The ITO, Ward-2(4), Baroda V. M/s. Narayan Housing Corpn., Baroda

ITA 2192/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0989 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 14-07-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 04-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital expenditure
• Section: 143(3); 80IB; 148

Judgement Text

PPPIN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI S. S. GODARA, JM, & SHRI MANISH BORA D, AM. ITA NO.2192 & 2193/AHD/2012 ASST. YEARS: 2002-03 & 2003-04 ITO, WARD-2(4), BARODA. VS. M/S NARAYAN HOUSING CORPN., C-201, TIME SQUARE COMPLEX, FATEH GUNJ, BARODA. APPELLANT RESPONDENT PAN AAPFS6879J APPELLANT BY SHRI PRASOON KABRA, SR. DR RESPONDENT BY SHRI MILIN MEHTA, AR DATE OF HEARING: 14/7/2016 DATE OF PRONOUNCEMENT: 28/7/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THESE TWO APPEALS BY REVENUE FOR ASST. YEARS 2002- 03 & 2003-04 ARE DIRECTED AGAINST THE COMMON ORDER OF LD . CIT(A)-II, BARODA, DATED 6.7.2012 IN APPEAL NOS.CAB/II-394/10- 11 (2002-03) & NO.CAB/II-395/10-11 (2003-04) PASSED AGAINST ORDER U/S 143(3) OF THE IT ACT, 1961 (IN SHORT THE ACT) FRAMED ON 31.3. 2006 BY ITO, WD- 2(4), BARODA. 2. SINCE THE ISSUES INVOLVED IN BOTH THE YEARS ARE SIMILAR, WE WILL FIRST ADJUDICATE APPEAL FOR ASSESSMENT YEAR 2002-03 IN ITA NO.2192/AHD/2012 FOR ASST. YEAR 2002-03 AND THE DEC ISION TAKEN IN ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 2 THIS APPEAL SHALL BE APPLIED IN THE APPEAL IN ITA N O.2193/AHD/2012 FOR ASST. YEAR 2003-04. GROUNDS OF APPEAL RAISED IN ITA NO.2192/AHD/2012 FOR ASST. YEAR 2002-03 ARE AS UNDE R:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ID CIT (APPEALS) ERRED IN ALLOWING DEDUCTION OF RS.6,03,73 9/- U/S 80IB(I0) R.W.S. 80IB(1) TO THE ASSESSEE ON PROFIT DERIVED FROM SALE OF UNUTILIZED FSI NOT BEING THE ELEMENT OF PROFITS DERIVED FROM THE BUSIN ESS ACTIVITY OF DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT . 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. RELIEF CLAIMED IN APPEAL IT IS PRAYED THAT THE ORDER OF THE CIT (APPEALS) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT ASSESS EE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF LAND DE VELOPMENT AND CONSTRUCTION OF HOUSING PROJECTS. NIL RETURN WAS FI LED ON 30 TH OCTOBER, 2002 WHICH WAS PROCESSED U/S 143(1) OF THE ACT. THE REAFTER THE CASE WAS REOPENED AND NOTICE U/S 148 OF THE ACT WAS ISSU ED ON 3.1.2005 AND DULY SERVED UPON THE ASSESSEE ON 2.2.2005. ASSE SSEE HAS CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT AT RS.12, 55,093/- TOWARDS INCOME EARNED TOWARDS PROFIT FROM THE PROJECT OF DE VELOPMENT AND CONSTRUCTION OF RESIDENTIAL HOUSES. ASSESSMENT WAS FRAMED BY TAKING TWO ALTERNATIVES; AS PER WHICH IN THE FIRST ALTERNA TIVE TOTAL DEDUCTION CLAIMED U/S 80IB(10) OF THE ACT WAS DENIED AS THE A SSESSEE WAS NOT THE OWNER OF THE LAND AND WAS TREATED AS WORK CONTR ACTOR FOR THE PROJECT AND IN THE SECOND ALTERNATIVE DISCUSSED ABO UT THE UTILIZATION OF FLOOR SPACE INDEX(FSI) WHEREIN IT WAS OBSERVED THAT ASSESSEE HAD ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 3 MADE CONSTRUCTION AND DEVELOPMENT OF ONLY 40% OF TH E FSI AVAILABLE WHEREAS DEDUCTION WAS CLAIMED FOR THE TOTAL PROFIT EARNED FROM THE SALE OF PROJECT AREA. IN THIS ALTERNATIVE THE LD. A SSESSING OFFICER WAS OF THE VIEW THAT SECTION 80IB(10) OF THE ACT IS RELATE S TO DEDUCTION OF PROFITS EARNED FROM ACTUAL CONSTRUCTION AND DEVELOP MENT OF HOUSING PROJECT AND CANNOT BE ALLOWED ON PROFITS EARNED FRO M SALE OF UNUTILIZED FSI ON WHICH NO CONSTRUCTION AND DEVELOP MENT HAS BEEN CARRIED AND ACCORDINGLY DISALLOWED THE DEDUCTION CL AIMED U/S 80IB(10) OF THE ACT BY RS.6,03,739/-. 4. WHEN THE ISSUE CAME UP BEFORE LD. CIT(A), TOTAL ADDITION MADE BY LD. ASSESSING OFFICER UNDER BOTH THE ALTERNATIVE S WERE DELETED BY LD. CIT(A) BY OBSERVING AS BELOW :- 15. THEREFORE, THE DEDUCTION U/S 80IB(10) READ WITH SECTION 80IB(1) AND RULE 18BBB IS ADMISSIBLE ONLY TO SUCH ASSESSEES AS ARE D ERIVING PROFITS FROM AN UNDERTAKING OF BUILDING AND HOUSING PROJECTS APPROV ED BY THE LOCAL AUTHORITY, AND FOR SUCH APPROVAL, THE ASSESSEE MUST LEGALLY OWN TH E LAND WHICH IS AN INALLENABLE CONSTITUENT OF ANY HOUSING PROJECT. THE PERSON DOIN G ONLY THE WORK OF DEVELOPING AND CONSTRUCTING THE BUILDING STRUCTURE ON THE AUTH ORITY OF THE APPROVAL GRANTED TO THE LANDOWNER CANNOT BE SAID TO BE IN THE BUSINESS OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT, NOT ONLY ON ACCOUNT O F NOT BEING THE OWNER OF THE LAND, A NECESSARY CONSTITUENT OF THE HOUSING PROJEC T, BUT ALSO ON ACCOUNT OF NOT HAVING BEEN GRANTED THE APPROVAL TO EXECUTE THE PRO JECT IN HIS OWN RIGHT, BECAUSE THAT INVOLVES OBLIGATIONS THAT CAN BE DISCH ARGED ONLY BY THE PERSON TO WHOM THE APPROVAL IS GRANTED. 16. IN VIEW OF THE DISCUSSIONS GIVEN ABOVE, I DO NO T INTEND TO INTERFERE WITH THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING THE CLAIM OF DEDUCTION U/S 80IB(10) HENCE THE SAME IS CONFIRMED. SINCE THE DISALLOWANCE HAS BEEN CONFIRMED IN TOTO THE ALTERNATIVE FINDING REGARDING PROFITS ATTRIBUTA BLE TO SALE OF UNUTILIZED FSI IS NOT REQUIRED TO BE CONSIDERED. 5. THEREAFTER THE ISSUE CAME UP BEFORE THE CO-ORDIN ATE BENCH WHICH WAS SET ASIDE VIDE ITS ORDER DATED 8.6.2007 B Y SETTING ASIDE THE ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 4 ORDER OF LD. CIT(A) AND RESTORING THE MATTER RELATI NG TO CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT TO THE FILE FOR D ECIDING THE ISSUE AFRESH. LD. CIT(A) DELETED THE ADDITION MADE BY LD. ASSESSING OFFICER IN BOTH THE ALTERNATIVES BY OBSERVING AS UNDER :- 4.1. I HAVE CONSIDERED THE SUBMISSION OF THE LEARNE D AUTHORIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFICER, IN THE LIGH T OF THE DIRECTIONS GIVEN BY THE HON'BLE ITAT. THE DECISION OF THE HON'BLE ITAT IN T HE CASE OF M/S. RADHE DEVELOPERS (AS CONFIRMED BY HON'BLE GUJARAT HIGH CO URT) AND M/S SHAKTI CORPORATION AND OTHERS AND THE GUIDELINES LAID DOWN THEREIN HAVE ALSO BEEN CONSIDERED. 