M/S. R.K. Developers, Indore V. THE ITO-1(3), Indore

ITA 208/IND/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5959 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 10-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: C P RAWKA
• Keywords: Retrospective amendment
• Section: 80IB; 10

Judgement Text

R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NOS. 208, 209 & 359/IND/2016 ITA NO.639/IND/2014 A.YS. 2007-08 TO 2010-11 M/S. R.K. DEVELOPERS, INDORE PAN AAIFR 7996 N :: APPELLANT VS ITO-1(3), INDORE/DCIT-1(1), INDORE :: RESPONDENTS ASSESSEE BY SHRI C.P. RAWKA RESPONDENT BY SHRI MOHD. JAVED DATE OF HEARING 20.6.2016 DATE OF PRONOUNCEMENT 20.6.2016 O R D E R THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF LD. CIT(A)-I, INDORE, 25.11.2015, 25.11.22015, 2 6.2.2016 & 01.7.2014, RESPECTIVELY, WHEREIN THE CONFIRMATION OF DISALLOWA NCES ON ACCOUNT OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 80-IB(10) HAS BEEN CHALLENGED. SINCE COMMON ISSUE ON THE IDENTICAL FACTS IS INVOLVED IN THE PRESENT APPEALS, I AM DECIDING THE SAME BY THIS COMMON AND CONSOLIDATED O RDER TAKING THE FACTS FROM THE ASSESSMENT YEAR 2007-08 AND DECISION FOR A SSESSMENT YEAR 2007-08 WILL ALSO BE APPLICABLE IN THE REMAINING APPEALS HA VING SIMILAR ISSUE ON IDENTICAL FACTS. R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 2 2. SHORT FACTS ARE THAT THE ASSESSEE FILED E-ITR-5 ON 17.10.2007 DECLARING TOTAL INCOME AT RS.NIL. THE ASSESSEE HAS SHOWN NET INCOME AT RS.29,45,880/- AND AFTER CLAIMING THE DEDUCTION U/S 80IB(10), SHOW N NET TAXABLE INCOME AT RS.NIL FOR PROJECT RUNNING AT ASHOK VATIKA, AB ROAD , PIGDUMBER, INDORE. THE ASSESSING OFFICER ISSUED NOTICE U/S 148. THE ASSESS EE SUBMITTED THAT IT IS A COLONISER AND INVOLVE IN DEVELOPING AND SELLING OF ROW HOUSE/PLOTS AND DURING THE YEAR UNDER CONSIDERATION, IT HAS SHOWN SALES AT RS.1,04,42,500/-, DIVIDEND RECEIPT AT RS.8,175/- AND AFTER DEDUCTING VARIOUS E XPENSES LIKE, COST OF SALES, SITE DEVELOPMENT EXPENSES, IT HAS CALCULATED N.P. A T RS.29,45,882/-, HOWEVER, AFTER CLAIM OF DEDUCTION U/S 80IB(10) AT RS.29,45,8 82/-, THE NET TAXABLE INCOME COMES TO RS.NIL. HOWEVER, THE ASSESSING OFFICER NOT ED THAT THE ASSESSEE IS ENGAGED IN SALE OF OPEN PLOTS AND THEREFORE, THE AS SESSING OFFICER HELD THAT THE ASSESSEE FAILED TO EXPLAIN THE ELIGIBILITY OF C LAIM OF DEDUCTION U/S 80IB(10) BY PUTTING SUPPORTING DOCUMENTS. ACCORDINGLY, THE A SSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE AT RS.29,45,88 0/- U/S 80IB(10) OF THE ACT. BEING AGGRIEVED, THE ASSESSEE APPROACHED THE LD. CI T(A), WHO CONFIRMED THE ADDITION. NOW, THE ASSESSEE IS BEFORE THIS TRIBUNAL . 3. T HE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND ALSO FILED WRITTEN SUB MISSION ALONG WITH PAPER BOOK BEFORE ME. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND SUBMITTED THAT ISSUE IS COV ERED AGAINST THE ASSESSEE BY THE JUDGMENT OF THE HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. M/S. GLOBAL REALITY, I.T.A.NO. 40/2012 AND OTHERS. R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 3 4. THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT C ONTROVERT THE ASSERTION MADE BY THE LD. DR. 5. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. I HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. I FIND THAT IN A RECENT JUDGMENT, THE HON'BLE JURISDICTIONAL HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. M/S GLOBAL REALITY; ITA NO. 40/2012 AND OTHERS HAS DECI DED THE IDENTICAL ISSUE AGAINST THE ASSESSEE BY HOLDING AS UNDER :- 19. THE PROVISION SUCH AS CLAUSE (A) AS AMENDED, S ENSU STRICTO, CANNOT BE CONSIDERED AS A NEW CONDITION AND THAT TO O INCAPABLE OF COMPLIANCE. INASMUCH AS, CLAUSE (A) DEALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJECT WAS EXPECTED TO BE COMPLE TED, TO GET THE BENEFIT OF THE PRESCRIBED DEDUCTION. NOTABLY, THE A MENDED SECTION 80IB (10) (A) EXTENDS THE BENEFIT EVEN TO THE HOUSING P ROJECTS APPROVED BY THE LOCAL AUTHORITY BEFORE 31.03.2007, INSTEAD OF 31.03.2005 - AS WAS PROVIDED IN THE UNAMENDED PROVI SION. THEREFORE, NECESSITY WAS FELT TO MAKE DISTINCTION B ETWEEN THE TWO CLASSES OF HOUSING PROJECTS FOR SPECIFYING THE TIME FRAME FOR COMPLETION. THE ONE APPROVED BY THE LOCAL AUTHORITY BEFORE 1ST DAY OF APRIL, 2004; AND THE OTHER CLASS OF HOUSING PROJ ECT APPROVED BY THE LOCAL AUTHORITY ON OR AFTER 1ST APRIL 2004 TILL 31. 03.2007. IN EITHER CASE, THE TIME FRAME FOR COMPLETION OF PROJECT HAS BEEN PRESCRIBED AS FOUR YEARS. IN THAT, THE PROJECT APPROVED BEFORE 1ST APRIL, 2004 HAS BEEN GIVEN TIME TO COMPLETE BEFORE 31.03.2008; AND IN THE LATTER CATEGORY I.T.A.NOS.40/2012, 36/2012 & 35/2012 WITHI N FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOU SING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. 20. THUS UNDERSTOOD, SIMILAR TIME FRAME FOR COMPLET ION OF HOUSING PROJECT HAS BEEN GIVEN TO BOTH CLASS OF HOUSING PRO JECTS. MOREOVER, THE EXPLANATION BELOW CLAUSE (A), IN PARTICULAR (II ), APPLIES TO BOTH CLASS OF HOUSING PROJECTS UNIFORMLY. IT POSTULATES THAT 'THE DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT' SHAL L BE TAKEN TO BE 'THE DATE ON WHICH COMPLETION CERTIFICATE' IN RESPE CT OF SUCH HOUSING PROJECT 'IS ISSUED BY THE LOCAL AUTHORITY'. IF EXPL ANATION (II) IS SUPERIMPOSED ON THE EXPRESSION 'COMPLETES SUCH CONS TRUCTION' IN CLAUSE (A) OF SECTION 80IB(10) , IT WOULD MEAN THAT THE HOUSING PROJECTS COMMENCED ON OR AFTER 01.10.1998 MUST POSS ESS R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 4 COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y ON OR BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE - TO BECOME ELIG IBLE FOR TAX DEDUCTION. AS PER EXPLANATION (II), THEREFORE, THE SYNONYM OF 'COMPLETES SUCH CONSTRUCTION' WOULD BE THE DATE ON WHICH COMPLETION CERTIFICATE IS ISSUED BY THE LOCAL AUTHO RITY. NO MORE AND NO LESS. THUS, ENOUGH INDICATION AND ALSO SUFFICIEN T TIME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN GIVEN TO BOTH THE CLASS OF HOUSING PROJECTS TO FULFILL THAT CONDITION. THE PROVISION IS IN THE NATURE OF LIMITING THE BENEFIT OF DEDUCTION TO THE SPECIFIED HOUSING PROJECTS, AND NOT TO THOSE WHO FAIL TO FULFILL THE