003. ADMITTEDLY, THE TERM 'HOUSING PROJECT' HAS N OT BEEN DEFINED IN THE ACT BUT IN THE CONTEXT OF DEDUCTION UNDER SECTION 80IB(10) AN EXPLANATION HAS BEEN PROVIDED BELOW CLAU SE (A) TO SUB-SECTION (10 ) TO SECTION 80IB. THE VERY READING O F ABOVE EXPLANATION (I), MAKES IT CLEAR THAT FOR THE ELIGIB ILITY OF THE DEDUCTION PROVIDED UNDER SECTION 80-IB(10), THE DATE ON WHICH BUILDING PLAN OF A HOUSING PROJECT HAS BEEN FIRSTLY A PPROVED BY THE LOCAL AUTHORITY WILL BE TREATED AS APPROVAL IN R ESPECT OF THE HOUSING PROJECT. WHEN EXPLANATION (II) IS READ WITH E XPLANATION (I), IT MAKES CLEAR THAT THE DATE OF COMPLETION OF C ONSTRUCTION OF SUCH HOUSING PROJECT WOULD BE TAKEN WHEN COMPLETION CERTIFICATE HAS BEEN ISSUED BY THE LOCAL AUTHORITY. IN OTHER WORDS, IN CLAUSE (I) OF THE EXPLANATION, IT HAS BEEN M ADE CLEAR THAT DATE OF FIRST APPROVAL OF HOUSING PROJECT BY THE LOCAL AUTHORITY WOULD BE TAKEN AS STARTING POINT OF THE HOU SING PROJECT AND IN CLAUSE NO. (II), IT HAS BEEN MADE CLEAR THAT THE DATE OF COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJ ECT ISSUED BY LOCAL AUTHORITY WILL, BE CONSIDERED TO COMPUTE TH E PRESCRIBED TIME-LIMIT FOR VERIFICATION OF ELIGIBILITY OF ASSESSEE FOR THE CLAIMED DEDUCTION. IN VIEW OF THE ABOVE EXPLANATION , APPROVAL OF THE HOUSING PROJECT AND APPROVAL OF BUILDING PLAN ARE TWO DIFFERENT CONCEPTS. THUS, THE PART OF THE PROJECT COMPRISING OF BUILDINGS B & C IS A SEPARATE PROJECT AND WHICH SATISFIED ALL THE CONDITIONS STIPU LATED U/S.80IB(10) AND HENCE THE APPELLANT IS VERY MUCH ENTITLED TO CLAIM T HE DEDUCTION U/S.80IB(10) OF THE ACT, ON BUILDINGS B AND C IN VIEW OF THE ABOVE SET OF REASONING BY THE TRIBUNAL. 4.4.5 IN THE CASE OF M/S. RUNWAL MULTIHOUSING PVT. LTD . VS. ACIT (SUPRA) AFTER CONSIDERING VARIOUS JUDICIAL PRECEDENTS OF DIFFE RENT HIGH COURTS AND COORDINATE BENCHES, THE PUNE TRIBUNAL HELD THAT 21.3 IN VIEW OF THE ABOVE DECISIONS, WE ARE OF THE C ONSIDERED OPINION THAT WHATEVER PORTION COMPLETED BY THE ASSESSEE WHICH SATISFIES THE CONDITIONS PRESCRIBED U/S. 80IB(10) IS ELIGI BLE FOR DEDUCTION. THE VARIOUS DECISIONS RELIED ON BY THE REVE NUE ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE ACCORDINGLY HOLD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80IB(10) IN RESPECT OF BUILDING NO. A,C,D, E AND THE 17 ROW HOUSES. 7 ITA NO.2004/PN/2014 THE GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ACCORDI NGLY ALLOWED. 4.4.6 IN THE CASE OF BENGAL AMBUJA HOUSING DEVELOPMEN T LTD. (SUPRA), THE FACTS WERE THAT THE HOUSING PROJECT CONSISTED OF 26 1 RESIDENTIAL UNITS AND THE INDIVIDUAL FLAT SIZE VARIED BETWEEN 800 SQ.FT . TO 3000 SQ.FT. AND THE TOTAL BUILT UP AREA OF THIS HOUSING PROJECT WAS 346599 SQ.FT. THIS PROJECT CONTAINED 150 RESIDENTIAL UNITS WITH A BUILT UP AREA OF INDIVIDUAL UNIT OF LESS THAN 1500 SQ.FT. AGGREGATING TO 169500 SQ.FT. THE REMAINING BUILT UP AREA OF 187593 SQ.FT. WAS CONSUMED BY OTHER RESIDENTIAL UNITS WHEREIN THE SIZE OF INDIVIDUAL UNIT EXCEEDED 1500 SQ.FT. OF BUILT UP AREA. UNDER THESE CIRCUMSTANCES, THE ASSESSEE HAD CLAIMED DEDUCTION U/S.80I B(10) WITH REFERENCE TO THE PROFIT ATTRIBUTABLE TO THE BUILT U P AREA WHICH WAS OCCUPIED BY RESIDENTIAL UNITS HAVING INDIVIDUAL FLAT SIZE OF LE SS THAN 1500 SQ.FT. THE AO REJECTED THE CLAIM OF THE ASSESSEE U/S.80IB(10), INTE R ALIA, OBSERVING THAT AS PER THE TERMS OF SEC.80IB(10), ALL THE UNITS C OMPRISED IN THE HOUSING PROJECT SHOULD HAVE HAD INDIVIDUAL FLAT SIZE O F LESS THAN 1500 SQ.FT. IN THE BACKDROP OF THESE FACTS, THE TRIBUNAL OBSERVED THAT THE PROVISIONS LAID DOWN IN SEC.80IB(10) DO NOT SPEAK REGARDING SUCH DENIAL OF DEDUCTION IN CASE OF PROFIT FROM A HOUSING COMPLEX BOTH THE SMAL LER AND LARGE RESIDENTIAL UNITS AND SINCE THE ASSESSEE HAD CLAIMED ONL Y DEDUCTION ON ACCOUNT OF SMALLER QUALIFYING UNITS FULFILLING ALL TH E CONDITIONS AS LAID DOWN U/S.80IB(10), THE DENIAL OF CLAIM BY THE AO WAS NOT JUSTIFIED. 4.4.7 IN VISHWAS PROMOTERS (P) LTD. VS. ACIT & ORS (201 3) 50(I) TICL 274 (MAD) IT WAS HELD THAT THE ASSESSEE WAS ENTITLED TO C LAIM DEDUCTION IN RESPECT OF ALL THE BLOCK FORMING PART OF THE PROJECT CALLED AGRINI AND GAJRA, BUT TO THE EXTENT OF EACH OF THE BLOCKS SATISFYING THE CONDITIONS U/S.80IB(10) OF THE ACT AND THE ASSESSEE WOULD BE ENTITL ED TO THE RELIEF ON A PROPORTIONATE BASIS. SIMILAR VIEW WAS ALSO TAKEN BY THE MADRAS HIGH COURT IN THE CASE OF CIT VS. ARUN EXCELLO FOUNDATION (P) LTD. (2013) 212 TAXMAN 342 (MAD) WHEREIN IT WAS HELD THAT IN A GIVEN CASE WHEN THE HOUSING PROJECT @10% RESIDENTIAL UNITS SATISFIED OTHER C LAUSES (A) AND (B) AND THE BUILT UP AREA GIVEN UNDER CLAUSE (C) OF SEC.8 0IB(10) OF THE ACT, THERE WOULD BE NO DIFFICULTY FOR THE REVENUE TO GRA NT THE DEDUCTION. THE QUESTION BECOMES A LITTLE COMPLICATED WHEN 100% RESIDE NTIAL HOUSING PROJECT HAS BUILT UP AREA OF MIXED NATURE WHILE FEW OF THE UNITS MAY SATISFY THE CRITERIA OF THE BUILT UP AREA OF LESS THAN 1500 SQ .FT., THERE MAY BE UNITS WHICH HAVE BUILT UP AREA CROSSING THE LIMIT AS SPECIFIE D IN CLAUSE (A) OF SEC.80IB(10) OF THE ACT. IN SUCH EVENT ON A READING OF THE PROVISION, IT IS HELD THAT THE ASSESSEE WOULD NOT BE ENTITLED TO HAVE T HE BENEFIT OF 100% ABSOLUTE DEDUCTION U/S.80IB(10) OF THE ACT IN RESPECT OF THE ENTIRE PROJECT, BUT WOULD BE ENTITLED TO PRO RATA DEDUCTION ON THE UNITS SATISFYING THE CONDITIONS . . . . . . . . . . 4.4.8 IN DCIT VS. EKTA HOUSING (P) LTD. (2011) 44 (II ) ITCL 404 (MUM) IT WAS HELD THAT IN CASES CERTAIN RESIDENTIAL HOUSE HAS BUIL T UP AREA IN EXCESS OF 1500 SQ.FT, THE ASSESSEE COULD NOT LOSE THE TOTAL EXEM PTION U/S.80IB(10) IN ITS ENTIRETY BUT WILL LOSE THE PROPORTIONATE EXEMP TION U/S.80IB(10). DEDUCTION U/S.80IB(10) ON PRO RATA BASIS WAS THEREFORE ALLOWABLE. 4.4.9 THUS IN VIEW OF THE ABOVE FACTS, THE RATIO OF T HE JUDICIAL DECISIONS AND THE APPELLANT HAVING SATISFIED THE OTHER CONDITIO N AS STIPULATED U/S. 80IB(10) SUCH AS REGARDING THE AREA OF THE PLOT HAVI NG NO COMMERCIAL AREA THE APPELLANT GETS ENTITLED TO THE DEDUCTION U/S.80I B(10) ON PRO RATA BASIS 8 ITA NO.2004/PN/2014 WITH RESPECT TO THE BLOCKS AND UNITS SATISFYING THE COND ITIONS U/S.80IB(10) OF THE ACT. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVENUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN ALLOWING THE ASSESSEE ' S CLAIM OF DEDUCTION U/S 80IB(10) OF RS.3 , 05,70,196/- WITH RESPECT O THE HOUSING PROJECT . 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN NOT APPRECIATING THE IMPORT OF SECTION 80IB(10) WHICH SP EAKS ' ABOUT SANCTION TO THE 'HOUSING PROJECT' AND NOT TO THE INDI V I DUAL BUILDINGS IN THE PROJECT . 3. THE LEARNED COMM I SSIONER OF LNCOME-TAX APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE ORIGINAL PLAN PASSED B Y LOCAL AUTHORITY CONSTRUCTED OF THREE BUILDINGS A , B& C AND PLAN WAS NOT REVISED AND ONLY B&C WERE SHOWN AS COMPLETED WITHIN THE PRESCRIBED DUE DATE. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN AL L OWING PRO-RATA CLAIM OF DEDUCTION U/S. 80IB(10) IN ' RESPECT OF ELIGIBLE FLATS IN THE PROJECT INSPITE OF VIOLATION OF CLAUSE ( C) WITHOUT APPRECIATING THE FACT THAT JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS . BRAHMA ASSOCIATES, 333 ITR 289 HELD THAT DEDUCTION IS ALLOWAB LE ON THE ENTIRE PROJECT APPROVED BY THE LOCAL AUTHORITY AND THERE I S NO QUEST I ON OF ALLOWING DEDUCTION TO A PART OF THE PROJECT . 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OR ALL THE GROUNDS OF APPEAL . 7. THE LD. DEPARTMENTAL REPRESENTATIVE REFERRING TO THE ASSESSM ENT ORDER SUBMITTED THAT THE AO HAS GIVEN JUSTIFIABLE REASONS FOR REJECTING THE CLAIM OF DEDUCTION U/S.80IB(10). HE SUBMITTED THAT THER E IS NO CONCEPT OF PROPORTIONATE DEDUCTION UNDER THE PROVISIONS OF SECTION 80IB(10). IT SPEAKS OF THE ENTIRE PROJECT. SINCE THE ASS ESSEE IN THE INSTANT CASE HAS NOT COMPLETED BUILDING A, THEREFORE, THE P ROJECT IS INCOMPLETE. THEREFORE, THE CIT(A) WAS NOT JUSTIFIED IN ALLOWING PROPORTIONATE DEDUCTION U/S.80IB(10) TO THE ASSESSEE. 8. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND WHILE RELYING ON THE ORDER OF LD.CIT(A) REFERRED TO THE FOLLOWING DECISIONS AND SUBMITTED THAT THE VARIOUS BENCHES OF THE TRIBUNAL AS WE LL AS DIFFERENT 9 ITA NO.2004/PN/2014 HIGH COURTS ARE TAKING THE CONSISTENT VIEW THAT ASSESSE E IS ENTITLED TO PROPORTIONATE DEDUCTION U/S.80IB(10): 1. CIT VS. ARUN EXCELLO FOUNDATIONS (P. LTD. REPORTED IN 259 CTR 362 (MADRAS HIGH COURT) 2. CIT VS. SANGHVI AND DOSHI ENTERPRISE REPORTED IN 255 CTR 156 (MADRAS HIGH COURT) 3. VISWAS PROMOTERS PVT. LTD. VS. ACIT REPORTED IN 25 5 CTR 149 (MADRAS HIGH COURT) 4. ACIT VS. SUBHASH F. BAFNA VIDE ITA NOS. 316 TO 31 9 AND BATCH OF CONNECTED APPEALS AND BATCH OF OTHER APPEALS ORDER DA TED 26-06-2014 (PUNE B BENCH) 5. M/S KUMAR COMPANY VS. ADDL.CIT VIDE ITA NO.1652/PN /2012 ORDER DATED 06-01-2016 (ITAT PUNE) 6. CIT VS. ELEGANT ESTATES VIDE TAX APPEAL NO.1172/20 15 (MADRAS HIGH COURT) 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SID ES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIO US DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE IN THE INSTANT CASE IS AN INDIVIDUAL AND ENGAGED IN THE ACTIVITY OF PROMOTERS AND BUILD ERS IN THE NAME AND FASHION OF HARSHAD CONSTRUCTIONS. DURING THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE HAS CONSTRUCTE D 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 REVISED ON VARIOUS DATES. AS PER THE ORIGINAL PLAN PASSED BY THE MUNICIPAL AU THORITIES, 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 GROU ND THAT THE SAME WAS NOT CONSTRUCTED. SINCE THE PLAN WAS SANC TIONED FOR BUILDINGS A, B AND C AND THE ASSESSEE HAS COMPLETED ONLY BUILDINGS B AND C AND BUILDING A WAS NEVER CONSTRUCTED, THE AO RE JECTED THE 10 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 BUILDING S B AND C WHICH WERE COMPLETED. 10. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) G RANTING PRO-RATA DEDUCTION TO THE ASSESSEE IN RESPECT OF BUILDING S B AND C WHICH WERE COMPLETED. WE FIND THE PUNE BENCH OF THE TRIBU NAL IN THE CASE OF M/S. KUMAR COMPANY WHILE DECIDING IDENTICAL ISSUE HA D ALLOWED THE CLAIM OF PRO-RATA DEDUCTION BY OBSERVING AS UNDER : 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH 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 VARI OUS DECISIONS CITED BEFORE US. THE ONLY DISPUTE IN THE IMPUGNED GR OUNDS RAISED BY THE ASSESSEE IS REGARDING ALLOWABILITY OF PRO-RATA DEDUCTION U/S.80IB(10) IN RESPECT OF THE HOUSING PROJECT KUMAR PADMALAYA WHER E ADMITTEDLY SOME OF THE UNITS HAVE NOT BEEN COMPLETED BEFORE 31-03-20 08. 