4.2. THE ASSESSING OFFICER, AFTER DUE VERIFICATION, HAS ALLOWED DEDUCTION U/S 80(IB)(IO) FOR AY 2005-06 AND 2006-07 IN ASSESSEE'S OWN CASE WHERE THE FACTS ARE IDENTICAL. FROM THE ASSESSMENT ORDERS OF THESE YEAR S IT IS SEEN THAT THE ASSESSING OFFICER IS SATISFIED THAT FOR ALL PRACTICAL PURPOSE S THE ASSESSEE HAS ACQUIRED DOMINANT RIGHT OVER THE LAND AND NO RIGHT IN THE LAND REMAIN ED WITH THE LANDOWNER. HE HAS ALSO STATED THAT THE ASSESSEE IS RESPONSIBLE FOR THE RIS K AND COSTS INVOLVED IN THIS PROJECT. HENCE THE CONDITIONS PRESCRIBED IN THE SHAKTI CORPO RATION CASE HAVE BEEN MET. THEREFORE THE ASSESSEE IS ENTITLED TO DEDUCTION U/S . 80IB(10) AND IT CANNOT BE DISALLOWED JUST BECAUSE HE IS NOT THE LEGAL OWNER OF THE LAND, FOLLOWING THE DECISIONS CITED ABOVE. 4.3. WITH REGARD TO THE ALTERNATE GROUND OF RESTRIC TING THE DEDUCTION DUE TO SALE OF UNUTILIZED FSI, FOLLOWING THE DECISION OF THE HON'B LE ITAT IN THE CASE OF M/S. RADHE BUILDERS AND OTHERS THE ASSESSING OFFICER'S DECISIO N OF RESTRICTING THE CLAIM OF 80IB(10) ON ACCOUNT OF UNUTILIZED FSI IS NOT ACCEPT ABLE AND IS ALSO DIRECTED TO BE DELETED. 4.4. IT IS THEREFORE HELD THAT THE DISALLOWANCE OF DEDUCTIONS OF RS.12,55,090/-FOR AY 2002-03 AND OF RS 3,56,92,433/- FOR AY 2003-04 U/S. 80IB(10) MADE BY THE ASSESSING OFFICER ARE NOT CORRECT AND ARE HEREBY OR DERED TO BE DELETED. 6. LD. DR SUPPORTED THE ORDER OF LD. ASSESSING OFFI CER. 7. ON THE OTHER HAND, LD. AR SUBMITTED THAT ASSESSE E HAS UNDERTAKEN FOR DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 5 AS PER THE APPROVED PLAN BY COMPETENT LOCAL AUTHORI TIES. IN THE APPROVED PLAN PERMISSIBLE FSI I.E. FLOOR SPACE INDE X IS MENTIONED AND THE CONSTRUCTION ON THE PARTICULAR SITE CANNOT EXCEED THE FSI. IT NOWHERE MENTIONS ABOUT THE MINIMUM AREA OF CONSTRUC TION. IT SEEMS THAT LD. ASSESSING OFFICER HAS MISINTERPRETED THE P ERMISSIBLE FSI WITH A VIEW THAT IN THE HOUSING PROJECT DEVELOPER HAS TO DO CONSTRUCTION ON THE FSI AVAILABLE WHICH IS NOT THE CASE AT ALL. DEV ELOPMENT OF THE SCHEME IS AN ABSOLUTE PREROGATIVE OF THE DEVELOPER AND IF IT IS DEEMED FIT THAT THE SAID PROPERTY IS TO BE DEVELOPE D ONLY UPTO THE GROUND LEVEL THEN IT DOES NOT TENTAMOUNT TO MEAN TH AT UNUTILIZED FSI HAS BEEN SOLD INTENTIONALLY. DEDUCTION U/S 80IB(10) OF THE ACT IS ALLOWABLE ON THE PROFITS EARNED FROM THE HOUSING PR OJECT AND IT HAS TO BE CONSIDERED AS A COMPLETION OF OVERALL PROJECT AN D LD. CIT(A) HAS RIGHTLY TAKEN THIS VIEW BY DELETING THE IMPUGNED AD DITION MADE ON ACCOUNT OF SALE OF FSI. LD. AR PLACED RELIANCE ON T HE JUDGMENTS OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SH REENATH INFRASTRUCTURE IN TAX APPEAL NOS.147 & 148 OF 2014 AND IN THE CASE OF CIT VS. MOON STAR DEVELOPERS IN TAX APPEAL NOS.5 49 OF 2008 & OTHERS. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE JUDGMENTS RELIED ON BY THE LD. AR. SOLITARY GRIEVANCE OF THE REVENUE IS AGAINST THE OR DER OF LD. CIT(A) FOR DELETING OF DISALLOWANCE OF RS.6,03,739/- MADE U/S 80IB(10) R.W.S 80IB(1) OF THE ACT TOWARDS PROFIT EARNED ON SALE OF UNUTILIZED FSI. WE OBSERVE THAT AT THE TIME OF ASSESSMENT LD. ASSESSIN G OFFICER MADE ADDITION TAKING TWO ALTERNATIVES AS PER OF WHICH IN THE FIRST ALTERNATIVE ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 6 TOTAL DEDUCTION U/S 80IB(10) WAS DISALLOWED WITH TH E OBSERVATION THAT ASSESSEE WAS NOT THE OWNER OF THE LAND. HOWEVER, TH IS ADDITION WAS DELETED BY LD. CIT(A) AND REVENUE IS NOT IN APPEAL AGAINST THIS DELETION. IN THE SECOND ALTERNATIVE LD. ASSESSING O FFICER HAS OBSERVED THAT ASSESSEE HAD MADE CONSTRUCTION ON ONLY 40% (AP PROX) OF THE TOTAL SPACE AVAILABLE FOR CONSTRUCTION AS APPROVED BY THE LOCAL AUTHORITY AND THE REMAINING 60% OF THE UNUTILIZED F SI WAS SOLD TO THE BUYERS OF CONSTRUCTED PORTION AND SINCE ELIGIBLE FO R CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT ONLY RELATES TO THOSE PROFI TS WHICH ARE EARNED FROM THE DEVELOPMENT AND CONSTRUCTION OF HOUSING PR OJECT THE PROFIT EARNED ON SALE OF UNUTILIZED FSI WAS NOT ELIGIBLE F OR THE SAME. ACCORDINGLY LD. ASSESSING OFFICER AFTER GIVING RELE VANT FIGURES OF THE TOTAL PERMISSIBLE FSI AVAILABLE AT 1423.7 SQ.M. SUB TRACTED 571.81 SQ.M. ON FSI UTILIZED LEAVING BEHIND 851.89 SQ.M. F SI UNUTILIZED AND PROPORTIONATELY REDUCED THE DEDUCTION U/S 80IB(10) OF THE ACT BY RS.6,03,739/-. WE FIND THAT ASSESSEE HAS NOT DISPUT ED THE FACTS AND FIGURES OBSERVED BY LD. ASSESSING OFFICER RELATING TO FSI AVAILABLE FOR CONSTRUCTION, FSI UTILIZED AND FSI UNUTILIZED AS WE LL AS CALCULATION OF PROFIT RELATABLE TO SALE OF UNUTILIZED FSI. ASSESSE E IS PRESSING THE CONTENTION THAT FSI PERMISSIBLE IS THE MAXIMUM AREA ON WHICH CONSTRUCTION CAN BE DONE AND PROJECT DEVELOPER IS A T FREE LIBERTY TO UTILIZE THE FSI IN ORDER TO MAKE MAXIMUM GAINS AT T HE END OF COMPLETION OF THE PROJECT AND, THEREFORE, THE TOTAL PROFIT DERIVED FROM SUCH PROJECT IRRESPECTIVE OF FSI UTILIZED OR UNUTIL IZED IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 7 9. WE OBSERVE THAT HON. JURISDICTIONAL HIGH COURT H AS DEALT WITH THIS ISSUE OF CLAIM OF DEDUCTION U/S 80IB(10) OF TH E ACT FROM SALE OF UNUTILIZED FSI IN THE CASE OF CIT VS. MOON STAR DEV ELOPER THE RELEVANT PORTION OF THE JUDGMENT IS REPRODUCED BELO W :- 22. HAVING HEARD THE LEARNED COUNSEL FOR THE PARTIE S AND HAVING PERUSED THE DOCUMENTS ON RECORD, WE MAY BRIEFLY RECAPITULATE TH E FACTS. THE RESPONDENTS- ASSESSEES WERE ENGAGED IN DEVELOPMENT OF HOUSING PR OJECTS. IN THE CASE OF M/S.MOON STAR DEVELOPERS, AGAINST THE TOTAL FSI OF 15312 SQ. METERS AVAILABLE FOR CONSTRUCTION, AREA OF ONLY 3573 SQ. METERS WAS UTIL ISED. THE RESIDENTIAL UNITS WERE CONSTRUCTED ONLY ON THE GROUND FLOOR CARRYING NO FU RTHER CONSTRUCTION. SUCH RESIDENTIAL UNITS WERE SOLD AND THE ENTIRE SURPLUS WAS CLAIMED AS PROFITS DERIVED FROM ACTIVITY OF DEVELOPING HOUSING PROJECT DEDUCTI BLE' UNDER SECTION 80-IB(10) OF THE ACT. FACTS, WITH MINOR DIFFERENCES, ARE SIMILAR IN ALL THE CASES. 