Addl.CIT, Special Range, Ghaziabad V. Shipra Estate Ltd., Ghaziabad

ITA 2294/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9072 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 03-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Competent authority; Tax effect
• Section: 143(3); 234B; 80IB; 192; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 2294/DEL/2018 : ASSTT. YEAR : 2013-14 ADDL. CIT, SPECIAL RANGE, GHAZIABAD VS M/S SHIPRA ESTATE LTD., PLOT NO. 9, CORPORATE OFFICE, SHIPRA MALL, INDIRAPURAM, GHAZIABAD (APPELLANT) (RESPONDENT) PAN NO. AACCS6116J ASSESSEE BY : SH. PRATEEK GUPTA, CA REVENUE BY : MS. NIDHI SRIVASTAVA, CIT DR DATE OF HEAR ING: 02 . 0 8 .20 2 1 DATE OF PRONOUNCEMENT: 06 .0 8 .20 2 1 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE A GAINST THE ORDER OF LD. CIT(A)-III, NEW DELHI DATED 23.01. 2018. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENU E: 1. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS IN DELETION THE ADDITION OF RS.2,28,94,733/- MADE BY T HE AO ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80IB(10)(A) OF THE I.T. ACT WITHOUT CONSIDERING THE FACTS BROUGHT OUT BY THE AO IN THE ASSESSMENT ORDER . 2. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FA CTS BY HOLDING THAT THE AO MADE THE ADDITION SIMPLY ON THE BASIS OF STRICT INTERPRETATION OF STATUTE BY IG NORING THE FACTS THAT THE PROJECT WAS ACTUALLY COMPLETED M UCH BEFORE CUTOFF DATE AS PER PROVISIONS. ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 2 3. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FA CTS OF THE CASE IN IGNORING THE FACT THAT AS PER CLAUSE (II) OF THE EXPLANATION U/S 80IB (10)(A), COMPLIANCE OF THIS CONDITION HAS BEEN MADE MANDATORY. 4. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN IGNORING THE DECISION OF HONB LE HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. GLOBAL REALITY IN ITA NO. 35, 36 AND 40 OF 2012. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND SALE OF FLATS AT G HAZIABAD BESIDES PURCHASE OF LAND FOR CARRYING OUT THE SAID ACTIVITIES AT OTHER PLACE ALSO. THE ASSESSEE HAS SHOWN NET PROFIT OF RS.4,79,25,436/-. 4. DURING THE YEAR, THE ASSESSEE HAS CLAIMED DEDUCT ION U/S 80IB(10) OF THE ACT ON THE PROJECT ELIGIBLE FOR THE DEDUCTION NAMELY 'NEO'. THE SAID PROJECT WAS SITUATED ON PLOT NO. 11, VAIBHAV KHAND, INDIRAPURAM, GHAZIABAD, U.P. AND IT WAS A JOINT VENTURE PROJECT WITH THE GHAZIABAD DEVELOPMENT AUTH ORITY (GDA). M/S SHIPRA ESTATE LIMITED & GDA ENTERED INTO AN AGREEMENT IN FORM OF LICENSE DEED DATED 07.04.1998 FOR THE DEVELOPMENT OF A PLOT NO - 11 MEASURING 201576.25 S Q. MTRS AND THE PROCESS WAS TO BE COMPLETED WITHIN A PERIOD OF 8 YEARS (5 YEARS INITIAL PERIOD & EXTENDED BY ANOTHER 3 YEA RS). THAT IN CASE OF DEFAULT THE ASSESSEE WAS LIABLE FOR PENAL A CTION. AS PER AGREEMENT THE ASSESSEE WAS TO DEVELOP THE WHOLE ARE A BUT DUE TO SOME COMPELLING REASONS AND ADVERSE MARKET POSIT ION THE ASSESSEE COULD NOT BEGIN THE DEVELOPMENT PROCESS ON A PIECE OF LAND MEASURING 11056 SQ. MTRS. THE DEVELOPMENT OF T HE REMAINING PIECE OF LAND MEASURING 11056 SQ. MTR WAS STARTED IN F.Y. 2006-07 AND THE PROJECT WAS NAMED AS NEO PROJE CT AND THE ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 3 MAP OF THE NEO PROJECT WAS DULY SANCTIONED BY GDA O N 26.09.2006. SINCE THE OVERALL DEVELOPMENT OF PLOT N O. 11 MEASURING 201576.25 WAS REQUIRED TO BE COMPLETED BY THE END OF FINANCIAL YEAR 2005-06 AND DUE TO NON-COMPLETION OF THE SAME, LEVY WAS LEVIED FOR THE PERIOD TILL WHICH THE DEFAULT CONTINUED. SINCE THE DEVELOPMENT OF 11056 SQ MTR OF THE LAND WAS ONLY REMAINING, THE DEVELOPMENT OF THE SAME TOO K OFF IN FY 2006-07 AND COMPLETED ON 21.02.2011, I.E. 21.02.201 1 IS THE DATE TILL WHICH THE AUTHORITY LEVIED THE PENALTY. A LETTER WAS ISSUED BY GDA STATING THE FACTS THAT THE PROJECT ST ANDS COMPLETED ON 21.02.2011 AND THE PROCESS OF REGISTER ED THE UNITS WITH THE OFFICE OF SUB REGISTRAR IN THE NAME OF ULTIMATE BUYERS ALSO STARTED ON 21.02.2011 ITSELF. IT IS PER TINENT TO NOTE THAT THE REGISTRATION OF THE UNITS IN THE NAME OF T HE ULTIMATE CUSTOMERS SHALL BE REGISTERED ONLY BY THE GDA, WHIC H IS THE COMPETENT AUTHORITY TO ISSUE THE COMPLETION CERTIFI CATE IN THE CASE OF THE ASSESSEE. 