M/s. Vardhman Builders & Developers, Bhopal V. The ITO 1(1), Bhopal

ITA 210/IND/2014

• Counselvise Citation: 21022714 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 14-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: PRADEEP GUPTA
• Keywords: Reopening of assessment; Retrospective amendment; Reassessment proceedings
• Section: 80IB; 148

Judgement Text

VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 223/IND/2014 A.Y.2004-05 INCOME TAX OFFICER 1(1) BHOPAL ::: APPELLANT VS M/S VARDHMAN BUILDERS & DEVELOPERS, BHOPAL PAN AADFV4677P ::: RESPONDENT ITA NOS.210 & 211/IND/2014 A.YS. 2005-06 & 2007-08 M/S VARDHMAN BUILDERS & DEVELOPERS, BHOPAL ::: APPELLANT VS INCOME TAX OFFICER 1(1) BHOPAL ::: RESPONDENT ASSESSEE BY SHRI PRADEEP GUPTA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 28.9.2015 DATE OF PRONOUNCEMENT 2 . 1 1 .2015 VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 2 O R D E R PER SHRI B.C. MEENA, AM TALL THESE THREE APPEALS ARE FILED, ONE BY THE REVENUE AND TWO BY THE ASSESSEE EMANATE FROM THREE DIFFERENT ORDERS OF THE LEARNED CIT(A), BILASPUR, CAMP AT BHOPAL , DATED 27.10.2013. 2. THE ONLY ISSUE INVOLVED IN THE REVENUES APPEAL IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.15,70,450/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB( 10) OF THE ACT. IN THE ASSESSMENT YEAR 2004-05 THE LEARN ED CIT(A) ALLOWED THE CLAIM BY STATING THAT AMENDED PROVISIONS ARE NOT APPLICABLE TO THE ASSESSMENT YEAR. F OR REST OF TWO YEARS CIT(A) DID NOT ALLOW ASSESSEES CLAIM MADE U/S 80IB(10) OF THE ACT. VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 3 3. THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF DEVELOPING AND CONSTRUCTING HOUSING PROJECTS. FOR TH E ASSESSMENT YEAR 2004-05 THE RETURN OF INCOME WAS FILED ON 1.11.2004 DECLARING TOTAL INCOME AT NIL AFTER CLAIMIN G EXEMPTION OF RS. 15,70,450/- U/S 80IB(10) OF THE AC T ON HOUSING PROJECT GREEN CITY-II (EXTENSION), NARELA SAN KRI, BHOPAL. THE ASSESSING OFFICER COLLECTED INFORMATION FROM THE MUNICIPAL CORPORATION, BHOPAL REGARDING COMPLETION OF PROJECT. THE PROJECT WAS APPROVED PRIOR TO 1.4.2004, THEREFORE, THE ASSESSEE WAS REQUIRED TO COMPLETE THE PROJECT BY 31.3.2008. THE ASSESSEE HAS FAILED TO OBTAIN COMPLET ION CERTIFICATE WITHIN THIS TIME. HOWEVER, THE LEARNED C IT(A) GRANTED RELIEF TO THE ASSESSEE BY HOLDING AS UNDER :- IN THE PRESENT CASE IN HAND THE A.O. HAS DENIED DEDUCTION U/S 80IB(10) FOR THE YEAR UNDER REFERENCE FOR THE FAILURE OF THE APPELLANT TO PRODUCE THE COMPLETION CERTIFICATE FROM MUNICIPAL CORPORATION, VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 4 BHOPAL. BUT IN VIEW OF THE STATUTORY PROVISIONS AND THE LEGAL PROPOSITIONS INCLUDING THE DECISIONS OF JURISDICTIONAL TRIBUNAL INDORE BENCH INDORE IN THE CASES DISCUSSED ABOVE, I FIND THAT SINCE THE IMPUGNED ASSESSMENT YEAR IS GOVERNED BY PRE- AMENDED PROVISIONS OF SECTION 80IB(10) WHERE THERE IS NO STIPULATION FOR FURNISHING COMPLETION CERTIFI CATE FROM THE LOCAL AUTHORITY, DEDUCTION CANNOT BE DENIE D FOR WANT OF COMPLETION CERTIFICATE. SIMILARLY, WHEN THE RISK INVOLVED IN THE PROJECT UNDERTAKEN BY THE APPELLANT ARE PROVED FROM THE MATERIAL AVAILABLE ON RECORD, RELYING ON DECISION OF THE