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 E NTITLED 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 HONBLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS PVT. LTD. (SUPRA) WHILE ALLOWING PROPORTIO NATE 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 BE LOW 1500 SQ.FT., AND THE RELEVANT BUILT-UP AREA REQUIREMENT IS SPECIFIED UNDERSECTION 80IB(10)(C) OF THE INCOME TAX ACT. THUS, THE BUILT- UP AREA IN SOME OF THE FLATS IN BOTH THESE PROJECTS ARE IN EXCESS OF 1 500 SQ.FT., I.E., 32 FLATS IN AGRINI AND ONLY ONE FLAT IN VAJRA AND THAT THE A SSESSEE HAD NOT CLAIMED ANY DEDUCTION ON THIS. WE HOLD THAT THE TRI BUNAL 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 THES E 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 A S 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 O N A PROPORTIONATE BASIS, BY FOLLOWING THE DECISION OF THE BOMBAY HIGH COURT REPORTED IN 11 ITA NO.2004/PN/2014 [2011] 333 ITR 289 (CIT VS. BRAHMA ASSOCIATES). THU S 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 T O SUCCEED BOTH ON THE PRINCIPLE OF PROPORTIONALITY AS WELL AS BY REAS ON OF THE CONSTRUCTION ON THE MEANING OF THE EXPRESSION 'HOUSING PROJECT' AS REFERRING TO CONSTRUCTION OF ANY BUILDING AND THE WORDINGS IN SE CTION 80IB(10) OF THE ACT. IN THE CIRCUMSTANCES, WE HOLD THAT THE MER E FACT THAT ONE OF THE BLOCKS HAVE UNITS EXCEEDING BUILT-UP AREA OF 15 00 SQ.FT, PER SE, WOULD NOT RESULT IN NULLIFYING THE CLAIM OF THE ASS ESSEE FOR THE ENTIRE PROJECTS. CONSEQUENTLY, IN RESPECT OF EACH OF THE B LOCKS, THE ASSESSEE IS ENTITLED TO HAVE THE BENEFIT OF DEDUCTION IN RES PECT OF RESIDENTIAL UNITS SATISFYING THE REQUIREMENT UNDER SECTION 80IB(10)(C ) OF THE ACT. IN SO HOLDING, WE ALSO AGREE WITH THE DECISION OF THE BOM BAY HIGH COURT REPORTED IN [2012] 206 TAXMAN 584 (CIT V. VANDANA P ROPERTIES), WHICH WAS DECIDED BY THE BOMBAY HIGH COURT ON SIMIL AR LINES AS IN THE ASSESSEE'S CASE BEFORE US. 15. IN THE LIGHT OF THE ABOVE REASONING, WE HAVE N O HESITATION IN ALLOWING THE CASES CASES FILED BY THE ASSESSEE IN R ESPECT 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 CLAI M OF DEDUCTION IN RESPECT OF ALL THE BLOCKS FORMING PART OF THE PROJE CTS CALLED AGRINI AND VAJRA, BUT TO THE EXTENT OF EACH OF THE BLOCKS SATI SFYING THE CONDITIONS UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSEE WOU LD BE ENTITLED TO THE RELIEF ON A PROPORTIONATE BASIS. 14. WE FIND FOLLOWING THE ABOVE DECISION THE PUNE BE NCH OF THE TRIBUNAL IN THE CASE OF PADMAVATI DEVELOPERS (SUPRA) HAS DECIDED THE ISSUE OF PRO-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 ELI GIBLE 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 S ECTOR 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 AS SESSMENT YEAR 2007- 08. THE BUILDING COMPRISED IN P-1 TO P-6 AND THE RO W HOUSES HAVE NOT BEEN CONSTRUCTED BY THE ASSESSEE TILL THE DATE OF S URVEY AND UPTO 31.03.2008. 37. THE HONBLE MADRAS HIGH COURT IN VISWAS PROMOTE RS PVT. LTD. VS. ACIT, (2013) 255 CTR 149 (MAD.) HAVE LAID 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 T HE EXTENT OF BUILT-UP AREA. 38. SIMILAR PROPOSITION HAS BEEN LAID DOWN BY THE B ANGALORE BENCH OF THE TRIBUNAL IN DCIT VS. BRIGADE ENTERPRISES (P.) L TD., (2008) 119 TTJ 269 (BANG) AND THE PUNE BENCH OF THE TRIBUNAL IN RU NWAL MULTIHOUSING PVT. LTD. VS. ACIT IN ITA NOS.1015, 10 16 AND 1017/PN/2011 RELATING TO ASSESSMENT YEARS 2003- 04 TO 2005-06, ORDER DATED 21.11.2012. FOLLOWING THE SAME PARITY O F REASONING, WE HOLD THAT THE ASSESSEE IS ENTITLED TO PRO-RATA DEDU CTION IN RESPECT OF RESIDENTIAL UNITS IN THE HOUSING PROJECT NO.7, WHIC H HAVE COMPLIED WITH THE CONDITIONS AND WERE ELIGIBLE FOR THE DEDUCTION UNDER SECTION 80- IB(10) OF THE ACT. HOWEVER, THE SAID DEDUCTION IS A LLOWABLE TO THE ASSESSEE ONLY IN RESPECT OF UNITS CONSTRUCTION OF W HICH HAS BEEN COMPLETED UPTO 31ST MARCH, 2008. ACCORDINGLY, WE DI RECT THE 12 ITA NO.2004/PN/2014 ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESS EE IN THIS REGARD IN ASSESSMENT YEARS 2006-07 AND 2007-08 AND IF THE ASS ESSEE HAS FULFILLED THE AFORESAID CONDITIONS UNDER SECTION 80 -IB(10) OF THE ACT, PRO-RATA DEDUCTION UNDER THE SAID SECTION COULD BE ALLOWED TO THE ASSESSEE IN RELATION TO THE BUILDINGS / FLATS COMPL ETED IN SECTOR NO.7. CONSEQUENTLY, THE GROUND OF APPEAL RAISED BY THE AS SESSEE 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 BUI LDINGS/UNITS OF THE HOUSING PROJECT KUMAR PADMALAYA WHICH HAVE COMPLIE D 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 THEREFO RE SET ASIDE THE ORDER OF LD.CIT(A) AND DIRECT THE AO TO ALLOW PRO-RATA DE DUCTION CLAIMED U/S.80IB(10) IN RESPECT OF PROJECT KUMAR PADMALAYA. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. 11. WE FIND THE HONBLE BOMBAY HIGH COURT IN THE CASE OF ELEGANT ESTATES (SUPRA) FOLLOWING THE DECISION OF CIT VS. ARUN EXCELLO FONDATIONS PVT. LTD., REPORTED IN 212 TAXMANN 342 HAS A LLOWED PRO- RATA DEDUCTION. 12. WE FIND THE COORDINATE BENCH OF THE TRIBUNAL IN THE C ASE OF SUBASH S. BAFNA (SUPRA) AFTER CONSIDERING THE DECISION OF H ONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES HAS ALLOWED THE CLAIM OF PRO-RATA DEDUCTION BY OBSERVING AS UNDER : 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A ) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSI DERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT DURING THE COURSE OF SURVEY CARRIED OUT U/S.133A ON THE BUSINESS PRE MISES OF THE ASSESSEE ON 13-05-2008 IT WAS FOUND THAT THE PROJECT HAD NOT BEEN COMPLETED AS REQUIRED UNDER THE PROVISIONS OF SECTION 8 0IB(10) AS IT STOOD PRIOR TO 31-03-2008. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE IN HIS STATEMENT RECORDED U/S.131 ON 13-05-2008, IN RE SPONSE TO QUESTION NO.6 HAD ADMITTED THAT OUT OF THE TOTAL REVISED APPR OVAL FOR 180000 SQ.FT. RECEIVED IN 2003 HE HAD OBTAINED THE COMPLETION CER TIFICATE FROM PMC FOR 152000 SQ.FT. ONLY THE AREA OF ONE ACRE AND THE SIZE OF UNITS BEING LESS THAN 1500 SQ.FT. IS NOT IN DISPUTE. THE ONLY DISPUTE B EFORE US IS REGARDING THE ALLOWABILITY OF PROPORTIONATE DEDUCTION U/S.80IB (10) WHEN THE ENTIRE PROJECT IS NOT COMPLETED BEFORE THE STIPULATED DATE. WE FIND THE LD.CIT(A) ALLOWED THE CLAIM OF PROPORTIONATE DEDUCTION U/S.80I B(10) FOR A.YRS. 2004-05 TO 2007-08 BY RELYING ON VARIOUS DECISIONS. H OWEVER, FOR THE A.Y. 2008-09 THE LD.CIT(A) DENIED THE CLAIM OF BENEFIT O F DEDUCTION U/S.80IB(10) BY RELYING ON THE DECISION OF THE HYDERA BAD BENCH OF THE TRIBUNAL IN THE CASE OF SAINATH ESTATE PVT. LTD.(SUPR A), THE DECISION OF THE 13 ITA NO.2004/PN/2014 MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF EVEREST HOME CONSTRUCTION INDIA PVT. LTD. (SUPRA) AND THE DECISION OF THE MUMB AI HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). 7.1 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE C ASE OF SIDDHIVINAYAK SHREE (SUPRA) AFTER CONSIDERING THE DECISION IN THE C ASE OF SAINATH ESTATE PVT. LTD.(SUPRA), THE DECISION OF THE MUMBAI BENCH O F THE TRIBUNAL IN THE CASE OF EVEREST HOME CONSTRUCTION INDIA PVT. LTD. (SUP RA) HAS ALLOWED THE CLAIM OF PROPORTIONATE DEDUCTION U/S.80IB(10) OF THE I.T. ACT, 1961. THE RELEVANT OBSERVATION OF THE TRIBUNAL FROM PARA 13 ON WARDS READ AS UNDER : 13. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSI DERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE AO IN T HE INSTANT CASE DENIED THE CLAIM OF DEDUCTION U/S.80IB(10) ON TH E GROUND THAT (A) THE ASSESSEE HAS NOT OBTAINED THE COMPLETION CERTIFI CATE ON OR BEFORE 31-03-2008 (B) THAT THE PROJECT INCLUDES SHOPS AND OTHER COMMERCIAL AREAS IN EXCESS OF THE PRESCRIBED LIMIT AND (C) THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB(10) SINCE A.Y. 20 01-02 AND THE ASSESSEE IS SHOWING THE ENTIRE PROJECT AS A SINGL E PROJECT. WE FIND THE LD.CIT(A), ON THE BASIS OF THE ADDITIONAL EVIDENCES FILED BEFORE HIM AND THE REMAND REPORT OBTAINED FROM THE AO, HELD THAT THE PROJECTS (A) AND (B) UNDERTAKEN BY THE ASSESSEE ARE TWO DIFFERENT PROJECTS. THE RELEVANT OBSERVATIONS OF THE LD.CIT(A) ARE ALREADY REPRODUCED AT PARA 4.1 OF THE IMPUGNED ORDE R. THE REVENUE IS NOT IN APPEAL BEFORE US ON THIS ISSUE. THEREFORE, T HIS ISSUE ON WHICH THE AO HAS DENIED THE DEDUCTION IS NOT RELEVANT . 14. HOWEVER, THE LD.CIT(A) UPHELD THE ACTION OF THE AO IN DENYING THE CLAIM OF DEDUCTION ON THE OTHER REASONS ST ATED BY THE AO, I.E. (A) THE COMPLETION CERTIFICATE HAS NOT BEEN OBTAINED ON OR BEFORE 31-03-2008 (B) THAT THE ASSESSEE DID NOT EXPLAIN ANYTHING ABOUT PROJECT B AND (C) THAT THE PROJECT INCLUDES SHO PS AND COMMERCIAL AREA IN EXCESS OF THE PRESCRIBED LIMIT. 14.1 FROM THE DETAILS FURNISHED BY THE ASSESSEE IN THE PA PER BOOK WE FIND THE DETAILS OF COMPLETION CERTIFICATE N O AND DATE AND THE REFERENCE TO THE DATE OF APPLICATION ARE AS UNDE R : PROJECT A -PLOT NO 3 COMPLETION CERTIFICATE NO DATE COMPLETION WITH REFERENCE TO DATE BUILDING NO OF FLATS SHOPS BCO/03/262 28/06/2000 27/03/2000 F 48 0 640 30/03/2010 04/04/2006 D - 1 24 7 640 30/03/2010 04/04/2006 D - 2 24 8 640 30/03/2010 04/04/2006 E - 2 24 9 640 30/03/2010 04/04/2006 E - 3 24 7 640 30/03/2010 04/04/2006 E - 4 24 8 TOTAL 168 39 14 ITA NO.2004/PN/2014 PROJECT B -PLOT NO 4 COMPLETION DATE COMPLETION WITH BUILDING NO OF SHOPS CERTIFICATE NO REFERENCE TO DATE FLATS BCO/03/146 05/10/2005 05/10/2005 G 101 0 (GOLD) BCO/03/146 05/10/2005 05/10/2005 H 68 0 (CROWN) TOTAL 169 0 THE COMPLETION CERTIFICATE IN RESPECT OF BUILDING I +K IN RESPECT OF 80 FLATS IS NOT GRANTED SO FAR BY PMC ALTHOUGH THE ASSE SSEE HAS DULY APPLIED FOR THE SAME ON 04-04-2006 AS PER APPLICATIO N FOR OCCUPANCY CERTIFICATE RECEIVED BY PMC ON 04-04-2006 , A COPY OF WHICH IS PLACED AT PAPER BOOK PAGE NO.12. 14.2 IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSE SSEE THAT THE PROJECT A AND BUILDING I & K OF PROJECT B ARE C OMPLETE BEFORE MAY 2006 SINCE THE ASSESSEE HAS APPLIED FOR COMPLETION ON 04-04- 2006. SIMILARLY THE ASSESSEE HAS APPLIED ON 05-10-2005 FOR PROJECT B (G & H BUILDING) WHICH WAS RECEIVED BY THE ASSESSEE. THE PERMISSION WAS NOT REJECTED BUT WAS WITHHELD FOR TECHNI CAL REASONS, I.E. NON ALLOTMENT OF BUILT UP AREA IN TERMS OF SECTION 20 OF THE URBAN LAND AND CEILING (REGULATION) ACT, 1976 A ND NON- PAYMENT OF COMPOUNDING FEES OF RS.2,41,805/-. THE ASSE SSEE HAD ENCLOSED THE COMPLETION CERTIFICATE, NO OBJECTION CERTIFICATES/CLEARANCE SUCH AS DRAINAGE, WATER, FIRE NOC, LIFT NOC, HEALTH NOC, ROAD NOC AND STRUCTURAL STABILITY CERTIFI CATE ETC FOR THE ENTIRE PROJECT A AND BUILDING I & K OF PROJECT B (P AGE NO.12 OF PAPER BOOK). COMPLETION CERTIFICATE FOR BUILDING G AND H OF PROJECT B ARE ALREADY AVAILED AND THERE IS NO DISPUTE. FURT HER, THE PMC ISSUED COMPLETION CERTIFICATE ON 31-03-2010 WITH REFE RENCE TO APPLICATION DATED 04-04-2006 IN RESPECT OF BUILDING D1, BUILDING D2, BUILDING E2, BUILDING E3 AND BUILDING E4. THER EFORE, THE COMPLETION CERTIFICATE IN RESPECT OF BUILDING D1, D2 , E2, E3 & E4 OF BUILDING A RELATES BACK TO THE APPLICATION DATED 04 -04-2006. 