5. THE CLAIM OF THE DEDUCTION U/S 80IB(10) OF THE A CT HAS BEEN DENIED BY THE AO AFTER OBSERVING THAT THE ASSE SSEE HAD NOT FULFILLED THE CONDITION REQUIRED U/S 80IB(10) O F THE ACT AS PER WHICH THE ASSESSEE HAD TO OBTAIN THE PROJECT CO MPLETION CERTIFICATE FROM THE PRESCRIBED AUTHORITY WITHIN A PERIOD OF 5 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH T HE PROJECT WAS FIRST APPROVED I.E. ON OR BEFORE 31.03.2012, AN D THE SAME WAS APPLIED FOR ON 29.08.2012 AND OBTAINED ON 21.12 .2013. THE AO TOOK THE DATE OF COMPLETION OF PROJECT AS 21.02. 2013 I.E. THE DATE OF LETTER OF JOINT SECRETARY, GDA MENTIONED IN THE ASSESSMENT ORDER. THE AO HELD THAT THE LANGUAGE OF THE ACT REGARDING THE DATE ON WHICH THE PROJECT SHALL BE TR EATED TO BE ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 4 COMPLETE IS EXPLICITLY CLEAR. IT SPECIFICALLY STATE S THAT THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJEC T SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIF ICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LO CAL AUTHORITY AND NOT FROM THE DATE OF COMPLETION MENTIONED IN TH E COMPLETION CERTIFICATE. THE AO HAS RECOGNIZED THE L ETTER ISSUED ON 21.12.2013 AS COMPLETION CERTIFICATE BY THE AUTH ORITY HIGHLIGHTING THE FACT THAT THE PROJECT STANDS COMPL ETED ON 21.02.2011. THE AO HAS NOT DISPUTED THAT THE PROCES S OF REGISTERING THE UNITS WITH THE OFFICE OF SUB REGIST RAR IN THE NAME OF ULTIMATE BUYERS ALSO STARTED ON 21.02.2011 ITSELF. REGISTRATION OF THE UNITS IN THE NAME OF THE ULTIMA TE CUSTOMERS IS BEING REGISTERED BY THE GDA WHO IS ALSO THE COMP ETENT AUTHORITY TO ISSUE THE COMPLETION CERTIFICATE IN TH E CASE OF THE ASSESSEE. THE GDA HAS CLEARLY MENTIONED THAT THE PR OJECT WAS COMPLETED ON 21.02.2011 VIDE THE AFOREMENTIONED LET TER THEREFORE IT ESTABLISHES THE FACT THAT THE PROJECT WAS IN FACT COMPLETED MUCH BEFORE THE CUTOFF DATE OF 31.03.2012 . IT IS ALSO A FACT THAT THIS LETTER DATED 21.02.2013 IS NOT A F ORMAL COMPLETION CERTIFICATE ISSUED BY THE GDA. THIS LETT ER MENTIONS THE DATE OF COMPLETION AS 21.02.2011. 6. THE DATE OF THIS LETTER HAS BEEN ERRONEOUSLY TAK EN BY AO AS THE COMPLETION DATE. FURTHER IN RESPECT OF THE O BSERVATIONS OF THE AO THAT ASSESSEE HAS NOT APPLIED FOR COMPLET ION CERTIFICATE IN TIME IT IS SEEN FROM THE DOCUMENTS A VAILABLE ON RECORD THAT THE ASSESSEE HAS APPLIED FOR THE PROJEC T COMPLETION CERTIFICATE WITH THE AUTHORITY VIDE ITS LETTER DATE D 30.11.2011 AFTER DULY COMPLETING THE WORK ON 21.02.2011. (COPY OF LETTER ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 5 PLACE AT PAGE NO. 18 OF THE PAPER BOOK) AND THE SAM E WAS ALSO FILED BEFORE THE AO DURING THE ASSESSMENT PROCEEDIN GS. 7. AS PER THE UTTAR PRADESH APARTMENT (PROMOTION OF CONSTRUCTION, OWNERSHIP AND MAINTENANCE) ACT, 2010 WHEREIN IT HAS BEEN CLEARLY STATED THAT APARTMENT MAY BE TRANS FERRED BY THE PROMOTER TO ANY PERSON ONLY AFTER OBTAINING THE COMPLETION CERTIFICATE FROM THE PRESCRIBED AUTHORITY CONCERNED AS PER THE BUILDING BYE-LAWS. EXTRACT OF THE CLAUSE 5 OF SECTI ON 4 UNDER CHAPTER 2 OF THE AFOREMENTIONED ACT IS AS FOLLOWS: 'AN APARTMENT MAY BE TRANSFERRED BY THE PROMOTER TO ANY PERSON ONLY AFTER OBTAINING THE COMPLETION CERTIFIC ATE FROM THE PRESCRIBED SANCTIONING AUTHORITY CONCERNED AS PER B UILDING BYE LAWS. THE COMPLETION CERTIFICATE SHALL BE OBTAINED BY THE PROMOTER FROM THE PRESCRIBED AUTHORITY WITHIN THE P ERIOD OF TWO YEARS FROM THE DATE OF SALE AGREEMENT. PROVIDED THA T IF THE CONSTRUCTION WORK IS NOT COMPLETED WITHIN THE STIPU LATED PERIOD, WITH THE PERMISSION OF THE PRESCRIBED AUTHORITY. PROVIDED FURTHER THAT IF THE COMPLETION CERTIFICATE IS NOT ISSUED BY THE PRESCRIBED SANCTIONING AUTHORITY WITHIN THRE E MONTHS OF SUBMISSION OF THE APPLICATION BY THE PROMOTER COMPL ETE WITH ALL CERTIFICATES AND OTHER DOCUMENTS REQUIRED, THE SAME SHALL BE DEEMED TO HAVE BEEN ISSUED AFTER THE EXPIRY OF THRE E MONTHS.' 8. IN VIEW OF ABOVE, IT IS CLEAR THAT THE APARTMENT S WOULD BE REGISTERED ONLY WHEN THE PROJECT COMPLETION CERTIFI CATE IS OBTAINED BY THE ASSESSEE. SINCE, THE PRESCRIBED AUT HORITY HAS ACCEPTED THE PROJECT COMPLETION ON 21.02.2011 THERE FORE FIRST REGISTRY OF THE PROJECT WAS DONE BY THE AUTHORITY I N FAVOR OF ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 6 ULTIMATE BUYER'S ON 21.02.2011. DURING THE FINANCIA L YEAR 2010- 11, 5 OF THE UNITS GOT REGISTERED IN FAVOR OF THE C USTOMERS OF THE NEO PROJECT BY THE ASSESSEE COMPANY AND ANOTHER 291 UNITS IN FINANCIAL YEAR 2011-12 OUT OF TOTAL UNITS OF 346 I.E. THE MAJORITY OF THE UNITS I.E. AROUND 86% OF THE TOTAL UNITS GOT REGISTERED IN THE NAMES OF ULTIMATE CUSTOMERS BEFOR E THE END OF FINANCIAL YEAR 2011-12 WHICH IS ALSO THE CUTOFF DAT E FOR GETTING THE PROJECT COMPLETION CERTIFICATE. (COPY OF FIRST REGISTRY MADE IN THE NAME OF ULTIMATE CUSTOMER DATED 21.02.2011 B Y THE GDA IS PLACED AT PAGE NO. 19-50 OF THE PAPER BOOK). 