HON'BLE JURISDICTIONAL TRIBUNAL AND HIGH COURTS IN CASES DISCUSSED ABOVE, I FIND THAT MERELY BECAUSE THE APPROVAL FOR THE HOUSING PROJECT WAS GIVEN IN THE NAME OF THE PARTNER SHRI PUNEET GODHA, OR THE APPELLANT FIRM WAS NEITHER OWNER AND SELLER OF THE VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 5 LAND ON WHICH HOUSING PROJECT HAS BEEN UNDERTAKEN AND THE APPELLANT FIRM IS A CONTRACTOR WITHOUT ANY POSITIVE MATERIAL ON RECORD TO PROVE THAT IT HAS NO T UNDERTAKEN ANY RISK IN THE DEVELOPMENT AND CONSTRUCTION OF THE PROJECT, DEDUCTION U/S 80IB(10) CANNOT BE DENIED. HOWEVER, AS DISCUSSED IN PARA (B ) OF GROUND NO. 3, THE A.O. IS DIRECTED TO DISALLOW T HE DEDUCTION ON PROCEEDINGS-RATA BASIS ON HOUSING UNITS EXCEEDING BUILT UP AREA OF 1500 SQ. FT. 4. WE HAVE HEARD BOTH THE SIDES. IN A RECENT JUDGMENT THE HON'BLE JURISDICTIONAL HIGH COURT OF MADHYA PRADE SH IN THE CASE OF CIT VS. M/S GLOBAL REALITY; ITA NO. 40/201 2 AND OTHERS HAS DECIDED THE ISSUE AGAINST THE ASSESSEE EV EN WHEN THE PROJECT IS SANCTIONED PRIOR TO THE AMENDMEN TS IN THE ACT BY HOLDING AS UNDER :- 19. THE PROVISION SUCH AS CLAUSE (A) AS AMENDED, SENSU STRICTO, CANNOT BE CONSIDERED AS A NEW VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 6 CONDITION AND THAT TOO INCAPABLE OF COMPLIANCE. INASMUCH AS, CLAUSE (A) DEALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJECT WAS EXPECTED TO BE COMPLETED, TO GET THE BENEFIT OF THE PRESCRIBED DEDUCTION. NOTABLY, THE AMENDED SECTION 80IB (10) (A) EXTENDS THE BENEFIT EVEN TO THE HOUSING PROJECT S APPROVED BY THE LOCAL AUTHORITY BEFORE 31.03.2007, INSTEAD OF 31.03.2005 - AS WAS PROVIDED IN THE UNAMENDED PROVISION. THEREFORE, NECESSITY WAS FELT TO MAKE DISTINCTION BETWEEN 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 PROJECT APPROVED BY THE LOCAL AUTHORITY ON O R AFTER 1ST APRIL 2004 TILL 31.03.2007. IN EITHER CAS E, THE TIME FRAME FOR COMPLETION OF PROJECT HAS BEEN PRESCRIBED AS FOUR YEARS. IN THAT, THE PROJECT VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 7 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 WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. 20. THUS UNDERSTOOD, SIMILAR TIME FRAME FOR COMPLETION OF HOUSING PROJECT HAS BEEN GIVEN TO BOT H CLASS OF HOUSING PROJECTS. MOREOVER, THE EXPLANATIO N BELOW CLAUSE (A), IN PARTICULAR (II), APPLIES TO BO TH CLASS OF HOUSING PROJECTS UNIFORMLY. IT POSTULATES THAT 'THE DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT' SHALL BE TAKEN TO BE 'THE DATE ON WHICH COMPLETION CERTIFICATE' IN RESPECT OF SUCH HOUSING PROJECT 'IS ISSUED BY THE LOCAL AUTHORITY'. IF EXPLANATION (II) IS SUPERIMPOSED ON THE EXPRESSION 'COMPLETES SUCH CONSTRUCTION' IN CLAUSE (A) VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 8 OF SECTION 80IB(10) , IT WOULD MEAN THAT THE HOUSING PROJECTS COMMENCED ON OR AFTER 01.10.1998 MUST POSSESS COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY ON OR BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE - TO BECOME ELIGIBLE 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 AUTHORITY. NO MORE AND NO LESS. THUS, ENOUGH INDICATION AND ALSO SUFFICIENT TIME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN GIVEN TO BOTH THE CLASS OF HOUSING