14.3 WE FIND MERIT IN THE ABOVE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. IT HAS NOT BEEN DISPUTED BY THE REVENUE TH AT THE ASSESSEE HAS NOT APPLIED TO THE MUNICIPAL CORPORATION FO R ISSUE OF COMPLETION CERTIFICATE ON 04-04-2006 FOR PROJECT A AND BUILDING I & K OF PROJECT B. IT IS ALSO NOT IN DISPUTE THAT THE CO MPLETION CERTIFICATE ISSUED BY THE PMC DATED 31-03-2010 FOR BU ILDINGS OF PROJECT A IS NOT WITH REFERENCE TO APPLICATION DATED 04-04-2006. THEREFORE, IN OUR OPINION, THE COMPLETION CERTIFICA TE ISSUED ON 31- 03-2010 WITH REFERENCE TO THE APPLICATION DATED 04- 04-2006 FOR PROJECT A RELATES BACK TO THE DATE OF APPLICATION, I .E. 04-04-2006. 14.4 THE SECOND ISSUE ON WHICH THE LD.CIT(A) COMPLETED THE DENIAL OF DEDUCTION U/S.80IB(10) IS THAT NOTHING WAS E XPLAINED ABOUT PROJECT B. AS ALREADY MENTIONED EARLIER COMPL ETION CERTIFICATE FOR BUILDING G & H OF PROJECT B HAS ALRE ADY BEEN GRANTED ON 05-10-2005 WHICH IS NOT DISPUTED BY THE REVENUE SIN CE A COPY OF THE SAME WAS FILED BEFORE THE AO & CIT(A) AS CERTIF IED IN THE 15 ITA NO.2004/PN/2014 PAPER BOOK AND NOT DISPUTED BY THE REVENUE. SO FAR AS THE BUILDING I + K OF PROJECT B IS CONCERNED WE FIND ALTHOUGH THE ASSESSEE HAS APPLIED FOR THE SAME ON 04-04-2006, HOWEVER, THE SAME IS PENDING BEFORE PMC FOR TECHNICAL REASONS. 14.5 WE FIND THE PUNE BENCH OF ITAT IN THE CASE OF H INDUSTAN SAMUHA AWAS LTD. HAS OBSERVED AS UNDER : 9. FROM THE ABOVE, ONE THIS IS CLEAR THAT THE DATE THAT APPEAR ON THE ARCHITECTS COMPLETION CERTIFICATE FILED BEFORE THE LOCAL AUTHORITY IS A RELEVANT ONE. IN THE INSTANT CASE, THE SAID DATE IS 25-03-2 008 AND THE ASSESSEE FILED REQUISITE FORM BEFORE THE LOCAL AUTHORITIES INTIMAT ING THE COMPLETION OF THE PROJECT. THE SAID CERTIFICATE/INTIMATION WAS ACCEP TED BY THE LOCAL AUTHORITY WITHOUT ANY AMENDMENTS OR OBJECTIONS. LOCAL AUTHOR ITY HAS NOT RAISED ANY QUERIES ON THE QUALITY CONSTRUCTION OF THE BUILDING OR THE COMPLETION OF THE SAME AS PER THE PLANS APPROVED BY SUCH AUTHORITY. IN SUCH CIRCUMSTANCES, IN OUR OPINION, THE DELAY IN OBTAINING THE COMPLETI ON CERTIFICATE ON 10-10- 2008 IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE AND OBTAINING THE SAID CERTIFICATE BEFORE 31-03-2008 IS BEYOND THE CONTROL OF THE ASSESSEE. ASSESSEES JOB INCLUDES THE COMPLETION OF THE BUILD ING IN ACCORDANCE WITH THE APPROVED PLANS AND INTIMATION OF THE SAME TO TH E LOCAL AUTHORITY BY WAY OF FILING THE REQUISITE FORMS TOGETHER WITH THE COM PLETION CERTIFICATE GIVEN BY THE ARCHITECT, THE SPECIALIST IN THE MATTER AND THE ASSESSEE HAS DONE HIS JOB SCRUPULOUSLY IN THIS CASE. HOWEVER, THE LOCAL AUTH ORITY HAS NEITHER OBJECTED TO THE SAID APPLICATION OF THE ASSESSEE AND THE ARC HITECT BY RAISING ANY OBJECTIONS NOR ACCEPTED BY ISSUE OF SAID COMPLETION CERTIFICATE TILL 10-10- 2008. THEREFORE, THE DELAY IN GRANT OF THE SAID CE RTIFICATE IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE. THEREFORE, IN OUR OP INION, THE ASSESSEE IS NOT DEFAULTER ON THIS ACCOUNT AND THUS, THE AO HAS ERRE D IN DENYING THE DEDUCTION U/S.80IA(10) OF THE ACT. ACCORDINGLY, TH E ORDER OF THE CIT(A) HAS TO BE REVERSED. THUS, THE GROUNDS RAISED IN THE AP PEAL ARE ALLOWED. 14.6 FURTHER, IN THE INSTANT CASE AS HAS BEEN POINTED O UT BEFORE THE AO AND CIT(A) AS WELL AS BEFORE US THAT THE ASSESSEE I S ALL ALONG CLAIMING THAT THE PROJECT WAS COMPLETE IN THE YEAR 2 006, THE PURCHASERS HAVE BEEN GIVEN POSSESSION OF THE FLATS, THEY H AVE UNDERTAKEN FOR THE MAINTENANCE CHARGES AND HAVE START ED PAYING ELECTRICITY CHARGES ETC. FURTHER, THE PMC HAS NOT ISSU ED ANY REJECTION LETTER WITHIN 21 DAYS FROM THE DATE OF SUBM ISSION OF THE COMPLETION CERTIFICATE WHICH WAS SUBMITTED ON 04-04-2 006. THE REVENUE HAS NOT DISPUTED THE ABOVE FACTS. 14.7 WE FIND THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. TARNETAR CORPORATION (SUPRA) HAS HELD AS UNDER : 5. WE HAVE PERUSED THE DETAILED DISCUSSION OF THE CIT (APPEALS) AS WELL AS THE TRIBUNAL ON THE ISSUE. IN PARTICULAR, T HE TRIBUNAL NOTED THAT THE CONSTRUCTION WAS COMPLETED IN 2006. APPLICATION FOR BU PERMISSION TO THE MUNICIPAL AUTHORITIES WAS FILED ON 15.2.2006 WHICH WAS REJECTED ON 1.7.06. SEVERAL RESIDENTIAL UNITS WERE OCCUPIED SINCE THE S AME WAS DONE WITHOUT NECESSARY PERMISSION. THE ASSESSEE HAD ALSO PAID PE NALTY AND GOT SUCH OCCUPATION REGULARIZED. SEVERAL TENEMENTS WERE SOLD LONG BEFORE THE LAST DATE. 6. IN THE PRESENT CASE, THEREFORE, THE FACT THAT T HE ASSESSEE HAD COMPLETED THE CONSTRUCTION WELL BEFORE 31ST MARCH, 2008 IS NOT IN DOUBT. IT IS, OF COURSE, TRUE THAT FORMALLY BU PERMISSION WAS NOT GRANTED BY THE MUNICIPAL AUTHORITY BY SUCH DATE. IT IS EQUALLY TRUE THAT EXP LANATION TO CLAUSE (A) TO SECTION 80-IB(10) LINKS THE COMPLETION OF THE CONST RUCTION TO THE BU PERMISSION BEING GRANTED BY THE LOCAL AUTHORITY. HOWEVER, NOT EVERY CONDITION OF THE STATUTE CAN BE SEEN AS MANDATORY. IF SUBSTANTIAL CO MPLIANCE THEREOF IS 16 ITA NO.2004/PN/2014 ESTABLISHED ON RECORD, IN A GIVEN CASE, THE COURT M AY TAKE THE VIEW THAT MINOR DEVIATION THEREOF WOULD NOT VITIATE THE VERY PURPOS E FOR WHICH DEDUCTION WAS BEING MADE AVAILABLE. 7. IN THE PRESENT CASE, THE FACTS ARE PECULIAR. TH E ASSESSEE HAD NOT ONLY COMPLETED THE CONSTRUCTION TWO YEARS BEFORE TH E FINAL DATE AND HAD APPLIED FOR BU PERMISSION. SUCH BU PERMISSION WAS N OT REJECTED ON THE GROUND THAT CONSTRUCTION WAS NOT COMPLETED, BUT THE SOME OTHER TECHNICAL GROUND. IN THAT VIEW OF THE MATTER, GRANTING BENEFI T OF DEDUCTION CANNOT BE HELD TO BE ILLEGAL 8. IN THE RESULT, THE TAX APPEAL IS DISMISSED. 14.8 FROM THE DETAILS FURNISHED BY THE LD. COUNSEL FOR THE ASSESSEE WE FIND THE ASSESSEE HAS ALLOTTED THE BUILT UP AREA OF 944.10 SQ.MTRS AGAINST 942 SQ. MTRS AS PER CONDITION OF SA NCTION BEFORE 27-02-2008. THEREFORE, WE FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS COMPL IED WITH THE CONDITION OF ALLOTMENT ON 27-02-2008 WHICH IS BEFORE 31- 03-2008. WE FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE THE ULC ACT WAS REPEALED IN THE YEAR 2009, THEREFORE, PMC/ULC DEPARTMENT AND SECRETARIAT TO MA NTRALAYA ARE NOT RESPONDING, THEREFORE, THE ASSESSEE CANNOT BE HELD R ESPONSIBLE. 14.9 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. RAMSUKH PROPERTIES VS. DCIT VIDE ITA NO.84/PN/2011 HAS HELD AS UNDER : 6. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT THE ASSESSEE IS A FIRM ENGAGED IN BUSI NESS OF BUILDER AND PROMOTER. THE ISSUE BEFORE US IS REGARDING ALLOWAB ILITY OF DEDUCTION U/S.80IB(10) OF THE ACT ON PARTIALLY COMPLETE PROJE CT. THE ASSESSING OFFICER HAS DENIED THE DEDUCTION ON THE GROUND THAT PROJECT WAS NOT COMPLETE WITHIN THE STIPULATED TIME. THERE IS NO D ISPUTE WITH REGARD TO OTHER CONDITIONS LAID U/S.80IB(10) OF THE ACT, I.E. , COMMENCEMENT OF PROJECT, AREA OF LAND OF PROJECT, ETC. ASSESSEES HOUSING PROJECT WAS APPROVED VIDE COMMENCEMENT CERTIFICATE NO.3837/04 D ATED 13.01.2005 OUT OF WHICH COMPLETION CERTIFICATE WAS OBTAINED AND FURNISHED BEFORE THE ASSESSING OFFICER FOR 173 OUT OF 205 FLATS. SAME WAS REJECTED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). THE REQUEST FOR GRANTING WHOLE DEDUCTION IN RESPECT OF WHOLE PROJECT HAS RIGHTLY BEEN REJECTED BECAUSE DEDUCTION U/S.80I B(10) COULD NOT BE GRANTED TO ASSESSEE ON INCOMPLETE CONSTRUCTION AT R ELEVANT POINT OF TIME. REGARDING PROPORTIONATE DEDUCTION IN RESPECT OF 173 OF 205 FLATS OF PROJECT COMPLETED AS RECOGNIZED BY LOCAL AUTHORI TY, I.E., PMC IN ITS COMPLETION CERTIFICATE NO.BCO/03/01333 DATED 31.03. 2008, THE LD. AUTHORISED REPRESENTATIVE HEAVILY RELIED ON DECISIO N OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (SUPRA), BRIGADE ENTERPRIS ES P. LTD. (SUPRA), AIR DEVELOPER (SUPRA), SHETH DEVELOPERS (SUPRA) AND ALSO G.V.CORPORATION (SUPRA), WHEREIN DEDUCTION U/S.80IB (10) WAS DENIED AS SIZE OF SOME OF THE RESIDENTIAL UNITS EXCEEDED P RESCRIBED LIMIT AS LAID DOWN U/S.80IB(10) OF THE ACT. ABOVE MENTIONED DECISIONS ARE APPLICABLE IN THEIR OWN SPHERE, I.E. ON POINT OF EX CESS AREA OF SOME OF THE FLATS WHICH HOLD GOOD IN ITS OWN SPHERE. HOWEV ER, IN CASE BEFORE US, DEDUCTION U/S.80IB(10) OF THE ACT HAS BEEN REJE CTED ON THE GROUND THAT CONDITION OF COMPLETION OF PROJECT BEFORE THE DUE DATE I.E., 31.03.2008 AS LAID DOWN U/S.80IB(10)(C) OF THE ACT, HAS NOT BEEN COMPLIED BY ASSESSEE WHICH IS BASIC CONDITION FOR A LLOWABILITY OF DEDUCTION U/S.80IB(10) OF THE ACT. WE FIND THAT IN CASE OF JOHAR HASSAN ZOJWALLA (SUPRA), WHEREIN CONDITION OF COMPL ETION AS LAID DOWN IN SECTION 80IB(10)(A) COULD NOT BE COMPLIED WITH B ECAUSE OF A STAY BEING GRANTED BY MRTP COURT. THUS FAULT OF INCOMPLE TION OF CONSTRUCTION WAS NOT ATTRIBUTABLE TO ASSESSEE. IN CASE SUCH A 17 ITA NO.2004/PN/2014 CONTINGENCY EMERGES WHICH MAKES THE COMPLIANCE WITH PROVISION IMPOSSIBLE, THEN BENEFIT BESTOWED ON AN ASSESSEE CA NNOT BE COMPLETELY DENIED. SUCH LIBERAL INTERPRETATION SHO ULD BE USED IN FAVOUR OF ASSESSEE WHEN HE IS INCAPACITATED IN COMPLETING PROJECT IN TIME FOR THE REASONS BEYOND HIS CONTROL. IN CASE BEFORE US, AS STATED ON BEHALF OF ASSESSEE, THAT ASSESSEE SUBMITTED CERTAIN MODIFICATIONS/RECTIFICATIONS FOR TOP FLOORS OF BUIL DING. THE SAID MODIFICATION/RECTIFICATION COULD NOT BE COMPLETED A S LOCAL AUTHORITY COULD NOT APPROVE THE MODIFICATION AS THEIR FILES H AVE BEEN TAKEN OVER BY CONCERN INTELLIGENCE DEPARTMENT FOR INVESTIGATIO N OF VIOLATION OF URBAN LAND CEILING ACT APPLICABLE TO LAND IN QUESTI ON AT RELEVANT POINT OF TIME. THIS FACT HAS NOT BEEN DISPUTED ON BEHALF OF REVENUE. THUS, ASSESSEE WAS PREVENTED BY SUFFICIENT REASONABLE CAU SE WHICH COMPELLED THE IMPOSSIBILITY ON PART OF THE ASSESSEE TO HAVE COMPLETION CERTIFICATE IN TIME. IT IS SETTLED LEGAL POSITION THAT THE LAW ALWAYS GIVE REMEDY AND THE LAW DOES WRONG TO NO ONE. WE AGREE TO PROPOSITION PUT FORWARD BY LD. DEPARTMENTAL REPRESENTATIVE THAT PLAIN READING OF SECTION 80IB(10) OF THE ACT SUGGESTS ABOUT ONLY COM PLETION OF CONSTRUCTION AND NO ADJECTIVE SHOULD BE USED ALONGW ITH THE WORD COMPLETION. THIS STRICT INTERPRETATION SHOULD BE G IVEN IN NORMAL CIRCUMSTANCES. HOWEVER, IN CASE BEFORE US, ASSESSE E WAS PREVENTED BY REASONABLE CAUSE TO COMPLETE CONSTRUCTION IN TIM E DUE TO INTERVENTION OF CID ACTION ON ACCOUNT OF VIOLATION OF PROVISIONS OF URBAN LAND CEILING ACT APPLICABLE TO LAND IN QUESTION. AS SESSEE WAS INCAPACITATED TO COMPLETE THE SAME IN TIME DUE TO R EASONS BEYOND HIS CONTROL. ASSESSEE SHOULD NOT SUFFER FOR SAME. THE REVISION OF PLAN IS VESTED RIGHT OF ASSESSEE WHICH CANNOT BE TAKEN AWAY BY STRICT PROVISIONS OF STATUTE. THE TAXING STATUTE GRANTING INCENTIVES FOR PROMOTION OF GROWTH AND DEVELOPMENT SHOULD BE CONST RUED LIBERALLY AND THAT PROVISION FOR PROMOTING ECONOMIC GROWTH HA S TO BE INTERPRETED LIBERALLY. AT THE SAME TIME, RESTRICTION THEREON T OO HAS TO BE CONSTRUED STRICTLY SO AS TO ADVANCE THE OBJECT OF PROVISION A ND NOT TO FRUSTRATE THE SAME. THE PROVISIONS OF TAXING STATUTE SHOULD BE CO NSTRUED HARMONIOUSLY WITH THE OBJECT OF STATUE TO EFFECTUAT E THE LEGISLATIVE INTENTION. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCE S, WE HOLD THAT ASSESSEE IS ENTITLED FOR BENEFIT U/S.80IB(10) OF TH E ACT IN RESPECT OF 173 FLATS COMPLETED BEFORE PRESCRIBED LIMIT. THE ASSESS ING OFFICER IS DIRECTED ACCORDINGLY. 14.10 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF RUNWAL MULTIHOUSING PVT. LTD. (SUPRA) HAS OBSERVED AS UNDE R : 18. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND IN THE INSTANT CASE THE ASSESSEE OBTAINED THE PERMISSION FOR CONSTRUCTION O F BUILDINGS A, B, C, D, E, F AND 17 ROW HOUSES ON 12-12-2001. THE ASSES SEE CONSTRUCTED BUILDING NOS. A,C, D AND E AND THE 17 ROW HOUSES AN D DROPPED THE IDEA OF CONSTRUCTION OF BUILDING NOS. B AND F BEING UNECONOMICAL AND HAD NOT SUBMITTED ANY REVISED PLAN TO PMC. ALTHOUG H THE ASSESSEE APPLIED FOR COMPLETION CERTIFICATE ON 22-01-2004, T HE SAME WAS NOT RECEIVED BY THE ASSESSEE BEFORE 31-03-2008. IT IS THE CASE OF THE REVENUE THAT DEDUCTION U/S.80IB(10) CANNOT BE AVAIL ED OF BY THE ASSESSEE SINCE IT HAS NOT CONSTRUCTED ALL THE SIX B UILDINGS AND 17 ROW HOUSES FOR WHICH PERMISSION WAS GRANTED AND COMPLET ION CERTIFICATE WAS NOT OBTAINED BEFORE 31-03-2008. IT IS THE SUBM ISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IT HAS CONSTR UCTED BUILDING NOS. A, C, D AND E AND 17 ROW HOUSES AND BUILDING NOS. B & F BEING NOT FEASIBLE WAS NOT CONSTRUCTED AND THE ASSESSEE HAS D ROPPED THE IDEA OF CONSTRUCTION OF THE SAME. IT IS ALSO THE SUBMIS SION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IT HAS APPLIED FOR CO MPLETION CERTIFICATE ON 22-01-2004 AND SINCE THE PMC HAS A LEGAL PROBLEM , WHICH IS 18 ITA NO.2004/PN/2014 SUBJUDICE, THE PMC IS NOT ABLE TO GRANT THE COMPLET ION CERTIFICATE. IT IS ALSO THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT CORPORATION HAS STARTED LEVYING MUNICIPAL TAXES, TH E FLAT OWNERS HAVE STARTED PAYING ELECTRICITY BILLS AND THE PROJECT ON WHICH BUILDING NOS. A, C, D AND E AND 17 ROW HOUSES ARE CONSTRUCTED ARE ON A PLOT OF AREA OF MORE THAN 1 ACRE. THEREFORE, THE ASSESSEE IS ENTITL ED TO DEDUCTION U/S.80IB(10) ON THE 4 BUILDINGS AND 17 ROW HOUSES W HICH IT HAS COMPLETED. 19. WE FIND THE MANAGING DIRECTOR SHRI PRADEEP AMRU TLAL RUNWAL IN HIS STATEMENT RECORDED DURING THE COURSE OF SURV EY U/S.133A HAS REPLIED TO QUESTION NOS. 7, 8, 9, 10 & 12 AS UNDER : Q.7. HAVE YOU RECEIVED THE COMPLETION CERTIFICATE FROM PMC FOR RUNWAL PARADISE PROJECT ? ANS. THE COMPLETION CERTIFICATE FOR ROW HOUSES 7 TO 18 WAS RECEIVED. HOWEVER FOR OTHER BUILDINGS ON RUNWAL PA RADISE PROJECT WE HAVE NOT RECEIVED THE COMPLETION CERTIFICATE AS ON TODAY THOUGH WE HAVE APPLIED FOR THE SAME. Q.8. WHETHER THE CONSTRUCTION IS COMPLETED IN RESPE CT OF ALL THE BUILDINGS AS PER REVISED PLAN DATED 10-01-2003, COM MENCEMENT CERTIFICATE NO.1372? ANS. CONSTRUCTION IS COMPLETED BEFORE 31 ST MARCH 2008 IN THE ENTIRE SCHEME RUNWAL PARADISE TO THE EXTENT THAT WE WANT T O BUILD AND ENJOY THE FSI OF THE PROJECT AND THE AREA USED SO IS ABOV E 1 ACRE. Q.9. IF THE CONSTRUCTION IS COMPLETED BEFORE 31 ST MARCH 2008, WHY YOU HAVE NOT RECEIVED COMPLETION CERTIFICATE FROM P MC FOR ALL BUILDINGS IN RUNWAL PARADISE PROJECT AS ON TODAY? ANS. THE COMPLETION CERTIFICATE ARE DEEMED RECEIVED SINCE WE HAVE APPLIED FOR THE SAME, BUT SINCE THE MATTER IS SUBJU DICE THE PMC IS NOT ABLE TO GRANT THE COMPLETION CERTIFICATE. THE VERY LOCAL AUTHORITY WHICH IS RESPONSIBLE FOR GRANTING THE COMPLETION CERTIFIC ATE HAS A LEGAL PROBLEM WHICH IS SUBJUDICE. Q.10. AS STATED ANSWERING THE QUESTION NO.9, PLEASE STATE WHEN YOU HAVE APPLIED FOR COMPLETION CERTIFICATE IN RESPECT OF RUNWAL PARADISE PROJECT AND ALSO SUBMIT THE RELEVANT APPLICATIONS? ANS. WE HAVE APPLIED FOR COMPLETION CERTIFICATE FOR THE ENTIRE PROJECT. WE ARE SUBMITTING HEREWITH THE APPLICATIO N FOR COMPLETION CERTIFICATE DATED 22-01-2004VIDE COMMENCEMENT CERTI FICATE NO.1372 DATED 10-01-2002 AS PER ANNEXURE C. THE COPIES O F ANY FURTHER APPLICATION, IF ANY, WE WILL SUBMIT THE SAME ON 2 ND JUNE 2008. Q.12. AS PER REVISED BUILDING LAYOUT SANCTIONED ON 10-01-2003, YOU GOT APPROVAL FOR CONSTRUCTION OF BUILDINGS A TO F A ND ROW HOUSES 1 TO 18 IN RUNWAL PARADISE PROJECT. HOWEVER AS SEEN FRO M THE LIST OF FLAT HOLDERS SUBMITTED BY YOU AS ANNEXURE D AND ALSO T HE INSPECTION CARRIED OUT AT THE SITE OF RUNWAL PARADISE LOCATED AT S.NO.981, AT PAUD ROAD, KOTHRUD, PUNE, THE CONSTRUCTION OF BUILDINGS B AND F IS YET TO BE COMPLETED. PLEASE GIVE YOUR COMMENT? ANS. YES, I AGREE THAT THE CONSTRUCTION OF BUILDING S B AND F HAVE NOT BEEN CARRIED OUT WITH A PERFECT UNDERSTANDING IN TH E MIND THAT WE WANTED TO GIVE UP THESE TWO WINGS. IN CASE THESE W INGS WOULD HAVE BEEN CONSTRUCTED THEY WOULD HAVE BEEN VERY SHABBY A ND BEEN PLACE FOR NON-HYGIENE IN THE ENTIRE PROJECT. LOOKING AT THE MERITS AND DEMERITS THESE WINGS WERE NOT CONSTRUCTED. FURTHER , BUILDING JUST ONE FLOOR WAS ECONOMICALLY UNVIABLE. 20. SO FAR AS THE FIRST OBJECTION OF THE REVENUE TH AT COMPLETION CERTIFICATE FROM PMC HAS NOT BEEN OBTAINED BY THE A SSESSEE BEFORE 31-03-2008 WE FIND THE ASSESSEE THROUGH HIS ARCHITE CT VIDE APPLICATION DATED 22-01-2004 HAS APPLIED TO PMC FOR OCCUPANCY C ERTIFICATE. (PAGE 19 ITA NO.2004/PN/2014 119 OF THE PAPER BOOK). THE SUBMISSION OF THE LEAR NED COUNSEL FOR THE ASSESSEE THAT THE PMC HAS NOT YET REJECTED THE SAID APPLICATION TILL DATE COULD NOT BE CONTROVERTED BY THE REVENUE. THE FURTHER SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT ALL THE FLAT OWNERS/ROW HOUSE OWNERS HAVE BEEN GIVEN POSSESSION BETWEEN 26- 10-2002 TO 15-01-2007, I.E.PRIOR TO 31-03-2008 COUL D NOT BE CONTROVERTED BY THE LEARNED DR (PAGE 55 TO 63 OF TH E PAPER BOOK). THE LEARNED DR ALSO COULD NOT CONTROVERT THE SUBMIS SION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT PMC HAS START ED LEVYING MUNICIPAL TAXES AND THE ELECTRICITY METERS ARE IN T HE NAME OF THE FLAT OWNERS WHO HAVE STARTED PAYING ELECTRICITY BILLS. 20.1 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF CITY DEVELOPMENT CORPORATION VS. ACIT ITA NO. 57 AND 1 287/PN/2010 ORDER DATED 27-09-2012 HAS HELD AS UNDER : 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. QUITE CLEARLY, THE DISPUTE IS WITH REGARD TO THE COMPLETION CERTIF ICATE OF BUILDING 'E' HAVING BEEN ISSUED BY THE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION, ON 5-5-2008. SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80- IB(10) REQUIRES THAT THE CONSTRUCTION OF THE PROJEC T IN QUESTION IS TO BE COMPLETED ON OR BEFORE 31-3-2008. CLAUSE (II) OF EX PLANATION BELOW SECTION 80-IB(10)(A) PRESCRIBES THAT THE DATE OF CO MPLETION OF CONSTRUCTION OF HOUSING PROJECT SHALL BE TAKEN TO B E THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSI NG PROJECT IS ISSUED BY THE LOCAL AUTHORITY. IN THE PRESENT CASE, IT HAS BEEN ISSUED ON 5-5- 2008 AND HENCE THE CASE SET UP BY THE REVENUE THAT THE COMPLETION IS BEYOND THE MANDATED DATE OF 31-3-2008. IN THIS BACK GROUND, WE FIND THAT THERE IS NO DISPUTE THAT THE ASSESSEE APPLIED FOR OBTAINING THE COMPLETION CERTIFICATE IN RESPECT OF BUILDING 'E' O N 12-3-2008. FROM THE DISCUSSION MADE BY THE ASSESSING OFFICER IN THE ASS ESSMENT ORDER, WHEREIN THE FACTUAL ASSERTIONS OF THE ASSESSEE HAVE BEEN REPRODUCED, IT IS QUITE EVIDENT THAT THE ASSESSEE ASSERTED THAT BEFORE 31-3-2008, THE CONSTRUCTION OF BUILDING WAS COMPLETE IN ALL RE SPECTS; THAT ELECTRICAL CONNECTION WAS PROVIDED TO EACH FLAT OWNER; ROAD WA S COMPLETE; WATER AND DRAINAGE CONNECTION WAS AVAILABLE; SEWERAGE SYS TEM WAS OPERATING; CLUB HOUSE WAS FUNCTIONAL; ETC. THE ASSE SSEE ALSO POINTED OUT THAT THE LOCAL AUTHORITY HAD ALSO INITIATED PRO PERTY TAX ASSESSMENTS FOR EACH OF THE FLATS AND THE SAME DEMONSTRATED THA T ALL THE FLATS IN THE BUILDING WERE COMPLETE. IN FACT, IN PARA 6.9 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER NOTICED THAT 'THE FACTS THAT THE FLATS WERE COMPLETED AND POSSESSION GIVEN WILL NOT COME TO THE RESCUE OF THE ASSESSEE'. THE AFORESAID FINDING OF THE ASSESSING O FFICER SUPPORTS THE ASSERTION MADE BY THE ASSESSEE THAT FACTUALLY SPEAK ING CONSTRUCTION OF FLATS IN BUILDING 'E' WAS ALSO COMPLETE AND POSSESS ION HANDED OVER TO THE ACTUAL USER/CUSTOMERS PRIOR TO 31-3-2008. PERTI NENTLY, ON THE BASIS OF THE ARCHITECT'S CERTIFICATE CONFIRMING COMPLETIO N OF CONSTRUCTION OF BUILDING, THE ASSESSEE APPLIED FOR THE COMPLETION C ERTIFICATE TO THE PUNE MUNICIPAL CORPORATION ON 12-3-2008. IT HAS BEE N POINTED OUT BEFORE US THAT THE LOCAL AUTHORITY I.E. PUNE MUNICI PAL CORPORATION DID NOT RAISE ANY OBJECTION WITH REGARD TO ASSESSEE'S A PPLICATION AND THE CERTIFICATE FOR BUILDING 'E' WAS THEREAFTER ISSUED ON 5-5-2008. THE MOOT QUESTION IS AS TO WHETHER IN SUCH A SITUATION CAN I T BE SAID THAT THE ASSESSEE'S PROJECT DID NOT COMPLY WITH THE CONDITIO N PRESCRIBED IN SUB- CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) OF TH E ACT WHEREBY THE CONSTRUCTION WAS TO BE COMPLETED ON OR BEFORE 31-3- 2008. SOMEWHAT SIMILAR SITUATION WAS CONSIDERED BY OUR CO-ORDINATE BENCH IN THE CASE OF HINDUSTAN SAMUTHA AWAS LTD. (SUPRA) WHEREIN ALSO ON THE STRENGTH OF ARCHITECT'S CERTIFICATE, AN APPLICATION FOR OBTA INING COMPLETION CERTIFICATE WAS MOVED TO THE LOCAL AUTHORITY ON 25- 2-2008 BUT IN ACTUALITY THE COMPLETION CERTIFICATE WAS ISSUED BY THE LOCAL AUTHORITY ON 10-10-2008. THE TRIBUNAL NOTICED THAT THE DELAY IN ISSUING COMPLETION CERTIFICATE WAS NOT ATTRIBUTABLE TO THE ASSESSEE AS NO OBJECTIONS WERE RAISED BY THE LOCAL AUTHORITY. THE TRIBUNAL AFTER C ONSIDERING ITS EARLIER 20 ITA NO.2004/PN/2014 DECISIONS IN THE CASE OF M/S. SATISH BOHRA & ASSOCI ATES VS. ACIT IN ITA NO. 713 AND 714/PN/2010 FOR A.Y. 2004-05 AND 20 05-06 DATED 7- 1-2011; M/S. D.K. CONSTRUCTIONS VS. ITO ITA NO. 243 /PN/2010 FOR A.Y. 2006-07; DATED 6-12-2010 AND SANGHVI AND DOSHI ENTE RPRISES VS. ITO AND OTHERS ITA NO. 259 TO 263/MDS/2010 DATED 19-5- 2011 FOR A.Y. 2005-06 AND 2006-07 (TM) HAS CONCLUDED AS FOLLOWS: 'FROM THE ABOVE, ONCE THIS IS CLEAR THAT THE DATE THAT APPEAR S ON THE ARCHITECT'S COMPLETION CERTIFICATE FILED BEFORE THE LOCAL AUTHO RITY IS RELEVANT ONE. IN THE INSTANT CASE, THE SAID DATE IS 25- 3-2008 AND T HE ASSESSEE FILED REQUISITE FORM BEFORE THE LOCAL AUTHORITIES INTIMAT ING THE COMPLETION OF THE PROJECT. THE SAID CERTIFICATE/INTIMATION WAS AC CEPTED BY THE LOCAL AUTHORITY WITHOUT ANY AMENDMENTS OR OBJECTIONS. LOC AL AUTHORITY HAS NOT RAISED ANY QUERIES ON THE QUALITY CONSTRUCTION OF THE BUILDING OR THE COMPLETION OF THE SAME AS PER THE PLANS APPROVED BY SUCH AUTHORITY. IN SUCH CIRCUMSTANCES, IN OUR OPINION, THE DELAY IN OB TAINING THE COMPLETION CERTIFICATE ON 10-10-2008 IS CERTAINLY N OT ATTRIBUTABLE TO THE ASSESSEE AND OBTAINING THE SAID CERTIFICATE BEFORE 31-3-2008 IS BEYOND THE CONTROL OF THE ASSESSEE. ASSESSEE'S JOB INCLUDE S THE COMPLETION OF THE BUILDING IN ACCORDANCE WITH THE APPROVED PLANS AND INTIMATION OF THE SAME TO THE LOCAL AUTHORITY BY WAY OF FILING TH E REQUISITE FORMS TOGETHER WITH THE COMPLETION CERTIFICATE GIVEN BY T HE ARCHITECT, THE SPECIALIST IN THE MATTER AND THE ASSESSEE HAS DONE HIS JOB SCRUPULOUSLY IN THIS CASE. HOWEVER, THE LOCAL AUTHORITY HAS NEIT HER OBJECTED TO THE SAID APPLICATION OF THE ASSESSEE AND THE ARCHITECT BY RAISING ANY OBJECTIONS FOR ACCEPTED BY ISSUE OF SAID COMPLETION CERTIFICATE TILL 10- 10-2008. THEREFORE, THE DELAY IN GRANT OF THE SAID CERTIFICATE IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE. THEREFORE, IN OUR OPINION, THE ASSESSEE IS NOT DEFAULTER ON THIS ACCOUNT AND THUS, THE AO HAS ERRED IN DENYING THE DEDUCTION U/S 80-IB(10) OF THE ACT. ACC ORDINGLY, THE ORDER OF THE CIT(A) HAS TO BE REVERSED. THUS, THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED' 13. THE AFORESAID DECISION OF THE TRIBUNAL IS CLEAR LY APPLICABLE TO THE FACTS OF THE PRESENT CASE ALSO. IN THE PRESENT CASE , THE COMPLETION CERTIFICATE WAS APPLIED FOR BEFORE 31-3-2008 I.E. O N 12-3-2008. IT IS UNDISPUTABLE THAT THE APPLICATION OF THE ASSESSEE H AS BEEN APPROVED BY THE LOCAL AUTHORITY WITHOUT RAISING ANY AMENDMEN T OR OBJECTION, AS HAS BEEN ASSERTED BY THE ASSESSEE ALL ALONG AND THE DELAYED ISSUANCE OF THE COMPLETION CERTIFICATE BY THE LOCAL AUTHORIT Y ON 5-5-2008, ALBEIT AFTER THE MANDATED DATE OF 31-3-2008 CANNOT BE ATTR IBUTED TO THE ASSESSEE. IN THIS BACKGROUND OF THE MATTER, WE THER EFORE, FIND AMPLE FORCE IN THE PLEA OF THE ASSESSEE THAT DENIAL OF DE DUCTION U/S 80-IB(10) ON SUCH SCORE IS UNCALLED FOR. IN CONCLUSION THEREF ORE, IN THE INSTANT FACTUAL BACKGROUND, WE HOLD THAT THE ASSESSEE HAS C OMPLIED WITH THE CONDITION OF COMPLETING THE CONSTRUCTION OF THE PRO JECT WITHIN THE MANDATED DATE OF 31-3- 2008 EVEN WITH REGARD TO BUI LDING 'E', FOLLOWING THE PARITY OF THE REASONING LID DOWN IN THE CASE OF HINDUSTAN SAMUTHA AWAS LTD. (SUPRA). . 14. SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(1 0) OF THE ACT REQUIRES THAT THE UNDERTAKING, DEVELOPING AND BUILDING A HOU SING PROJECT 'COMPLETES SUCH CONSTRUCTION' OR BEFORE 31-3-2008. IN THE PRESENT CASE, ASSESSEE HAS FACTUALLY ASSERTED RIGHT FROM TH E STAGE OF ASSESSMENT PROCEEDINGS, THAT THE CONSTRUCTION OF BU ILDING 'E' WAS COMPLETE IN ALL RESPECTS AS PER SANCTIONED PLAN AND ALL THE FLATS WERE HANDED OVER TO THE ACTUAL USERS/CUSTOMERS PRIOR TO 31-3-2008. IN THE BACKGROUND OF THE AFORESAID FACTUAL POSITION WHICH HAS REMAINED UNCONTROVERTED, IN OUR VIEW, ON A PLAIN READING OF SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) THE CONDITION PRESC RIBED THEREIN IS FULFILLED., INASMUCH AS THE CONSTRUCTION OF BUILDIN G 'E' WAS COMPLETE BEFORE 31-3-2008. HOWEVER, ON THE READING OF CLAUSE (II) OF THE EXPLANATION BELOW SEC. 80-IB(10)(A) OF THE ACT, IT EMERGES THAT THE COMPLETION OF CONSTRUCTION OF A HOUSING PROJECT IS TO BE TAKEN TO BE THE DATE ON WHICH COMPLETION CERTIFICATE IS ISSUED BY T HE LOCAL AUTHORITY, 21 ITA NO.2004/PN/2014 WHICH IN THE PRESENT CASE IS ISSUED ON 5-5-2008 I.E . BEYOND THE STIPULATED DATE OF 31-3-2008. THE MOOT QUESTION IS IN CASE THE CONDITION OF COMPLETION CONSTRUCTION CONTAINED IN T HE SUBSTANTIVE SECTION 80-0IB(10)(A)(I) IS FACTUALLY FOUND TO BE C OMPLIED WITH, CAN THE CONTENTS OF THE EXPLANATION CLAUSE (II) THEREOF, AL TER THE SITUATION? CAN AN EXPLANATION APPENDED TO A SECTION, ENLARGE THE S COPE OF THE MAIN SECTION SO AS TO MAKE IT MORE ONEROUS FOR A TAX- PA YER? BE THAT AS IT MAY, WE DO NOT DWELL ON THIS ASPECT ANY FURTHER, AS THE ASSESSEE HAS BEEN FOUND TO BE ELIGIBLE FOR NECESSARY RELIEF BECA USE THE CONDITION PRESCRIBED IN SECTION 80-IB(10)(A)(I) OF THE ACT HA S BEEN COMPLIED WITH IN VIEW OF THE STATED PRECEDENTS. WE THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) ON THIS ASPECT AND HOLD THAT THE ASSESSE E CANNOT BE DENIED THE CLAIM OF DEDUCTION U/S 80-IB(10) ON THE STRENGT H OF NON-ISSUANCE OF THE COMPLETION CERTIFICATE FOR BUILDING 'E' BY THE PUNE MUNICIPAL CORPORATION BEFORE 31-3-2008, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 20.2 WE FIND THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. TARNETAR CORPORATION (SUPRA) HAS HELD AS UNDER : WITH RESPECT TO THE SECOND CONTENTION, WE MAY RECO RD THAT THE CONTENTION OF THE REVENUE IS THAT THE ASSESSEE DID NOT COMPLETE THE HOUSING PROJECT WITHIN THE STATUTORY TIME FRAME. U NDER SUB-CLAUSE (I) OF CLAUSE (A) OF SECTION 80IB(10), THE ASSESSEE SINCE HAD GOT APPROVAL FOR THE HOUSING PROJECTS FROM THE LOCAL AUTHORITY BEFOR E IST APRIL 2004 WAS REQUIRED TO COMPLETE THE CONSTRUCTION LATEST BY 31 ST MARCH 2008. RELYING ON EXPLANATION (II) TO CLAUSE (I), REVENUE CONTENDS THAT SINCE BU PERMISSION WAS GRANTED AFTER MARCH 2008, THE CON STRUCTION MUST BE DEEMED TO HAVE BEEN COMPLETED AFTER SUCH DATE. EXPLANATION (II) READS AS UNDER : (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETI ON CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LO CAL AUTHORITY. CIT (APPEALS) AS WELL AS THE TRIBUNAL AFTER DETAILE D DISCUSSION CAME TO THE CONCLUSION THAT SUCH REQUIREMENT WAS NOT MANDAT ORY IN NATURE. IN THE PRESENT CASE, THE ASSESSEE HAD COMPLETED THE CO NSTRUCTION WELL BEFORE THE LAST DATE, NAMELY 31 ST MARCH 2008 AND HAD ALSO SOLD SEVERAL UNITS WHICH WAS COMPLETED AND ACTUALLY OCCUPIED, AN D IT ALSO APPLIED FOR BU PERMISSION TO THE LOCAL AUTHORITY. THE LOCA L AUTHORITY, HOWEVER, FOR TECHNICAL REASONS, AT ONE STAGE REJECTED SUCH A PPLICATION IN THE YEAR 2006 AND THEREAFTER UPON REVISED EFFORTS FROM THE ASSESSEE GRANTED THE SAME BY ORDER DATED 19 TH MARCH 2009. WE HAVE PERUSED THE DETAILED DISCUSSION OF THE CIT( APPEALS) AS WELL AS THE TRIBUNAL ON THE ISSUE. IN PARTICULAR, THE T RIBUNAL NOTED THAT THE CONSTRUCTION WAS COMPLETED IN 2006. APPLICATION FO R BU PERMISSION TO THE MUNICIPAL AUTHORITIES WAS FILED ON 15-02-2006 W HICH WAS REJECTED ON 1-07-06. SEVERAL RESIDENTIAL UNITS WERE OCCUPIE D SINCE THE SAME WAS DONE WITHOUT NECESSARY PERMISSION. THE ASSESSE E HAD DONE WITHOUT NECESSARY PERMISSION. THE ASSESSEE HAD ALS O PAID PENALTY AND GOT SUCH OCCUPATION REGULARISED. SEVERAL TENEM ENTS WERE SOLD LONG BEFORE THE LAST DATE. IN THE PRESENT CASE, THEREFORE, THE FACT THAT THE A SSESSEE HAD COMPLETED THE CONSTRUCTION WELL BEFORE 31 ST MARCH 2008 IS NOT IN DOUBT. IT IS, OF COURSE, TRUE THAT FORMALLY BU PERMISSION WAS NOT GRANTED BY THE MUNICIPAL AUTHORITY BY SUCH DATE. IT IS EQUALLY TR UE THAT EXPLANATION TO CLAUSE (A) TO SECTION 80IB(10) LINKS THE COMPLETION OF THE CONSTRUCTION TO THE BU PERMISSION BEING GRANTED BY THE LOCAL AUT HORITY. HOWEVER, NOT EVERY CONDITION OF THE STATUTE CAN BE SEEN AS M ANDATORY. IF SUBSTANTIAL COMPLIANCE THEREOF IS ESTABLISHED ON RE CORD, IN A GIVEN 22 ITA NO.2004/PN/2014 CASE, THE COURT MAY TAKE THE VIEW THAT MINOR DEVIAT ION THEREOF WOULD NOT VITIATE THE VERY PURPOSE FOR WHICH DEDUCTION WA S BEING MADE AVAILABLE. IN THE PRESENT CASE, THE FACTS ARE PECULIAR. THE A SSESSEE HAD NOT ONLY COMPLETED THE CONSTRUCTION TWO YEARS BEFORE THE FIN AL DATE AND HAD APPLIED FOR BU PERMISSION. SUCH BU PERMISSION WAS NOT REJECTED ON THE GROUND THAT CONSTRUCTION WAS NOT COMPLETED, BUT THE SOME OTHER TECHNICAL GROUND. IN THAT VIEW OF THE MATTER, GRAN TING BENEFIT OF DEDUCTION CANNOT BE HELD TO BE ILLEGAL. IN THE RESULT, THE TAX APPEAL IS DISMISSED. 20.3. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF HINDUSTAN SAMUHA AWAS LTD. VS. ITO VIDE ITA NOS 945 TO 950/PN/2010 ORDER DATED 30-08-2011 HAS HELD AS UNDE R : 7. WE HAVE CONSIDERED THE ABOVE VIEW POINTS OF THE PARTIES IN DISPUTED. WE FIND THAT IT IS A FACT THAT THE ASSESS EE THROUGH ITS ARCHITECT HAD FILED APPLICATION WITH THE AMC FOR ISSUANCE OF OCCUPANCY CERTIFICATE ON 25-3-2008. REQUISITE FEE WAS ALSO PAID BY THE A SSESSEE IN THIS REGARD. AMC DID NOT RAISE ANY OBJECTION TO THE SAID COMPLETION CERTIFICATE OF THE ARCHITECT. THE OCCUPANCY CERTIFI CATE DT.10-10-2008 HAS BEEN ISSUED BY THE AMC ONLY ON THE BASIS OF THE SAID APPLICATION DT.25-3-2008. IT IS ALSO AN UNDISPUTED FACT THAT I SSUANCE OF OCCUPANCY CERTIFICATE IS THE PREROGATIVE OF THE LOCAL AUTHORI TY I.E. AMC AND IN THIS REGARD, THE ASSESSEE HAS NO CONTROL AND IT IS BEYON D THE POWER OF THE ASSESSEE TO MAKE THE AMC ISSUE THE SAID COMPLETION/ OCCUPANCY CERTIFICATE BEFORE 31.3.2008. WHAT WAS UNDER THE P OWER AND CONTROL OF THE ASSESSEE WAS ONLY TO MOVE THE AMC FOR COMPLETIO N CERTIFICATE FULFILLING ALL THE REQUIREMENTS WITH THE AMC FOR IS SUANCE OF OCCUPANCY CERTIFICATE, WHICH THE ASSESSEE HAS DONE IN THE PRE SENT CASE. THUS, THE DELAY IN ISSUING THE OCCUPANCY CERTIFICATE CANN OT BE ATTRIBUTED ON THE PART OF THE ASSESSEE TO DENY THE CLAIMED DEDUCT ION U/S 80IB(10) OF THE ACT ON THE BASIS THAT THE PROJECT WAS NOT COMPL ETED BY 31-3-2008, ESPECIALLY WHEN THERE IS NO OBJECTION RAISED BY THE AMC REGARDING DEVIATION IN THE CONSTRUCTION OF THE PROJECT APPROV ED BY THE AMC. 8. WE HAVE GONE THROUGH THE ORDERS CITED BY THE AS SESSEES REPRESENTATIVE AND FIND RELEVANT PARAGRAPHS ARE REQ UIRED TO BE EXTRACTED FOR COMPLETION OF THE ORDER. THEY ARE AS FOLLOWS. A. EXTRACT FROM THE DECISION OF THE TRIBUNAL IN TH E CASE OF M/S. SATISH BORA & ASSOCIATES VIDE ITA NOS. 713 & 714/P N/2010 19. . 1. IN THE CASE OF PMC, THE COMPLETION CERTIFICATE I N PRESCRIBED FORM ISSUED BY THE LICENSED ARCHITECT ETC. WHO HAS SUPERVISED THE CONSTRUCTION IS FURNISHED WITH FOUR SETS OF COMPLET ION PLAN UNDER RULE 7.6 OF THE DC RULES OF THE PMC. THEREAFTER PMC IS REQUIRED TO RETURN ONE OF THE SETS DULY CERTIFIED AS COMPLETION PLAN T O THE OWNER ALONG WITH THE ISSUE OF FULL OCCUPANCY CERTIFICATE AFTER INSPECTION OF THE WORK UNDER RULE 7.7 OF THE DC RULES. SINCE EXPLATION (I I) TO SECTION 80IB(10)(A) OF THE I.T. ACT REQUIRES COMPLETION CER TIFICATE ISSUED BY THE LOCAL AUTHORITY TO BE TAKEN AS THE DATE OF COMPLETI ON OF THE CONSTRUCTION, A GENERAL UNDERSTANDING IN OUR VIEW I S THAT A COMPLETION CERTIFICATE WHICH IS ISSUED BY THE LOCAL AUTHORITY AFTER CONDUCTING INSPECTIONS OF CONSTRUCTION BY IT. IN CASE OF PMC , IT IS ONLY OCCUPANCY CERTIFICATE WHICH IS ISSUED ALONGWITH CER TIFIED COMPLETION PLAN AFTER INSPECTION OF THE CONSTRUCTION BY IT, WE HAVE TREATED THE DATE OF ISSUANCE OF SUCH OCCUPANCY CERTIFICATE ALONGWITH CERTIFIED COMPLETION PLAN AS THE DATE OF COMPLETION CERTIFICA TE OF THE 23 ITA NO.2004/PN/2014 CONSTRUCTION FOR THE REQUIREMENT OF EXPLANATION (II ) TO SECTION 80IB(10)(A) OF THE I.T. ACT. 2. SINCE INFACT PMC DO NOT ISSUE OCCUPANCY CERTIFIC ATE GENERALLY IN TIME AND WITH THIS UNDERSTANDING THE LEGISLATURE HAVE ALSO INTRODUCED A DEEMING PROVISION OF 21 DAYS TO PUT CO NSTRAINT UPON PMC, WE AFTER DETAILED DELIBERATION IN PRECEDIGN PARAGRA PHS HAVE COME TO A CONCLUSION THAT IN CASE OF SMALL OBJECTIONS OF PMC RAISED AFTER EXPIRY OF DEEMING PERIOD OF 21 DAYS UNDER RULE 7.7 OF DC RULES UNDER PMC, THE DATE WHEN THE APPLICANT ACQUIRED DEEMING SANCTI ON WILL BE TREATED AS THE DATE OF COMPLETION (OCCUPANCY) CERTIFICATE T O MEET OUT THE REQUIREMENT OF EXPLANATION (II) TO SECTION 80IB (10 )(A) OF THE ACT. WE HAVE ALREADY DISCUSSED HEREINABOVE WHAT WOULD BE TH E SMALL OBJECTIONS. IN BRIEF THOSE OBJECTIONS WHICH DO NOT AFFECT THE MAIN PROJECT AND ARE GENERALLY TEMPORARY CONSTRUCTIONS. 20. WE THUS WHILE SETTING ASIDE ORDERS OF THE AUTHO RITIES BELOW DIRECT THE A.O TO ALLOW THE CLAIMED DEDUCTION U/S. 80IB(10) OF THE I.T. ACT 1961 IN THE ASSESSMENT YEARS UNDER CONSIDERATIO N TREATING THE REQUIRED DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT AS THE DATE WHEN ABOVE DISCUSSED DEEMING PROVISION PER IOD OF 21 DAYS EXPIRED I.E. 20.11.20. B. EXTRACT FROM THE DECISION OF THE TRIBUNAL IN TH E CASE OF SANGHVI & DOSHI ENTERPRISE VIDE ITA NO. 259 TO 263 /MDS/2010 24. NEXT OBJECTION OF THE ASSESSING OFFICER IS THAT THE PROJECT HAD TO BE COMPLETED ON OR BEFORE 31.03.2008 AND SINCE THE ASSESSEE DID NOT FURNISH THE COMPLETION CERTIFICATE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION. THE OBJECTION IS TO THE EFFECT THAT THE COMPLETION CERTIFICATE FROM CMDA IS DATED 13.6.2008, I.E. THREE MONTHS AFT ER THE DUE DATE FOR COMPLETING THE PROJECT. IN THIS CONNECTION, IT HA S TO BE NOTED THAT THE COMPLETION CERTIFICATE IS TO BE ISSUED BY THE LOCAL AUTHORITY. THE QUESTION IS, WHETHER CMDA CAN BE CONSIDERED TO BE A LOCAL AUTHORITY OR NOT. THIS ISSUE HAD COME UP BEFORE THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF JAIN HOUSING & CONSTRUCTIO NS LTD. IN ITA NO.1369/MDS/2009 DATED 5.2.2010. IN THAT CASE, ASS ESSEE WAS DENIED DEDUCTION IN THE ABSENCE OF COMPLETION CERTI FICATE BY THE CMDA BUT COMPLETION CERTIFICATE ISSUED BY THE CORPORATIO N OF CHENNAI WAS PLACED ON RECORD. THE TRIBUNAL IN PARAGRAPH 3.5 OF ITS ORDER STATED THAT THE PROJECT LAYOUT PLAN MAY BE REQUIRED TO BE APPRO VED BY THE CMDA BUT AS FAR AS THE CONSTRUCTION OF THE BUILDING IS C ONCERNED, THE LOCAL AUTHORITY, I.E. THE CORPORATION OF CHENNAI IS THE A PPROPRIATE AUTHORITY TO REGULATE THE CONSTRUCTION AS PER THE BUILDING BYE-L AWS AND SANCTION PLANS. WHEN IT IS NOT DISPUTED THAT THE CORPORATIO N IS THE LOCAL AUTHORITY, CERTIFICATE ISSUED BY IT CANNOT BE DISRE GARDED. THE ASSESSEE HAS PLACED ON RECORD THE COMPLETION CERTIFICATE ISS UED BY THE CORPORATION BY WAY OF ADDITIONAL EVIDENCE. SINCE T HE ALLOWABILITY OF THE ENTIRE DEDUCTION DEPENDS ON ALL THE CONDITIONS BEIN G FULFILLED DEDUCTION DEPENDS ON ALL THE CONDITIONS BEING FULFILLED, WE A DMIT THIS ADDITIONAL EVIDENCE. THE CERTIFICATE CLEARLY MENTIONS THAT TH E BUILDING WAS INSPECTED ON 23.11.2007 AND THAT IT IS FOUND TO BE SATISFIED THE BUILDING PERMIT CONDITIONS. WE MAY ALSO MENTIONS THAT THE ROLE OF CMDA IS QUITE DISTINCT FROM THAT OF THE CORPORATION. CMDA LOOKS AT THE PLANS FROM THE PERSPECTIVE OF THE DEVELOPMENT AND URBANIS ATION OF THE CITY AS A WHOLE. ON THE OTHER HAND, THE ROLE OF THE CORP ORATION WHILE ISSUING COMPLETION CERTIFICATE IS TO SEE THAT THE UNIT IS H ABITABLE IN ALL RESPECTS LIKE CIVIC AMENITIES AND SO ON. EVEN FOR THE SAKE OF ARGUMENT IF THE CMDA CERTIFICATE IS TO BE CONSIDERED, THEN IN THAT CASE, THE ASSESSEE DID APPLY FOR THE COMPLETION CERTIFICATE TO CMDA CE RTIFICATE ON 13.3.2006. IT IS A DIFFERENT MATTER THAT CMDA RAIS ED CERTAIN OBJECTIONS AND THE MATTER WENT UPTO THE HONBLE HIGH COURT AL SO. HOWEVER, THE FACT REMAINS THAT THE PROJECT WAS COMPLETED MUCH BE FORE THE DUE DATE, MAY BE WITH CERTAIN DEFECTS. ALSO, IT HAS TO BE NO TED THAT THE CMDA 24 ITA NO.2004/PN/2014 CERTIFICATE IS DATED 13.6.2008, I.E. ONLY TWO MONTH S AND THIRTEEN DAYS BEYOND THE DUE DATE. IT IS INCONCEIVABLE THAT THE TYPE OF DEFECTS WHICH WERE POINTED OUT BY THE CMDA COULD HAVE BEEN RECTIF IED IN SUCH A SHORT PERIOD. BE THAT AS IT MAY, THE HONBLE HIGH COURT ALSO RATIFIED THE DEVIATIONS AND DIRECTED THE CMDA TO CONSIDER THE EX PLANATION OF THE ASSESSEE. ALL THESE FACTS GO TO POINT THAT THE PR OJECT WAS INDEED COMPLETED BEFORE THE 31.3.2008. THUS, THIS GROUND ALSO HAS NO FORCE TO DENY THE ASSESSEE THE IMPUGNED DEDUCTION. C EXTRACT FROM THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. D.K.CONSTRUCTION VIDE ITA 243/IND/2010 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREF ULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND REL EVANT MATERIAL PLACED ON RECORD TOWARDS WHICH OUR ATTENTION WAS IN VITED DURING THE COURSE OF HEARING BY THE LD. AUTHORIZED REPRESENTAT IVE AND THE LD. SENIOR D.R. PROVISIONS OF SECTION 80IB ALLOWS CLAI M FOR DEDUCTION IN RESPECT OF HOUSING PROJECT, WHICH HAS BEEN APPROVED PRIOR TO 1.4.2004 AND ALSO COMPLETED BEFORE 31.3.2008. DURING THE C OURSE OF ASSESSMENT WITH REGARD TO ASSESSEES CLAIM OF DEDUC TION U/S 80IB IN RESPECT OF ITS D.K.HONEY HOMES PROJECT, THE AO HAS ASKED THE ASSESSEE TO FURNISH THE CERTIFICATE OF COMPLETION O F THIS PROJECT M/S. D.K.HONEY HOMES. THE AO ALSO DIRECTLY CALLED INFOR MATION FROM THE LOCAL AUTHORITIES BY ISSUING SUMMONS U/S.133(6) AND A LETTER WAS ISSUED BY THE COMPETENT AUTHORITY DATED 11 TH NOVEMBER, 2008, CONFIRMING THAT NO COMPLETION CERTIFICATE HAS BEEN ISSUED BY THIS OFFICE. ACCORDINGLY, THE ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB WAS DECLINED. SECTION 80IB CLEARLY DEFINES THE DATE OF COMPLETION AS DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJEC T SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITIES , IT MEANS LOCAL AUTHORITIES IS COMPETENT TO CERTIFY THE DATE OF COM PLETION OF HOUSING PROJECT. THE DATE OF ISSUE OF SUCH LETTER BY THE L OCAL AUTHORITIES IS NOT SO CRUCIAL BUT IT SHOULD HAVE CLEARLY MENTIONED THE DATE OF COMPLETION OF PROJECT. WHEN THE PROJECT IS COMPLETED ON 31.3. 2008 AND THE ASSESSEE HAS INFORMED REGARDING SUCH COMPLETION, TH E LOCAL AUTHORITIES MAY TAKE ITS OWN TIME FOR ISSUE OF CERT IFICATE, WHICH MAY BE EVEN AFTER 6-7 MONTHS, BUT THE LETTER SO ISSUED BY THE LOCAL AUTHORITIES SHOULD CLEARLY MENTION THE DATE OF COMPLETION OF SU CH PROJECT. MERELY BECAUSE SUCH CERTIFICATE IS ISSUED AFTER GAP OF 8-9 MONTHS OR EVEN ONE YEAR, WILL NOT ADVERSELY AFFECT THE ASSESSEE IF IT HAS MENTIONED CLEARLY THE DATE OF COMPLETION OF PROJECT PRIOR TO 31.3.200 8. ONCE THE LETTER FOR COMPLETION OF PROJECT IS GIVEN BY THE ASSESSEE TO THE LOCAL AUTHORITY, IT IS THE DUTY OF THE LOCAL AUTHORITY TO VERIFY PHYSICALLY THE PROJECTS STATED TO BE COMPLETED FROM ITS OWN PARAME TERS. THIS PROCESS MAY TAKE TIME AND, THEREFORE, THE DATE OF I SSUE OF LETTER IS NOT SO CRUCIAL TO DETERMINE THE ASSESSEES ELIGIBILITY FOR CLAIM OF DEDUCTION AS PER EXPLANATION (II) OF SECTION 80IB(10)(A) OF T HE INCOME-TAX ACT, 1961. WHAT IS CRUCIAL IS DATE MENTIONED IN THE LE TTER SO ISSUED CERTIFYING COMPLETION OF THE PROJECT. THUS, THE DA TE OF ISSUE OF LETTER IS NOT IMPORTANT, BUT THE DATE MENTIONED IN THE LETTER CERTIFYING COMPLETION OF PROJECT IS IMPORTANT. WE, THEREFORE, DO NOT FI ND MAY MERIT IN THE OBSERVATION OF THE LOWER AUTHORITIES TO THE EFFECT THAT THE DATE OF COMPLETION SHALL BE TAKEN THE DATE ON WHICH CERTIFI CATE IS PHYSICALLY ISSUED BY THE LOCAL AUTHORITIES. 9. FROM THE ABOVE, ONE THIS IS CLEAR THAT THE DATE THAT APPEAR ON THE ARCHITECTS COMPLETION CERTIFICATE FILED BEFORE THE LOCAL AUTHORITY IS A RELEVANT ONE. IN THE INSTANT CASE, THE SAID DATE IS 25-3-2008 AND THE ASSESSEE FILED REQUISITE FORM BEFORE THE LOCAL AUTH ORITIES INTIMATING THE COMPLETION OF THE PROJECT. THE SAID CERTIFICATE/ IN TIMATION WAS ACCEPTED BY THE LOCAL AUTHORITY WITHOUT ANY AMENDMENTS OR OB JECTIONS. LOCAL AUTHORITY HAS NOT RAISED ANY QUERIES ON THE QUALITY CONSTRUCTION OF THE BUILDING OR THE COMPLETION OF THE SAME AS PER THE P LANS APPROVED BY 25 ITA NO.2004/PN/2014 SUCH AUTHORITY. IN SUCH CIRCUMSTANCES, IN OUR OPINI ON, THE DELAY IN OBTAINING THE COMPLETION CERTIFICATE ON 10-10-2008 IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE AND OBTAINING THE SAID CERTIFICATE BEFORE 31.3.2008 IS BEYOND THE CONTROL OF THE ASSESSEE. AS SESSEES JOB INCLUDES THE COMPLETION OF THE BUILDING IN ACCORDAN CE WITH THE APPROVED PLANS AND INTIMATION OF THE SAME TO THE LO CAL AUTHORITY BY WAY OF FILING THE REQUISITE FORMS TOGETHER WITH THE COM PLETION CERTIFICATE GIVEN BY THE ARCHITECT, THE SPECIALIST IN THE MATTE R AND THE ASSESSEE HAS DONE HIS JOB SCRUPULOUSLY IN THIS CASE. HOWEVER , THE LOCAL AUTHORITY HAS NEITHER OBJECTED TO THE SAID APPLICATION OF THE ASSESSEE AND THE ARCHITECT BY RAISING ANY OBJECTIONS NOR ACCEPTED BY ISSUE OF SAID COMPLETION CERTIFICATE TILL 10.10.2008. THEREFORE, THE DELAY IN GRANT OF THE SAID CERTIFICATE IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE. THEREFORE, IN OUR OPINION, THE ASSESSEE IS NOT DEFA ULTER ON THIS ACCOUNT AND THUS, THE AO HAS ERRED IN DENYING THE DEDUCTION U/S 80IA(10) OF THE ACT. ACCORDINGLY, THE ORDER OF THE CIT(A) HAS T O BE REVERSED. THUS, THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED . 20.4. IN VIEW OF THE ABOVE DECISIONS WE ARE OF THE CONSIDERED OPINION THAT SINCE THE ASSESSEE HAS DONE WHATEVER POSSIBLE ON HIS PART, I.E. DULY APPLIED TO PMC FOR ISSUE OF COMPLETION CERTIFI CATE, HANDED OVER POSSESSION OF THE FLATS/ROW HOUSES TO THE RESPECTIV E BUYERS, PMC HAS STARTED LEVYING MUNICIPAL TAXES AND ELECTRICITY BIL LS PAID BY RESPECTIVE OWNERS, THEREFORE, DEDUCTION U/S.80IB(10) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE CANNOT BE DENIED TO THE A SSESSEE FOR NON- RECEIPT OF COMPLETION CERTIFICATE FROM PMC BEFORE 3 1-03-2008 WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE. THIS VIEW OF OURS IS FORTIFIED BY OUR DECISION IN THE CASE OF M/S. RAMSUKH PROPERT IES VS. DCIT VIDE ITA NO.84/PN/2011 ORDER DATED 25-07-2012 FOR A.Y. 2 007-08 (WHEREIN BOTH OF US ARE PARTIES) WHEREIN IT HAS BEEN HELD AS UNDER: 6. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT THE ASSESSEE IS A FIRM ENGAGED IN BUSI NESS OF BUILDER AND PROMOTER. THE ISSUE BEFORE US IS REGARDING ALLOWAB ILITY OF DEDUCTION U/S.80IB(10) OF THE ACT ON PARTIALLY COMPLETE PROJE CT. THE ASSESSING OFFICER HAS DENIED THE DEDUCTION ON THE GROUND THAT PROJECT WAS NOT COMPLETE WITHIN THE STIPULATED TIME. THERE IS NO D ISPUTE WITH REGARD TO OTHER CONDITIONS LAID U/S.80IB(10) OF THE ACT, I.E. , COMMENCEMENT OF PROJECT, AREA OF LAND OF PROJECT, ETC. ASSESSEES HOUSING PROJECT WAS APPROVED VIDE COMMENCEMENT CERTIFICATE NO.3837/04 D ATED 13.01.2005 OUT OF WHICH COMPLETION CERTIFICATE WAS OBTAINED AND FURNISHED BEFORE THE ASSESSING OFFICER FOR 173 OUT OF 205 FLATS. SAME WAS REJECTED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). THE REQUEST FOR GRANTING WHOLE DEDUCTION IN RESPECT OF WHOLE PROJECT HAS RIGHTLY BEEN REJECTED BECAUSE DEDUCTION U/S.80I B(10) COULD NOT BE GRANTED TO ASSESSEE ON INCOMPLETE CONSTRUCTION AT R ELEVANT POINT OF TIME. REGARDING PROPORTIONATE DEDUCTION IN RESPECT OF 173 OF 205 FLATS OF PROJECT COMPLETED AS RECOGNIZED BY LOCAL AUTHORI TY, I.E., PMC IN ITS COMPLETION CERTIFICATE NO.BCO/03/01333 DATED 31.03. 2008, THE LD. AUTHORISED REPRESENTATIVE HEAVILY RELIED ON DECISIO N OF BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (SUPRA), BRIGADE ENTERPRIS ES P. LTD. (SUPRA), AIR DEVELOPER (SUPRA), SHETH DEVELOPERS (SUPRA) AND ALSO G.V.CORPORATION (SUPRA), WHEREIN DEDUCTION U/S.80IB (10) WAS DENIED AS SIZE OF SOME OF THE RESIDENTIAL UNITS EXCEEDED P RESCRIBED LIMIT AS LAID DOWN U/S.80IB(10) OF THE ACT. ABOVE MENTIONED DECISIONS ARE APPLICABLE IN THEIR OWN SPHERE, I.E. ON POINT OF EX CESS AREA OF SOME OF THE FLATS WHICH HOLD GOOD IN ITS OWN SPHERE. HOWEV ER, IN CASE BEFORE US, DEDUCTION U/S.80IB(10) OF THE ACT HAS BEEN REJE CTED ON THE GROUND THAT CONDITION OF COMPLETION OF PROJECT BEFORE THE DUE DATE I.E., 31.03.2008 AS LAID DOWN U/S.80IB(10)(C) OF THE ACT, HAS NOT BEEN COMPLIED BY ASSESSEE WHICH IS BASIC CONDITION FOR A LLOWABILITY OF DEDUCTION U/S.80IB(10) OF THE ACT. WE FIND THAT IN CASE OF JOHAR HASSAN ZOJWALLA (SUPRA), WHEREIN CONDITION OF COMPL ETION AS LAID DOWN IN SECTION 80IB(10)(A) COULD NOT BE COMPLIED WITH B ECAUSE OF A STAY 26 ITA NO.2004/PN/2014 BEING GRANTED BY MRTP COURT. THUS FAULT OF INCOMPLE TION OF CONSTRUCTION WAS NOT ATTRIBUTABLE TO ASSESSEE. IN CASE SUCH A CONTINGENCY EMERGES WHICH MAKES THE COMPLIANCE WITH PROVISION IMPOSSIBLE, THEN BENEFIT BESTOWED ON AN ASSESSEE CA NNOT BE COMPLETELY DENIED. SUCH LIBERAL INTERPRETATION SHO ULD BE USED IN FAVOUR OF ASSESSEE WHEN HE IS INCAPACITATED IN COMPLETING PROJECT IN TIME FOR THE REASONS BEYOND HIS CONTROL. IN CASE BEFORE US, AS STATED ON BEHALF OF ASSESSEE, THAT ASSESSEE SUBMITTED CERTAIN MODIFICATIONS/RECTIFICATIONS FOR TOP FLOORS OF BUIL DING. THE SAID MODIFICATION/RECTIFICATION COULD NOT BE COMPLETED A S LOCAL AUTHORITY COULD NOT APPROVE THE MODIFICATION AS THEIR FILES H AVE BEEN TAKEN OVER BY CONCERN INTELLIGENCE DEPARTMENT FOR INVESTIGATIO N OF VIOLATION OF URBAN LAND CEILING ACT APPLICABLE TO LAND IN QUESTI ON AT RELEVANT POINT OF TIME. THIS FACT HAS NOT BEEN DISPUTED ON BEHALF OF REVENUE. THUS, ASSESSEE WAS PREVENTED BY SUFFICIENT REASONABLE CAU SE WHICH COMPELLED THE IMPOSSIBILITY ON PART OF THE ASSESSEE TO HAVE COMPLETION CERTIFICATE IN TIME. IT IS SETTLED LEGAL POSITION THAT THE LAW ALWAYS GIVE REMEDY AND THE LAW DOES WRONG TO NO ONE. WE AGREE TO PROPOSITION PUT FORWARD BY LD. DEPARTMENTAL REPRESENTATIVE THAT PLAIN READING OF SECTION 80IB(10) OF THE ACT SUGGESTS ABOUT ONLY COM PLETION OF CONSTRUCTION AND NO ADJECTIVE SHOULD BE USED ALONGW ITH THE WORD COMPLETION. THIS STRICT INTERPRETATION SHOULD BE G IVEN IN NORMAL CIRCUMSTANCES. HOWEVER, IN CASE BEFORE US, ASSESSE E WAS PREVENTED BY REASONABLE CAUSE TO COMPLETE CONSTRUCTION IN TIM E DUE TO INTERVENTION OF CID ACTION ON ACCOUNT OF VIOLATION OF PROVISIONS OF URBAN LAND CEILING ACT APPLICABLE TO LAND IN QUESTION. AS SESSEE WAS INCAPACITATED TO COMPLETE THE SAME IN TIME DUE TO R EASONS BEYOND HIS CONTROL. ASSESSEE SHOULD NOT SUFFER FOR SAME. THE REVISION OF PLAN IS VESTED RIGHT OF ASSESSEE WHICH CANNOT BE TAKEN AWAY BY STRICT PROVISIONS OF STATUTE. THE TAXING STATUTE GRANTING INCENTIVES FOR PROMOTION OF GROWTH AND DEVELOPMENT SHOULD BE CONST RUED LIBERALLY AND THAT PROVISION FOR PROMOTING ECONOMIC GROWTH HA S TO BE INTERPRETED LIBERALLY. AT THE SAME TIME, RESTRICTION THEREON T OO HAS TO BE CONSTRUED STRICTLY SO AS TO ADVANCE THE OBJECT OF PROVISION A ND NOT TO FRUSTRATE THE SAME. THE PROVISIONS OF TAXING STATUTE SHOULD BE CO NSTRUED HARMONIOUSLY WITH THE OBJECT OF STATUE TO EFFECTUAT E THE LEGISLATIVE INTENTION. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCE S, WE HOLD THAT ASSESSEE IS ENTITLED FOR BENEFIT U/S.80IB(10) OF TH E ACT IN RESPECT OF 173 FLATS COMPLETED BEFORE PRESCRIBED LIMIT. THE ASSESS ING OFFICER IS DIRECTED ACCORDINGLY. 7. AS A RESULT, THE APPEAL OF THE ASSESSEE IS DISPO SED OFF AS INDICATED ABOVE. IN THE LIGHT OF THE ABOVE DISCUSSION THE ORDER OF T HE CIT(A) DENYING BENEFIT OF DEDUCTION U/S.80IB(10) FOR NON-RECEIPT O F COMPLETION CERTIFICATE IS SET-ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ALLOWED. 14.11 IN VIEW OF THE ABOVE DECISIONS THE FIRST ISSUE O N WHICH THE LD.CIT(A) DENIED THE DEDUCTION U/S.80IB(10) I.E., TH E PROJECT IS NOT COMPLETE BEFORE 31-03-2008 IS NOT CORRECT SINCE THE A SSESSEE IN THE INSTANT CASE HAS APPLIED FOR THE COMPLETION OF THE PRO JECT VIDE LETTER DT. 04-04-2006 AND THE PMC HAS ISSUED CERTIFICATE ON 3 1-03-2010 WITH REFERENCE TO THE APPLICATION DT. 04-04-2006, T HEREFORE, THE COMPLETION CERTIFICATE BY PMC RELATES BACK TO THE DA TE OF APPLICATION, I.E. 04-04-2006 AND, THEREFORE, IN OUR CONSIDERED OPINION THE ASSESSEE HAS COMPLETED THE PROJECT BEFORE 31 -03-2008. SO FAR AS THE SECOND ISSUE IS CONCERNED THE ASSESSEE HAS DUL Y APPLIED FOR ISSUE OF COMPLETION OF BUILDINGS I+K OF PR OJECT B ON 04- 04-2006 AND HAS HANDED OVER THE FLATS TO THE CUSTOMERS, THAT THEY HAVE UNDERTAKEN FOR MAINTENANCE CHARGES AND HAVE STAR TED PAYING 27 ITA NO.2004/PN/2014 ELECTRICITY CHARGES. THE ASSESSEE HAS DONE EVERYTHING PO SSIBLE ON ITS PART FOR ISSUANCE OF COMPLETION CERTIFICATE. THER EFORE, THE ASSESSEE CANNOT BE HELD RESPONSIBLE FOR NON-ISSUANCE OF COM PLETION CERTIFICATE BY PMC SINCE THE DELAY IS NOT ATTRIBUTABL E TO THE ASSESSEE. 15. THE THIRD ISSUE ON WHICH THE LD.CIT(A) UPHELD THE DISALLOWANCE U/S.80IB(10) IS THAT THE ASSESSEE HAD CONSTRUC TED SHOPS ADMEASURING ABOUT 9472 SQ.FT. OUT OF THE AGGREGAT E BUILT UP AREA OF 1,16,433 SQ.FT. AND THEREFORE THE COMMERCIA L AREA IS 8.37% OF THE AGGREGATE BUILT UP AREA AND THEREFORE IS IN E XCESS OF THE PRESCRIBED LIMIT U/S.80IB(10). WE FIND, THERE IS NO D ISPUTE TO THE FACT THAT THE PROJECT, IN THE INSTANT CASE, IS APPROVE D ON 11-01-1999 VIDE COMMENCEMENT CERTIFICATE NO.2117 FOR PLOT NO.3 . SIMILARLY, THE PMC APPROVED THE FIRST BUILDING PLAN IN RESPECT OF PLOT NO.4 VIDE COMMENCEMENT CERTIFICATE NO.4410 DATED 06-03-2 000. THUS, THE HOUSING PROJECT HAS BEEN APPROVED BEFORE 31-03-2 005. IT HAS BEEN HELD BY THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. BRAHMA ASSOCIATES REPORTED IN 333 ITR 289 THAT THE HOU SING PROJECT APPROVED BEFORE 31-03-2005 CAN INCLUDE COMM ERCIAL AREA. IT IS THE CASE OF THE REVENUE THAT THE RATIO OF BRAHM A ASSOCIATES WILL NOT BE APPLICABLE FOR A.Y. 2005-06 AND SUBSEQUENT YEA RS SINCE IN THE CASE OF BRAHMA ASSOCIATES THE ASSESSMENT YEAR INVOLVED WAS2003-04 AND THE POSITION WOULD BE DIFFERENT W.E.F. A.Y. 2005- 06. 15.1 WE FIND THE HONBLE GUJARAT HIGH COURT IN THE CASE OF MANAN CORPORATION AFTER CONSIDERING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES HAS HELD AS UNDER : AS MENTIONED HEREINABOVE CRITERIAS TO HOLD THIS AM ENDMENT RETROSPECTIVE ARE ABSENT THERE IS NO AS EXPLICIT AND SPECIFIC WOR DING EXPRESSING RETROSPECTIVITY AND EVEN IF IT IS ASSUMED FOR THE S AKE OF ARGUMENTS THAT THE SAME IS TO BE READ BY IMPLICATION THE SAME DOES NOT APPEAR TO BE REASONABLE BUT, IN FACT EMERGES TO BE HARSH AND UNR EASONABLE WHEN Y COMES TO IMPLEMENTATION. 31. AGAIN, AS HELD IN CASE OF CIT VS. J.H. GOTIA(SUPRA) BY THE APEX COURT SUCH STRICT CONSTRUCTION OF THE STATUTE IF LE ADS TO ABSURD INTERPRETATION THE SAME MAY NOT SUBSERVE THE INTENT AND OBJECT OF LEGISLATION. 32. AGAIN, AS HELD IN THE CASE OF MYSORE MINERALS L TD. VS. COMMISSION OF INCOME-TAX REPORTED IN 239 ITR 775, APEX COURT W ITH TWO POSSIBILITIES OF INTERPRETATION OF A TAXING STATUTE , ONE WHICH IS FAVOURABLE TO THE ASSESSEE SHOULD BE ALWAYS PREFERRED. 33. AS ALSO LAID DOWN IN THE CASE OF BAJAJ TEMPO LT D. VS. COMMISSIONER OF INCOME-TAX REPORTED IN 196 ITR 188 (SC), TAXING STATUTE GRANTING INCENTIVES FOR PROMOTING ECONOMIC GROWTH AND DEVELOPMENT SHOULD BE LIBERALLY CONSTRUED TO FACILI TATE AND ADVANCE THE OBJECTIVES OF THE PROVISION. 34. ABOVE DISCUSSION CUMULATIVELY WHEN EXAMINED WIT H THE OBJECTIVES AND INTENT IT SOUGHT TO ACHIEVE IN BRINGING ABOUT T HE SAID PROVISION OF SECTION 80IB(10), THIS AMENDED TAXING STATUTE REQUI RES TO BE INTERPRETED IN FAVOUR OF THE ASSESSEE RATHER THAN INSISTING UPO N STRICT COMPLIANCE LEADING TO ABSURDITY. 28 ITA NO.2004/PN/2014 35. IT CAN BE ALSO HELD THAT THIS BEING A SUBSTANTI VE AMENDMENT AND NOT A CLARIFICATORY AMENDMENT, THE AMENDMENT OF THIS NA TURE CANNOT HAVE RETROSPECTIVE EFFECT. 15.2 SIMILAR VIEW HAS BEEN TAKEN BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HIRANANDANI AKRUTI JV VS. DCI T REPORTED IN 39 SOT 498 WHERE IT HAS BEEN HELD THAT LAW AS IT EXIST ED IN THE A.Y. 2004-05 WHEN THE ASSESSEE SUBMITTED ITS PROPOSAL FOR SLUM REHABILITATION AND THE PERMISSION FOR CARRYING OUT TH E DEVELOPMENT WAS ACCORDED ON 17-11-2003 AND WHEN THE ASSESSEE COMMENC ED THE DEVELOPMENT IS TO BE APPLIED AND ACCORDINGLY IT WAS HELD THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S.80IB(10) FOR A .Y. 2006- 07 15.3 THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF O PEL SHELTERS VS. ACIT VIDE ITA NO.219/PN/2009 AND D.S. KULKARNI A ND ASSOCIATES VIDE ITA NIO.17/PN/2009 FOLLOWING THE DECISI ON OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE HIRANANDANI AKRUTI JV (SUPRA) HAS HELD THAT IN THOSE APPROVED PROJECTS WHERE CONSTRUCTION HAS BEEN STARTED MUCH EARLIER THAN 01-04- 2005, THE ASSESSEES ARE REQUIRED TO COMPLETE THE PLAN AS IT HAS BEEN APPROVED. 15.4 IN VIEW OF THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF MANAN CORPORATION(SUPRA) IT HAS TO BE HELD TH AT THE LAW AS EXISTED IN THE YEAR WHEN THE ASSESSEE SUBMITTED ITS PROPOSA L AND THE PERMISSION IS GRANTED BY THE LOCAL AUTHORITY AND T HE ASSESSEE COMMENCES DEVELOPMENT IS TO BE APPLIED IN DETERMINING ITS ELIGIBILITY OF THE DEDUCTION CLAIMED U/S.80IB(10). THE ASSESSEE IN THE INSTANT CASE CANNOT BE DENIED THE BENEFIT OF DEDU CTION FOR CONSTRUCTION OF COMMERCIAL AREA WHICH IS MORE THAN 20 00 SQ.FT. OR 5% OF THE BUILT UP AREA OF THE HOUSING PROJECT WHICH EVER IS LESS. IT HAS BEEN HELD BY VARIOUS JUDICIAL DECISIONS INCLUDING T HE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF MANAN CORP ORATION (SUPRA) THAT SUCH AMENDMENT TO PROVISIONS OF SECTION 80 IB(10) IS PROSPECTIVE IN NATURE AND NOT RETROSPECTIVE. WE, THE REFORE, HOLD THAT THE ASSESSEE CANNOT BE DENIED THE BENEFIT OF DEDUC TION U/S.80IB(10) ON THIS ISSUE ALSO. 15.5 SO FAR AS THE 2 DECISIONS RELIED ON BY THE LD. DE PARTMENTAL REPRESENTATIVE WE FIND BOTH THESE DECISIONS ARE DISTING UISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. SO FAR AS THE DECISION OF THE TRIBUNAL IN THE CASE OF SAINATH ESTATE S PVT. LTD. (SUPRA) RELIED ON BY THE LD. DEPARTMENTAL REPRESENTA TIVE IS CONCERNED WE FIND THE SAME IS NOT APPLICABLE TO THE F ACTS OF THE PRESENT CASE. THE ASSESSEE COULD NOT EXPLAIN THE REASON F OR NON ISSUANCE OF COMPLETION CERTIFICATE BY THE LOCAL AUTHO RITY IN THE CASE OF SAINATH ESTATES PVT. LTD. (SUPRA). HOWEVER, IN TH E INSTANT CASE THE COMPLETION CERTIFICATE HAS BEEN ISSUED ON 30-03-20 10 WITH RESPECT TO THE OCCUPANCY CERTIFICATE ISSUED BY THE ARC HITECT ON 04- 04-2006. FURTHER, THE DELAY IN ISSUE OF COMPLETION CERTIFICATE WAS NOT FOR COMPLETING THE PROJECT BUT ON TECHNICAL GRO UNDS, I.E. NON PAYMENT OF THE COMPOUNDING FEES OF RS.2,41,865/- FOR UNAUTHORIZED CONSTRUCTIONS WHICH THE ASSESSEE HAS DENIED ALL ALONG AND NON ALLOTMENT OF CERTAIN BUILT UP AREA TO THE ECONOMICALLY WEAKER SECTION OF THE SOCIETY WHICH THE ASSESSEE HAS COMPLIED BEFORE 31-03-2008. SO FAR AS THE DECISION I N THE CASE OF EVEREST HOME CONSTRUCTION (INDIA) PVT. LTD. (SUPRA) T O THE 29 ITA NO.2004/PN/2014 PROPOSITION THAT THE AMENDMENT BROUGHT IN BY THE FIN ANCE ACT, 2004 IS APPLICABLE TO A.Y. 2005-06 AND ONWARDS, EVEN IF THE PROJECT IS APPROVED BEFORE 31-03-2005 WE FIND THE SAME IS NOT APPLICABLE IN VIEW OF THE DECISION OF HONBLE GUJARAT HIGH COUR T IN THE CASE OF MANAN CORPORATION (SUPRA) WHICH HAS ALREADY BEEN REP RODUCED. FURTHER, THE DECISION OF A HIGH COURT WOULD PREVAIL UPON THE DECISION OF THE TRIBUNAL WHICH IS A LOWER FORUM THAN THE HIGH COURT. 15.6 THEREFORE, IN VIEW OF THE ABOVE DISCUSSIONS WE HOL D THAT THE ASSESSEE IN THE INSTANT CASE IS ENTITLED TO THE BENEFIT OF DEDUCTION U/S.80IB(10) ON ITS HOUSING PROJECTS. ACCORDINGLY, THE FIRST GROUND OF THE ASSESSEE IS ALLOWED. SINCE THE ASSESSEE SUCCEEDS ON TH E FIRST GROUND THE ALTERNATE CONTENTION FOR PROPORTIONATE D EDUCTION BECOME ACADEMIC IN NATURE AND THEREFORE IS NOT REQU IRED TO BE ADJUDICATED. 7.2 SIMILARLY, THE PUNE BENCH OF THE TRIBUNAL IN TH E CASE OF M/S. RAVIRAJ KOTHARI PUNJABI ASSOCIATES (SUPRA) AFTER CO NSIDERING THE DECISION OF HONBLE MUMBAI HIGH COURT IN THE CASE O F BRAHMA ASSOCIATES (SUPRA) AND THE DECISION OF THE MUMBAI BENCH OF THE ITAT IN THE CASE OF EVEREST HOME CONSTRUCTION (INDIA) PV T. LTD. (SUPRA) HAS ALLOWED THE CLAIM OF PROPORTIONATE DEDUCTION BY OBS ERVING AS UNDER : 6. SO, HOWEVER, AT THE TIME OF HEARING THE LD.CIT DR APPEARING FOR THE REVENUE CONTENDED THAT THE TRIBUNAL HELD TH AT THE RESTRICTIONS ON PERMISSIBLE COMMERCIAL AREA AS PER SECTION 80IB( 10)(D) OF THE ACT WAS INSERTED BY THE FINANCE (NO.2) ACT 2004 W.E.F.0 1-04-2005 AND THAT SUCH AMENDMENT WAS PROSPECTIVE IN NATURE AND WOULD NOT APPLY TO THE PROJECT IN QUESTION. THE LD. CIT DR SUBMITTED THAT IN THIS CONTEXT THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. EVEREST HOME CONSTRUCTION (INDIA) (P) LTD. VIDE ITA NO.7021/MUM/ 2008 ORDER DATED 12-09-2012 HAS TAKEN A CONTRARY VIEW TO HOLD THAT T HE COMMERCIAL AREA LIMIT INTRODUCED BY THE FINANCE (NO.2) ACT 2004 W.E .F.01-04-2005 BY INSERTION OF CLAUSE (D) SECTION 80IB(10) SHALL BE A PPLICABLE TO EVALUATE THE DEDUCTIONS CLAIMED BY THE ASSESSEE FROM THE A.Y . 2005-06 ONWARDS. 7. WE HAVE CAREFULLY CONSIDERED THE ARGUMENT SET UP BY THE LD. DEPARTMENTAL REPRESENTATIVE AND FIND THAT THERE IS NO REASON TO DEPART FROM THE POSITION DECIDED BY THE TRIBUNAL IN THE AS SESSEES OWN CASE FOR THE ASSESSMENT YEARS 2003-04 TO 2006-07 VIDE IT S ORDER DATED 23- 11-2012 (SUPRA). THE TRIBUNAL HAD CONCLUDED THAT T HE AMENDMENT MADE BY THE FINANCE (NO.2) ACT 2004 W.E.F. 01-04-20 05 BY INSERTION OF CLAUSE (D) OF SECTION 80IB(10) WOULD NOT OPERATE RE TROSPECTIVELY AND THAT IT WOULD BE PROSPECTIVE IN NATURE. ACCORDING TO THE TRIBUNAL, THE ASSESSEE HAD COMMENCED ITS PROJECT IN QUESTION PRIO R TO 01-04-2005 IN TERMS OF THE APPROVAL GRANTED BY A LOCAL AUTHORITY AND THE SAID PROJECT ALSO STANDS COMPLETED ON 20-03-2004 AND THUS THE AM ENDMENT MADE BY THE FINANCE (NO.2) ACT 2004 CANNOT BE INVOKED TO DIS-ENTITLE ASSESSEES CLAIM OF DEDUCTION U/S.80IB(10) FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 AS WELL. THE AFORESAID CONCLUS ION OF THE TRIBUNAL WAS ALSO BASED ON CERTAIN PRECEDENTS WHICH ARE AS UNDER : 1. OPEN SHELTERS PVT. LTD. VS. ACIT (ITA NO.219/PN/ 2010 FOR A.Y. 2005-06 ORDER DATED 31-05-2010 2. G.K. BUILDERS IN ITA NO.1077 AND 1078/PN/2010 FO R A.Y. 2005- 06 AND 2006-07 ORDER DATED 30-07-2012 3. HIRANANDANI AKRUTI JV VS. DY. CIT REPORTED IN 39 SOT 498 (MUMBAI) 30 ITA NO.2004/PN/2014 THE TRIBUNAL ALSO CONSIDERED THE JUDGMENTS OF THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (2011) 333 ITR 289 (BOM.) TO HOLD THAT AMENDMENTS IN QUESTION ARE TO B E SEEN AS PROSPECTIVE IN NATURE. 8. APART FROM THE AFORESAID WE MAY ALSO NOTICE THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF MANAN CORPORATION VS. ACIT DATED 03-09-2012 WHEREIN THE BONE OF CONTENTIO N WAS THE APPLICABILITY OF THE REQUIREMENTS CONTAINED IN CLAU SE (D) OF SECTION 80IB(10) OF THE ACT. THE REVENUE HAD CANVASSED THA T THE PROVISION OF SECTION 80IB(10)(D) OF THE ACT WAS APPLICABLE FROM 01-04-2005 AND WAS TO BE CONSIDERED FOR A.Y. 2006-07 AS WELL, REGA RDLESS OF THE DATE OF APPROVAL OF THE PROJECT IN QUESTION. THE HONBL E GUJARAT HIGH COURT, BY REFERRING TO THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) AND ALSO THE JUDG MENT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S. ANRIYA PROJECT MANAGEMENT VIDE ITA NO.138 OF 2010 DATED 29 -02-2012 HELD THAT SUCH AN AMENDMENT WOULD NOT APPLY TO A PROJECT WHICH IS APPROVED PRIOR TO 01-04-2005 AND THAT IN THIS LIGHT THE PROSPECTIVE NATURE OF THE AMENDMENT, AS HELD BY THE HONBLE BOM BAY HIGH COURT, IS TO BE VIEWED. 9. PERTINENTLY IN THE CASE BEFORE HONBLE GUJARAT H IGH COURT THE CLAIM OF THE ASSESSEE WAS DENIED BY THE TRIBUNAL RE LYING ON THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF BRAHMA ASSOCIATES (SUPRA) HOLDING THAT THE RESTRICTION SET OUT IN CLAUSE(D) OF SECTION 80IB(10) INSERTED BY FINANCE (NO.2) ACT 200 4 W.E.F.01-04-2005 WAS TO BE APPLIED IN A.Y. 2006-07, REGARDLESS OF TH E DATE OF APPROVAL OF THE PROJECT IN QUESTION. THE AFORESAID POSITION CANVASSED BY THE TRIBUNAL IN THE CASE OF MANAN CORPORATION (SUPRA) W AS NEGATED BY THE HONBLE GUJARAT HIGH COURT ON THE BASIS OF THE JUDG MENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). THEREFORE, IN THIS MANNER, THE RELIANCE NOW SOUGHT TO BE PLACED BY THE LD. CIT DR IN THE CASE OF EVEREST HOME CONSTRUCTIO N (INDIA) PVT. LTD. (SUPRA) THEREFORE IS NOT OF ANY HELP TO THE REVENUE . THUS, FOLLOWING THE PARITY OF REASONING LAID DOWN IN THE ORDER OF THE T RIBUNAL DATED 23-11- 2012 (SUPRA), IN ASSESSEES OWN CASE, AND WHICH IS IN CONSONANCE WITH THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE OF MANAN CORPORATION (SUPRA), WHICH HAS REFERRED TO AND RELI ED UPON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF BRAHMA ASSOCIATES (SUPRA), WE THEREFORE FIND IT EXPEDIENT TO UPHOLD THE ASSESSEES CLAIM FOR DEDUCTION U/S.80IB(10) IN RELA TION TO THE CITADEL PROJECT. IN THIS MANNER, THE CLAIM OF THE ASSESSEE IS ALLOWED. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WE HOLD THAT THE ASSESSEE IS ENTITLED TO PROPORTIONATE DEDUCTION U/S.80IB(10) OF THE I.T. ACT. WE, THEREFORE, UPHOLD THE ORDER OF THE CIT(A) FOR A.YRS . 2004-05 TO 2007-08 AND SET-ASIDE THE ORDER OF THE CIT(A) FOR A.Y. 2008 -09. 7.3 IN VIEW OF THE DECISIONS CITED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ELIGIBLE FOR PRO-RATA CLAIM OF DEDUCTION U/S.80IB(10) WITH RESPECT TO THE ELIGIBLE UNITS OF THE HOUSING PROJECT. WE, THEREFORE, UPHOLD THE ORDER OF LD.CIT(A) FOR A. YRS. 2003-04 TO 2007-08. THE ORDER OF LD.CIT(A) FOR A.Y. 2008-09 I S SET-ASIDE AND THE AO IS DIRECTED TO ALLOW PROPORTIONATE DEDUCTION FOR THE ELIGIBLE UNITS. 13. IN VIEW OF THE CONSISTENT DECISION OF THE COORDINATE BENCHES OF THE TRIBUNAL ALLOWING CLAIM OF PRO-RATA DEDUCTION U/S.80IB(10 ) WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWING THE CLAIM OF 31 ITA NO.2004/PN/2014 PRO-RATA DEDUCTION. ACCORDINGLY, THE SAME IS UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 14. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27-05-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; # DATED : 27 TH MAY, 2016. LRH'K ( )'+ , / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. CIT (A) - I I , PUNE 4. 5. 6. CIT-II, PUNE ' *, *, IQ.KS / DR, ITAT, B PUNE; / GUARD FILE. / BY ORDER , ' //TRUE COPY// / * / SR. PRIVATE SECRETARY *, IQ.KS / ITAT, PUNE