9. IN VIEW OF ABOVE STATED FACTS, IT IS WELL ESTABL ISHED THAT THE PROJECT OF THE ASSESSEE WAS COMPLETED BEFORE TH E CUTOFF DATE AS PER THE PROVISIONS BY THE ACT I.E. 31.03.20 12. THE AO HAS CHOSEN TO IGNORE ALL THESE FACTS AND MADE THE A DDITION ON THE BASIS OF INTERPRETATION OF STATUTE BY HOLDING T HAT THE DATE OF COMPLETION IS 21.12.2013 I.E. THE DATE OF LETTER OF JOINT SECRETARY, GDA IGNORING THE FACT THAT THIS LETTER I S NOT A COMPLETION CERTIFICATE ISSUED BY THE GDA. THIS LETT ER ITSELF MENTIONS THE DATE OF COMPLETION AS 21.02.2011. THIS DATE OF LETTER HAS BEEN ERRONEOUSLY TAKEN BY AO AS 'THE COM PLETION DATE. AO HELD THAT SINCE THIS LETTER IS DATED 21.12 .2013, THE COMPLETION OF THE PROJECT IS BEYOND THE PRESCRIBED PERIOD U/S 80-IB AND NOT FROM THE DATE MENTIONED IN THE LETTER I.E. 21.02.2011. 10. WE ALSO FIND THAT THE SAME ISSUE HAS BEEN ADJUD ICATED EARLIER BY THE CO-ORDINATE BENCH OF ITAT IN THE CAS E OF THE ASSESSEE IN ITA NO.740/DEL/2016 FOR THE ASSESSMENT YEAR 2012- ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 7 13 VIDE ORDER DATED 22.01.2021. THE RELEVANT PART O F THE ORDER IS AS UNDER: 05. FOR CLAIMING DEDUCTION U/S 80 IB (10), ASSESSEE HAS SUBMITTED FORM NO 10 CCB BEING AN AUDIT REPORT REQ UIRED U/S 80 IB OF THE ACT FOR THE IMPUGNED ASSESSMENT YEAR. ACCORDING TO PARA NUMBER 23 OF THE ABOVE REPORT IT WAS STATED TH AT THE PROJECT OF THE ASSESSEE HAS BEEN GRANTED APPROVAL O N 26 TH OF SEPTEMBER 2006 AND WITH RESPECT TO THE DATE OF COMP LETION OF THE HOUSING PROJECT, IT WAS SUBMITTED THAT THE REQ UEST FOR ISSUING COMPLICATION CERTIFICATE HAS ALREADY BEEN F ILED WITH THE GHAZIABAD DEVELOPMENT AUTHORITY [ GDA] ON 30 TH OF NOVEMBER 2011. HOWEVER AS PER THE CERTIFICATE OF ARCHITECT DATED 17/8/2012 THE PROJECT HAS BEEN COMPLETED IN FY 2011 12 AND THE COPY OF THE COMPLETION CERTIFICATE ISSUED BY TH E ARCHITECT WAS ALSO ATTACHED. ACCORDING TO THE CERTIFICATE OF THE ARCHITECT, IT WAS STATED THAT THE PROJECT HAS ALREADY BEEN COMPLETED AND POSSESSION HAS ALREADY BEEN GIVEN TO THE CUSTOMERS DURING FINANCIAL YEAR 2011 12. SUBSEQUENT TO THE ABOVE FILING OF THE RETURN AND CERTIFICATE DATED 29/9/2012 ISSUED BY TH E CHARTERED ACCOUNTANT, THE ASSESSEE ALSO OBTAINED A LETTER DAT ED 21 FEBRUARY 2013 FROM GHAZIABAD DEVELOPMENT AUTHORITY STATING THAT THE DATE OF COMPLETION OF THE ABOVE PROJECT IS 21 ST OF FEBRUARY 2011. THUS, IT WAS STATED THAT THE ASSESS EES CLAIM OF DEDUCTION U/S 80 IB (10) IS IN ORDER , AS IT COMPLI ES WITH ALL THE CONDITIONS INCLUDING THE CONDITION OF THE COMPLETIO N OF THE PROJECT WITHIN FIVE YEARS FROM TEND OF THE YEAR IN WHICH T HE APPROVAL WAS GRANTED. 06. DURING THE ASSESSMENT PROCEEDINGS, THE LD. ASSE SSING OFFICER NOTED THAT ASSESSEE HAS CLAIMED DEDUCTION U NDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961 (THE ACT) OF RS. 28,84,19,207/- AND RESTRICTED THE SAME AT RS. 13,00 ,15,605/- FOR SUN CITY PHASE-I PROJECT AT INDIRAPURAM, GHAZI ABAD. THE LD. ASSESSING OFFICER EXAMINED THE CLAIM OF THE ASSESSE E AND ASKED THE ASSESSEE TO SHOW THE DATE OF COMPLETION OF THE PROJECT. THE ASSESSEE SUBMITTED A LETTER ISSUED BY GHAZIABAD DEV ELOPMENT AUTHORITY (GDA) REGARDING THE COMPLETION CERTIFICAT E. THE APPROVAL TO THE PLAN FOR THE CONSTRUCTION OF HOUSIN G PROJECT WAS GRANTED BY GDA ON 26.09.2006. THE PLAN WAS CONSTRU CTED ON TOTAL PLOT AREA OF 11055.99 SQ. MTS. THE PROJECT W AS STATED TO HAVE BEEN COMPLETED AND POSSESSION HAS ALREADY BEEN GIVEN TO CUSTOMERS ON 21 FEBRUARY 2011, DURING FINANCIAL YEA R 2011-12. THUS, ACCORDING TO THE ASSESSEE THE PROJECT WAS COM PLETED ON 21/02/2011 I.E. WITHIN FIVE YEARS FROM THE END OF T HE FINANCIAL YEAR IN WHICH THE PROJECT WAS APPROVED (I.E. 26/9/2 006). THE ASSESSING OFFICER NOTED THAT ACCORDING TO THE PROVI SIONS OF SECTION 80IB(10) OF THE ACT THE PROJECT SHOULD HAVE BEEN ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 8 COMPLETED