PROJECTS TO FULFILL TH AT CONDITION. THE PROVISION IS IN THE NATURE OF LIMITI NG 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 HOUS ING VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 9 PROJECTS. THIS HAS BEEN DONE IN LARGER PUBLIC INTER EST - TO ENSURE THAT THE BENEFIT IS GIVEN ONLY TO SUCH PROJECTS WHO WOULD FURTHER THE GOAL OF PROVIDING LO W COST ECONOMIC 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 AND ALSO TO WITHDRAW THE SAME FOR JUST REASONS. THAT CANNOT BE QUESTIONED, UNLESS SHOWN TO BE UNCONSTITUTIONAL IN FORM OR ITS SUBSTANCE. IT WA S THUS OPEN TO THE PARLIAMENT, TO PROVIDE FOR A CUT O FF DATE FOR COMPLETION OF THE HOUSING PROJECTS, AS A CONDITION PRECEDENT TO AVAIL BENEFIT OF DEDUCTION. IN THE PAST, SUCH STIPULATION WAS IN PLACE, BUT, LATER ON, IT WAS DONE AWAY WITH. HOWEVER, BY AMENDMENT WHICH CAME INTO EFFECT FROM 1ST APRIL, 2005, THE CONDITION FOR COMPLETION OF PROJECT WITHIN SPECIFIE D VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 10 TIME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN REINTRODUCED, WHILE GIVING SUFFICIENT TIME (FOUR YEARS) TO THE ASSESSEE TO COMPLY FOR BEI NG ENTITLED TO GET DEDUCTION. 22. A PRIORI, IT IS NOT A CASE OF IMPOSING NEW CONDITION, MUCH LESS, WITH RETROSPECTIVE EFFECT AS HAS BEEN ARGUED BEFORE US; UNLIKE INTRODUCTION OF NEW CONDITION IN THE SHAPE OF CLAUSE (D) - WHICH OBVIOU SLY COULD BE APPLIED ONLY PROSPECTIVELY, AS HELD BY THE SUPREME COURT IN THE AFORESAID DECISIONS. CLAUSE (A ) STANDS ON A COMPLETELY DIFFERENT PEDESTAL. IT CANNO T BE TREATED AS A NEW CONDITION LINKED TO THE APPROVA L AND CONSTRUCTION OR HAVING RETROSPECTIVE EFFECT AS SUCH. FOR, IT GIVES AT LEAST FOUR YEARS' TIME FRAME TO BOTH CLASS OF HOUSING PROJECTS; TO WIT, HOUSING PROJECTS APPROVED PRIOR TO 1ST APRIL, 2004 OR AFTER 1ST APRIL, 2004. THE FOUR YEARS PERIOD OBVIOUSLY HAS VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 11 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 ALSO NOT A CASE OF WITHDRAWAL OF VESTED RIGHT OF THE DEVELOPER , AS SUCH. NO DEVELOPER CAN CLAIM VESTED RIGHT TO COMPLETE THE HOUSING PROJECT 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 SPECI FIED TIME FRAME. IF THE DEVELOPER DOES NOT COMPLETE THE HOUSING PROJECT WITHIN SPECIFIED TIME, WILL NOT REC EIVE THAT BENEFIT. THERE IS NO COMPULSION ON HIM TO COMPLETE THE PROJECT IN FOUR YEARS. NOTABLY, EVEN T HE APPROVALS TO THE CONSTRUCTION OF HOUSING PROJECT GRANTED BY THE LOCAL AUTHORITY SPECIFY THE DATE VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 12 WITHIN WHICH THE CONSTRUCTION MUST BE COMPLETED, AS PER THE TIME FRAME SPECIFIED IN THE PERMISSION. IF THE PROJECT IS NOT COMPLETED WITHIN THE STIPULATED TIME , THE DEVELOPER IS FREE TO GET THAT PERIOD RENEWED OR EXTENDED FROM THE LOCAL AUTHORITY AS PER THE APPLICABLE RULES AND REGULATIONS. THE PROVISION FOR CLAIMING TAX DEDUCTION FROM PROFITS, CAN CERTAINLY PRESCRIBE FOR REASONABLE CONDITIONS AND MORE SO TIM E FRAME FOR COMPLETION OF THE PROJECT, IN LARGER PUBL IC 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). CONDITI ON IN CLAUSE (A), NEITHER OPERATES RETROSPECTIVELY NOR CA N BE SAID TO BE ABSURD, UNJUST OR EXPECTING I.T.A.NOS.40/2012, 36/2012 & 35/2012 