DEVISHA INFRASTRUCTYURE P.LTD, MUMBAI V. ADDL CIT 6(2), MUMBAI

ITA 3945/MUM/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9794 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 09-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G L V PRASAD
• Section: 80IB

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI AMARJIT SINGH ( J M) I.T.A. NO. 3945 /MUM/ 201 6 (ASSESSMENT YEAR 20 11 - 12 ) M/S. DEVISHA INFRASTRUCTURE PVT. LTD. 5 TH FLOOR MILITIA APARTMENT M.P. ROAD, MAZGAON MUMB AI - 400 003. PAN : AACCD5192R V S . ADDL. CIT, RANGE - 6(2) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI BHUPENDRA SHAH DEPARTMENT BY SHRI G.L.V. PRASAD DATE OF HEARING 30.1 . 201 9 DATE OF PRONOUNCEMENT 11 . 4 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE OR DER OF LEARNED CIT(A) DATED 21.2.2016 AND PERTAINS TO A.Y. 20 11 - 12 . 2. GROUNDS OF APPEAL READ AS UNDER : THE COMMISSIONER OF INCOME TAX APPEAL - 8 (HEREI NAFTER REFERRED AS 'CIT') HAS ERRED IN CONFIRMING THE ADDITION MADE BY LEANED ASSESSING OFFICER OF DEDUCTION CLAIM MADE BY THE APPELLANT U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 OF RS. 57,89,55,065/ - WITHOUT CONSIDERING THE FACTS AND ALSO BY WRONG INTERPR ETATION OF THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. IT IS SUBMITTED THAT THE APPELLANT HAS CLAIMED DEDUCTION U/S. 80IB(10) OF THE ACT IN RESPECT OF ITS PROJECT - 'HEX BLOX' AFTER COMPLYING WITH ALL THE CONDITIONS PRESCRIBED U/S. 80IB(10) OF THE ACT. IN THIS REGARD, THE APPELLANT HAS MADE A DETAILED SUBMISSION/EXPLANATION WITH REGARD TO THE SUCH DEDUCTION CLAIMED U/S. 80IB(10) OF THE ACT AND RELEVANT DOCUMENTS WERE ALSO SUBMITTED DURING THE ASSESSMENT PROCEEDING. THE CIT ERRED IN REJECTION THE APPELLA NT'S CLAIM OF SECTION 80IB (10) OF THE ACT 2 AND CONFIRMING THE ADDITION MADE BY LEARNED ASSESSING OFFICER ON THE FOLLOWING BASIS: THE CIT ERRED IN CONFIRMING THE ALLEGING THAT APPELLANT HAS VIOLATED THE PROVISIONS OF NEWLY INSERTED CLAUSE (E) AND CLAUSE (F ) TO SECTION 80IB(10) OF THE ACT BY ALLOTTING THE MULTIPLE UNITS TO PERSONS NOT BEING INDIVIDUAL, INDIVIDUALS AND THEIR RELATIVES. IT IS SUBMITTED THAT APPELLANT HAS COMPLIED WITH ALL THE PROVISIONS AS PRESCRIBED IN SECTION 80IB(10) OF THE ACT AND IN THIS REGARD DETAILED SUBMISSIONS MADE DURING THE ASSESSMENT PROCEEDINGS, HOWEVER THE LEARNED AO FAILED TO TAKE COGNISANCE OF THE SAME AND MISINTERPRETED THE RESTRICTIVE PROVISIONS OF THE ACT. IT IS SUBMITTED THAT APPELLANT HAS PROVIDED COMPLETE DETAILS ALONG W ITH SUPPORTING AND EXPLANATIONS FOR COMPLYING EACH OF THE CLAUSES PRESCRIBED IN SECTION 80IB (10) OF THE ACT. IT IS THEREFORE PRAYED TO YOUR HONOUR TO ALLOW DEDUCTION AS CLAIMED BY THE APPELLANT U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 IN FULL AND NECESSA RY DIRECTION SHOULD BE GIVEN IN THIS REGARD. WITHOUT PREJUDICE TO ABOVE, EVEN IF THE APPELLANT HAS VIOLATED THE PROVISIONS OF THE ACT, DEDUCTION U/S. 80IB(10) OF THE ACT SHALL BE ALLOWED ON PRORATE BASIS. YOUR APPELLANT CRAVES TO ADD, ALTER, OR AMEND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF APPEAL. 3. BRIEF FACTS ARE T HE ASSESSEE COMPANY HAD UNDERTAKEN A HOUSING CONSTRUCTION PROJECT NAMED 'HEX BLOX' AT PLOT ; NO;269 IN SECTOR 10, UNDER 12 .5 % SCHE ME O F CIDC O, VILLAGE KHARGHAR (KOPAR A) NODE,TALUKA PANVEL, DISTRICT RAIGAD I N NAVI MUM BAI. THE LAND, ADMEASURI NG 15381.18 SQ METERS, WAS ORIGINALLY LEASED OUT TO SHRI GOVIND BALYA BHAGAT AND O THERS [ORIGINAL LESSEES] BY CIDC O VIDE LEASE DEED DATED 01.12.2006 FOR A LEASE PREMIUM OF RS.3,10,00 0/ - . THE LEASE RIGHT WAS L ATER ON TRANSFERRED BY THE O RIGINAL LESSEES IN FAVOUR OF M /S. SHI VYASH DEVELO PERS; [ SECOND LESSEE ] : VIDE A TRIPARTITE AGREEMENT DATED 29.01 . 2007 BETWEEN C IDCO, ORIGINAL LESSEESS AND THE SECO ND LESSEE . M/S. SH I VYASH DEVELO PE RS [SECOND LESSEE], APPLIED FOR SUB - DIVISION OF THE SAID LAND INTO TWO PLOTS (I) PLOT NO. 253 LAND 254 ADMEASURING 5381.19 SQUARE METERS AND ( II ) PLOT NO.2 6 9 AD MEASURING 9999.99 SQ METERS. THEREAFTER THE SECOND PLOT ADMEASURING 9999:99 SQ METERS W AS ASSI GN ED TO 3 THE ASSE SSEE COMPANY VIDE A TRIPARTITE, AGREEMENT DATED 23.03 . 2007. AS PER THE AG REEMENT OF ASSIGNMENT DATED 27.02.2007, M/ S. SHIVYASH DEVEL O PERS (SECOND LESSEE) AGREED TO TRANSFER THE LEASE RIGHTS OF THE PLOT ADMEASURING 10000 SQ METERS FOR A CONSID ERATION OF RS. 6,01,00,000/ - IN FAVO UR OF THE ASSESSEE COMPANY. THE COMMENCEMENT CERTIFICATE WAS ISSUED IN THE NAME OF THE ASSESSEE COMPANY ON 29/03/2 0 07 BY THE ADDITI O NAL TOWN PLANNING OFFICER OF CIDCO VIDE REF.NO . CI DCO/ATPO/659 DATED 29.03.2007 FOR CONSTRUCTION 320 RESIDENTIAL UNITS A WING TO F WING - HAVING STILT PLUS 17 FLOORS, HAVING A BUILT UP AREA OF 14,998.70 SQ METERS. THE PROJECT WAS ISSUED O CCUPANCY CERTIFICATE' ON 19. 10.2010 BY THE ADDITI ONAL T OWN PLANNING OFFICER OF CIDCO. THE PROJECT N AMED AS HEX BLOX , COMPRISED TO 320 RESIDENTIAL UNITS CONSTRUCTED OVER 6 TOWERS HAVING 17 FLOORS EACH. THE BUILT UP ARE OF EACH UNIT AS PER ARCHITECTS CERTIFICATE IS AROUND 56 M2 I.E., EQUIVALENT TO 603 SQUARE FEET . T HE ASSESSEE COMPAN Y HAS REPORTEDLY FO LLOWED 'PROJECT COMPLETION METHOD' AND FOR THE FIRST TIME IT , IT RECOGNIZED REVENUE FROM SALE OF UNITS IN THE PROJECTS IN F.Y. 2010 - 11, RELEVANT TO A.Y. 2011 - 12 UNDER SCRUTINY. 280 FLATS OUT OF 320 HAVE BEEN BOOKED AS 'SOLD' DURING THE RELEVANT PREVIOUS YE AR FOR A TOTA L CON SIDERATION OF RS. 11 9 , 23,44,051/ - RESULTING I N A PROFIT OF RS. 5 7,71,85,077/ - WHICH IS CLAIMED AS DEDUCTION U/S. 80IB(10) OF THE ACT. T HE ASSESSING OFFICER IN THIS CASE REFERRED TO THE PROVISIONS OF SECTION 80IB(10 ) OF THE ACT. AUDIT REPO RT IN FORM 10CCB, TAX AUDIT REPORT IN FORM 3CD. HE F OU ND THAT ASSESSEE HAS VIOLATED THE PROVISIONS OF THE ACT AS CONTAINED IN CLAUSE (E) & (F) OF SECTION 80IB(10) . HE OBSERVED AS UNDER : - THUS, THE MULTIPLE ALLOTMENTS IN VIOLATION OF SECTION 80IB(10 ) (E) AND (F) IS SEEN UNDER FOUR DIFFERENT SITUATIONS: - UPTO A.Y. 2011 - 12 (I) CASES WHERE THE BOOKING AND ALLOTMENT WERE PURPORTEDLY DONE IN PRE AMENDMENT PERIOD BUT SUBSTANTIAL PAYMENTS AND REGISTRATION OF SALE DEED HAS TAKEN PLACE IN POST AMENDMENT PERIOD; 4 (II) CAS ES WHEREIN BOTH FIRST ALLOTMENT AND THE BOOKING WERE PURPORTEDLY DONE IN PRE AMENDMENT PERIOD BUT SECOND BOOKING AND ALLOTMENT WERE DONE ONLY IN POST AMENDMENT PERIOD. (III) ALL MULTIPLE BOOKING AND ALLOTMENTS WERE DONE IN POST AMENDMENT PERIOD ONLY TO THE SAM E PERSON OR MEMBERS OF THE FAMILY. AFTER A.Y. 2011 - 12 (IV) LATER ASSESSMENT YEARS WHERE ENTIRE BOOKING AND ALLOTMENT WERE DONE ONLY IN POST AMENDMENT PERIOD IN TOTAL VIOLATION OF SECTION 80IB(10)(E) AND (F). THEREAFTER AO GAVE A CHART OF F L ATS GIVEN IN VIO LATION OF THE PROVISIONS AND OBSERVED THAT PROPER EXPLANATION IN THIS REGARD HAS NOT BEEN GIVEN. 4. THEREAFTER THE ASSESSING OFFICER DISCUSSED THE ISSUE AND REFERRED TO SEVERAL CASE LAWS AND CONCLUDED AS UNDER : - 2 .38 FOR THE REASONS AS DISCUSSED SUPRA , AND ON THE BASIS OF CLEAR FINDING OF FACT THAT THE ASSESSEE COMPANY HAS NOT COMPLIED WITH THE PROVISIONS OF SECTION 80IB(10(E) & (F) IN POST AMENDMENT PERIOD, THE DEDUCTION OF RS. 57,63,91,353/ - CLAIMED BY THE ASSESSEE UNDER SECTION 80IB(10) IS HEREBY DI SALLOWED AND THE ENTIRE INCOME FROM THE PROJECT IS BROUGHT TO TAX ACCORDINGLY. 2.35 EVEN OTHERWISE, WHEN AS MANY AS 230 OUT OF 309 UNITS HAVE BEEN SOLD TO PERSONS AND - INDIVIDUALS COMING UNDER THE DEFINITION OF CLAUSE (E) AND (F), NO SUCH LIBERAL OR P RO RATE ALLOWANCE CAN BE JUSTIFIABLY ARGUED ON ANY COUNTS. DOING SO, WOULD ONLY BE A TRAVESTY OF JUSTICE WHICH WILL RESULT IN BRINGING TO NAUGHT THE VERY PURPOSE OF THE AMENDMENTS. THE CLAIM OF LIBERAL INTERPRETATION AND PRO RATA ALLOWANCE OF DEDUCTION AS IT STOOD BEFORE THE AMENDMENT ARE NO LONGER LEGALLY SANCTIONED AFTER THE INTRODUCTION OF CLAUSE (E).AND (F) WHICH ARE BASICALLY AIMED AT PREVENTING SUCH MISCHIEF AFTER THE RELEVANT DATE. WHEN THE ASSESSEE COMPANY HAS CONSCIOUSLY CHOSE TO PERPETRATE THE SAM E MISCHIEF EVEN AFTER THE VERY INTRODUCTION OF THE PROHIBITIVE CLAUSES, THEN, NO TENABLE CLAIM CAN BE MADE ON THE GROUNDS OF LIBERAL INTERPRETATION AND OR PRO RATA BENEVOLENCE. 2.36 THEREFORE, I T IS NOT EVEN A DISPUTE AS TO THE EFFECTIVE DATE OF THE AM ENDED PROVISIONS, NAMELY 19.08,2009 AS PER BOARD'S CIRCULAR VERSUS 01. 04.2010 AS PER THE AMENDMENT. ON, BOTH COUNTS, THE ASSESSEE COMPANY HAS FAILED TO COMPLY WITH THE PROVISIONS AND CONTINUE TO DO SO, THAT TOO ON - SUCH A LARGER SCALE, IN L ATER YEARS AS POI NTED OUT EARLI ER. 5 2.37 IN VIEW OF THE ABOVE IT IS HELD THAT : (I) THE ASSESSEE COMPANY HAS NOT COMPLIED WITH THE PROVISIONS OF SECTION 801B(10), AS MANDATED UNDER CLAUSE (E) AND ALSO CLAUSE (F) AFTER THE COMING I NTO EFFECT OF SUCH AMENDED PROVISIONS. (II) ON ITS FAILURE TO COMP L Y WITH THE SAID CLAUSES, THE ASSESSEE COMPANY 'S PROJECT ''HEX B L OX' DOES NOT QUALIFY FOR DEDUCTIONS AS CONTEMPLATED UNDER THE AMENDED PROVISIONS OF SECTION 801B(10 ) (E) AND (F). ( I II) SINCE THE QUESTION OF ELIGIBILITY HAS TO BE S EEN FROM THE PERSPECTIVE OF THE PROJECT AS A WHOL E, THE CLAIM OF THE ASSESSEE COMPANY FOR PRO RATA ALLOWANCE IS FOUND TO BE UNTENABLE UNDER THE AMENDED JAW AS DISCUSSED SUPRA. REFERENCE AND PARTICULAR RELIANCE IS PLACED ON THE CASE LAWS ON INTERPRETATION OF STATUTES AIMED AT PREVENTING M ISCHIEF AS DISCUSSED SUPRA. (V) WITHOUT PREJUDICE TO THE STATED LEGAL POSITION ON THE ISSUE , NO SUCH PRO RATA ALLOW ANCE IS WARRANTED IN ASSESSEE'S CASE EVEN ON PURE FACTS AND MERITS, CONSIDERING THE LARGE SCALE INSTANCES OF MU LTIPLE ALLOTMENTS SINCE THE BEGINNING OF THE PROJECT TO THE END, BOTH IN THE PRE AND POST AMENDMENT PERIODS. 2. 38 FOR THE REASONS AS DISCUSSED SUPRA, AND ON THE BASIS OF CLEAR FINDING OF FACT THAT THE ASSESSEE COMPANY HAS NOT COMPLIED WITH THE PROVISI ONS OF SECTION 80 IB(10) (E) AND (F) - IN POST AMENDMENT PERIOD, THE DEDUCTION OF RS.57,63,91,353/ - , CLAIMED BY THE AS SESSEE UNDER SECTION 80IB(10) IS HEREBY DISALLOWED AND THE ENTIRE INCOME FROM THE SUBJ ECT I S BROUGHT TO TAX ACCORDINGLY. 5. UPON ASSE SSEE'S APPEAL LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER HOLDING AS UNDER : - THE GROUND RELATES TO THE DISALLOWANCE OF DEDUCT ION CLAIMED U/S 80IB(10) OF RS 57,98,02,670/ - , THE APPELLANT SUBMITTED THAT THERE WERE ONLY TWO INSTANCE S OF DEFAULT AND HENCE THE DEDUCTION CLAIMED U/S 80IB ON THE INCOME OF ENTIRE PROJECT SHOULD NOT BE DISALLOWED. THE ASSESSMENT ORDER AND THE SUBMIS S ION S MADE BEFORE THE UNDERSIGNED IS CAREFULLY CONSIDERED. IN THIS CASE, THE IMPORTANT QUESTION IS THAT WHEN AMENDMENT IN SECTION 80IB(10) (E) AND (F) WAS NOT IN FORCE AND THE AMENDMENT WAS MADE SUBSEQUENTLY AND THE APPELLANT HAD GIVEN BOOKING, ALLOTMENT LETTER BEFORE THE AMENDMENT MADE BY THE FINANCE ACT (NO.2) ACT, 2009 IS APPLICABLE IN THIS CASE, 6 THE ALLOTMEN T OF UNITS/ FLATS AFTER AMENDMENT IN FINANCE ACT, 2009, I . E . , AFTER 19.08.2009 AND WHEN INCOME FROM SUCH SALE IS REPORTED, IN SUBSEQUENT YEAR I.E . , NOT DURING THE YEAR, WILL NOTIFY THE REASON FOR DISALLOWANCE U/S 80IB (1 0) FOR THE ENTIRE PROJECT. ON PERUSA L OF THE ASSESSMENT ORDER AND THE SUBMISSION MADE BEFORE ME , IT IS SEEN THAT THERE IS NO DOUBT THAT THE APPELLANT HAS COMMITTED DEFAULT IN VIEW OF NEWLY INSERTED SECTION (E) & (F) OF 80IB'(10 ) OF THE. ACT AS PER APPELLANT, THERE WAS ONLY TWO INSTANCES AND AS PER AO THERE W ERE MORE INSTANCES FOR SUCH DEFAULT . THE AO HAS MERELY RELIED ON THE SURNAMES OF THE BUYERS TO DESCRIBE AND ESTABLISH THAT THE APPELLANT HAS COMMITTED DEFAULT IN VARIOUS INSTANCES AND HAS NOT INVESTED THROUGH BUYER. NOW, THE QUESTION IS WHETHER THE ENTIR E DEDUCTION SHOULD BE DISALLOWED O N PRORATE BASIS. I DO NOT FIND ANY CAUSE OR REASON FOR PRORATE 'BASIS DISALLOWANCE WHEN THE APPELLANT HAS PURPOSELY CO MM ITTED DEFAULT AFTER KNOWING THAT THE DEDUCTION IS NOT ELIGIBLE IF THE UNITS WERE ALL OTTED TO THE PERSON REFERRED IN SECTION 80IB(10)(E) &(F). IN THIS CASE THE APPELLANT HAS NOT ONLY COMMITTED DEFAULT IN THE YEAR UNDER CONSIDERATION BUT ALSO IN THE SUBSEQUENT YEAR. THIS CLEARLY INDICATES THAT THE APPELLANT HAS COMMITTED DEFAULT PURPOSELY S O THE REQUEST MADE TO GET RELIEF ON THE BASIS OF PRORATE IS NOT ACCEPTABLE. THE HON'BLE SUPREME COURT IN THE CASE OF RELIANCE JUTE & INDUSTRIES LTD.REPORTED IN L20 I TR 921 HELD AS UNDER: 'IT I S A CARDINAL PRINCIPLE OF THE TAX LAW THAT THE LAW TO BE APPLI ED IS THAT IN FORCE IN THE ASSESSMENT YEAR UNLESS OTHERWISE PROVIDED EXPRESSLY OR BY NECESSARY IMPLICATIONS. ON TH AT PRINCIPLE , I T IS ABUNDANTLY CLEAR THAT, FOR THE ASSESSMENT YEAR 196 0 - 61, IT IS SECTION 14( 1 L) THAT IS IN FORCE IN THAT ASSESSMENT YEAR WHIC H HAS TO BE APPLIED. THERE IS NO QUESTION OF THE ASSESSEE POSSESSING ANY VESTED RIGHT UNDER THE LAW AS IT STOOD BEFORE THE AMENDMENT. THE ASSESSMENT FOR ONE ASSESSMENT YEAR CANNOT, IN THE ABSENCE OF A CONTRARY PROVISION, BE AFFECTED BY THE LAW IN FORCE IN ANOTHER ASSESSMENT YEAR. A RIGHT CLAIMED BY AN ASSESSE UNDER THE LAW I N FORCE IN A PARTICULAR ASSESSMENT YEAR I S ORDINARILY AVAILABLE ONLY IN RELATION TO A PROCEEDING PERTAINING TO THAT YEAR.' IT IS A WELL ESTABLISHED RULE: OF 'INTERPRETATION THAT ANY AME NDMENT WHICH IS IN FORCE AT THE BEGINNING OF THE RELEVANT YEAR MUST GOVERN THE CASE THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN. THE CASE OF RELIANCE JUTE. & INDUSTRIES: LTD. V/S C IT (1979) 120 ITR 921 SQUARELY .APPLY ON .THE FACTS OF THE CASE AS THE - APPELLANT HAD NOT FULFILLED THE CONDITION PRECEDENT PROVIDED UNDER SECTION - 80 IB(10) (E ) & (F) AS APPLICABLE FRONT A.Y , 2010 - 11. THERE IS NO DISPUTE T HAT THE APPELLANT 7 FULFILLED ALL CONDITION OF SECTION 80IB(10) AS IT STOOD PRIOR TO 1.4 .2010 BUT AFTER AMENDMENT, THE APPELLANT IS NOT ELIGIBLE FOR THE DEDUCTION U/S 801B (10) . WITH THE INSERTION OF CLAUSE (E) & (F) WITH EFFECT FROM 19.8.2009, NOW THERE WAS NO ALTERNATIVE TO THE APPELLANT BUT TO ALLOT THE UNIT TO THE BUYER KEEPING IN VIEW CLAUSE (E) & (F) . BUT, IN THE INSTANCE CASE, THE APPELLANT HAS NOT ONLY COMMITTED DEFAULT DURING THE YEAR BUT IN SUBSEQUENT YEAR ALSO. IN VIEW OF THE ABOVE DISCUSSION , I FIND NO INFIRMITY IN THE ASSESSMENT ORDER AND SO THE ADDITION IS CONFIRMED, HENCE GROUND OF APPEAL NO . 1 IS DISMISSED. 6. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED A PAPER BOOK CLAIMING THAT THERE HAS BEEN NO VIOLATION OF PROVISIONS OF S ECTION 80IB(10) CLAUSE E & F WHICH HAVE BEEN NEWLY INSERTED. HE SUBMITTED THAT THE ASSESSEE HAS DULY GRANTED BOOKING FOR THESE FLATS PRIOR TO AMENDMENT. HE SUBMITTED THAT ONLY THE SALE DEED WHERE REGISTER ED SUBSEQUENTLY. HE FURTHER SUBMITTED THAT AUTHORITI ES BELOW HAVE REFERRED TO INSTANCE S OF VIOLATION IN THE PERIOD SUBSEQUENT TO THE CURRENT ASSESSMENT YEAR. HE SUBMITTED THAT THIS CANNOT BE A REASON TO DENY THE ASSESSEES LEGITIMATE CLAIM IN THE CURRENT ASSESSMENT YEAR. IN THIS REGARD LEARNED COUNSEL OF TH E ASSESSEE PLACED RELIANCE ON SEVERAL CASE LAWS FOR THE PROPOSITION THAT THE DEDUCTION U/S. 80IB (10) ARE BENEVOLENT PROVISIONS AND SHOULD BE LIBERALLY CONSTRUED. HE FURTHER REFERRED TO DECISIONS WHERE DEDUCTION IN RESPECT OF 80IB (10) HAS BEEN GRANTED PROP O RTIONATELY. THE DECISIONS REFERRED AS UNDER : - CIT VS. OM SWAMI SMARAN DEVELOPERS (P) LTD. VS. ITO ( 90 TAXM N N.COM 267) (ITAT MUMBAI) CIT VS. ELEGANT ESTATES (95 TAXMANN.COM 157) (MADRAS HIGH COURT) BAJAJ TEMPO LTD. VS. CIT (CIVIL APPEAL NO. 1211 OF 1982 A ND OTHERS) (SUPREME COURT) PATEL JASHWANTILAL A VS. ITO ( 58 TAXMANN.COM 135)(ITAT AHMEDABAD) 8 8. PER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT OVERALL THERE ARE 75 INSTANCES OF VIOLATION AND IN CURRE NT AS WELL AS SUBSEQUENT YEAR. HENCE A UTHORITIES BELOW HAVE RIGHTLY DENIED THE BENEFIT OF DEDUCTION U/S. 80IB. IN THIS REGARD HE REFERRED TO DECISION OF CONSTITUTIONAL BENCH OF HON'BLE SUPREME COURT IN COMMISSIONER OF CUSTOMS VS. M/S. DILIP KUMAR AND COMPANY & OTHERS FOR THE PROPOSITION THAT E XEMPTION PROVISION SHOULD BE STRICTLY CONSTRUED. 9. WE NOTE THAT CLAUSE E & F INSERTED BY THE FINANCE ACT, 2010 W.E.F. 1.4.2010 PROVIDES FOLLOWING CONDITIONS ALSO TO BE COMPLIED FOR CLAIMING DEDUCTION U/S. 80IB(10) : - (E) NOT MORE THAN ONE RESIDENTIAL UN IT IN THE HOUSING PROJECT IS ALLOTTED TO ANY PERSON NOT BEING AN INDIVIDUAL; AND (F) IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUSING PROJECT IS ALLOTTED TO A PERSON BEING AN INDIVIDUAL, NO OTHER RESIDENTIAL UNIT IN SUCH HOUSING PROJECT IS ALLOTTED TO AN Y OF THE FOLLOWING PERSONS, NAMELY: - (I) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL (II) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA. (III) ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA. 10. UPON CAREFUL CONSIDERATION WE FIND THAT ASSESSEE HAS BEEN DENIED THE BENEFIT OF SECTION 80IB(10) ON THE GROUND THAT THERE IS V IOLATION OF PROVISIONS CLAUSE (E) A ND ( F ), THERE IN FOR THE CURRENT AS WELL AS SUBSEQUENT ASSESSMENT YEARS. IN THIS REGARD WE FIND CONSIDERABLE COGENCY IN THE SUBMISSIONS OF LEARNED COUNSEL OF THE ASSESSEE THE REVENUE AUTHORITIES SHOULD CONFINE THEMSELVES TO THE SUBJECT MATTER OF THE ASSES SMENT YEAR UNDER CONSIDERATION AND THE SATISFACTION OF REQUIREMENT FOR YEAR UNDER ASSESSMENT. IN THIS REGARD LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITTED A PAPER BOOK BY WAY OF WHICH 9 HE SUBMITTED THAT ACTUALLY THERE IS NO VIOLATION AS FOR THOSE IMPUGNED F LATS , BOOKING WAS DONE PRIOR TO AMENDMENT AND THAT ONLY THE REGISTRATION OF SALE DEED TOOK PLACE SUBSEQUENTLY. IN OUR CONSIDERED OPINION THESE FACTS AND SUBMISSIONS OF LEARNED COUNSEL OF THE ASSESSEE NEED TO BE EXAMINED BY THE ASSESSING OFFICER FACTUALLY. 10. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF LEARNED COUNSEL OF THE ASSESSEE THAT ACTUALLY THERE WAS NO VIOLATION FOR THE CURRENT ASSESSMENT YEAR IN AS MUCH AS BOOKING FOR THE FLAT, WERE DONE PRIOR TO THE AMENDMENT. IN THIS R EGARD, WE FURTHER NOTE THAT THE CASE LAWS REFERRED BY THE AUTHORITIES BELOW CAN BE CONSIDERED ONLY AFTER FACTUAL VERIFICATION AS DIRECTED BY US IN THE PRECEDING PARAGRAPH. ACCORDINGLY, WE HOLD THAT THE ASSESSING OFFICER SHALL EXAMINE THE VERACITY OF ASSESS EES CLAIM THAT THERE IS IN FACT NO VIOLATION FOR THE CURRENT ASSESSMENT YEAR AND THEREAFTER HE SHALL TAKE INTO ACCOUNT THE SUBMISSIONS AND CASE LAWS REFERRED ABOVE. 11. IN THE RESULT, THESE APPEAL FILED BY THE ASSESSEE STAND S ALLOWED FOR STATIST ICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 11 . 4 . 201 9 . SD/ - SD/ - (AMARJIT SINGH ) (SH A MIM YAHYA ) J U DICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 11 / 4 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( SENIOR P RIVATE S ECRETARY ) PS ITAT, MUMBAI