23. SECTION 80IB(10) OF THE ACT PERTAINS TO DEDUCTI ON IN RESPECT OF PROFIT AND GAINS FROM CERTAIN ACTIVITIES. SUB-SECTION (10) THEREOF, AS IS WELL-KNOWN, GRANTS 100% DEDUCTION ON THE PROFIT OF AN ASSESSEE BEING AN UND ERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS ON THE PROFIT DERIVED FRO M SUCH HOUSING PROJECT SUBJECT TO CONDITIONS LAID DOWN THEREIN. SUB-SECTION (10) O F THE SECTION 80-IB AS IT STOOD AT THE RELEVANT TIME READ AS UNDER: '(10) THE AMOUNT OF PROFITS IN CASE OF AN UNDERTAKI NG DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE THE 31ST DAY OF MA RCH, 2005 BY A LOCAL AUTHORITY, SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOP MENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF O CTOBER, 1998, (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE, AND (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP A REA OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WITHIN TWENTY-FIVE KILOMETERS FROM THE MUNICIPAL LI MITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE.' ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 8 WE MAY NOTICE THAT SUBSEQUENTLY AN EXPLANATION CAME TO BE ADDED AT THE END OF THE SAID SUB-SECTION BY FINANCE ACT OF 2009 BUT WIT H EFFECT FROM 1.4.2001 WHICH EXPLANATION READ AS UNDER: 'EXPLANATION FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED TH AT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY TO ANY UN DERTAKING WHICH EXECUTES THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT).' IN THE NOTES ON CLAUSES EXPLAINING THE INTRODUCTION OF SECTION 80-IB OF THE ACT, IN THE CONTEXT' OF SUBSECTION (10) THEREOF, IT WAS STA TED AS UNDER: 'THE PROVISION ALSO SEEKS TO PROVIDE THAT FOR APPRO VED HOUSING PROJECTS THE PROFITS OF WHICH ARE FULLY DEDUCTIBLE, THE BUILT-UP AREA IN REGIONS OTHER THAN OUTSIDE TWENTY-FIVE KMS. OF MUNICIPAL LIMITS OF DELHI AND M UMBAI, THE BUILT-UP AREA OF THE RESIDENTIAL UNITS DOES NOT EXCEED ONE THOUSAND FIVE HUNDRED SQUARE FEET.' 24. IN THE BUDGET SPEECH FOR THE FINANCIAL YEAR 199 9-2000, THE FINANCE MINISTER IN THE CONTEXT OF TAX BENEFITS UNDER SECTION 80-IA OF THE ACT ON HOUSING PROJECTS, WHILE INCREASING THE MAXIMUM LIMIT OF THE BUILT-UP AREA OF THE UNITS FROM 1000 SQ. FT. TO 1500 SQ. FT. AT ALL LOCATIONS EXCEPT MUMBAI AND DELHI, STATED AS UNDER: '98. THE SECOND ELEMENT OF THIS INCENTIVE PACKAGE R ELATES TO THE SCHEME FOR HOUSING PROJECTS FOR ENJOYING A TAX HOLIDAY UNDER S ECTION 80-IA OF THE INCOME-TAX ACT. THE EXISTING PROVISION, INTER ALIA, REQUIRES THAT THE BUILT-UP AREA OF DWELLING UNITS SHOULD NOT EXCEED 1000 SQ. FEET. THERE HAVE B EEN MANY REPRESENTATIONS THAT IN TOWNS OTHER THAN MUMBAI AND DELHI, THE LAND COST IS RELATIVELY LESS, AND THEREFORE, FOR THE SAME CAPITAL EXPENDITURE INVESTO RS CAN AFFORD TO PURCHASE DWELLING UNITS OF SLIGHTLY LARGER AREAS. IN VIEW OF THIS, IT HAS BEEN REPRESENTED THAT THE CEILING ON BUILT-UP AREAS FOR DWELLING UNITS IN APPROVED PROJECTS BE INCREASED FROM 1000 SQ. FT TO 1500 SQ. FT AT ALL LOCATIONS EX CEPT MUMBAI AND DELHI. I PROPOSE TO ACCEPT THIS SUGGESTION AND MAKE SUITABLE MODIFIC ATIONS IN THE LAW. THIS AMENDMENT IN THE SCHEME FOR TREATING HOUSING PROJEC TS AS INFRASTRUCTURE WILL, I BELIEVE, ALSO 'GIVE A SIGNIFICANT FILLIP TO CONSTRU CTION ACTIVITIES IN THE SMALL TOWNS.' 25. THE SAID PROVISION WAS ADDED FOR EASING THE HOU SING PROBLEM PARTICULARLY FOR THE MIDDLE INCOME GROUP IN URBAN AREAS. IN THIS CON TEXT, IN THE DECISION OF THIS COURT IN RADHE DEVELOPERS, IT WAS OBSERVED AS UNDER : '30. THE ESSENCE OF SUB-SECTION (10) OF SECTION 80- IB, THEREFORE, REQUIRES INVOLVEMENT OF AN UNDERTAKING IN DEVELOPING AND BUI LDING HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY. APPARENTLY, SUCH P ROVISION WOULD BE AIMED AT ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 9 GIVING ENCOURAGEMENT TO PROVIDING HOUSING UNITS IN THE URBAN AND SEMI-URBAN AREAS, WHERE THERE IS PERENNIAL AND ACUTE SHORTAGE OF HOUSING, PARTICULARLY, FOR THE MIDDLE INCOME GROUP CITIZENS. TO ENSURE THAT THE BE NEFIT REACHES THE PEOPLE, CERTAIN CONDITIONS WERE PROVIDED IN SUB-SECTION(LO) SUCH AS SPECIFYING DATE BY WHICH THE UNDERTAKING MUST COMMENCE THE DEVELOPING AND CONSTRUCTION WORK AS ALSO PROVIDING FOR THE MINIMUM AREA OF PLOT OF LAND ON WHICH SUCH PROJECT WOULD BE PUT UP AS WELL AS MAXIMUM BUILT-UP AREA OF EACH OF THE RESIDENTIAL UNITS TO BE LOCATED THEREON. THE PROVISIONS NOWHERE REQUIRED TH AT ONLY THOSE DEVELOPERS WHO THEMSELVES OWN THE LAND WOULD RECEIVE THE DEDUCTION UNDER SECTION 80-13(10) OF THE ACT.' 26. IT CAN THUS BE SEEN THAT DEDUCTION UNDER SECTIO N 80-13(10 ) OF THE ACT WAS GRANTED TO GIVE FILLIP TO THE CONSTRUCTION OF RESID ENTIAL UNITS FOR PERSONS OF MIDDLE INCOME GROUP IN URBAN AND SEMI-URBAN AREAS OF LARGE CITIES AND EVEN SMALL TOWNS WHERE THERE WOULD BE DEARTH OF SUPPLY OF SUCH RESID ENTIAL UNITS. SOME