REQUIREMENT OF COMPLETION OF CONSTRUCTION IN TIME FRAME SPECIFIED FOR THE RESPECTIVE CATEGORY OF HOUSING PROJECTS. THIS HAS BEEN DONE IN LARGER PUBLIC INTEREST - TO ENSURE THAT THE BENEFIT IS GIVEN ONLY TO SUCH PROJECTS WHO WOULD FURTHER THE GOAL OF PROVIDING LOW COST ECONOM IC HOUSES TO THE DESERVING PERSONS IN REASONABLE TIME. 21. CONCEDEDLY, IT IS WITHIN THE DOMAIN OF PARLIAME NT TO EXTEND BENEFIT OR PRIVILEGE TO CERTAIN CLASS OF PERSONS AN D ALSO TO WITHDRAW THE SAME FOR JUST REASONS. THAT CANNOT BE QUESTIONE D, UNLESS SHOWN TO BE UNCONSTITUTIONAL IN FORM OR ITS SUBSTANCE. IT WAS THUS OPEN TO THE PARLIAMENT, TO PROVIDE FOR A CUT OFF DATE FOR C OMPLETION OF THE HOUSING PROJECTS, AS A CONDITION PRECEDENT TO AVAIL BENEFIT OF DEDUCTION. IN THE PAST, SUCH STIPULATION WAS IN PLA CE, BUT, LATER ON, IT WAS DONE AWAY WITH. HOWEVER, BY AMENDMENT WHICH CAM E INTO EFFECT FROM 1ST APRIL, 2005, THE CONDITION FOR COMP LETION OF PROJECT WITHIN SPECIFIED TIME HAS I.T.A.NOS.40/2012, 36/201 2 & 35/2012 BEEN REINTRODUCED, WHILE GIVING SUFFICIENT TIME (FOUR YEARS) TO THE ASSESSEE TO COMPLY FOR BEING ENTITLED TO GET DEDUCTION. 22. A PRIORI, IT IS NOT A CASE OF IMPOSING NEW COND ITION, MUCH LESS, WITH RETROSPECTIVE EFFECT AS HAS BEEN ARGUED BEFORE US; UNLIKE INTRODUCTION OF NEW CONDITION IN THE SHAPE OF CLAUS E (D) - WHICH OBVIOUSLY COULD BE APPLIED ONLY PROSPECTIVELY, AS H ELD BY THE SUPREME COURT IN THE AFORESAID DECISIONS. CLAUSE (A ) STANDS ON A COMPLETELY DIFFERENT PEDESTAL. IT CANNOT BE TREATED AS A NEW CONDITION LINKED TO THE APPROVAL AND CONSTRUCTION OR HAVING R ETROSPECTIVE EFFECT AS SUCH. FOR, IT GIVES AT LEAST FOUR YEARS' TIME FR AME TO BOTH CLASS OF HOUSING PROJECTS; TO WIT, HOUSING PROJECTS APPROVED PRIOR TO 1ST APRIL, 2004 OR AFTER 1ST APRIL, 2004. THE FOUR YEARS PERIO D OBVIOUSLY HAS PROSPECTIVE EFFECT, ALBEIT LIMITING THE PERIOD FOR COMPLETION OF THE PROJECT, TO AVAIL OF THE BENEFIT. FOUR YEARS' TIME FRAME FOR COMPLETION OF THE PROJECT, BY NO STANDARDS, CAN BE SAID TO BE UNREASONABLE, HARSH, ABSURD OR INCAPABLE OF COMPLIANCE. IT IS ALS O NOT A CASE OF WITHDRAWAL OF VESTED RIGHT OF THE DEVELOPER, AS SUC H. NO DEVELOPER CAN CLAIM VESTED RIGHT TO COMPLETE THE HOUSING PROJ ECT R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 5 I.T.A.NOS.40/2012, 36/2012 & 35/2012 IN INDEFINITE PERIOD. THE RIGHT ARISING FROM SECTION 80IB , IS COUPLED WITH THE OBLIGATION OR DUTY TO COMPLETE THE PROJECT IN SPECIFIED TIME FRAME. IF TH E DEVELOPER DOES NOT COMPLETE THE HOUSING PROJECT WITHIN SPECIFIED T IME, WILL NOT RECEIVE THAT BENEFIT. THERE IS NO COMPULSION ON HIM TO COMPLETE THE PROJECT IN FOUR YEARS. NOTABLY, EVEN THE APPROVALS TO THE CONSTRUCTION OF HOUSING PROJECT GRANTED BY THE LOCAL AUTHORITY S PECIFY THE DATE WITHIN WHICH THE CONSTRUCTION MUST BE COMPLETED, AS PER THE TIME FRAME SPECIFIED IN THE PERMISSION. IF THE PROJECT I S NOT COMPLETED WITHIN THE STIPULATED TIME, THE DEVELOPER IS FREE T O GET THAT PERIOD RENEWED OR EXTENDED FROM THE LOCAL AUTHORITY AS PER THE APPLICABLE RULES AND REGULATIONS. THE PROVISION FOR CLAIMING T AX DEDUCTION FROM PROFITS, CAN CERTAINLY PRESCRIBE FOR REASONABLE CON DITIONS AND MORE SO TIME FRAME FOR COMPLETION OF THE PROJECT, IN LAR GER PUBLIC INTEREST. 23. SUFFICE IT TO OBSERVE THAT, NO COMPARISON CAN B E DRAWN BETWEEN THE NEW CONDITION PRESCRIBED IN TERMS OF CLAUSE (D) AND THAT OF CLAUSE (A). CONDITION IN CLAUSE (A), NEITHER OPERATES RETR OSPECTIVELY NOR CAN BE SAID TO BE ABSURD, UNJUST OR EXPECTING I.T.A.NOS .40/2012, 36/2012 & 35/2012 THE ASSESSEE TO COMPLY WITH SOMETHING WHI CH IS IMPOSSIBLE TO ACHIEVE. 24. THE NEXT QUESTION THAT NEEDS TO BE ANSWERED, IS , WHETHER THE STIPULATION IN SECTION 80IB(10)(A) CAN BE SAID TO BE DIRECTORY. CONSIDERING THE PRODIGIOUS BENEFIT OFFERED IN TERMS OF SECTION 80IB TO THE ASSESSEE (HUNDRED PER CENT OF THE PROFITS D ERIVED IN ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR); AND THE PURPOSE UNDERLYING THE SAME - WHICH IS INTER ALIA BURDEN ON THE PUBLIC EXCHEQUER DUE TO WAIVER OF COMMENSURATE REVENUE - T HE STIPULATION FOR OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, MUST BE CONSTRUED AS MANDATORY. T HE FACT THAT COMPLIANCE OF THAT CONDITION IS DEPENDENT ON THE MA NNER IN WHICH THE PROPOSAL IS PROCESSED BY THE LOCAL AUTHORITY, T HE PROVISION CANNOT BE CONSTRUED AS A DIRECTORY REQUIREMENT. IT IS A SUBSTANTIVE PROVISION MANDATING ISSUANCE OR GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE OR SPEC IFIED TIME, AS A PRECONDITION TO GET THE BENEFIT OF TAX DEDUCTION. E LSE, IT WILL THEN BE OPEN TO THE ASSESSEE TO RELY ON OTHER CIRCUMSTANCES OR I.T.A. NOS. 40/2012, 36/2012 & 35/ 2012 EVIDENCE TO PLEAD THAT THE HOUSING PROJECT IS COMPLETE - REQUIRING ENQUIRY INTO THOSE MATTERS BY THE TAX AUTHORITIES - SANS A COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY IN THAT BEHALF. A PRIORI, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE IS SUFFICIENT, WOULD LEAD TO UNCERTAINTY ABOUT THE DATE OF COMPLETION OF THE PROJECT WHICH IS THE HALLMARK FOR AVAILING OF THE BENEFIT OF TAX DEDUCTION. ONLY WITH THIS INTENT THE LEGISLATURE IN ITS R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 6 WISDOM HAS PREDICTED THAT, 'THE COMPLETION OF CONST RUCTION' OF THE HOUSING PROJECT IS TAKEN TO BE 'THE DATE ON WHICH' THE COMPLETION CERTIFICATE 'IS ISSUED' BY THE LOCAL AUTHORITY. TO INTERPRET IT TO INCLUDE AN EX POST FACTO CERTIFICATE OR SUCH CERTIFICATE IS SUED BY THE LOCAL AUTHORITY AFTER THE CUT OFF DATE, WOULD NOT ONLY RE SULT IN REWRITING OF THE EXPRESS PROVISION AND RUN CONTRARY TO THE UNAMB IGUOUS POSITION PRONOUNCED IN THE SECTION, BUT ALSO DOING VIOLENCE TO THE LEGISLATIVE INTENT. FOR, EXPLANATION (II) WILL THEN HAVE TO BE READ AS 'DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT S HALL BE TAKEN TO BE THE DATE AS CERTIFIED BY THE LOCAL AUTHORITY IN THA T BEHALF', IRRESPECTIVE OF THE DATE OF ISSUANCE OF SUCH CERTIF ICATE BY THE I.T.A.NOS.40/2012, 36/2012 & 35/2012 LOCAL AUTHORIT Y. INDEED, IN A GIVEN CASE IF THE ASSESSEE IS ABLE TO SUBSTANTIATE THAT THE COMPLETION CERTIFICATE 'WAS IN FACT ISSUED' BY THE LOCAL AUTHO RITY BEFORE THE CUT OFF DATE, BUT COULD NOT BE PRODUCED BY HIM WITHIN T IME DUE TO REASONS BEYOND HIS CONTROL, THE ARGUMENT OF SUBSTAN TIAL COMPLIANCE OF THE PROVISION CAN BE TESTED. ANY OTHER INTERPRET ATION WOULD RESULT NOT ONLY IN UNCERTAINTY (IN FINALIZATION OF ASSESSM ENT PROCEEDINGS DUE TO NON-ISSUANCE OR DELAYED ISSUANCE OF SUCH CERTIFI CATE BY THE LOCAL AUTHORITY AND PRONE TO MANIPULATIONS AT THE END OF THE LOCAL AUTHORITY); BUT ALSO HAVE TO YIELD TO THE SUBJECTIV E SATISFACTION OF THE ASSESSING AUTHORITY AND OF INVESTING WIDE DISCRETIO N IN THAT AUTHORITY, WHICH, EVENTUALLY, MAY ONLY END UP IN GETTING EMBRO ILED IN LITIGATION. IF THE ASSESSEE HAS FAILED TO COMPLY WITH THE CONDI TION OF OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY BEF ORE THE CUT OFF DATE, HE MUST TAKE THE CONSEQUENCE THEREFOR AND OF DENIAL OF THE BENEFIT OF TAX DEDUCTION OFFERED TO HIM ON THAT COUNT. 25. WE CANNOT BE OBLIVIOUS OF THE FACT THAT THE MUN ICIPAL LAWS OF DIFFERENT STATES ARE NOT UNIFORM IN RESPECT OF PROC EDURE FOR I.T.A.NOS.40/2012, 36/2012 & 35/2012 ISSUANCE OF CO MPLETION CERTIFICATE. TO WIT, IN SOME STATES, THE DISPENSATI ON PROVIDED IS TO ISSUE PARTIAL OR FULL OCCUPATION CERTIFICATE; AND T HEREAFTER ISSUE COMPLETION CERTIFICATE AFTER REMOVAL OF ALL THE DEF ICIENCIES POINTED OUT BY THE LOCAL AUTHORITY. IN SOME STATES, THE MUNICIP AL LAW MAY PROVIDE FOR ISSUING PARTIAL OR FULL COMPLETION CERT IFICATE. THE REQUIREMENT OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY, AS ENVISAGED IN SECTION 80IB(10)(A) OF THE INCOME TAX ACT, WHICH IS A CENTRAL ENACTMENT DEALING WITH THE SPECIAL SUBJEC T OF TAXATION, HOWEVER, IS, OF ONLY ONE CERTIFICATE - WHICH IS FUL L COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE TH E CUT OFF DATE. THAT IS TO LEND CREDENCE TO THE FACTUM OF COMPLETION OF THE ENTIRE HOUSING PROJECT IN ALL RESPECTS AS PER THE APPROVAL GRANTED BY THE LOCAL AUTHORITY. IT CAN BE SAFELY ASSUMED THAT THE LEGISL ATURE WAS CONSCIOUS OF THIS POSITION, FOR WHICH, EXPRESS PROV ISION HAS BEEN R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 7 MADE AS TO THE MEANING OF THE DATE OF COMPLETION OF THE HOUSING PROJECT LINKED TO THE 'DATE ON WHICH' COMPLETION CE RTIFICATE 'IS ISSUED' BY THE 'LOCAL AUTHORITY', AS PREDICATED IN EXPLANAT ION (II) THEREUNDER. 26. WE ACCORDINGLY HOLD THAT ISSUANCE OF COMPLETION CERTIFICATE, AFTER THE CUT OFF DATE BY THE LOCAL AUTHORITY BUT, MENTIO NING THE DATE OF COMPLETION OF PROJECT BEFORE THE CUT OFF DATE DOES NOT FULFILL THE CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 80IB ( 10) READ WITH EXPLANATION (II) THEREUNDER. WE REJECT THE ARGUMENT OF THE ASSESSEE THAT THE EFFECT OF AMENDED CLAUSE (A) OF SUB-SECTIO N 10 OF SECTION 80IB, WHICH HAS COME INTO FORCE WITH EFFECT FROM 1 ST APRIL, 2005 ,HAS RETROSPECTIVE EFFECT OR THAT IT IS UNJUST IN ANY MA NNER OR INCAPABLE OF COMPLIANCE AT ALL. SIMILARLY, THE REQUIREMENT OF SE CURING COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE TH E CUT OFF DATE IS NOT DIRECTORY, IN VIEW OF THE EXPRESS PROVISION IN SECT ION 80IB(10)(A) AND THE EXPLANATION (II) THEREUNDER. THE COMPLETION CER TIFICATE GRANTED BY THE LOCAL AUTHORITY MUST BEAR THE DATE OF HAVING BE EN ISSUED BEFORE THE CUT OFF DATE. 27. THAT TAKES US TO THE ARGUMENT OF THE ASSESS EE THAT THE STIPULATION IN SECTION 80IB(10)(A) OF COMPLETION CE RTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, CANNOT BE APPLIED IN THE CASE OF ASSESSEE FOLLOWING THE WORK IN PROGRESS ACC OUNTING METHOD. IN OUR OPINION, THE PROVISION IN THE FORM OF SECTIO N 80IB (10)(A), APPLIES UNIFORMLY TO ALL THE ASSESSEES - BE IT FOLL OWING WORK IN PROGRESS ACCOUNTING METHOD OR OTHERWISE. THE BENEFI T OF DEDUCTION UNDER THIS PROVISION CAN BE AVAILED BY THE ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD, PROVIDED HE HAS COMPLIED WITH THE STIPULATION OF HAVING PRODUCED COMPLETION CERTI FICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE IN HIS CASE. IN OTHER WORDS, IF THE HOUSING PROJECT WA S APPROVED BY THE LOCAL AUTHORITY BEFORE 1 ST APRIL, 2004, HE MUST SUBMIT COMPLETION CERTIFICATE ISSUED BY THE AUTHORITY HAVING BEEN ISS UED BEFORE THE 31 ST MARCH, 2008. WHEREAS, IN THE CASE OF HOUSING PROJEC T APPROVED ON OR AFTER 1 ST APRIL, 2004, THE ASSESSEE CAN AVAIL OF THE BENEFIT PROVIDED COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y IS WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH T HE CONCERNED HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY . IF THIS CONDITION IS NOT FULFILLED, THE ASSESSEE WHO MAINTAINS WORK I N PROGRESS ACCOUNTING METHOD AND HAS CLAIMED DEDUCTION UNDER S ECTION 80IB(10)(A) MUST SUFFER THE CONSEQUENCE OF DISALLOW ANCE OR WITHDRAWAL OF THE BENEFIT CLAIMED BY HIM ON THAT CO UNT. 28. ACCORDINGLY, THESE APPEALS SUCCEED. THE IMPUGNE D JUDGMENT OF THE TRIBUNAL IS SET ASIDE; AND IN THE FACTS OF THE PRESENT CASE, THE R.K. DEVELOPERS 80IB(10) ITA NO.208/IND/2016 AND OTHERS 8 DECISION OF THE ASSESSING OFFICER TO DISALLOW DEDUC TION UNDER SECTION 80IB(10)(A) OF THE INCOME TAX ACT IS UPHELD. NO ORD ER AS TO COSTS. 6. THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSID ERED THE SWEEP OF AMENDED CLAUSE (A) OF THE PROVISION UNDER SUB-SECTI ON (10) OF SECTION 80IB OF THE ACT AND HELD THAT THE PROVISIONS OF CLAUSE (A), AS AMENDED, SEN SUSTRICTO CANNOT BE CONSIDERED AS NEW CONDITION AND THAT TOO, INCAPABLE OF COMPLIANCE. THE CLAUSE DEALS WITH THE TIME FRAME WITHIN WHICH T HE HOUSING PROJECT WAS EXPECTED TO BE COMPLETED TO GET THE BENEFIT OF PRES CRIBED DEDUCTION. THE HON'BLE HIGH COURT HAS HELD THAT ISSUANCE OF COMPLE TION CERTIFICATE AFTER THE CUT OFF DATE BY THE LOCAL AUTHORITY BUT MENTIONING IN THE DATE OF THE COMPLETION OF PROJECT BEFORE CUT OFF DATE, DOES NOT FULFIL THE CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 80IB(10) READ WITH EXPLANATION 2 THE REUNDER. IN VIEW OF THIS FINDING, I FIND NO MERIT IN THE APPEALS OF THE ASSE SSEE. I, RESPECTFULLY, FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT, DISMISS THE APPEALS OF THE ASSESSEE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20.6.2016 . SD/- (D.T. GARASIA) JUDICIAL MEMBER DATED : 20.6.2016 !VYS! COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR, INDORE