THE VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 13 ASSESSEE TO COMPLY WITH SOMETHING WHICH 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 DERIVED I N ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR); AND THE PURPOSE UNDERLYING THE SAME - WHICH IS INTE R ALIA BURDEN ON THE PUBLIC EXCHEQUER DUE TO WAIVER O F COMMENSURATE REVENUE - THE STIPULATION FOR OBTAININ G COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY BEFO RE THE CUT OFF DATE, MUST BE CONSTRUED AS MANDATORY. THE FACT THAT COMPLIANCE OF THAT CONDITION IS DEPENDENT ON THE MANNER IN WHICH THE PROPOSAL IS PROCESSED BY THE LOCAL AUTHORITY, THE PROVISION CANNOT BE CONSTRUED AS A DIRECTORY REQUIREMENT. IT IS VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 14 A SUBSTANTIVE PROVISION MANDATING ISSUANCE OR GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY BEF ORE THE CUT OFF DATE OR SPECIFIED TIME, AS A PRECONDITI ON TO GET THE BENEFIT OF TAX DEDUCTION. ELSE, IT WILL THE N 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 ISS UED 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 WISDOM HAS PREDICATED THAT, 'THE COMPLETION OF CONSTRUCTION' O F THE HOUSING PROJECT IS TAKEN TO BE 'THE DATE ON WHI CH' VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 15 THE COMPLETION CERTIFICATE 'IS ISSUED' BY THE LOCAL AUTHORITY. TO INTERPRET IT TO INCLUDE AN EX POST FA CTO CERTIFICATE OR SUCH CERTIFICATE ISSUED BY THE LOCAL AUTHORITY AFTER THE CUT OFF DATE, WOULD NOT ONLY RE SULT IN REWRITING OF THE EXPRESS PROVISION AND RUN CONTR ARY TO THE UNAMBIGUOUS 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 HOUSI NG PROJECT SHALL BE TAKEN TO BE THE DATE AS CERTIFIED BY THE LOCAL AUTHORITY IN THAT BEHALF', IRRESPECTIVE OF THE DATE OF ISSUANCE OF SUCH CERTIFICATE BY THE I.T.A.NOS.40/2012, 36/2012 & 35/2012 LOCAL AUTHORITY. INDEED, IN A GIVEN CASE IF THE ASSESSEE IS ABLE TO SUBSTANTIATE THAT THE COMPLETION CERTIFICAT E 'WAS IN FACT ISSUED' BY THE LOCAL AUTHORITY BEFORE T HE CUT OFF DATE, BUT COULD NOT BE PRODUCED BY HIM WITH IN VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 16 TIME DUE TO REASONS BEYOND HIS CONTROL, THE ARGUMEN T OF SUBSTANTIAL COMPLIANCE OF THE PROVISION CAN BE TESTED. ANY OTHER INTERPRETATION WOULD RESULT NOT O NLY IN UNCERTAINTY (IN FINALIZATION OF ASSESSMENT PROCEEDINGS DUE TO NON-ISSUANCE OR DELAYED ISSUANCE OF SUCH CERTIFICATE BY THE LOCAL AUTHORITY AND PRONE TO MANIPULATIONS AT THE END OF THE LOCAL AUTHORITY); BUT ALSO HAVE TO YIELD TO THE SUBJECTIV E SATISFACTION OF THE ASSESSING AUTHORITY AND OF INVESTING WIDE DISCRETION IN THAT AUTHORITY, WHICH, EVENTUALLY, MAY ONLY END UP IN GETTING EMBROILED IN LITIGATION. IF THE ASSESSEE HAS FAILED TO COMPLY WI TH THE CONDITION OF OBTAINING COMPLETION CERTIFICATE F ROM THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, HE MUST TAKE THE CONSEQUENCE THEREFOR AND OF DENIAL OF THE BENEFIT OF TAX DEDUCTION OFFERED TO HIM ON THAT COU NT. VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 17 25. WE CANNOT BE OBLIVIOUS OF THE FACT THAT THE MUNICIPAL LAWS OF DIFFERENT STATES ARE NOT UNIFORM IN RESPECT OF PROCEDURE FOR I.T.A.NOS.40/2012, 36/2012 & 35/2012 ISSUANCE OF COMPLETION CERTIFICATE. TO WIT, IN