OF THE ESSENTIAL CONDITIONS FOR CLAIMING SUCH DEDUCTION AR E : (A) THAT THE HOUSING PROJECT SHOULD BE APPROVED BY THE LOCAL AUTHORITY BEFORE A SPECIFIED DATE (WHICH WAS EXTENDED FROM TIME TO TIM E); (B) THAT THE UNDERTAKING COMMENCED DEVELOPMENT AND CONS TRUCTION OF THE HOUSING PROJECT AFTER A SPECIFIED DATE; (C) THAT THE PROJECT IS ON THE SIZE AND PLOT OF LAND WH ICH IS OF MINIMUM OF ONE ACRE; (D) THAT EACH RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP A REA OF 1500 SQ. FEET BARRING CITIES OF MUMBAI AND DELHI AND WITHIN A RAD IUS OF 25 KM OF MUNICIPAL UNITS OF SUCH CITIES WHERE SUCH AREA SHOULD NOT EXC EED 1000 SQ. FT. FURTHER CONDITIONS WERE LATER ON ADDED WHICH INCLUD ED RESTRICTION OF NOT ALLOTTING MORE THAN ONE RESIDENTIAL UNIT TO ANY PERSON WHO IS NOT AN INDIVIDUAL. IN CASE OF ALLOTMENT OF RESIDENTIAL UNIT TO AN INDIVIDUAL, IT WAS FURTHER PROVIDED THAT NO OTHER RESIDENTIAL UNIT IN SUCH HOUSING PROJECT ALLOTTED TO SUCH INDIVIDUAL OR HIS/HER SPOUSE, MINOR CHILDREN OR HINDU UNDIVIDED FAMILY IF SUCH INDIVIDUAL IS A KARTA AND ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH S UCH INDIVIDUAL IS THE KARTA. 27. AT THE RELEVANT TIME, THESE LATER CONDITIONS WE RE NOT IN OPERATION. NEVERTHELESS, WHAT CAN BE SEEN FROM THE CONDITIONS WHICH PREVAILE D AT THE RELEVANT TIME IS THAT DEDUCTION WAS AIMED AT PROVIDING 100% TAX EXEMPTION TO AN UNDERTAKING WHICH WAS INVOLVED IN DEVELOPING AND BUILDING OF HOUSING PROJECTS IN ORDER TO MAKE AFFORDABLE RESIDENTIAL UNITS AVAILABLE FOR MIDDLE I NCOME GROUP CITIZENS IN URBAN ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 10 AND SEMI-URBAN AREAS. TO ENSURE EVEN DISTRIBUTION O F SUCH UNITS AND TO AVOID HOARDING, ADDITIONAL CONDITIONS IN THE FORM OF REST RICTION ON ALLOTMENT TO SAME PERSON OR HIS NEAR RELATIVES WERE ADDED. 28. IN THIS CONTEXT, WE MAY EXAMINE, WHETHER THE DE CISION OF THE ASSESSING OFFICER TO TREAT THE INCOME OF THE ASSESSEES FROM SALE OF F SI SEPARATE AND EXCLUDABLE FROM THE PURVIEW OF SECTION 80-IB(10) OF THE ACT? THE CO NCEPT OF FSI, IS A WELL-KNOWN ONE. LOCAL AUTHORITIES, SUCH AS COIPORATIONS, MUNIC IPALITIES AND PANCHAYATS, FRAME REGULATIONS FOR REGULATING ACTIVITIES OF DEVELOPMEN T OF LANDS WITHIN THEIR LOCAL AREAS. SUCH REGULATIONS ARE POPULARLY REFERRED TO G ENERAL DEVELOPMENT CONTROL REGULATIONS (GDCR). IN ADDITION TO PROVIDING DIFFER ENT ZONES CONTROLLING DEVELOPMENT ACTIVITIES IN DIFFERENT AREAS FOR REGUL ATED AND ORDERLY DEVELOPMENT OF URBAN AREAS, THESE REGULATIONS ALSO PROVIDE FOR VAR IOUS OTHER DETAILS SUCH AS MAXIMUM HEIGHT UP TO WHICH THE CONSTRUCTION CAN BE EARNED OUT, MAXIMUM AREA ON THE GROUND FLOOR OR ON OTHER FLOORS WHICH CAN BE COVERED UNDER CONSTRUCTION, MARGIN TO BE LEFT ON SIDES, PARKING FACILITIES TO B E PROVIDED DEPENDING ON THE NATURE OF BUILDING AND MOST IMPORTANTLY, THE MAXIMU M CONSTRUCTION THAT CAN BE CARRIED OUT ON A GIVEN PIECE OF LAND. THE LAST ELEM ENT, NAMELY, THE RATIO OF THE LAND AREA VERSUS THE MAXIMUM CONSTRUCTION PERMISSIBLE ON SUCH LAND, IS REFERRED TO AS FLOOR SPACE INDEX (FSI FOR SHORT). IT IS THIS FSI W HICH WILL DECIDE THE MAXIMUM AREA OF CONSTRUCTION THAT CAN BE CARRIED OUT ON ANY GIVEN PIECE OF LAND. IT IS, THEREFORE, NOT DIFFICULT TO APPRECIATE THAT BESIDES SEVERAL OTHER FACTORS OF SITUATIONAL AND OTHER ADVANTAGES AND DISADVANTAGES, FSI PERMISS IBLE FOR THE LAND IN QUESTION WOULD BE AN IMPORTANT FACTOR IN THE CONTEXT OF DEVE LOPMENT OF THE LAND. GIVEN ALL OTHER FACTORS SAME, HIGHER THE FSI, THE GREATER THE VALUE OF THE LAND. 29. IT IS IN THIS CONTEXT, WE HAVE TO APPRECIATE TH E UNDER-UTILIZATION OF THE FSI BY THE ASSESSEES IN DIFFERENT HOUSING PROJECTS UNDER C ONSIDERATION. FROM THE FIGURES RECORDED IN THE EARLIER PORTION OF THE JUDGMENT, WE CAN GATHER THAT SUCH UTILIZATION OF THE FSI BY THE ASSESSEES RANGES FROM THE MINIMUM OF 11.14% OF THE FULL FSI AVAILABLE TO A MAXIMUM OF 65.81%. IN MAJORITY OF TH E CASES, THE ASSESSEES HAVE COVERED BARELY ABOUT ONE-FOURTH OR ONE-THIRD OF THE PERMISSIBLE FSI. 30. FOR ANY COMMERCIAL ACTIVITY OF CONSTRUCTION, BE IT RESIDENTIAL OR COMMERCIAL COMPLEX MAXIMUM UTILIZATION OF FSI IS OF GREAT IMPO RTANCE TO THE DEVELOPER. ORDINARILY, THEREFORE, IT WOULD BE IMPRUDENT FOR A DEVELOPER TO UNDER-UTILIZE AVAILABLE FSI. SALE PRICE OF CONSTRUCTED PROPERTIES IS DECIDED ON THE BUILT-UP AREA. IT CAN THUS BE SEEN THAT GIVEN THE RATE OF CONSTRUC TED AREA REMAINING SAME, NON- UTILIZATION OF AVAILABLE FSI WOULD REDUCE THE PROFI T MARGIN OF THE DEVELOPER. WHEN A DEVELOPER THEREFORE UTILIZES ONLY SAY 25% OF FSI AND SELLS THE UNIT LEAVING 75% FSI STILL AVAILABLE FOR CONSTRUCTION, HE OBVIOUSLY WORKS OUT THE SALE PRICE BEARING IN MIND THIS SPECIAL FEATURE. LET US COMPARE TWO IN STANCES. IN THE SAME AREA TWO RESIDENTIAL SCHEMES ARE DEVELOPED. BOTH HAVE RESIDE NTIAL UNITS OF 1500 SQ. FEET. IN ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 11 ONE SCHEME 100% FSI IS USED IN ANOTHER 25% FSI IS U SED AND 75% IS PASSED ON TO THE BUYER OF THE UNIT. PRICE OF THE UNIT IN THE LAT ER SCHEME WOULD FOR APPARENT REASON BE CONSIDERABLY HIGHER THAN THE FORMER BECAU SE THE BUYER THERE GETS NOT ONLY A RESIDENTIAL UNIT OF 1500 SQ. FEET, HE ALSO G ETS THE RIGHT TO BUILD FURTHER CONSTRUCTION OF 4500 SQ. FEET. WHETHER THIS INCLUDE S OPEN LAND OR NOT IS NOT IMPORTANT. IN TERMS OF CONSTRUCTION BUSINESS, IT IS EQUIVALENT TO SALE OF LAND. THUS, THEREFORE, WHEN A DEVELOPER CONSTRUCTS RESIDENTIAL UNIT OCCUPYING A FOURTH OR HALF OF USABLE FSI AND SELLS IT, HIS PROFITS FROM THE AC TIVITY OF DEVELOPMENT AND CONSTRUCTION OF RESIDENTIAL UNITS AND FROM SALE OF UNUSED FSI ARE DISTINCT AND SEPARATE AND RIGHTLY SEGREGATED BY THE ASSESSING OF FICER. 