WITHIN 5 YEARS FROM THE END OF THE FINANC IAL YEAR FOR WHICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. HE NOTED THAT THE PROJECT FOR ELIGIBILITY OF DEDUCTI ON, THE LAST DATE OF COMPLETION WOULD BE 31 ST OF MARCH 2012. THE AO NOTED THAT GHAZIABAD DEVELOPMENT AUTHORITY (GDA) THROUGH ITS J OINT SECRETARY ISSUED COMPLETION CERTIFICATE ON 21.02.20 13. HOWEVER, ACCORDING TO THE ASSESSEE THE APPLICATION WAS SUBMI TTED FOR COMPLETION CERTIFICATE VIDE LETTER DATED 29.09.2012 . THE ASSESSEE SUBMITTED THAT GDA HAS APPROVED THE DATE O F PROJECT AS ON 21.02.2011. IT FURTHER STATES THAT APPLICATION AFTER THE COMPLETION OF THE PROJECT WAS SUBMITTED TO THE AUTH ORITY AND THE AUTHORITIES CONSTITUTED AN INSPECTION COMMITTEE. A S PER THE REPORT AND RECOMMENDATION OF THE COMMITTEE, THE GDA APPROVED THE DATE OF THE COMPLETION OF THE PROJECT AS 21.02. 2011. THE LD. ASSESSING OFFICER WAS OF THE VIEW THAT THE ACT RECO GNIZES ONLY THE ACTUAL DATE OF THE COMPLETION CERTIFICATE BY TH E LOCAL AUTHORITIES. HE, THEREFORE, REJECTED THE EXPLANATIO N OF THE ASSESSEE THAT THE FIRST REGISTRATION OF THE FLAT WA S MADE ON 21.02.2011 AND GHAZIABAD DEVELOPMENT AUTHORITY HAS ACCEPTED THE DATE OF COMPLETION AS AT 21.02.2011 AS PER THE LETTER DATED 21.02.2013. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE LANGUAGE OF THE ACT WAS VERY CLEAR AND THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF H OUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. HE HELD THAT SUCH COMPLETION CERTIFICATE WAS ISSUED BY GDA ON 21.02.2013, WHICH IS BEYOND THE PRESCRIBED TIME LIMIT ON 31.03.2012. HE FURTHER HELD THAT MERELY AS THE FIRST REGISTRATION OF HOUSING UNIT HA S TAKEN PLACE ON 21.02.2011, THE WHOLE PROJECT CANNOT HAVE TO BE CON SIDERED AS COMPLETED BY 31.03.2012. HE HELD THAT ASSESSEE HAS CONSTRUCTED 346 UNITS IN THE PROJECT AND BY MERELY REGISTRATION ONE UNIT OUT OF 346 UNITS THE ASSESSEE CANNOT CLAIM TO HAVE COMPLETED THE WHOLE PROJECT WITHIN THE PRESCRIBED L IMIT. THEREFORE, HE HELD THAT THE SUBMISSION OF THE ASSES SEE IS DE VOID OF ANY MERIT. HE THEREFORE HELD THAT, THE ASSESSEE HAS NOT COMPLETED THE HOUSING PROJECT IN TERMS OF THE OUTER TIME LIMIT PROVIDED U/S 80 IB (10) OF THE ACT I.E. WITHIN FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE APPROVAL WAS GRANTED. 07. THE LEARNED ASSESSING OFFICER ALSO NOTED THAT A SSESSEE HAS ALLOTTED THE FLATS TO THE RELATED PARTIES FOR MORE THAN ONE UNIT AND THEREFORE THE ASSESSEE IS NOT ENTITLED TO DEDUC TION U/S 80 IB (10) OF THE ACT. THE ASSESSEE ON ITS OWN SURRENDER ED PROPORTIONATE DEDUCTION TO THE EXTENT OF RS. 58,47, 000/-. CONSEQUENTLY, THE LD. ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80IB (10) OF THE ACT AMOUNT ING TO RS. 13,00,15,605/- FOR NON-COMPLETION WITHIN SPECIFIED LIMIT. ACCORDINGLY, ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 9 WAS PASSED ON 22 ND DECEMBER, 2014 DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS. 213,87,823/-. 08. THE ASSESSEE CHALLENGED THE SAME BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE ASSESSEE MADE DETAILED SUBMISSION BEFORE HIM ON 11.08.2015 REPROD UCED AT PAGE 5.1.2 OF THE ORDER OF THE LD. CIT (APPEALS). BEFORE HIM, THE ASSESSEE SUBMITTED THAT PROJECT IS COMPLETED IN TIM E. THEREFORE, ORDER UNDER SECTION 250(4) OF THE ACT WAS PASSED BY HIM GIVING DIRECTION TO THE AO TO ASCERTAIN THE CORRECT DATE O F COMPLETION BY OBTAINING AND EXAMINING THE RELEVANT DETAILS FROM T HE DEVELOPMENT AUTHORITY AND ASSESSEE. THE REPORT OF THE ASSESSING OFFICER STATES THAT COMMITTEE OF GDA WAS CONSTITUTED ON 25 TH OCTOBER, 2012, INSPECTED THE SITE ON 21.02.2013 AN D ON THE BASIS OF THE DOCUMENTS NOTING THE FACT THAT REG ISTRATION OF SALE OF FLAT COMMENCED ON 21.02.2012 , THE GDA STAT ED THAT THE DATE OF COMPLETION OF THE PROJECT IS 21.02.2011. THE ASSESSING OFFICER ALSO SUBMITTED A COPY OF THE REPORT OF THE COMMITTEE. IT ALSO GAVE THE MINUTES OF THE COMMITTEE OF GDA. THE ASSESSEE GIVEN AN OPPORTUNITY AND SUBMITTED ITS REJOINDER OF 21.02.2015, WHICH IS AS PER PARA NO. 5.1.4 OF THE ORDER OF THE LD. CIT (APPEALS). THE LD. CIT (APPEALS) ALSO PUT BEFORE T HE ASSESSEE THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN CIT VS. GLOBAL REALITY DATED 21.08.2015 WHEREIN IT WAS HELD THAT ISSUANCE OF COMPLETION CERTIFICATE AFTER CUT-OFF DA TE BY LOCAL AUTHORITY MENTIONED THE COMPLETION OF THE DATE OF P ROJECT BEFORE CUTOFF DATE DOES NOT FULFILL THE REQUIRED CONDITION OF SECTION 80IB (10) OF THE ACT. THE ASSESSEE SUBMITTED THAT THE C ASE OF THE ASSESSEE ON FACTS IS QUITE DIFFICULT. ASSESSEE ALS O SUBMITTED A LETTER OF THE INSTALLER OF LIFT STATING THAT THE LI FTS WERE INSTALLED ON 3.12.2011. THE LD. CIT (APPEALS) HELD THAT IT IS C LEAR THAT INSPECTION OF THE SITE HAD NOT TAKEN PLACE BEFORE T HE CUT-OFF DATE ON OR BEFORE 31.03.2012. HE FURTHER NOTED THAT THE COMMITTEE ITSELF WAS CONSTITUTED ON 25 TH OCTOBER, 2012 I.E. AFTER THE CUT-OFF DATE AND THE INSPECTION WAS CARRIED OUT ON 29.01.20 13. HE, THEREFORE, HELD THAT THE RECOMMENDATION OF THE COMM ITTEE REGARDING COMPLETION OF THE PROJECT IS NOT SUPPORTE D BY INSPECTION OF THE SITE BEFORE CUT-OFF DATE. HE FURT HER HELD THAT COMPLETION CERTIFICATE MERELY BASED ON DATE OF REGI STRATION OF SALE OF FLAT ONLY. HE FURTHER NOTED THAT WITH RESP ECT TO THE INSTALLATION OF THE LIFT WITH THE ASSISTANT DIRECTO R OF ELECTRIC SECURITY, GHAZIABAD, VIDE LETTER DATED 3.12.2011 CE RTIFIED THAT THE INSTALLATION OF LIFT IS SATISFACTORY. HOWEVER, SOME OF THE LIFTS HAVE BEEN HANDED OVER ON 17.11.2011, 27.02.2012 AND 31.01.2012. THUS, ACCORDING TO HIM NONE OF THE LIF TS HAS BEEN INSTALLED BEFORE THE REGISTRATION OF SALE OF FLATS. HE, THEREFORE, NOTED THAT THE REGISTRATION OF ONE UNIT ON 21.02.20 11 WAS PRIOR TO HANDING OVER OF THE LIFT TO THE APPELLANT AND, T HEREFORE, THE PLEA THAT DATE OF REGISTRATION SHOULD BE TAKEN AS T HE DATE OF ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 10 COMPLETION OF PROJECT IS DE VOID OF MERIT. HE THERE AFTER REFERRED TO THE RATIO OF THE HONBLE MADHYA PRADESH HIGH COURT IN CIT VS. GLOBAL REALITY (2015) 62 TAXMAN.COM 204 HELD THAT T HE APPELLANT HAS FAILED TO FULFIL THE CONDITION OF CLAUSE (A) OF SECTION 80IB (10) OF THE ACT. HE CONFIRMED THE DISALLOWANCE OF THE CL AIM UNDER SECTION 80IB (10) TO RS.13,00,15,605/-. 09. THE ASSESSEE ALSO CHALLENGED THE LEVY OF INTERE ST UNDER SECTION 234B AND 234C OF THE ACT. ASSESSEE SUBMITT ED THAT AS PER PARA NO. 6 OF THE ASSESSMENT ORDER THE APPELLAN T HAD SOLD 10,000 EQUITY SHARES OF M/S. GUL PROPERTIES PVT. LT D. FOR RS.200 CRORES. OUT OF THIS, ASSESSEE RECEIVED RS.127 CROR ES IN THE FINANCIAL YEAR 2007-08. THE ASSESSING OFFICER STAT ED THAT ASSESSEE HAS CONSIDERED THE DATE OF SALE ON 30.03.2 012. HOWEVER, ASSESSEE HAS RECEIVED MORE THAN 51% OF CONS IDERATION IN PREVIOUS YEARS. THE ASSESSEE OUGHT TO HAVE PAID THE ADVANCE TAX DURING THE YEAR. AS ASSESSEE HAS FAILED TO DO SO, THE ASSESSING OFFICER COMPUTED THAT INTEREST LIABILITY UNDER SECTION 234B & 234 C OF THE ACT OF RS. 4.8 CRORES. 10. THE ASSESSEE CONTENDED THAT THE ISSUE IS SQUARE LY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE CO -ORDINATE BENCH IN THE CASE OF RAM S. SARDA VS. DCIT (2012) 1 3 ITR (T) 457. THE LD. CIT (APPEALS) HELD THAT IF THE ASSESS EE DOES NOT CONTEST THE LIABILITY OF ADVANCE TAX THEN ASSESSEE COULDNT QUESTION THE LIABILITY OF INTEREST UNDER SECTION 23 4B OF THE ACT. HE, THEREFORE, NOTED THAT WHEN ADVANCE TAX LIABILITY IS NOT DISPUTED, IT BECOMES A CASE OF EXERCISE OF DISCRETI ON BY THE ASSESSING OFFICER IN LEVYING OR NOT LEVYING INTERES T UNDER SECTION 234B OR 234C OF THE ACT. 11. THUS, ASSESSEE AGGRIEVED WITH THE ORDER OF THE LD. CIT (APPEALS) HAS PREFERRED THIS APPEAL BEFORE US. 12. THE LD. AR ON THE ISSUE OF COMPLETION OF THE HO USING PROJECT FOR CLAIMING DEDUCTION U/S 80 IB (10) OF TH E ACT, SUBMITTED THAT APPELLANT OBTAINED THE APPROVAL ON 2 6.09.2006 FOR DEVELOPING HOUSING PROJECT IN THE NAME OF NEO P ROJECT, PHASEI, AS ON 11056 SQ. MTRS. OF LAND SITUATED AT PLOT NO. 11, INDIRAPURAM, GHAZIABAD. THE PERMISSIBILITY OF 5 YE ARS FOR COMPLETION OF THE PROJECT ENDED ON 31 ST OF MARCH 2012. HE SUBMITTED THAT ASSESSEE SUBMITTED A REQUEST ON 15.0 2.2011 TO GDA FOR ISSUANCE OF REGISTRATION IN THE NAME OF FIR ST BUYER OF THE FLATS. ACCORDINGLY, ON 21.12.2011 THE FIRST FLAT W AS SOLD AT SAME REGISTRATION. THE ELECTRICITY BOARD ON 24.10.2011 APPROVED THE INSTALLATION OF LIFT IN VARIOUS TOWERS. THUS, ON 2 1.10.2011 THE PROCESS OF HANDING OVER OF THE POSSESSION TO RESPEC TIVE BUYERS SUBMITTED. HE FURTHER STATED THAT ELECTRICITY BOARD ON 28.11.2011 ISSUED ELECTRICITY CERTIFICATE TO THE PR OJECT. THUS, ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 11 BASED ON THIS ON 30.11.2011 THE ASSESSEE MADE AN AP PLICATION FOR ISSUANCE OF COMPLETION CERTIFICATE IN RESPECT O F THE PROJECT. HE REFERRED TO SUCH APPLICATION PLACED AT PAGE NOS. 65 OF THE PAPER BOOK. HE FURTHER REFERRED TO THE LETTER DATED 21.02.2013 ISSUED BY GDA CONFIRMING THE DATE OF COMPLETION I.E . 