SOME STATES, THE DISPENSATION PROVIDED IS T O ISSUE PARTIAL OR FULL OCCUPATION CERTIFICATE; AND THEREAFTER ISSUE COMPLETION CERTIFICATE AFTER REMOV AL OF ALL THE DEFICIENCIES POINTED OUT BY THE LOCAL AUTHORITY. IN SOME STATES, THE MUNICIPAL LAW MAY PROVIDE FOR ISSUING PARTIAL OR FULL COMPLETION CERTIFICATE. THE REQUIREMENT OF COMPLETION CERTIFIC ATE 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 SUBJECT OF TAXATION, HOWEVER, IS, OF ONLY ONE CERTIFICATE - WHICH IS FULL COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE. THAT IS VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 18 TO LEND CREDENCE TO THE FACTUM OF COMPLETION OF THE ENTIRE HOUSING PROJECT IN ALL RESPECTS AS PER THE APPROVAL GRANTED BY THE LOCAL AUTHORITY. IT CAN BE SAFELY ASSUMED THAT THE LEGISLATURE WAS CONSCIOUS O F THIS POSITION, FOR WHICH, EXPRESS PROVISION HAS BEE N MADE AS TO THE MEANING OF THE DATE OF COMPLETION OF THE HOUSING PROJECT LINKED TO THE 'DATE ON WHICH' COMPLETION CERTIFICATE 'IS ISSUED' BY THE 'LOCAL AUTHORITY', AS PREDICATED IN EXPLANATION (II) THEREUNDER. 26. WE ACCORDINGLY HOLD THAT ISSUANCE OF COMPLETIO N CERTIFICATE, AFTER THE CUT OFF DATE BY THE LOCAL AUTHORITY BUT, MENTIONING THE DATE OF COMPLETION OF PROJECT BEFORE THE CUT OFF DATE DOES NOT FULFILL TH E CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 80IB ( 10) READ WITH EXPLANATION (II) THEREUNDER. WE REJECT TH E ARGUMENT OF THE ASSESSEE THAT THE EFFECT OF AMENDED VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 19 CLAUSE (A) OF SUB-SECTION 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 A NY MANNER OR INCAPABLE OF COMPLIANCE AT ALL. SIMILARLY , THE REQUIREMENT OF SECURING COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DA TE IS NOT DIRECTORY, IN VIEW OF THE EXPRESS PROVISION IN SECTION 80IB(10)(A) AND THE EXPLANATION (II) THEREUNDER. THE COMPLETION CERTIFICATE GRANTED BY T HE LOCAL AUTHORITY MUST BEAR THE DATE OF HAVING BEEN ISSUED BEFORE THE CUT OFF DATE. 27. THAT TAKES US TO THE ARGUMENT OF THE ASSESSEE THAT THE STIPULATION IN SECTION 80IB(10)(A ) OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, CANNOT BE APPLIE D IN THE CASE OF ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD. IN OUR OPINION, THE VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 20 PROVISION IN THE FORM OF SECTION 80IB (10)(A), APPL IES UNIFORMLY TO ALL THE ASSESSEES - BE IT FOLLOWING WO RK IN PROGRESS ACCOUNTING METHOD OR OTHERWISE. THE BENEFIT 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 CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE IN HI S CASE. IN OTHER WORDS, IF THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY BEFORE 1 ST APRIL, 2004, HE MUST SUBMIT COMPLETION CERTIFICATE ISSUED BY THE AUTHORITY HAVING BEEN ISSUED BEFORE THE 31 ST MARCH, 2008. WHEREAS, IN THE CASE OF HOUSING PROJECT APPROVED ON OR AFTER 1 ST APRIL, 2004, THE ASSESSEE CAN AVAIL OF THE BENEFIT PROVIDED COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 21 IS WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE CONCERNED HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. IF THIS CONDITION I S NOT FULFILLED, THE ASSESSEE WHO MAINTAINS WORK IN PROGRESS ACCOUNTING METHOD AND HAS CLAIMED DEDUCTION UNDER SECTION 80IB(10)(A) MUST SUFFER THE CONSEQUENCE OF DISALLOWANCE OR WITHDRAWAL OF THE BENEFIT CLAIMED BY HIM ON THAT COUNT. 28. ACCORDINGLY, THESE APPEALS SUCCEED. THE IMPUGNED JUDGMENT OF THE TRIBUNAL IS SET ASIDE; AND IN THE FACTS OF THE PRESENT CASE, THE DECISION OF THE ASSESSING OFFICER TO DISALLOW DEDUCTION UNDER SECTION 80IB(10)(A) OF THE INCOME TAX ACT IS UPHELD . NO ORDER AS TO COSTS. 5. THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSIDER ED THE SWEEP OF AMENDED CLAUSE (A) OF THE PROVISION UNDER SUB-SECTION (10) OF SECTION 80IB OF THE ACT AND HELD THAT THE VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 22 PROVISIONS OF CLAUSE (A), AS AMENDED, SEN SUSTRICTO CAN NOT BE CONSIDERED AS NEW CONDITION AND THAT TOO INCAPABLE OF COMPLIANCE. THE CLAUSE DEALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJECT WAS EXPECTED TO BE COMPLET ED TO GET THE BENEFIT OF PRESCRIBED DEDUCTION. THE HON'BL E HIGH COURT HAS HELD THAT ISSUANCE OF COMPLETION 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 FULFILL THE CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 80IB(10) READ WITH EXPLANATION 2 THEREUNDER. IN VIEW O F THIS FINDING OF THE HON'BLE JURISDICTIONAL HIGH COUR T, WE REVERSE THE ORDER OF THE LEARNED CIT(A) AND RESTORE T HAT OF THE ASSESSING OFFICER. 6. ITA NOS. 210 AND 211/IND/2014 FILED BY THE ASSESS EE EMANATE FROM THE ORDERS OF THE LEARNED CIT(A), BILASPUR , CAMP AT BHOPAL, DATED 27.10.2013 WHEREIN THE ISSUE RELATING TO NOT ALLOWING DEDUCTION U/S 80IB(10) OF TH E ACT IS VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 23 INVOLVED. IN THESE YEARS ALSO THE ASSESSEE FAILED TO O BTAIN THE COMPLETION CERTIFICATE IN THE TIME PROVIDED IN T HE ACT. THEREFORE, THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S GLOBAL REALITIES (SUPRA). THESE APPEALS OF THE ASSESSEE ARE, THEREFORE, DISMISSED ON THIS GROUND. 7. IN ITA NO. 210/IND/2014 ONE OF THE ISSUE IS RETAR DING REASSESSMENT PROCEEDINGS INITIATED BY ISSUE OF NOTICE U/S 148 OF THE ACT. 8. WE HAVE HEARD BOTH THE SIDES. THE ASSESSING OFFIC ER GATHERED INFORMATION FROM THE MUNICIPAL CORPORATION THAT THE ASSESSEE HAS NOT OBTAINED COMPLETION CERTIFICATE IN RESPECT OF THE PROJECTS ON WHICH DEDUCTION U/S 80IB (10) WAS CLAIMED. FURTHER THE MEASUREMENT OF THE BUILT UP AREA OF THE UNITS WAS ALSO EXCEEDING THE MAXIMUM PERMISSIB LE LIMIT AS SPECIFIED IN SECTION 80IB(10) OF THE ACT. T HUS, THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT ON THE VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 24 BASIS OF RELEVANT INFORMATION THAT THE ASSESSEE WAS NOT FULFILING THE NECESSARY CONDITIONS FOR CLAIMING DEDUC TION US 80IB(10) OF THE ACT. THE RETURN WAS PROCESSED U/S 143(1)(A). THEREFORE, IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVAR; 291 ITR 4 00 WE UPHOLD THE REOPENING OF ASSESSMENT AND WE DISMISS THIS GROUND OF THE ASSESSEES APPEAL ALSO . 9. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLO WED WHEREAS THE APPEALS OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN OPEN COURT ON 2 ND NOVEMBER, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 2 ND NOVEMBER, 2015 DN/- VARDHMAN BUILDERS & DEVELOPERS ITA NOS 223, 210 AND 211/IND/2014 25