31. IT IS TRUE THAT SECTION 80-IB(10) OF THE ACT DO ES NOT PROVIDE THAT FOR DEDUCTION, THE UNDERTAKING MUST UTILIZES L 00% OF THE FSI AVAI LABLE. THE QUESTION HOWEVER IS, CAN AN UNDERTAKING UTILIZE ONLY A SMALL PORTION OF THE AVAILABLE AREA FOR CONSTRUCTION, SELL THE PROPERTY LEAVING AMPLE SCOPE FOR THE PURCHASER TO CARRY ON FURTHER CONSTRUCTION ON HIS OWN AND CLAIM FULL DEDU CTION UNDER SECTION 80-IB(10) OF THE ACT ON THE PROFIT EARNED ON SALE OF THE PROP ERTY? IF THIS CONCEPT IS ACCEPTED, IN A GIVEN CASE, AN ASSESSEE MAY PUT UP CONSTRUCTIO N OF ONLY 100 SQ. FT. ON THE ENTIRE AREA OF ONE ACRE OF PLOT AND SELL THE SAME T O A SINGLE PURCHASER AND CLAIM FULL DEDUCTION ON THE PROFIT ARISING OUT OF SUCH SALE' U NDER SECTION 80-13(10) OF THE SURELY, THIS CANNOT BE STATED TO BE DEVELOPMENT OF A HOUSING PROJECT QUALIFYING FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT. THIS IS NOT TO SUGGEST THAT FOR CLAIMING DEDUCTION UNDER SECTION 80-IB (10) OF THE ACT, INVARIABLY IN ALL CASES, THE ASSESSEE MUST UTILIZE THE FULL FSI AND ANY SHORTAGE IN SUCH UTILIZATION WOULD INVITE WRATH OF THE CLAIM UNDER SECTION 80-IB(10), BEING R EJECTED. THE QUESTION IS WHERE DOES ONE DRAW THE LINE. IN OUR OPINION, THE ISSUE H AS TO BE SEEN FROM CASE TO CASE BASIS. MARGINAL UNDER-UTILIZATION OF FSI CERTAINLY CANNOT BE A GROUND FOR REJECTING THE CLAIM UNDER SECTION 80-18(10) OF THE ACT. EVEN IF THERE HAS BEEN CONSIDERABLE UNDER-UTILIZATION, IF THE ASSESSEE CAN POINT OUT AN Y SPECIAL GROUNDS WHY THE FSI COULD NOT BE FULLY UTILIZED, SUCH AS, HEIGHT RESTRI CTION BECAUSE OF SPECIAL ZONE/PASSING OF HIGH TENSION ELECTRIC WIRES OVERHEA D, OR ANY SUCH SIMILAR GROUNDS TO JUSTIFY UNDER-UTILIZATION, THE CASE MAY STAND ON A DIFFERENT FOOTING. HOWEVER, IN CASES WHERE THE UTILIZATION OF FSI IS WAY SHORT OF THE PERMISSIBLE AREA OF CONSTRUCTION, LOOKING TO THE SCHEME OF SECTION 80-I B(10) OF THE ACT AND THE PURPOSE OF GRANTING DEDUCTION ON THE INCOME FROM DE VELOPMENT OF HOUSING PROJECTS ENVISAGED THERE-UNDER, BIFURCATION OF SUCH PROFITS ARISING OUT OF SUCH ACTIVITY AND ' THAT ARISING OUT OF THE NET SELL OF FSI MUST BE RESORTED TO. IN THE PRESENT CASE, NONE OF THE ASSESSEES HAVE MADE ANY S PECIAL GROUND FOR NON- UTILIZATION OF THE FSI. 32. THE CONTENTION OF THE COUNSEL FOR THE ASSESSEE THAT AS LONG AS THERE HAS BEEN 100% UTILIZATION OF THE MAXIMUM PERMISSIBLE AREA ON THE GROUND FLOOR, DEDUCTION UNDER SECTION 80-18(10) OF THE ACT CANNOT BE DECLIN ED, CANNOT BE ACCEPTED. AS ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 12 NOTED EARLIER, IN CASE OF M/S. MOON STAR DEVELOPERS AND MANY OTHER ASSESSES, SUCH FULL UTILIZATION OF THE GROUND FLOOR AREA AVAILABLE FOR CONSTRUCTION RESULTED INTO BARELY 20% TO 25% OF THE FSI BEING USED, REMAINING MORE THAN 75% BEING LEFT UNUSED. 33. WHAT, IS AVAILABLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IS THE PROFIT OF AN UNDERTAKING DERIVED FROM DEVELOPING AND BUILD ING A HOUSING PROJECT. MERE SALE OF OPEN LAND OR UNUSED FSI AS PART OF THE HOUS ING PROJECT WHERE UTILIZATION OF THE FSI IS WAY SHORT OF PERMISSIBLE LIMITS CANNOT B E SAID TO HAVE BEEN DERIVED FROM SUCH HOUSING PROJECT. TERMS DERIVED FROM, ARISING OUT OR AND 'ATTRIBUTABLE TO' ARE OFTEN TIMES USED IN THE CONTEXT OFF INCOME TAX IN DIFFERENT CONNOTATION. IN THE CASE OF STERLING FOODS (SUPRA), THE ASSESSEE WAS EN GAGED IN PROCESSING PRAWNS AND OTHER SEA-FOOD WHICH IT EXPORTED. IN THE PROCESS, T HE ASSESSEE EARNED IMPORT ENTITLEMENTS TO USE ITSELF OR SELL THE SAME TO OTHE RS. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE INCLUDED SUCH SALE PROC EEDS FOR CLAIMING RELIEF UNDER SECTION 80-HH OF THE ACT, IN CASE OF ANY PROFIT OR GAIN DERIVED FROM AN INDUSTRIAL UNDERTAKING IN BACKWARD AREAS. IN THIS CONTEXT, THE APEX COURT HELD THAT THE IMPORT ENTITLEMENTS CANNOT BE SAID TO BE DERIVED FR OM THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE. FOR THE APPLICATION OF THE WORDS 'DER IVED FROM', THERE MUST BE A DIRECT NEXUS BETWEEN THE PROFITS AND GAINS AND THE INDUSTRIAL UNDERTAKING AND IN THE CASE ON HAND, THE NEXUS WAS NOT DIRECT BUT ONLY INCIDENTAL. 34. IN CASE OF PANDIAN CHEMICALS LTD (SUPRA), ONCE AGAIN, THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80HH OF THE ACT. THIS CLAIM INCLUDED INTEREST ON DEPOSIT MADE WITH ELECTRICITY BOARD FOR SUPPLY OF ELECTRICI TY. THE APEX COURT HELD THAT THE INTEREST DERIVED BY THE INDUSTRIAL UNDERTAKING OF T HE ASSESSEE ON SUCH DEPOSITS MADE WITH THE ELECTRICITY BOARD CANNOT BE SAID TO F LOW DIRECTLY FROM THE INDUSTRIAL UNDERTAKING ITSELF AND WAS NOT PROFIT EARNED OR GAI N DERIVED BY THE UNDERTAKING FOR THE PURPOSE OF SPECIAL DEDUCTION UNDER SECTION 80HH OF THE ACT. 35. IN THE CASE OF LIBERTY INDIA (SUPRA), THE ASSES SEE WAS ENGAGED IN INFRASTRUCTURE DEVELOPMENT AND CLAIMED DEDUCTION UNDER SECTION 80- 1, 80-IA AND 80-IB, ETC. ON THE DRAWBACK RECEIR - AND DEPB BENEFITS. THE COURT HELD THAT SUCH INCOME CANNOT BE STATED TO BE DERIVED FROM IHE INDUSTRIAL UNDERTA KING. 36. THE CASE OF NIRMA INDUSTRIES LTD (SUPRA) RESTE D ON DIFFERENT FACTS. IT WAS A CASE WHERE THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80-IA OF THE ACT. SUCH CLAIM INCLUDED THE INTEREST RECEIVED FROM TRAD E DEBTORS TOWARDS LATE PAYMENT OF SALE CONSIDERATION. THIS BECAME A MATTER OF DISP UTE BETWEEN THE ASSESSEE AND THE REVENUE. THE COURT HELD IN FAVOUR OF THE ASSESS EE HOLDING THAT SUCH ADDITIONAL CONSIDERATION CAN ALSO BE STATED TO BE DERIVED FROM THE BUSINESS. IT WAS OBSERVED THAT WHEN THE PURCHASER PAYS A HIGHER SALE PRICE, I F IT DELAYS PAYMENT OF SALE ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 13 PROCEEDS, THERE IS A CONVERSE SITUATION TO OFFERING OF CASH, DISCOUNT. IN PRINCIPLE, THUS; THE TRANSACTION REMAINS THE SAME AND THERE IS NO DISTINCTION AS TO THE SOURCE. 37. IN VIEW OF THE ABOVE DISCUSSION, THE QUESTION I S ANSWERED IN FAVOUR OF THE REVENUE. ALL TAX APPEALS TO THIS EXTENT ARE ALLOWED . RESPECTIVE DECISIONS OF THE TRIBUNAL ARE REVERSED TO THAT EXTENT. APPEALS ARE D ISPOSED OF ACCORDINGLY. 10. WE OBSERVE THAT HON. JURISDICTIONAL HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF REVENUE GIVING CLEAR INDICATION THAT DEDUCTION U/S 80IB(10) OF THE ACT IS ALLOWABLE FOR DEVELOPMENT OF HOUSING PROJECT WHERE STRICTLY SPEAKING 100% ON FSI AVAILABLE MAY N OT BE UTILIZED FOR CONSTRUCTION BUT CERTAINLY MAJORITY OF THE FSI SHOU LD BE UTILIZED FOR ACTUAL CONSTRUCTION AND DEVELOPMENT AND THE ISSUE H AS TO BE SEEN FROM CASE TO CASE BASIS. HON. COURT FURTHER OBSERVE D THAT MARGINAL UNUTILISATION OF FSI CANNOT BE A GROUND FOR REJECTI NG THE CLAIM U/S 80IB(10) OF THE ACT.. 11. WE FURTHER OBSERVE THAT HON. JURISDICTIONAL HIG H COURT IN THE CASE OF CIT VS. SHREENATH INFRASTRUCTURE (SUPRA) HA S ALSO DEALT WITH SIMILAR ISSUE OF CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT FROM SALE OF UNUTILIZED FSI BY OBSERVING AS UNDER :- 3. SECOND QUESTION PERTAINS TO THE REVENUE'S STAND THA T IN THE PROCESS OF DEVELOPING THE HOUSING PROJECT, THE ASSESSEE DID NO T REALIZE THE FULL FSI AVAILABLE FOR DEVELOPMENT. THE ASSESSEE THUS SOLD PART OF THE UNUTILIZED FSI AND THE PROFIT DERIVED FROM SUCH SALE CANNOT BE SAID TO HAVE BEEN AND WOULD NOT ARISE OUT OF THE ASSESSEE'S ACTIVITY OF DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT. TO SUCH EXTENT, ASSESSEE'S CLAIM FOR DEDUCTION UNDER SECTIO N 80IB (10) OF THE ACT MUST BE RESTRICTED. IN THIS RESPECT, HEAVY RELIANCE WAS PLA CED BY THE LEARNED COUNSEL FOR THE REVENUE ON THE JUDGMENT PASSED BY THIS COURT IN CAS E OF CIT V. MOON STAR DEVELOPERS [TAX APPEAL NO. 549 OF 2008 DATED 5/11TH MARCH 2014 ]. IN SUCH CASE, THE COURT DID EXAMINE THE REVENUE'S STAND WITH RESP ECT TO VARIOUS ASSESSEES SELLING UNUTILIZED FSI IN THE PROCESS OF DEVELOPMEN T AND CONSTRUCTION OF HOUSING ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 14 PROJECT. FACTS IN THAT CASE WERE THAT VARIOUS ASSES SEES HAD CLAIMED FULL DEDUCTION UNDER SECTION 80IB (10) OF THE ACT ON THE SOLE CONS IDERATION OF THE RESIDENTIAL UNITS DEVELOPED AND CONSTRUCTED BY THE ASSESSEES FU LFILLING OTHER CONDITIONS UNDER SECTION 801B (10) OF THE ACT. IT WAS, HOWEVER, NOTI CED THAT IN ALL SUCH CASES, THERE WAS HEAVY UNDER UTILIZATION OF FSI. THE UTILIZATION IN VARIOUS CASES RANGED FROM 11% TO 65% AND IN MAJORITY OF CASES, THE CONSTRUCTI ON INVOLVED ONLY ABOUT ONE- FORTH OR ONE-THIRD OF THE PERMISSIBLE FSI. IN THIS CONTEXT, THE COURT UPHELD THE VIEW OF THE REVENUE THAT THE PROFIT RELATABLE TO SUCH SA LE OF UNUTILIZED FSI WOULD NOT BE ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB (10) OF T HE ACT. IT WAS IN THIS BACKGROUND OF SUCH UNUTILIZED FSI, THE COURT WAS PE RSUADED TO ADOPT SUCH COURSE. IT WAS HELD AND OBSERVED AS UNDER : '28. IN THIS CONTEXT, WE MAY EXAMINE, WHETHER THE D ECISION OF THE ASSESSING OFFICER TO TREAT THE INCOME OF THE ASSESSEES FROM S ALE OF FSI SEPARATE AND EXCLUDABLE FROM THE PURVIEW OF SECTION 80IB(10) OF THE ACT? THE CONCEPT OF FSI, IS A WELL-KNOWN ONE. LOCAL AUTHORITIES, SUCH AS COR PORATIONS, MUNICIPALITIES AND PANCHAYATS, FRAME REGULATIONS FOR REGULATING ACTIVI TIES OF DEVELOPMENT OF LANDS WITHIN THEIR LOCAL AREAS. SUCH REGULATIONS ARE POPU LARLY REFERRED TO GENERAL DEVELOPMENT CONTROL REGULATIONS (GDCR). IN ADDITION TO PROVIDING DIFFERENT ZONES CONTROLLING DEVELOPMENT ACTIVITIES IN DIFFERE NT AREAS FOR REGULATED AND ORDERLY DEVELOPMENT OF URBAN AREAS, THESE REGULATIO NS ALSO PROVIDE FOR VARIOUS OTHER DETAILS SUCH AS MAXIMUM HEIGHT UP TO' WHICH T HE CONSTRUCTION CAN BE CARRIED OUT, MAXIMUM AREA ON THE GROUND FLOOR OR ON OTHER F LOORS WHICH CAN BE COVERED UNDER CONSTRUCTION, MARGIN TO BE LEFT ON SIDES, PAR KING FACILITIES TO BE PROVIDED DEPENDING ON THE NATURE OF BUILDING AND MOST IMPORT ANTLY, THE MAXIMUM CONSTRUCTION THAT CAN BE CARRIED OUT ON A GIVEN PIE CE OF LAND. THE LAST ELEMENT, NAMELY, THE RATIO OF THE LAND AREA VERSUS THE MAXIM UM CONSTRUCTION PERMISSIBLE ON SUCH LAND, IS REFERRED TO AS FLOOR SPACE INDEX (FSI FOR SHORT). IT IS THIS FSI WHICH WILL DECIDE THE MAXIMUM AREA OF CONSTRUCTION THAT C AN BE EARNED OUT ON ANY GIVEN PIECE OF LAND. IT IS, THEREFORE, NOT DIFFICULT TO A PPRECIATE THAT BESIDES SEVERAL OTHER FACTORS OF SITUATIONAL AND OTHER ADVANTAGES AND DIS ADVANTAGES, FSI PERMISSIBLE FOR THE LAND IN QUESTION WOULD BE AN IMPORTANT FACTOR I N THE CONTEXT OF DEVELOPMENT OF THE LAND. GIVEN ALL OTHER FACTORS SAME, HIGHER THE FSI, THE GREATER THE VALUE OF THE LAND. 29. IT IS IN THIS CONTEXT, WE HAVE TO APPRECIATE TH E UNDER UTILIZATION OF THE FSI BY THE ASSESSEES IN DIFFERENT HOUSING PROJECTS UNDER C ONSIDERATION. FROM THE FIGURES RECORDED IN THE EARLIER PORTION OF THE JUDGMENT, WE CAN GATHER THAT SUCH UTILIZATION OF THE FSI BY THE ASSESSEES RANGES FROM THE MINIMUM OF 11.14% OF THE FULL FSI AVAILABLE TO A MAXIMUM OF 65.81%. IN MAJORITY OF TH E CASES, THE ASSESSEES HAVE COVERED BARELY ABOUT ONE-FOURTH OR ONE-THIRD OF THE PERMISSIBLE FSI. ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 15 30. FOR ANY COMMERCIAL ACTIVITY OF CONSTRUCTION, BE IT RESIDENTIAL OR COMMERCIAL COMPLEX MAXIMUM UTILIZATION OF FSI IS OF GREAT IMPO RTANCE TO THE DEVELOPER. ORDINARILY, THEREFORE, IT WOULD BE IMPRUDENT FOR A DEVELOPER TO UNDER-UTILIZE AVAILABLE FSI. SALE PRICE OF CONSTRUCTED PROPERTIES IS DECIDED ON THE BUILT UP AREA. IT CAN THUS BE SEEN THAT GIVEN THE RATE OF CONSTRUC TED AREA REMAINING SAME, NON- UTILIZATION OF AVAILABLE FSI WOULD REDUCE THE PROFI T MARGIN OF THE DEVELOPER. WHEN A DEVELOPER THEREFORE UTILIZES ONLY SAY 25% OF FSI AND SELLS THE UNIT LEAVING 75% FSI STILL AVAILABLE FOR CONSTRUCTION, HE OBVIOUSLY WORKS OUT THE SALE PRICE BEARING IN MIND THIS SPECIAL FEATURE. LET US COMPARE TWO IN STANCES. IN THE SAME AREA TWO RESIDENTIAL SCHEMES ARE DEVELOPED. BOTH HAVE RESIDE NTIAL UNITS OF 1500 SQ. FEET. IN ONE SCHEME 100% FSI IS USED IN ANOTHER 25% FSI IS U SED AND 75% IS PASSED ON TO THE BUYER OF THE UNIT. PRICE OF THE UNIT IN THE LAT ER SCHEME WOULD FOR APPARENT REASON BE CONSIDERABLY HIGHER THAN THE FORMER BECAU SE THE BUYER THERE GETS NOT ONLY A RESIDENTIAL UNIT OF 1500 SQ. FEET, HE ALSO G ETS THE RIGHT TO BUILD FURTHER CONSTRUCTION OF 4500 SQ. FEET. WHETHER THIS INCLUDE S OPEN LAND OR NOT IS NOT IMPORTANT. IN TERMS OF CONSTRUCTION BUSINESS, IT IS EQUIVALENT TO SALE OF LAND. THUS, THEREFORE, WHEN A DEVELOPER CONSTRUCTS RESIDENTIAL UNIT OCCUPYING A FOURTH OR HALF OF USABLE FSI AND SELLS IT, HIS PROFITS FROM THE AC TIVITY OF DEVELOPMENT AND CONSTRUCTION OF RESIDENTIAL UNITS AND FROM SALE OF UNUSED FSI ARE DISTINCT AND SEPARATE AND RIGHTLY SEGREGATED BY THE ASSESSING OF FICER. 31. IT IS TRUE THAT SECTION 80IB(10) OF THE ACT DOE S NOT PROVIDE THAT FOR DEDUCTION, THE UNDERTAKING MUST UTILIZE 100% OF THE FSI AVAILA BLE. THE QUESTION HOWEVER IS, CAN AN UNDERTAKING UTILIZE ONLY A SMALL PORTION OF THE AVAILABLE AREA FOR CONSTRUCTION, SELL THE PROPERTY LEAVING AMPLE SCOPE FOR THE PURCHASER TO CARRY ON FURTHER CONSTRUCTION ON HIS OWN AND CLAIM FULL DEDU CTION UNDER SECTION 80IB(10) OF THE ACT ON THE PROFIT EARNED ON SALE OF THE PROPERT Y? IF THIS CONCEPT IS ACCEPTED, IN A GIVEN CASE, AN ASSESSEE MAY PUT UP CONSTRUCTION O F ONLY 100 SQ. FT. ON THE ENTIRE AREA OF ONE ACRE OF PLOT AND SELL THE SAME TO A SIN GLE PURCHASER AND CLAIM FULL DEDUCTION ON THE PROFIT ARISING OUT OF SUCH SALE UN DER SECTION 80IB(10) OF THE ACT. SURELY, THIS CANNOT BE STATED TO BE DEVELOPMENT OF A HOUSING PROJECT QUALIFYING FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THIS I S NOT TO SUGGEST THAT FOR CLAIMING DEDUCTION UNDER SECTION 801B (10) OF THE A CT, INVARIABLY IN ALL CASES, THE ASSESSEE MUST UTILIZE THE FULL FSI AND ANY SHORTAGE IN SUCH UTILIZATION WOULD INVITE WRATH OF THE CLAIM UNDER SECTION 80IB(10), BEING RE JECTED. THE QUESTION IS WHERE DOES ONE DRAW THE LINE. IN OUR OPINION, THE ISSUE H AS TO BE SEEN FROM CASE TO CASE BASIS. MARGINAL UNDERUTILIZATION OF FSI CERTAINLY C ANNOT BE A GROUND FOR REJECTING THE CLAIM UNDER SECTION 80IB(10) OF THE ACT. EVEN I F THERE HAS BEEN CONSIDERABLE UNDERUTILIZATION, IF THE ASSESSEE CAN POINT OUT ANY SPECIAL GROUNDS WHY THE FSI COULD NOT BE FULLY UTILIZED, SUCH AS, HEIGHT RESTRI CTION BECAUSE OF SPECIAL ZONE, PASSING OF HIGH TENSION ELECTRIC WIRES OVERHEAD, OR ANY SUC H SIMILAR GROUNDS TO JUSTIFY UNDER UTILIZATION, THE CASE MAY STAND ON A DIFFERENT FOO TING. HOWEVER, IN CASES WHERE THE UTILIZATION OF FST IS WAY SHORT OF THE PERMISSIBLE AREA OF CONSTRUCTION, LOOKING TO THE ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 16 SCHEME OF SECTION 80IB(LG) OF THE ACT AND THE PURPO SE OF GRANTING DEDUCTION ON THE INCOME FROM DEVELOPMENT OF HOUSING PROJECTS ENVISAG ED THEREUNDER, BIFURCATION OF SUCH PROFITS ARISING OUT OF SUCH ACTIVITY AND THAT ARISING OUT OF THE NET SELL OF FSI MUST BE RESORTED TO. IN THE PRESENT CASE, NONE OF THE AS SESSEES HAVE MADE ANY SPECIAL GROUND FOR NON-UTILIZATION OF THE FSI. 32. THE CONTENTION OF THE COUNSEL FOR THE ASSESSEE THAT AS LONG AS THERE HAS BEEN 100% UTILIZATION OF THE MAXIMUM PERMISSIBLE AREA ON THE GROUND FLOOR, DEDUCTION UNDER SECTION 80IB(10) OF THE ACT CANNOT BE DECLINED, CAN NOT BE ACCEPTED. AS NOTED EARLIER, IN CASE OF M/S. MOON STAR DEVELOPERS AND MANY OTHER ASSESSEES, SUCH FULL UTILIZATION OF THE GROUND FLOOR AREA AVAILABLE FOR CONSTRUCTION RESULTED INTO BARELY 20% TO 25% OF THE FSI BEING USED, REMAINING MORE THAN 75% BEING L EFT UNUSED. 33. WHAT IS AVAILABLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IS THE PROFIT OF AN UNDERTAKING DERIVED FROM DEVELOPING AND BUILDING A HOUSING PROJECT. MER E SALE OF OPEN LAND OR UNUSED FSI AS PART OF THE HOUSING PROJECT WHERE UTILIZATIO N OF THE FSI IS WAY SHORT OF PERMISSIBLE LIMITS CANNOT BE SAID TO HAVE BEEN DERI VED FROM SUCH HOUSING PROJECT. TERMS 'DERIVED FROM', 'ARISING OUT OF AND 'ATTRIBUT ABLE TO' ARE OFTEN TIMES USED IN THE CONTEXT OF INCOME TAX IN DIFFERENT CONNOTATION. IN THE CASE OF STERLING FOODS (SUPRA), THE ASSESSEE WAS ENGAGED IN PROCESSING PRAWNS AND O THER SEA FOOD WHICH IT EXPORTED. IN THE PROCESS, THE ASSESSEE EARNED IMPORT ENTITLEM ENTS TO USE ITSELF OR SELL THE SAME TO OTHERS. DURING THE YEAR UNDER CONSIDERATION, THE AS SESSEE INCLUDED SUCH SALE PROCEEDS FOR CLAIMING RELIEF UNDER SECTION 80HH OF THE ACT, IN CASE OF ANY PROFIT OR GAIN DERIVED FROM AN INDUSTRIAL UNDERTAKING IN BACKWARD AREAS. IN THIS CONTEXT, THE APEX COURT HELD THAT THE IMPORT ENTITLEMENTS CANNOT BE S AID TO BE DERIVED FROM THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE. FOR THE APP LICATION OF THE WORDS 'DERIVED FROM', THERE MUST BE A DIRECT NEXUS BETWEEN THE PRO FITS AND GAINS AND THE INDUSTRIAL UNDERTAKING AND IN THE CASE ON HAND, THE NEXUS WA S NOT DIRECT BUT ONLY INCIDENTAL.' 4. IN THE PRESENT CASE, THE FACTS ARE SOMEWHAT DIFF ERENT. THE ASSESSEE, IN THE PROCESS OF DEVELOPING TWO HOUSING PROJECTS, HAD UTILIZED 9595. 64 SQ.M OF BUILD-ABLE AREA AGAINST THE MAXIMUM PERMISSIBLE AREA OF 13004 SQ.M AND IN O THER CASES, PUT UP CONSTRUCTION OF 5997.28 SQ.M AGAINST MAXIMUM PERMISSIBLE CONSTRU CTION ON 8127.75 SQ.M. UNDER UTILIZATION, IF AT ALL WAS IN THE MARGINAL RANGE OF 25% TO 30%. AS HELD BY THIS COURT IN CASE OF MOON STAR DEVELOPERS (SUPRA) EVERY CASE OF EVEN MARGINAL UNDER UTILIZATION OF FSI WOULD NOT BE HIT BY DISALLOWANCE OF DEDUCTIO N UNDER SECTION &U1H OF THE ACT IN THE RESULT, TAX APPEALS ARE DISMISSED. 12. NOW FROM GOING THROUGH BOTH THE JUDGMENTS OF HO N. JURISDICTIONAL HIGH COURT, WE OBSERVE THAT THE ISSU E REGARDING DEDUCTION U/S 80IB(10) OF THE ACT FROM SALE CONSIDE RATION OF UNUTILIZED ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 17 FSI HAS TO BE SEEN IN THE OVERALL CONTEXT SO MUCH S O THAT CERTAINLY 100% FSI CANNOT BE UTILIZED FOR CONSTRUCTION AND BU SINESS EXPEDIENCY AND FOR THE OVERALL SUCCESS OF THE PROJE CT 25% TO 30% OF THE OPERATION GAP REMAINS TO BE UNUTILIZED. HOWEVER , IN THE CASE THE OPERATION OF UNUTILIZED FSI IS EXORBITANT I.E. MORE THAN 30% OF THE TOTAL PERMISSIBLE AREA THEN THE MATTER HAS TO BE LO OKED INTO FROM A DIFFERENT ANGLE AND ONE CANNOT IGNORE THE POSSIBILI TY OF THE SITUATION WHEREIN CLAIM UNDER SECTION 80IB(10) IS INTENTIONAL DEDUCTION FROM SALE OF UNUTILIZED FSI ON WHICH NO CONSTRUCTION OR DEVELOPMENT HAS BEEN DONE AND FOR MERE SALE OF SUCH UNUTILIZED LAND OR PORTION DEDUCTION U/S 80IB(10) OF THE ACT IS CLAIMED. WE FI ND THAT IN THE CASE OF ASSESSEE ALMOST 60% OF THE PERMISSIBLE FSI REMAI NED UNUTILIZED I.E. NO CONSTRUCTION WAS MADE THEREON. AS PER THE W ORKING APPEARING IN THE ASSESSMENT ORDER, WE FIND THAT IN THE PROJEC T VAIKUNTH-I PERMISSIBLE FSI WAS 1423.7 SQ.M. AND FSI UTILIZED F OR CONSTRUCTION WAS 571.81 SQ.M. WHICH LEFT BEHIND UNUTILIZED FSI A T 851.89 SQ.M. NOW OBSERVING THESE FACTS OF THE CASE IN THE LIGHT OF JUDGMENTS OF HON. JURISDICTIONAL HIGH COURT, WE FIND THAT HON. H IGH COURT IN THE CASE OF MOON STAR DEVELOPERS (SUPRA) CAME ACROSS TH E FACT THAT ONLY 23% OF THE FSI WAS UTILIZED AND DECISION WAS GIVEN IN FAVOUR OF REVENUE BY CONFIRMING THE DISALLOWANCE MADE FOR SAL E OF UNUTILIZED FSI. HOWEVER, IT WAS ALSO OBSERVED BY HON. HIGH COU RT THAT UTILIZATION OF FSI HAS TO BE INTROSPECTED WITH THE OVERALL PROJ ECT AND ONE HAS TO KEEP SPACE FOR THE MARGIN FOR KEEPING SOME PORTION OF FSI UNUTILIZED DEPENDING ON CASE TO CASE. WE OBSERVE THAT THE SAME HON. BENCH OF THE JURISDICTIONAL HIGH COURT WHICH HAS DECIDED THE ISSUE IN FAVOUR OF REVENUE IN THE CASE OF MOON STAR DEVELOPERS(SUPRA) HAD DEALT WITH ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 18 SIMILAR ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80IB (10) OF THE ACT FOR SALE OF UNUTILIZED FSI IN THE CASE OF M/S SHREENATH INFRASTRUCTURE (SUPRA) AND CAME WITH THE VIEW THAT 25-30% OF NON-U TILISATION OF FSI IS PERMISSIBLE AND ASSESSEE SHOULD NOT BE DEVOID OF CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT. 13. RESPECTFULLY FOLLOWING THE JUDGMENT OF HON. JUR ISDICTIONAL HIGH COURT IN THE CASE OF SHREENATH INFRASTRUCTURE (SUPR A), WE ARE OF THE VIEW THAT ASSESSEE SHOULD BE ALLOWED TO CLAIM DEDUC TION U/S 80IB(10) OF THE ACT TO THE EXTENT OF 30% OF UNUTILIZED FSI. WE HEREBY DEEM IT FIT TO SUSTAIN THE DISALLOWANCE TO 50% AS THE ASSESSEE HAS 60% UNUTILIZED FSI AND AFTER GIVING THE BENEFIT OF 30% UNUTILIZED FSI. ACCORDINGLY, ASSESSEE WILL GET RELIEF OF RS.3,01,86 9.50 AS AGAINST DISALLOWANCE MADE AT THE TIME OF ASSESSMENT AT RS.6 ,03,739/-. ACCORDINGLY, THIS GROUND OF REVENUE IS PARTLY ALLOW ED. 14. GROUND NO.2 IS GENERAL IN NATURE, WHICH DOES NO T REQUIRE ADJUDICATION. 15. IN THE RESULT, APPEAL FILED BY THE REVENUE IS P ARTLY ALLOWED. 16. NOW WE TAKE UP ITA NO.2193/AHD/2012 FOR ASST. Y EAR 2003-04 WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED - ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 19 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ID CIT (APPEALS) ERRED IN ALLOWING DEDUCTION OF RS.1,81,50 ,125/- U/S 80IB(10) R.W.S. 80IB(1) TO THE ASSESSEE ON PROFIT DERIVED FROM SALE OF UNUTILIZED FSI NOT BEING THE ELEMENT OF PROFITS DERIVED FROM THE BUSINESS AC TIVITY OF DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT. 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR A LTER THE ABOVE ROUNDS AS MAY BE DEEMED NECESSARY. . RELIEF CLAIMED IN APPEAL IT IS PRAYED THAT THE ORDER OF THE CIT (APPEALS) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 17. AS THE ISSUE IN THIS APPEAL IS SIMILAR AS WE HA VE ADJUDICATED IN APPEAL IN ITA NO.2192/AHD/2012 FOR ASST. YEAR 2002- 03 AND AS FAR AS THE FACTS ARE CONCERNED THIS YEAR ALSO UNUTILIZED F SI WAS 20579 SQ.M. AS AGAINST TOTAL PERMISSIBLE FSI AVAILABLE FOR CONS TRUCTION 34261.18 SQ.M. AND THEREFORE, FOR 60% OF THE PERMISSIBLE FSI REMAINED UNUTILIZED. APPLYING, THE DECISION TAKEN BY US IN R EVENUES APPEAL FOR ASST. YEAR 2002-03, WE HEREBY SUSTAIN THE DISALLOWA NCE TO 50% OF RS.1,81,50,125/-. ASSESSEE WILL GET RELIEF OF RS.90 ,75,062.50. THIS GROUND OF REVENUE IS PARTLY ALLOWED. 18. OTHER GROUND IS OF GENERAL NATURE, WHICH DOES N OT REQUIRE ADJUDICATION. ITA NO. 2192 & 2193/AHD/2012 ASST. YEAR 2002-03 & 2003-04 20 19. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JULY, 2016 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 28/7/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 26-27/07/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 28/07/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 29/7/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: