Shri Pradeep Sharma, Bhopal V. The ITO 1(1), Bhopal

ITA 414/IND/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5692 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: N D PATWA
• Keywords: Retrospective amendment; Condonation of delay
• Section: 80IB

Judgement Text

PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NOS. 741, 414, 415 & 416/IND/2013 ASSESSMENT YEARS: 2005-06, 2007-08 & 2008-09 & 2009 -10 PRADEEP SHARMA BHOPAL PAN ACWPS 6402Q :: /APPELLANT VS DY. COMMISSIONER OF INCOME TAX 1(1) BHOPAL :: / RESPONDENT / ASSESSEE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA !' / REVENUE BY SHRI MOHD. JAVED - DR # '$ % DATE OF HEARING 21.3.2017 &'()* % DATE OF PRONOUNCEMENT 2 2 .3.2017 ( 2 2 . 3 . 1 7 ) / O R D E R PER SHRI C.M. GARG, JM THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAIN ST DIFFERENT ORDERS OF THE LEARNED CIT(A)-I, BHOPAL, DATED 15.2. 2013, 25.3.2013 AND 25.3.2013 IN FIRST APPEAL NOS. CIT(A)-I/BPL/IT- 422-09-10 AND CIT(A)/BPL/IT-421/09-10,558/10-11 & 541/11-12, RESP ECTIVELY. PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 2 APPLICATION FOR CONDONATION OF DELAY OF 190 DAYS 2. IN ITA NO. 741/IND/2013, THERE IS A DELAY OF 190 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FI LED AN APPLICATION DATED 2.7.2015 AND AFFIDAVIT DATED 3.7 .2015 ALONG WITH AFFIDAVIT OF HIS MANAGER, SHRI RAKESH MISHRA, FOR C ONDONATION OF DELAY. 3. BEFORE US, THE LEARNED ASSESSEES REPRESENTATIVE (AR) DRAWING OUR ATTENTION TO THE APPLICATION FOR CONDONATION OF DELAY DATED 2.7.2015 PRAYING FOR CONDONATION OF DELAY WITH AFFI DAVITS SWORN BY THE ASSESSEE AND HIS MANAGER, SHRI RAKESH MISHRA, S UBMITTED THAT THE ORDER OF THE LEARNED CIT(A) WAS SERVED UPON THE ASSESSEE ON 12.4.2013. THEREAFTER, THE ASSESSEE-APPELLANT HAD G IVEN THE COPY OF THE ORDER ALONG WITH OTHER DOCUMENTS TO HIS MANAGER , SHRI RAKESH MISHRA, FOR GETTING PHOTOCOPIES DONE WITH THE DIREC TION THAT THESE PAPERS MAY BE HANDED OVER TO COUNSEL, SHRI BIPIN GU PTA, ADVOCATE, FOR PREPARATION AND FILING THE APPEAL BEFORE THE TR IBUNAL. ACCORDINGLY, SHRI RAKESH MISHRA HAD GIVEN ALL THE P APERS TO THE SHOP OWNER OF THE PHOTOCOPY FOR DOING THE NEEDFUL. HE FURTHER SUBMITTED THAT THE ASSESSEE-APPELLANT WAS SUFFERING FROM EYE SIGHT PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 3 PROBLEM AND HAD GONE TO MUMBAI FOR TREATMENT AND IN THE MEANTIME SHRI RAKESH MISHRA FORGOT TO COLLECT THESE DOCUMENTS FROM THE PHOTOCOPY SHOP AND TO HAND OVER THE SAME T O THE COUNSEL OF THE ASSESSEE. AFTER RETURN FROM MUMBAI, THE ASS ESSEE INQUIRED ABOUT THE SAME FROM SHRI RAKESH MISHRA, WHO IMMEDIA TELY WENT TO THE PHOTOCOPY SHOP AND AFTER COLLECTING THESE PAPER S, HANDED OVER THE SAME TO THE LEARNED COUNSEL FOR THE ASSESSEE FO R FILING THE APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE DELAY CAUSED WAS BEYOND THE CONT ROL OF THE ASSESSEE AS HE HAD GONE TO MUMBAI IN CONNECTION WIT H EYE TREATMENT AFTER GIVING NECESSARY INSTRUCTION TO SHR I RAKESH GUPTA. THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, SU BMITTED THAT THE DELAY IN FILING THE APPEAL OCCURRED BECAUSE OF NON- COMPLIANCE BY THE MANAGER OF THE ASSESSEE, SHRI RAKESH GUPTA, AND THERE WAS NO INTENTION ON THE PART OF THE ASSESSEE TO DELAY THE FILING OF THE APPEAL BEFORE THE TRIBUNAL. IN SUPPORT OF HIS SUBMISSIONS , THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED AFFIDAVIT SWORN IN BY SHRI RAKESH GUPTA, MANAGER OF THE ASSESSEE SUPPORTING THE ABOV E FACTS. 3. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THERE IS INORDINATE DELAY ON THE PART OF THE ASSESSEE IN FIL ING THE APPEAL AND PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 4 THE ASSESSEE HAS UTTERLY FAILED TO SHOW ANY REASONA BLE CAUSE FOR CONDONING THE DELAY. HE, THEREFORE, PRAYED THAT THE DELAY OCCURRED IN FILING THE APPEAL DOES NOT DESERVE TO BE CONDONE D. 4. AFTER CAREFUL CONSIDERATION OF THE ABOVE SUBMISS IONS, WE ARE OF THE VIEW THAT THE FACTS STATED IN THE AFFIDAVIT OF THE ASSESSEE CLEARLY SHOW THAT WHATEVER DELAY CAUSED IN FILING THE APPEA L WAS BECAUSE OF THE NEGLIGENCE AND NON-COMPLIANCE OF THE INSTRUCTIO N ON THE PART OF THE MANAGER OF THE ASSESSEE, SHRI RAKESH MISHRA. SH RI RAKESH MISHRA HAS ALSO ADMITTED THESE FACTS IN HIS AFFIDAV IT FILED BEFORE THE TRIBUNAL. THE FACTS STATED IN THE AFFIDAVIT OF THE ASSESSEE DESERVE TO BE ACCEPTED AS THE REVENUE HAS NOT FILED ANY COUNTE R-AFFIDAVIT IN SUPPORT OF ITS CLAIM AGAINST CONDONATION OF DELAY. IN THIS SITUATION, WE ARE SATISFIED THAT THE CAUSE SHOWN BY THE ASSESS EE FOR THE DELAY OF 190 DAYS IN FILING OF THE APPEAL BEFORE THE TRIB UNAL IS SUSTAINABLE AND ACCEPTABLE AND THE CASE OF THE ASSESSEE CANNOT BE DISMISSED AT THE THRESHOLD MERELY BECAUSE THE APPEAL HAS BEEN FI LED BELATEDLY DUE TO THE REASONS BEYOND THE CONTROL OF THE ASSESS EE. HENCE, THE DELAY OF 190 DAYS IN FILING THE APPEAL IS CONDONED AND THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELA Y IS ALLOWED. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS ADMITTED FOR HEARING. PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 5 5. THE SUM AND SUBSTANCE OF THE GROUNDS TAKEN BY TH E ASSESSEE IN ALL THESE APPEALS IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN D ISALLOWING THE CLAIM OF DEDUCTION MADE BY THE ASSESSEE U/S 80IB(10 ) OF THE ACT. 3. WE CAREFULLY CONSIDERED THE ARGUMENTS OF BOTH TH E SIDES. SO FAR AS THE DEDUCTION U/S 80IB(10) OF THE ACT IS CON CERNED, WE FIND THAT IN A RECENT JUDGMENT THE HON'BLE JURISDICTIONA L HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. M/S GLOBAL RE ALITY; ITA NO. 40/2012 AND OTHERS HAS DECIDED THE ISSUE AGAINST TH E ASSESSEE BY HOLDING AS UNDER :- 19. THE PROVISION SUCH AS CLAUSE (A) AS AMENDED, SE NSU STRICTO, CANNOT BE CONSIDERED AS A NEW CONDITION AN D THAT TOO INCAPABLE OF COMPLIANCE. INASMUCH AS, CLAUSE (A) DE ALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJECT WAS EXPECTED TO BE COMPLETED, TO GET THE BENEFIT OF THE PRESCRIBED DEDUCTION. NOTABLY, THE AMENDED SECTION 80IB (10) (A) EXTENDS THE BENEFIT EVEN TO THE HOUSING PROJECTS AP PROVED BY THE LOCAL AUTHORITY BEFORE 31.03.2007, INSTEAD OF 31.03.2005 - AS WAS PROVIDED IN THE UNAMENDED PROVI SION. PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 6 THEREFORE, NECESSITY WAS FELT TO MAKE DISTINCTION B ETWEEN THE TWO CLASSES OF HOUSING PROJECTS FOR SPECIFYING THE TIME FRAME FOR COMPLETION. THE ONE APPROVED BY THE LOCAL AUTHORITY BEFORE 1ST DAY OF APRIL, 2004; AND THE OT HER CLASS OF HOUSING PROJECT APPROVED BY THE LOCAL AUTHORITY ON OR AFTER 1ST APRIL 2004 TILL 31.03.2007. IN EITHER CAS E, THE TIME FRAME FOR COMPLETION OF PROJECT HAS BEEN PRESCRIBED AS FOUR YEARS. IN THAT, THE PROJECT APPROVED BEFORE 1ST APR IL, 2004 HAS BEEN GIVEN TIME TO COMPLETE BEFORE 31.03.2008; AND IN THE LATTER CATEGORY I.T.A.NOS.40/2012, 36/2012 & 35/2012 WITHIN FOUR YEARS FROM THE END OF THE FINAN CIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED BY T HE LOCAL AUTHORITY. 20. THUS UNDERSTOOD, SIMILAR TIME FRAME FOR COMPLET ION OF HOUSING PROJECT HAS BEEN GIVEN TO BOTH CLASS OF HOU SING PROJECTS. MOREOVER, THE EXPLANATION BELOW CLAUSE (A ), IN PARTICULAR (II), APPLIES TO BOTH CLASS OF HOUSING P ROJECTS UNIFORMLY. IT POSTULATES THAT 'THE DATE OF COMPLETI ON OF CONSTRUCTION OF HOUSING PROJECT' SHALL BE TAKEN TO BE 'THE DATE PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 7 ON WHICH COMPLETION CERTIFICATE' IN RESPECT OF SUCH HOUSING PROJECT 'IS ISSUED BY THE LOCAL AUTHORITY'. IF EXPL ANATION (II) IS SUPERIMPOSED ON THE EXPRESSION 'COMPLETES SUCH CONSTRUCTION' IN CLAUSE (A) OF SECTION 80IB(10) , IT WOULD MEAN THAT THE HOUSING PROJECTS COMMENCED ON OR AFTE R 01.10.1998 MUST POSSESS COMPLETION CERTIFICATE ISSU ED BY THE LOCAL AUTHORITY ON OR BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE - TO BECOME ELIGIBLE FOR TAX DEDUCTION. AS PER EXPLANATION (II), THEREFORE, THE SYNONYM OF 'COMPLE TES SUCH CONSTRUCTION' WOULD BE THE DATE ON WHICH COMPLETION CERTIFICATE IS ISSUED BY THE LOCAL AUTHORITY. NO MO RE AND NO LESS. THUS, ENOUGH INDICATION AND ALSO SUFFICIENT T IME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN GIVEN TO BOTH THE CLASS OF HOUSING PROJECTS TO FULFILL THAT CONDI TION. THE PROVISION IS IN THE NATURE OF LIMITING THE BENEFIT OF DEDUCTION TO THE SPECIFIED HOUSING PROJECTS, AND NOT TO THOSE WHO FAIL TO FULFILL THE REQUIREMENT OF COMPLETION OF CONSTRUCTI ON IN TIME FRAME SPECIFIED FOR THE RESPECTIVE CATEGORY OF HOUS ING PROJECTS. THIS HAS BEEN DONE IN LARGER PUBLIC INTER EST - TO ENSURE THAT THE BENEFIT IS GIVEN ONLY TO SUCH PROJE CTS WHO PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 8 WOULD FURTHER THE GOAL OF PROVIDING LOW COST ECONOM IC HOUSES TO THE DESERVING PERSONS IN REASONABLE TIME. 21. CONCEDEDLY, IT IS WITHIN THE DOMAIN OF PARLIAME NT TO EXTEND BENEFIT OR PRIVILEGE TO CERTAIN CLASS OF PER SONS AND ALSO TO WITHDRAW THE SAME FOR JUST REASONS. THAT CA NNOT BE QUESTIONED, UNLESS SHOWN TO BE UNCONSTITUTIONAL IN FORM OR ITS SUBSTANCE. IT WAS THUS OPEN TO THE PARLIAMENT, TO PROVIDE FOR A CUT OFF DATE FOR COMPLETION OF THE HOUSING PR OJECTS, AS A CONDITION PRECEDENT TO AVAIL BENEFIT OF DEDUCTION. IN THE PAST, SUCH STIPULATION WAS IN PLACE, BUT, LATER ON, IT WA S DONE AWAY WITH. HOWEVER, BY AMENDMENT WHICH CAME INTO EF FECT FROM 1ST APRIL, 2005, THE CONDITION FOR COMPLETION OF PROJECT WITHIN SPECIFIED TIME HAS I.T.A.NOS.40/2012, 36/201 2 & 35/2012 BEEN REINTRODUCED, WHILE GIVING SUFFICIENT TIME (FOUR YEARS) TO THE ASSESSEE TO COMPLY FOR BEING EN TITLED TO GET DEDUCTION. 22. A PRIORI, IT IS NOT A CASE OF IMPOSING NEW COND ITION, MUCH LESS, WITH RETROSPECTIVE EFFECT AS HAS BEEN ARGUED BEFORE US; UNLIKE INTRODUCTION OF NEW CONDITION IN THE SHAPE O F CLAUSE PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 9 (D) - WHICH OBVIOUSLY COULD BE APPLIED ONLY PROSPEC TIVELY, AS HELD BY THE SUPREME COURT IN THE AFORESAID DECISION S. CLAUSE (A) STANDS ON A COMPLETELY DIFFERENT PEDESTA L. IT CANNOT BE TREATED AS A NEW CONDITION LINKED TO THE APPROVAL AND CONSTRUCTION OR HAVING RETROSPECTIVE EFFECT AS SUCH. FOR, IT GIVES AT LEAST FOUR YEARS' TIME FRAME TO BOTH CL ASS OF HOUSING PROJECTS; TO WIT, HOUSING PROJECTS APPROVED PRIOR TO 1ST APRIL, 2004 OR AFTER 1ST APRIL, 2004. THE FOUR YEARS PERIOD OBVIOUSLY HAS PROSPECTIVE EFFECT, ALBEIT LIMITING T HE PERIOD FOR COMPLETION OF THE PROJECT, TO AVAIL OF THE BENEFIT. FOUR YEARS' TIME FRAME FOR COMPLETION OF THE PROJECT, BY NO STA NDARDS, CAN BE SAID TO BE UNREASONABLE, HARSH, ABSURD OR IN CAPABLE OF COMPLIANCE. IT IS ALSO NOT A CASE OF WITHDRAWAL OF VESTED RIGHT OF THE DEVELOPER, AS SUCH. NO DEVELOPER CAN C LAIM VESTED RIGHT TO COMPLETE THE HOUSING PROJECT I.T.A.NOS.40/2012, 36/2012 & 35/2012 IN INDEFINITE PERIOD. THE RIGHT ARISING FROM SECTION 80IB , IS COUPLED WITH THE OBLIGATION OR DUTY TO COMPLETE THE PROJECT IN S PECIFIED TIME FRAME. IF THE DEVELOPER DOES NOT COMPLETE THE HOUSI NG PROJECT WITHIN SPECIFIED TIME, WILL NOT RECEIVE THAT BENEFI T. THERE IS PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 10 NO COMPULSION ON HIM TO COMPLETE THE PROJECT IN FOU R YEARS. NOTABLY, EVEN THE APPROVALS TO THE CONSTRUCTION OF HOUSING PROJECT GRANTED BY THE LOCAL AUTHORITY SPECIFY THE DATE WITHIN WHICH THE CONSTRUCTION MUST BE COMPLETED, AS PER THE TIME FRAME SPECIFIED IN THE PERMISSION. IF THE PROJ ECT IS NOT COMPLETED WITHIN THE STIPULATED TIME, THE DEVELOPER IS FREE TO GET THAT PERIOD RENEWED OR EXTENDED FROM THE LOCAL AUTHORITY AS PER THE APPLICABLE RULES AND REGULATIONS. THE PR OVISION FOR CLAIMING TAX DEDUCTION FROM PROFITS, CAN CERTAI NLY PRESCRIBE FOR REASONABLE CONDITIONS AND MORE SO TIM E FRAME FOR COMPLETION OF THE PROJECT, IN LARGER PUBLIC INT EREST. 23. SUFFICE IT TO OBSERVE THAT, NO COMPARISON CAN B E DRAWN BETWEEN THE NEW CONDITION PRESCRIBED IN TERMS OF CL AUSE (D) AND THAT OF CLAUSE (A). CONDITION IN CLAUSE (A), NE ITHER OPERATES RETROSPECTIVELY NOR CAN BE SAID TO BE ABSU RD, UNJUST OR EXPECTING I.T.A.NOS.40/2012, 36/2012 & 35/2012 T HE ASSESSEE TO COMPLY WITH SOMETHING WHICH IS IMPOSSIB LE TO ACHIEVE. PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 11 24. THE NEXT QUESTION THAT NEEDS TO BE ANSWERED, IS , WHETHER THE STIPULATION IN SECTION 80IB(10)(A) CAN BE SAID TO BE DIRECTORY. CONSIDERING THE PRODIGIOUS BENEFIT OFFERED IN TERMS OF SECTION 80IB TO THE ASSESSEE (HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEAR RELEVANT T O ANY ASSESSMENT YEAR); AND THE PURPOSE UNDERLYING THE SA ME - WHICH IS INTER ALIA BURDEN ON THE PUBLIC EXCHEQUER DUE TO WAIVER OF COMMENSURATE REVENUE - THE STIPULATION FO R OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUT HORITY BEFORE THE CUT OFF DATE, MUST BE CONSTRUED AS MANDA TORY. THE FACT THAT COMPLIANCE OF THAT CONDITION IS DEPEN DENT ON THE MANNER IN WHICH THE PROPOSAL IS PROCESSED BY TH E LOCAL AUTHORITY, THE PROVISION CANNOT BE CONSTRUED AS A D IRECTORY REQUIREMENT. IT IS A SUBSTANTIVE PROVISION MANDATIN G ISSUANCE OR GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE OR SPECIFIED TIME , AS A PRECONDITION TO GET THE BENEFIT OF TAX DEDUCTION. E LSE, IT WILL THEN BE OPEN TO THE ASSESSEE TO RELY ON OTHER CIRCU MSTANCES OR I.T.A. NOS. 40/2012, 36/2012 & 35/ 2012 EVIDENCE TO PLEAD THAT THE HOUSING PROJECT IS COMPLETE - REQUIR ING ENQUIRY PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 12 INTO THOSE MATTERS BY THE TAX AUTHORITIES - SANS A COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY IN THAT B EHALF. A PRIORI, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE IS S UFFICIENT, WOULD LEAD TO UNCERTAINTY ABOUT THE DATE OF COMPLET ION OF THE PROJECT WHICH IS THE HALLMARK FOR AVAILING OF THE B ENEFIT OF TAX DEDUCTION. ONLY WITH THIS INTENT THE LEGISLATURE IN ITS WISDOM HAS PREDICATED THAT, 'THE COMPLETION OF CONSTRUCTIO N' OF THE HOUSING PROJECT IS TAKEN TO BE 'THE DATE ON WHICH' THE COMPLETION CERTIFICATE 'IS ISSUED' BY THE LOCAL AUT HORITY. TO INTERPRET IT TO INCLUDE AN EX POST FACTO CERTIFICAT E OR SUCH CERTIFICATE ISSUED BY THE LOCAL AUTHORITY AFTER THE CUT OFF DATE, WOULD NOT ONLY RESULT IN REWRITING OF THE EXP RESS PROVISION AND RUN CONTRARY TO THE UNAMBIGUOUS POSIT ION PRONOUNCED IN THE SECTION, BUT ALSO DOING VIOLENCE TO THE LEGISLATIVE INTENT. FOR, EXPLANATION (II) WILL THEN HAVE TO BE READ AS 'DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE AS CERTIFIED BY THE LOCAL AUTHORITY IN THAT BEHALF', IRRESPECTIVE OF THE DATE OF ISSUANCE OF SUCH CERTIFICATE BY THE I.T.A.NOS.40/2012, 36/20 12 & 35/2012 LOCAL AUTHORITY. INDEED, IN A GIVEN CASE IF THE PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 13 ASSESSEE IS ABLE TO SUBSTANTIATE THAT THE COMPLETIO N CERTIFICATE 'WAS IN FACT ISSUED' BY THE LOCAL AUTHO RITY BEFORE THE CUT OFF DATE, BUT COULD NOT BE PRODUCED BY HIM WITHIN TIME DUE TO REASONS BEYOND HIS CONTROL, THE ARGUMEN T OF SUBSTANTIAL COMPLIANCE OF THE PROVISION CAN BE TEST ED. ANY OTHER INTERPRETATION WOULD RESULT NOT ONLY IN UNCER TAINTY (IN FINALIZATION OF ASSESSMENT PROCEEDINGS DUE TO NON-I SSUANCE OR DELAYED ISSUANCE OF SUCH CERTIFICATE BY THE LOCA L AUTHORITY AND PRONE TO MANIPULATIONS AT THE END OF THE LOCAL AUTHORITY); BUT ALSO HAVE TO YIELD TO THE SUBJECTIV E SATISFACTION OF THE ASSESSING AUTHORITY AND OF INVE STING WIDE DISCRETION IN THAT AUTHORITY, WHICH, EVENTUALLY, MA Y ONLY END UP IN GETTING EMBROILED IN LITIGATION. IF THE ASSES SEE HAS FAILED TO COMPLY WITH THE CONDITION OF OBTAINING CO MPLETION CERTIFICATE FROM THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, HE MUST TAKE THE CONSEQUENCE THEREFOR AND OF DENIAL OF THE BENEFIT OF TAX DEDUCTION OFFERED TO HIM ON THAT COU NT. 25. WE CANNOT BE OBLIVIOUS OF THE FACT THAT THE MUN ICIPAL LAWS OF DIFFERENT STATES ARE NOT UNIFORM IN RESPECT OF PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 14 PROCEDURE FOR I.T.A.NOS.40/2012, 36/2012 & 35/2012 ISSUANCE OF COMPLETION CERTIFICATE. TO WIT, IN SOME STATES, THE DISPENSATION PROVIDED IS TO ISSUE PARTI AL OR FULL OCCUPATION CERTIFICATE; AND THEREAFTER ISSUE COMPLE TION CERTIFICATE AFTER REMOVAL OF ALL THE DEFICIENCIES P OINTED OUT BY THE LOCAL AUTHORITY. IN SOME STATES, THE MUNICIPAL LAW MAY PROVIDE FOR ISSUING PARTIAL OR FULL COMPLETION CERT IFICATE. THE REQUIREMENT OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY, AS ENVISAGED IN SECTION 80IB(10)(A) OF THE INCOME TAX ACT, WHICH IS A CENTRAL ENACTMENT DEALING WITH THE SPECIAL SUBJECT OF TAXATION, HOWEVER, IS, OF ONLY O NE CERTIFICATE - WHICH IS FULL COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE. THAT IS TO LEND CREDENCE TO THE FACTUM OF COMPLETION OF THE ENTIRE HOUSING PROJECT IN ALL RESPECTS AS PER THE APPROVAL GRANTED BY THE LOCAL AUTHORITY. IT CAN BE SAFELY ASSUMED THAT THE LEGISLATURE WAS CONSCIOUS OF THIS POSITION, FOR WHICH, EXPRESS PROVISION HAS BEEN MADE AS TO THE MEANING OF THE DATE OF COMP LETION OF THE HOUSING PROJECT LINKED TO THE 'DATE ON WHICH ' PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 15 COMPLETION CERTIFICATE 'IS ISSUED' BY THE 'LOCAL AU THORITY', AS PREDICATED IN EXPLANATION (II) THEREUNDER. 26. WE ACCORDINGLY HOLD THAT ISSUANCE OF COMPLETIO N CERTIFICATE, AFTER THE CUT OFF DATE BY THE LOCAL AU THORITY BUT, MENTIONING THE DATE OF COMPLETION OF PROJECT BEFORE THE CUT OFF DATE DOES NOT FULFILL THE CONDITION SPECIFIED IN CL AUSE (A) OF SECTION 80IB (10) READ WITH EXPLANATION (II) THEREU NDER. WE REJECT THE ARGUMENT OF THE ASSESSEE THAT THE EFFECT OF AMENDED CLAUSE (A) OF SUB-SECTION 10 OF SECTION 80I B, WHICH HAS COME INTO FORCE WITH EFFECT FROM 1 ST APRIL, 2005 ,HAS RETROSPECTIVE EFFECT OR THAT IT IS UNJUST IN ANY MA NNER OR INCAPABLE OF COMPLIANCE AT ALL. SIMILARLY, THE REQU IREMENT OF SECURING COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE IS NOT DIRECTORY, IN VIEW O F THE EXPRESS PROVISION IN SECTION 80IB(10)(A) AND THE EXPLANATIO N (II) THEREUNDER. THE COMPLETION CERTIFICATE GRANTED BY T HE LOCAL AUTHORITY MUST BEAR THE DATE OF HAVING BEEN ISSUED BEFORE THE CUT OFF DATE. PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 16 27. THAT TAKES US TO THE ARGUMENT OF THE ASSESS EE THAT THE STIPULATION IN SECTION 80IB(10)(A) OF COMPLETIO N CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE TH E CUT OFF DATE, CANNOT BE APPLIED IN THE CASE OF ASSESSEE FOL LOWING THE WORK IN PROGRESS ACCOUNTING METHOD. IN OUR OPIN ION, THE PROVISION IN THE FORM OF SECTION 80IB (10)(A), APPL IES UNIFORMLY TO ALL THE ASSESSEES - BE IT FOLLOWING WO RK IN PROGRESS ACCOUNTING METHOD OR OTHERWISE. THE BENEFI T OF DEDUCTION UNDER THIS PROVISION CAN BE AVAILED BY TH E ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD, PROVIDED HE HAS COMPLIED WITH THE STIPULATI ON OF HAVING PRODUCED COMPLETION CERTIFICATE ISSUED BY TH E LOCAL AUTHORITY BEFORE THE CUT OFF DATE, AS MAY BE APPLIC ABLE IN HIS CASE. IN OTHER WORDS, IF THE HOUSING PROJECT WA S APPROVED BY THE LOCAL AUTHORITY BEFORE 1 ST APRIL, 2004, HE MUST SUBMIT COMPLETION CERTIFICATE ISSUED BY THE AU THORITY HAVING BEEN ISSUED BEFORE THE 31 ST MARCH, 2008. WHEREAS, IN THE CASE OF HOUSING PROJECT APPROVED ON OR AFTER 1 ST APRIL, 2004, THE ASSESSEE CAN AVAIL OF THE BENEFIT PROVIDE D COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y IS PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 17 WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEA R IN WHICH THE CONCERNED HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. IF THIS CONDITION IS NOT FULFILLED , THE ASSESSEE WHO MAINTAINS WORK IN PROGRESS ACCOUNTING METHOD AND HAS CLAIMED DEDUCTION UNDER SECTION 80IB(10)(A) MUST SUFFER THE CONSEQUENCE OF DISALLOW ANCE OR WITHDRAWAL OF THE BENEFIT CLAIMED BY HIM ON THAT CO UNT. 28. ACCORDINGLY, THESE APPEALS SUCCEED. THE IMPUGNE D JUDGMENT OF THE TRIBUNAL IS SET ASIDE; AND IN THE F ACTS OF THE PRESENT CASE, THE DECISION OF THE ASSESSING OFF ICER TO DISALLOW DEDUCTION UNDER SECTION 80IB(10)(A) OF THE INCOME TAX ACT IS UPHELD . NO ORDER AS TO COSTS. 4. THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSID ERED THE SWEEP OF AMENDED CLAUSE (A) OF THE PROVISION UNDER SUB-SECTION (10) OF SECTION 80IB OF THE ACT AND HELD THAT THE PROVIS IONS OF CLAUSE (A), AS AMENDED, SEN SUSTRICTO CANNOT BE CONSIDERED AS N EW CONDITION AND THAT TOO INCAPABLE OF COMPLIANCE. THE CLAUSE DE ALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJECT WAS EXP ECTED TO BE COMPLETED TO GET THE BENEFIT OF PRESCRIBED DEDUCTIO N. THE HON'BLE PRADEEP SHARMA ITA NOS. 741, 414 & 415/IND/2013 18 HIGH COURT HAS HELD THAT ISSUANCE OF COMPLETION CER TIFICATE AFTER THE CUT OFF DATE BY THE LOCAL AUTHORITY BUT MENTIONING IN THE DATE OF THE COMPLETION OF PROJECT BEFORE CUT OFF DATE, DOES NOT FULFIL THE CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 80IB(1 0) READ WITH EXPLANATION 2 THEREUNDER. IN VIEW OF THIS FINDING O F THE HON'BLE JURISDICTIONAL HIGH COURT, WE FIND NO MERIT IN THES E APPEALS OF THE ASSESSEES AND DISMISS THE SAME. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES STAND DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 22 ND MARCH, 2017. SD/- SD/- % ! ! (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MARCH 22 ND 2017. DN/