21.02.2011. HE FURTHER STATED THAT THE GDA ONCE AGA IN CONFIRMED TO THE ADDL. CIT DURING THE REMAND PROCEE DINGS ABOUT THE DATE OF COMPLETION AT 21.02.2011. SUCH COMMUNI CATION DATED 3.09.2015 WAS ALSO SUBMITTED. HE FURTHER STAT ED THAT BEFORE 31.03.2012 I.E. THE CUT-OFF DATE 296 FLATS W ERE ALREADY REGISTERED IN FAVOUR OF BUYERS BY THE GDA. THIS IT SELF SHOWS THAT THE PROJECT WAS IN FACT COMPLETED BEFORE THE CUT-OF F DATE. HE FURTHER REFERRED TO THE DECISION OF THE HONBLE DELH I HIGH COURT IN CIT VS. CHD DEVELOPERS LTD. IN 362 ITR 177 (DEL.) HE SPECIFICALLY REFERRED TO PARA NO. 7 WHEREIN PARA 8. 16 IDENTICAL FACTS WERE CONSIDERED. HE ALSO REFERRED TO PARA NO. 9 OF THAT DECISION. HE REFERRED TO PARA NO. 10 OF THAT DECISI ON WHEREIN THE CLAIM OF THE ASSESSEE WAS ALLOWED FOLLOWING THE DEC ISION OF THE HONBLE GUJARAT HIGH COURT AND HONBLE KARNATAKA HIGH C OURT. HE FURTHER REFERRED TO A DECISION FROM PAPER BOOK WH ERE SEVERAL DECISIONS OF THE CO-ORDINATE BENCH WERE RELIED UPON . HE FURTHER STATED THAT THE DECISION OF THE HONBLE MADHYA PRADE SH HIGH COURT IN CIT VS. GLOBAL REALITY 379 ITR 107 (M.P.) RELIED UPON HEAVILY BY THE LD. CIT (APPEALS) FOR CONFIRMING THE DISALLOWANCE OF DEDUCTION HAS ALREADY BEEN STAYED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 8.07.2019. HE, THEREFORE, SU BMITTED THAT THIS DECISION CANNOT BE APPLIED TO THE FACTS OF THE CASE OF THE ASSESSEE. HE FURTHER EVEN DISTINGUISHED THE FACTS O F THAT CASE AND STATED THAT IT SHOULD NOT BE APPLIED. HE EXTEN SIVELY REFERRED TO THE PROVISIONS OF SECTION 80IB (10) OF THE ACT. HE FURTHER SUBMITTED THAT THE FACT OF COMPLETION BEFORE THE CU T-OFF DATE IS ALSO SUPPORTED BY CERTIFICATE OF ARCHITECT. HE FURT HER STATED THAT THOUGH CIT (APPEALS) FOR THIS ASSESSMENT YEAR HAS N OT ALLOWED THE CLAIM OF THE ASSESSEE. HOWEVER, HE REFERRED TO THE ORDER OF THE LD. CIT (APPEALS) DATED 23.01.2018 FOR ASSESSME NT YEAR 2013-14 AND ORDER DATED 10.05.2018 FOR ASSESSMENT Y EARS 2014-15 AND 2015-16 WHEREIN THE CLAIM OF THE ASSESS EE WAS THOROUGHLY DISCUSSED AND THE ADDITION ON ACCOUNT OF DISALLOWANCE OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS ALLOWED. HE, THEREFORE, SUBMITTED THAT THE CLAIM OF THE ASSESSEE DESERVES TO BE ALLOWED. 13. THE LD. DR HEAVILY RELIED UPON THE ORDER OF THE LD. ASSESSING OFFICER AND THE CIT (APPEALS). HE ALSO EX TENSIVELY RELIED ON THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN CIT VS. GLOBAL REALITY AND STATED THAT THE ISSUE IN THE CASE OF THE ASSESSEE IS SQUARELY COVERED AGAINST THE ASSESS EE. IT WAS FURTHER STATED THAT MERELY STATING OF THE DECISION BY THE HONBLE HIGH COURT DOES NOT OBLITERATE THE BINDING PRECEDENT OF THE ORDER ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 12 UNLESS IT IS QUASHED. WITH RESPECT TO THE ORDER OF THE LD. CIT (APPEALS) IN SUBSEQUENT YEARS HE SUBMITTED THAT THE APPEALS FOR ASSESSMENT YEARS 2014-15 AND 2015-16 HAVE BEEN DISM ISSED BY THE CO-ORDINATE BENCH ON ACCOUNT OF LOW TAX EFFECT AND APPEAL FOR ASSESSMENT YEAR 2013-14 IS PENDING BEFORE THE CO-OR DINATE BENCH. THUS, MOREOVER THE ORDERS OF CIT (APPEALS) AS THEY HAVE BEEN CHALLENGED BEFORE THE HIGHER FORUM CANNOT BE A N ON-GOING FORCE FOR APPEAL AT HIGHER FORUM. IN VIEW OF THIS HE SUBMITTED THAT THE ORDER OF THE LOWER AUTHORITIES SO FAR AS D ISALLOWANCE OF DEDUCTION UNDER SECTION 80IB (10) IS CONCERNED IS R EQUIRED TO BE UPHELD. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ON AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE F ACTS ARE CLEARLY STATED IN THE ABOVE PARAGRAPHS THAT THE APPROVAL OF THE HOUSING PROJECT WAS GRANTED ON 26 SEPTEMBER 2006. THEREFOR E, THE PROJECT IS REQUIRED TO BE COMPLETED WITHIN FIVE YEA RS FROM THE END OF THE YEAR IN WHICH THE APPROVAL WAS GRANTED. THUS, THE PROJECT SHOULD HAVE BEEN COMPLETED BY 31 ST OF MARCH 2012. THE ASSESSEE FILED AN APPLICATION BEFORE THE GHAZIABAD DEVELOPMENT AUTHORITY FOR ISSUE OF COMPLETION CERTIFICATE ON 30 NOVEMBER 2011, WHICH IS PLACED AT PAGE NUMBER 65 OF THE PAPE R BOOK. ALONG WITH THE APPLICATION, THE ASSESSEE SUBMITTED THE DRAWINGS OF THE BUILDINGS DULY SIGNED BY THE ARCHITECT, THE LANDSCAPING WORK AS PER THE SANCTION DRAWINGS, NO OBJECTION FOR OPERATING THE LEFT, DRAWINGS, MARK PARKING PLAN, AND SITE PLAN MA RKET WITH SETBACK. THE ASSESSEE REQUESTED GHAZIABAD DEVELOPM ENT AUTHORITY TO ISSUE THE COMPLETION CERTIFICATE OF TH E PROJECT. THE ASSESSEE HAS ALSO OBTAINED A CERTIFICATE DATED 17 A UGUST 2012 FROM M/S JAISWAL & ASSOCIATES, ARCHITECTS, PLANNERS , AND ENGINEERS WHO CERTIFIED THAT THE ASSESSEE HAS DEVEL OPED TWO BEDROOM APARTMENTS AT PLOT NUMBER 11, VAIBHAV KHAND , INDRAPURAM, GHAZIABAD UNDER THE PROJECT NAME SHIPR A NEO. THE APPROVAL OF THE PLAN FOR CONSTRUCTION OF THE DE VELOPMENT WAS GRANTED BY THE GHAZIABAD DEVELOPMENT AUTHORITY ON 2 6/09/2006 ON A TOTAL PLOT AREA AT 11,055.99 M. THE BUILT-UP AREA OF THE APARTMENT WAS ALSO VERIFIED AND IT WAS CERTIFIED TH AT THE BUILT-UP AREA OF TWO BEDROOM FLAT CONSISTING OF 346 LAKHS IN SEVEN BLOCKS HAVING THE HIGHEST BUILT-UP AREA OF ONE UNIT OF FLA TS IN SQUARE FEET OF 999.23 FT TO THE LOWEST BUILT-UP AREA OF 934.01 1 FT. IT WAS ALSO CERTIFIED THAT THE PROJECT HAS BEEN COMPLETED AND THE POSSESSION HAS ALREADY BEEN GIVEN TO THE CUSTOMERS DURING FINANCIAL YEAR 2011 2012. CONSEQUENT TO THE ABOV E REQUEST OF THE ASSESSEE DATED 30 NOVEMBER 2011 TO THE GHAZIABA D DEVELOPMENT AUTHORITY, ON 21 FEBRUARY 2013, IT ISSU ED A LETTER FOR PAYMENT OF FEES OF 3,243,830/ AND COMPLETION CERTIFICATE STATING THAT DATE OF COMPLETION OF THE PROJECT IS A CCEPTED AS 21 ST OF FEBRUARY 2011. THE FEE WAS ALSO CHARGED FROM TH E ASSESSEE FROM 1/4/2006 TO 21 ST /2/2011. FURTHER, IT WAS ALSO NOTED THAT ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 13 THE FLAT WAS REGISTERED IN FAVOUR OF THE BUYER ON 2 1 FEBRUARY 2011, WHICH WAS REQUESTED AS PER LETTER DATED 15 FE BRUARY 2011 TO GHAZIABAD DEVELOPMENT AUTHORITY TO REGISTER A FL AT NUMBER SNC 1104. ALONG WITH THIS LETTER, THE ASSESSEE H AS ALSO SUBMITTED, AND IT STATED THAT THE CONSTRUCTION OF A BOVE- MENTIONED FLAT IS ACCORDING TO THE APPROVED MAP AND THEREFORE THE ABOVE LET MAY BE REGISTERED IN THE NAME OF THE BUYER. FURTHER, THE COMMITTEE CONSTITUTED BY THE GHAZIABAD DEVELOPMENT AUTHORITY ALSO CERTIFIED THAT THE DATE OF COMPLETION OF THE ABOVE PROJECT IS 21 FEBRUARY 2011. FURTHER, A LETTER WAS ISSUED BY GHAZIABAD DEVELOPMENT AUTHORITY ON 13 TH OF MARCH 2015 TO THE ASSESSEE WHEREIN ALSO THE DATE OF COMPL ETION IS STATED TO BE 21 ST /2/2011. THUS ACCORDING TO THE SALE DEED EVEN THE BUYER IS ACCEPTED THE POSSESSION OF THE ABOVE P ROPERTY IN ITS COMPLETENESS. FURTHER, ON PAGE NUMBER 104 OF THE P APER BOOK THE ASSESSEE HAS SUBMITTED THE LIST OF LATE BUYER W HOSE POSITION HAS BEEN GIVEN TO THEM BEFORE 31 ST OF MARCH 2012. ASSESSEE HAS GIVEN A LIST OF 102 SUCH BUYERS WHO HAVE BEEN ALLOT TED FLATS, POSSESSION IS GRANTED AND THE SALE DEED IS REGISTER ED. WHEN THE LEARNED ASSESSING OFFICER ASKED THE GHAZIABAD DEVEL OPMENT AUTHORITY TO STATE THE COMPLETION DATE OF THE ABOVE PROJECT, A LETTER DATED 3 SEPTEMBER 2015 WAS ISSUED BY THE GHA ZIABAD DEVELOPMENT AUTHORITY TO ADDITIONAL COMMISSIONER OF INCOME TAX STATING THAT THAT APPROVAL OF THE PLAN WAS GRANTED ON 1 APRIL 2006 AND THE FLATS IN THE ABOVE PROJECT WERE REGIST ERED ON 21 FEBRUARY 2011 AND THEREFORE THE DATE OF COMPLETION HAS BEEN TAKEN AT 21 FEBRUARY 2011. THE LEARNED ASSESSING O FFICER ALSO ASKED THE FURTHER INFORMATION AND THEREFORE IT GAVE THE INFORMATION THAT THE COMMITTEE CONSTITUTED INSPECTE D THE PROPERTY ON 29 TH OF JANUARY 2013. THEREFORE THE LEARNED ASSESSING OFFICER WAS OF THE VIEW THAT WHEN THE INS PECTION OF THE PROPERTY HAS TOOK PLACE ONLY ON 9 JANUARY 2013 THE DATE OF COMPLETION COULD NOT HAVE BEEN CERTIFIED BY THE GHA ZIABAD DEVELOPMENT AUTHORITY ON 21 ST OF FEBRUARY 2011. THE ASSESSEE HAS ALSO RELIED ON THE UTTAR PRADESH APARTMENT (PRO MOTION OF CONSTRUCTION, OWNERSHIP AND MAINTENANCE) ACT, 2010 WHEREIN IT HAS BEEN PROVIDED THAT THAT ANY APARTMENT CAN BE TR ANSFERRED BY THE PROMOTER TO ANY PERSON ONLY AFTER OBTAINING THE COMPLETION CERTIFICATE FROM THE PRESCRIBED SANCTIONING AUTHORI TY IS FOR BUILDING BYLAWS. IT WAS FURTHER PROVIDED THAT IF T HE COMPLETION CERTIFICATE IS NOT ISSUED BY THE PRESCRIBED SANCTIO NING AUTHORITY WITHIN THREE MONTHS OF THE SUBMISSION OF THE APPLIC ATION BY THE PROMOTER COMPLETE WITH ALL CERTIFICATES AND OTHER D OCUMENTS REQUIRED, THE SAME SHALL BE DEEMED TO HAVE BEEN ISS UED AFTER THE EXPIRY OF THREE MONTHS. IT ALSO SPECIFIES THAT THE COMPLETION MEAN THE COMPLETION OF THE CONSTRUCTION WORK OF A B UILDING AS A WHOLE OR THE COMPLETION OF AN INDEPENDENT BLOC OF S UCH BUILDING. IN VIEW OF THIS THE CLAIM OF THE ASSESSEE IS THAT A CCORDING TO THAT LAW WHEN THE ASSESSEE APPLIES FOR COMPLETION CERTIF ICATE TO ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 14 RESPECTIVE AUTHORITY, AND SAME IS NOT GRANTED WITHI N THREE MONTHS OF SUCH REQUEST, THE COMPLETION CERTIFICATE IS DEEMED TO HAVE BEEN GRANTED TO THE ASSESSEE AFTER THE EXPIRY OF THREE MONTHS. IN THE PRESENT CASE, THE ASSESSEE MADE AN APPLICATION ON 30 NOVEMBER 2011; THEREFORE, ON THIS GROUND ALSO THE COMPLETION DATE IS WITHIN THE FIVE YEARS LIMITA TION. IT IS ALSO INTERESTING TO NOTE THAT FOR ASSESSMENT YEAR 2013 14 IDENTICALLY THE DEDUCTION U/S 80 IB 10 WAS DISALLOWED BY THE LE ARNED ASSESSING OFFICER HOWEVER ON APPEAL BEFORE THE LEAR NED AND CIT A ALLOWED THE CLAIM OF THE ASSESSEE WIDE ORDER DATE D 23 JANUARY 2018. FURTHER, SIMILARLY FOR ASSESSMENT YEAR 2014 15 ALSO THE LEARNED CIT APPEAL ALLOWED THE CLAIM OF THE ASSESSE E AS PER ORDER DATED 10 MAY 2018. HOWEVER, BOTH THESE ORDERS ARE IN CHALLENGE BEFORE THE COORDINATE BENCH. HOWEVER, THE REASONS GIVEN THEREIN ARE REQUIRED TO BE CONSIDERED. AN IN TERESTING FACT HAS BEEN RECORDED BY THE LEARNED CIT A FOR ASSESS MENT YEAR 2013 14 THAT DURING THE FINANCIAL YEAR 2010 11 FIVE OF THE UNITS GOT REGISTERED IN FAVOUR OF THE CUSTOMERS BY THE APPELLANT COMPANY AND ANOTHER 291 UNITS WERE TRANSFERRED IN F INANCIAL YEAR 2011 12 OUT OF THE TOTAL 346 UNITS CONSTRUCTED BY THE ASSESSEE. THUS 86% OF THE TOTAL UNITS WERE REGISTERED IN THE NAME OF THE ULTIMATE CUSTOMERS BEFORE THE END OF THE FINANCIAL YEAR 2011 12, WHICH IS ALSO THE CUT-OFF DATE FOR GETTING THE COMPLETION CERTIFICATE. THEREFORE, IT WAS HELD THAT THAT THE PROJECT OF THE ASSESSEE WAS COMPLETED MUCH BEFORE THE CUT-OFF DATE AS PER THE PROVISIONS OF THE ACT I.E. 31 ST OF MARCH 2012. THE LEARNED CIT A NOTED THAT THAT THE HONOURABLE M P HIGH COURT HAS T AKEN A VIEW IN FAVOUR OF THE STRICT INTERPRETATION OF THE STATU TE AS RELIED UPON BY THE LEARNED ASSESSING OFFICER. HE ALSO NOTED THA T THE HONOURABLE MADRAS HIGH COURT IN 29 TAXMANN.COM 386, HONOURABLE GUJARAT HIGH COURT IN 362 ITR 174, HONOURA BLE DELHI HIGH COURT IN 362 ITR 177, HONOURABLE BOMBAY HIG H COURT IN 377 ITR 150 AND VARIOUS COORDINATE BENCHES HAVE TAKEN A VIEW WHICH IS IN FAVOUR OF THE ASSESSEE. THE LEARN ED CIT A HAS NOTED THAT THERE IS NO DECISION OF THE HONOURABLE JU RISDICTIONAL HIGH COURT EITHER AGAINST THE ASSESSEE OR IN FAVOUR OF THE ASSESSEE. THEREFORE, HE, RELYING ON THE DECISION O F THE HONOURABLE SUPREME COURT IN THE CIT VERSUS VEGETABL E PRODUCTS LTD (1973) 88 ITR 192 DECIDED THE ISSUE IN FAVOUR O F THE ASSESSEE. COMING TO THE DECISION OF THE HONOURABLE MADHYA PRADESH HIGH COURT IN 379 ITR 107, WHICH HAS BEEN RE LIED UPON BY THE LEARNED ASSESSING OFFICER AND CIT-A FOR DE NYING THE BENEFIT U/S 80 IB (10) OF THE ACT TO THE ASSESSEE O N THE ISSUE OF THE COMPLETION CERTIFICATE HAS BEEN STAYED BY THE HO NOURABLE SUPREME COURT IN CIT VERSUS GLOBAL ESTATES IN SLP N UMBER 35004 05/2015. HOWEVER, STAY OF A JUDGMENT DOES N OT OBLITERATE THE PRINCIPLES LAID DOWN THEREIN, HOWEVE R, WHERE THERE ARE SEVERAL JUDICIAL PRECEDENTS OF HONOURABLE HIGH C OURTS IN FAVOUR OF THE ASSESSEE, SAME SHOULD BE FOLLOWED IN THE GIVEN ITA NO.2294/DEL/2018 SHIPRA ESTATE LTD. 15 CIRCUMSTANCES. IN VIEW OF THIS, WE HOLD THAT THE D ATE OF COMPLETION OF THE PROJECT HAS CORRECTLY BEEN CLAIME D THAT 21 ST OF FEBRUARY 2011 AND IT IS IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 80 IB (10) OF THE INCOME TAX ACT. ACCORDIN GLY, WE ALLOW GROUND NUMBER [1] OF THE APPEAL OF THE ASSESSEE. 11. SINCE, THE MATTER STANDS COVERED BY THE EARLIER ORDER OF THE TRIBUNAL AND THE ACTION OF THE REVENUE IS INCOR RECT ON THE FACTS OF COMPLETION CERTIFICATE, WE DECLINE TO INTE RFERE WITH THE ORDER OF THE LD. CIT(A). 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/08/2021. SD/- SD/- (AMIT SHUKLA) (DR. B. R. R. KUMAR) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED: 06/08/2021 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR