M/s. CHD Developers Ltd., New Delhi V. Addl. CIT, New Delhi

ITA 4694/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65530 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 27-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R B MEENA
• Keywords: Depreciation; Rule of consistency; Retrospective amendment; Additional evidence; Competent authority
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI JOGINDER SINGH: JUDICIAL MEMBER & SHRI SHAMIM YAHYA: ACCOUNTANT MEMBER ITA NO. 2902/DEL/10 A.YRS. 2006-07 ACIT, CIRCLE 3(1), VS. M/S CHD DEVELOPERS LTD., NEW DELHI. MADAME BHIKAJI CAMA BHAWAN, 11, SF-16-17, IST FLOOR, BHIKAJI CAMA PLACE, NEW DELHI-110001. PAN: AAACC 0103 H ITA NO. 4694/DEL/10 A.YRS. 2007-08 M/S CHD DEVELOPERS LTD., VS. ACIT, CIRCLE 3(1), 11, SF-16-17, IST FLOOR, NEW DELHI. BHIKAJI CAMA PLACE, NEW DELHI-110001. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI KAPIL GOEL ADV. REVENUE BY : SHRI R.B. MEENA SR. DR O R D E R PER JOGINDER SINGH, J.M: : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 23 RD MARCH 2010 BY THE ORDER OF THE LD. CIT(A), NEW DELHI FOR A.Y. 2006-07, WHEREAS THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER DATE D 11-8-2010 PASSED BY THE LD. FIRST APPELLATE AUTHORITY, NEW DELHI FOR A. Y. 2007-08. SINCE THE FACTS AND THE ISSUES ARE COMMON, BOTH THESE APPEALS WERE HEARD TOGETHER. ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 2 THEREFORE, THESE CAN BE DISPOSED OFF BY A COMMON OR DER, MORE SO WHEN BOTH THE APPEALS PERTAIN TO THE SAME ASSESSEE. 2. FIRST WE SHALL TAKE UP THE APPEAL OF THE REVENUE (A.Y. 2006-07), WHEREIN FIRST GROUND RAISED IS THAT THE LD. FIRST A PPELLATE AUTHORITY ERRED ON FACTS AND IN LAW IN ALLOWING ADDITIONAL EVIDENCE FI LED DURING FIRST APPELLATE STAGE CONTRAVENING RULE 46A OF THE RULES. 2.1. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS THAT OPPORTUNITY WAS NOT GRANTED TO THE ASSESSING OFFICER TO GO THR OUGH THE ADDITIONAL EVIDENCE FILED BEFORE THE LD. CIT(A), THEREFORE, I T IS VIOLATION OF THE RULES. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSION DRAWN IN THE IMPUGNED ORDER, BY INVITING OUR ATTENT ION TO PAGES 37 & 38 OF THE PAPER BOOK, EVIDENCING THAT IF COMMON AREA OF S TAIRCASE IS EXCLUDED FROM THE TOTAL BUILT UP AREA, SUCH AREA REMAINS TO THE E XTENT OF 1386.03 SQ. FT. ONLY. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT TH E ASSESSEE CLAIMED DEDUCTION U/S 80-IB(10) AMOUNTING TO RS. 1,86,02,27 0/- ON THE TOTAL SUM OF RS. 7,88,82,014/-. THE ASSESSEE FILED PROFIT AND LO SS A/C, BALANCE-SHEET AND AUDIT REPORT IN FORM NO. 10-CCB FOR CLAIMING SUCH DEDUCTION FOR KRISHNA LOK PROJECT. THE ASSESSEE WAS ALSO ASKED TO FURNISH SUCH INFORMATION AS CONTAINED IN PAGES 1 & 2 OF THE ASSESSMENT ORDER. THE ASSESSEE VIDE REPLY DATED 10-12-2008 FURNISHED THE SUBMISSIONS AND THE DOCUMENTS FILED BY THE ASSESSEE WERE EXAMINED. WE FURTHER FIND THAT IN THE IMPUGNED ORDER, THERE IS NO MENTION OF THE FACT THAT SUCH ADDITIONAL DOCUMEN TS WERE FILED BY THE ASSESSEE WHICH WERE NOT FILED BEFORE THE ASSESSING OFFICER. THEREFORE, THE ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 3 ASSERTION OF THE LD. SR. DR THAT THE IS VIOLATION O F RULE 46A IS WITHOUT ANY BASIS. EVEN OTHERWISE, THE LD. CIT(A) HAS CO-TERMI NUS POWER THAT OF THE ASSESSING OFFICER. AS PER SUB-SECTION (4), THE CIT (A) BEFORE DISPOSING OFF ANY APPEAL MAY MAKE ANY INQUIRY AS HE THINKS FIT OR MAY DIRECT THE ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPO RT THE RESULT OF THE SAME TO HIM. IT IS NOT THE CASE THAT THE LD. CIT(A) IS NOT EMPOWERED TO DECIDE THE APPEAL WITHOUT CONSULTING/ CONFRONTING THE ASSESSIN G OFFICER . IT IS NOT THE CASE THAT ANY NEW EVIDENCE WAS ADMITTED BY THE LD. CIT(A). THE EVIDENCE IN THE FORM OF COMPUTATION OF BUILT UP AREA WAS FURNIS HED DURING ASSESSMENT PROCEEDINGS ITSELF AND THE LD. DR HAS NOT SPECIFICA LLY POINTED OUT AS TO WHICH WAS THE ADDITIONAL EVIDENCE FILED BEFORE THE LD. FI RST APPELLATE AUTHORITY. THEREFORE, WE FIND NO JUSTIFICATION TO INTERFERE WI TH THE CONCLUSION DRAWN BY THE LD. CIT(A) AND FURTHER FIND NO JUSTIFICATION I N THE ASSERTION OF THE REVENUE THAT THERE IS ANY VIOLATION OF RULE 46A. TH EREFORE, THIS GROUND OF THE REVENUE IS BASED ON ASSUMPTION AND PRESUMPTION, CONSEQUENTLY DISMISSED. 3. NEXT GROUND PERTAINS TO DELETION OF ADDITION OF RS. 77,18,098/- MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION CLAIMED U/S 80-IB(10), ALLEGEDLY IGNORING THE PLAN SUBMITTED BY THE ASSESSEE TO THE MATHURA VARINDAVAN AUTHORITY AND THE TOTAL BUILT UP ARE OF TYPE A FL AT BEING MORE THAN 1500 SQ. FT. THE ASSERTION OF THE LD. SR. DR SHRI R.B. MEENA IS IDENTICAL TO THE GROUND RAISED BY SUBMITTING THAT THE BUILT UP AREA OF TYPE A FLAT IS MORE THAN 1500 SQ. FT., THEREFORE, THE ASSESSEE IS NOT ENTITLED T O DEDUCTION. 3.1. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE TOOK US TO VARIOUS PAGES OF THE PAPER BOOK, INCLUDING SANCTION PLAN APPROVED BY ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 4 COMPETENT AUTHORITY BY FURTHER SUBMITTING THAT THE COMMON AREA TO THE TUNE OF 8.172 SQ. MTS. WHICH PERTAINS TO STAIR CASE IS N OT PART OF THE BUILT UP AREA OF THE FLAT AS THE SAME IS USED BY ALL THE RESIDENT S, BEING THE COMMON AREA, AND IF THIS AREA IS REDUCED FROM THE TOTAL AREA IT COMES BELOW THE PRESCRIBED LIMIT OF 1500 SQ. FT. 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO PERUSED THE SANCT ION PLAN AND AREA OF EACH UNIT LIKE BED ROOMS, TOILET, KITCHEN, DRAWING ROOM, BALCONY, POWER ROOM AND STORE ETC. WE FIND THAT IF THE TOTAL AREA AS PER AP PROVED PLAN IS EXAMINED, IT COMES TO 1386.03 SQ. FT. (AS PER SANCTION PLAN), A ND THE TOTAL SALEABLE AREA/ SUPER AREA IS 1492.43 SQ. FT., WHICH IN ALL FAIRNES S IS BELOW THE PRESCRIBED LIMIT OF 1500 SQ. FT. SO FAR AS THE COMMON AREA OR STAIR CASE IS CONCERNED, IT CANNOT BE INCLUDED IN THE BUILT UP AREA OF AN INDIV IDUAL UNIT AS THE SAME IS TO BE USED BY ALL THE RESIDENTS/ INHABITANTS. IF THE D EFINITION OF BUILT UP AREA AS MENTIONED IN SUB-CLAUSE (A) OF SUB-SECTION (14) OF SECTION 80-IB, IS ANALYZED, IT SPEAKS ABOUT THE INNER MEASUREMENT OF THE RESIDENTIAL UNIT AT THE FLOOR LEVEL, INCLUDING THE PROJECTIONS AND BALCONIE S, AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COM MON AREA SHARED WITH OTHER RESIDENTIAL UNITS. THE STAIR CASE DEFINITELY COMES UNDER THE COMMON POOL USED BY ALL THE INHABITANTS, THEREFORE, IT CAN NOT BE INCLUDED IN THE BUILT UP AREA. EVEN OTHERWISE THE ASSESSING OFFICER NOTE D FROM THE DETAILS SUBMITTED BY THE ASSESSEE THAT THREE TYPES OF FLATS WERE SOLD BY THE ASSESSEE AND IN THE TYPE A CATEGORY THE AREA IS 1386.03 SQ . FT., WHEREAS IN TYPE B THE TOTAL AREA IS 1122.48 SQ. FT., AND IN TYPE C FLAT, THE TOTAL AREA IS 811.84 SQ. FT. PER FLAT. THESE DETAILS WERE SUBMITTED BY THE ASSESSEE VIDE LETTER DATED 12-12-2008 BEFORE THE LD. CIT(A) AND EARLIER BEFOR E THE ASSESSING OFFICER. ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 5 SUCH DETAILS HAVE BEEN REPRODUCED AT PAGE 4 OF THE IMPUGNED ORDER. THERE IS A FACTUAL RECORDING THAT STAIR CASE IS COMMON AREA BETWEEN THE TWO ADJACENT FLATS MEASURING 8.172 SQ. MTS. AND IF THIS AREA IS REDUCED FROM THE TOTAL AREA OF THE UNIT THEN CERTAINLY IT COMES BELOW THE PRESC RIBED LIMIT OF 1500 SQ. FT. THIS BEING THE FIRST YEAR OF CLAIMING DEDUCTION U/S 80-IB(10) OF THE ACT, WHEREIN THE ASSESSING OFFICER HIMSELF NOTED THAT AS SESSEES 48 UNITS OF TYPE-A FLATS; 90 UNITS OF TYPE-B & TYPE-C UNITS WER E UNDER CONSTRUCTION, THE ASSESSING OFFICER HIMSELF COMPUTED THE BUILT U P AREA BY INCLUDING THE STAIR CASE AREA, THEREFORE, IT EXCEEDED THE PRESCRI BED LIMIT. SUCH FACTUAL FINDING RECORDED IN THE IMPUGNED ORDER WAS NOT CONT ROVERTED BY THE REVENUE BY BRINGING ANY POSITIVE MATERIAL ON RECORD. IN VIE W OF THESE FACTS WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS CLEARLY ENTITLED FOR SUCH DEDUCTION. THEREFORE, WE FIND NO JUSTIFICATION TO I NTERFERE WITH THE CONCLUSION DRAWN IN THE IMPUGNED ORDER, WHICH IS AF FIRMED. 4. THE NEXT GROUND PERTAINS TO DELETION OF ADDITION OF RS. 60,58,419/- MADE ON ACCOUNT OF APPORTIONMENT OF EXPENSES IN THE RATIO OF TURN OVER TO DIFFERENT UNITS. THE CRUX OF THE ARGUMENTS ON BEHAL F OF THE REVENUE IS THAT NO PART OF THE HEAD OFFICE EXPENSES PERTAINING TO M ANAGEMENT WERE DEBITED TO KRISHNA LOK UNIT. IN NUT SHELL THE ASSESSMENT O RDER WAS DEFENDED ON THE ISSUE. 4.1. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE TOOK US TO VARIOUS PAGES OF THE PAPER BOOK BY SUBMITTING THAT THE EXPENSES WERE BOOKED SEPARATELY IN THE BOOKS OF ACCOUNT, WHICH AR E AUDITED ONE. OUR ATTENTION WAS ALSO INVITED TO PAGE 36 WHEREIN BREAK UP OF THE EXPENSES HAS BEEN GIVEN. A QUERY WAS RAISED BY THE BENCH WHETHER SUCH BREAK UP WAS ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 6 SUBMITTED BEFORE THE ASSESSING OFFICER. IT WAS UNCO NTROVERTEDLY EXPLAINED THAT THIS BREAK UP WAS VERY MUCH AVAILABLE BEFORE T HE ASSESSING OFFICER . 4.2. WE HAVE PERUSED PAGE 36 WHICH IS PART OF THE S YNOPSIS AS PER WHICH (SCHEDULE J), THE ADMINISTRATIVE AND OTHER EXPENS ES PERTAINS TO HEAD OFFICE. KRISHNA LOK A/C AND REMAINING HAS BEEN DULY EXPLAIN ED. WHEREAS IN SCHEDULE K THE SELLING EXPENSES, WHICH INCLUDE AD VERTISEMENT AND PUBLICITY; SALES PROMOTION & BOOKING; AND SELLING EXPENSES HAVE BEEN BIFURCATED, WHEREAS IN SCHEDULE L, FINANCIAL EXPE NSES LIKE BANK INTEREST AND COLLECTION CHARGES, INTEREST AND OTHERS HAVE BE EN MENTIONED, THEREFORE, THE CONTENTION OF THE REVENUE THAT THESE EXPENSES W ERE NOT BIFURCATED IS WITHOUT ANY BASIS. EVEN FROM THE ASSESSMENT ORDER (PAGE 6), THERE IS A CATEGORICAL FINDING THAT THE ASSESSEE COMPANY HAS N OT TAKEN ANY LOAN SECURED OR UNSECURED FOR KRISHNA LOK AND THE LEDGER PRINT O UT OF THE CURRENT ACCOUNT MAINTAINED WITH ORIENTAL BANK OF COMMERCE AND PUNJA B NATIONAL BANK WERE FURNISHED DURING ASSESSMENT PROCEEDINGS WHICH CLEARLY INDICATES THAT THE TOTAL RECEIPT FROM KRISHNA LOK PROJECT SALE IS UTILIZED FOR THE PURPOSE OF MEETING EXPENSES OF KRISHNA LOK AND NONE OF THE LOA NS FROM HEAD OFFICE WERE TRANSFERRED TO KRISHNA LOK. THERE IS A FURTHER FINDING THAT THERE IS NO QUESTION OF TRANSFER ANY FINANCIAL EXPENSES TO KRIS HNA LOK AND FURTHER THE ADMINISTRATIVE AND OTHER EXPENSES WHICH INCLUDE SAL ARY, BONUS OTHER PERQUISITES, EMPLOYEES WELFARE AND THE RATES AND T AXES, GENERAL EXPENSES, NEWS PAPER AND PERIODICALS, LEGAL AND PROFESSIONAL EXPENSES, POSTAGE & TELEPHONE CHARGES, POWER FUEL AND WATER CHARGES, PR INTING & STATIONERY, VEHICLE REPAIR & MAINTENANCE EXPENSES ETC. ARE IN CURRED SEPARATELY AND DEBITED SEPARATELY TO KRISHNA LOK RESTAURANT AND OT HER PROJECTS. SUCH EXPENSES ARE BUSINESS SPECIFIC AND NOT COMMONLY INC URRED. ON CAREFUL SCRUTINY OF ALLOCATED EXPENSES, WE FIND THAT THE EX PENSES IN THE NATURE OF ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 7 AUDIT FEE AND DIRECTOR REMUNERATION ARE FOR TH E ASSESSEE AS A WHOLE AND NOT SPECIFIC TO THE BUSINESS. CONSEQUENTLY, THE EXP ENSES OF RS. 33,660/- AND RS. 58,630 RESPECTIVELY ARE ALLOCATED TO KRISHNA PR OJECT, THEREFORE, ADDITION TO THE EXTENT OF RS. 2,92,290/- IS SUSTAINED. THE D ELETION OF ADDITION OF BALANCE EXPENSES OF RS. 57,66,129/- IS UPHELD. THIS GROUND IS, THEREFORE, ALLOWED PARTLY. 5. THE LAST GROUND PERTAINS TO DELETION OF ADDITION OF RS. 7,425/- MADE ON ACCOUNT OF EXTRA DEPRECIATION ON COMPUTER PERIPHERA LS/ ACCESSORIES IGNORING THAT THE RULE ONLY ALLOWS FOR COMPUTER AND COMPUTER SOFTWARE FOR SUCH DEPRECIATION. 5.1. LD. SR. DR DEFENDED THE CONCLUSION DRAWN IN TH E ASSESSMENT ORDER, WHEREAS THE LEARNED COUNSEL FOR THE ASSESSEE DEFEN DED THE IMPUGNED ORDER. 5.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND F OUND THAT THE ASSESSEE CLAIMED RS. 16,500/- TO FIXED ASSETS IN THE BLOCK O F COMPUTERS AND COMPUTER PERIPHERALS WHICH AS PER THE ASSESSEE ARE DEPRECIAB LE @ 60%, WHICH WAS DENIED BY THE ASSESSING OFFICER . WE FIND THAT THE LD. CIT(A) CONSIDERED THE ISSUE IN A JUSTIFIED MANNER AND DELETED THE ADDITIO N OF RS. 7425/-. WE FIND NO JUSTIFICATION TO INTERFERE WITH THE SAME AS NOTHING CONTRARY WAS BROUGHT TO OUR NOTICE. 6. GROUND NO. 5 IS GENERAL IN NATURE AND REQUIRES N O DELIBERATION FROM OUR SIDE. 7. FINALLY, THE APPEAL OF THE REVENUE IS PARTLY ALL OWED. 8. NOW WE SHALL TAKE UP THE APPEAL OF THE ASSESSEE (ITA NO. 4694/DEL/10 FOR A.Y. 2007-08). THOUGH THE ASSESSEE HAS RAISED A S MANY AS SEVEN GROUNDS OF APPEAL, BUT IF ALL THE GROUNDS ARE SUMMARIZED, T HE ONLY GROUND REMAINS WHICH PERTAINS TO THE DISALLOWANCE OF DEDUCTION U/S 80-IB(10). LEARNED ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 8 COUNSEL FOR THE ASSESSEE ALSO FAIRLY EXPLAINED TH AT THE ISSUE PERTAINS TO ONLY 80-IB (10) AND THE REMAINING GROUNDS ARE ONLY ARGUM ENTATIVE. 8.1. THE CRUX OF ARGUMENT ON BEHALF OF THE ASSESSEE IS THAT THE VIDE LETTER DATED 5-11-2008 THE ASSESSEE HAD APPLIED FOR COMPLE TION CERTIFICATE BUT THE COMPLETION CERTIFICATE WAS NOT ISSUED TO THE ASSESS EE WHICH IS BEYOND THE CONTROL AND POWER OF THE ASSESSEE. OUR ATTENTION WA S ALSO INVITED TO PAGE 22 OF THE PAPER BOOK CONTAINING A CERTIFICATE SIGNED B Y THE ARCHITECT OF THE ASSESSEE I.E. CANDID DESIGN CONSORTIUM PVT. LTD., I N WHICH THE TOTAL AREA OF THE TYPE-A FLAT HAS BEEN MENTIONED AT 1492.43 SQ. F T. LD. COUNSEL SUBMITTED THAT FOR A.Y. 2006-07 DEDUCTION WAS ALLOWED TO THE ASSESSEE AND IT IS THE SAME SANCTION PLAN WHICH COULD NOT BE DENIED FOR TH E NEXT YEAR. IT WAS EMPATHETICALLY ARGUED THAT THE TOTAL BUILT UP AREA IS BELOW THE PRESCRIBED LIMIT OF 1500 SQ. FT. AND THERE IS NO VIOLATION OF THE ACT. IT WAS ALSO PLEADED THAT THE PROJECT WAS APPROVED ON 16-3-2005 WHICH IS WELL BEFORE 1-4-2005 AND THE ASSESSEE WAS TO COMPLETE THE PROJECT ON OR BEFORE 31-3-2009. THE LD. COUNSEL ALSO RELIED ON THE DECISIONS OF VISAKHAPATN AM & DELHI BENCHES OF THE ITAT AS ALSO THE DECISION OF HONBLE GUJARAT HIGH COURT, WHICH WE WILL DISCUSS WHILE COMING TO A PARTICULAR CONCLUSIO N. THE CRUX OF THE ARGUMENT IS THAT REQUIREMENT OF COMPLETION CERTIFIC ATE WAS MERELY DIRECTORY AND NOT MANDATORY. RELIANCE WAS PLACED UPON THE DEC ISION DATED 29-2-2012 OF HONBLE KARNATAKA HIGH COURT (ITA NO. 138 OF 201 0) TO THE EFFECT THAT IT IS PROSPECTIVE IN NATURE. 8.2. ON THE OTHER HAND, LD. SR. DR TOOK US TO VARIO US PAGES OF THE ASSESSMENT ORDER BY SUBMITTING THAT THE CASE LAWS RELIED UPON BY THE ASSESSEE ARE NOT APPLICABLE TO THE FACTS OF THE PRE SENT APPEAL AND EVEN NO SUCH CERTIFICATE WAS ISSUED TO THE ASSESSEE TILL D ATE, THEREFORE, DEDUCTION WAS RIGHTLY DENIED TO THE ASSESSEE. ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 9 8.3. IN REPLY, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT FOR A.Y. 2006-07 ON IDENTICAL FACTS DEDUCTION WAS GRANTED TO THE ASSESSEE ON SOME OF THE FLATS, THEREFORE, FOR THE SAKE OF CONSISTENCY N O U TURN IS PERMISSIBLE FOR THE NEXT YEAR, SPECIALLY WHEN THE FACTS ARE SAME. 8.4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT TH E ASSESSEE DECLARED TAXABLE INCOME OF RS. 5,97,15,620/- IN ITS RETURN FILED ON 31-10-2007. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THE ASSESSE E CLAIMED DEDUCTION OF RS. 5,19,92,472/- U/S 80-IB(10). THE ASSESSING OFFICER ASKED THE ASSESSEE TO GIVE JUSTIFICATION FOR CLAIMING SUCH DEDUCTION. LD. ASSESSING OFFICER DENIED THE CLAIM ON TWO COUNTS- FIRSTLY, THE BUILT UP AREA OF THE UNIT IS ABOVE PRESCRIBED LIMIT OF 1500 SQ. FT. AND SECONDLY FOR E ARLIER ASSESSMENT ORDER IDENTICAL DEDUCTION WAS CLAIMED BY THE ASSESSEE AND THE ASSESSEE VIOLATED THE CONDITIONS STIPULATED U/S 80-IB(10) IN TYPE A FLAT S. ULTIMATELY, THE LD. ASSESSING OFFICER DENIED SUCH DEDUCTION TO THE ASS ESSEE. THE ASSESSEE FILED VARIOUS DOCUMENTS BEFORE THE ASSESSING OFFICER AND THE SAME WERE EXAMINED BY HER. FINALLY THE LD. ASSESSING OFFICER CONCLUDED THAT THE CONDITIONS LAID DOWN U/S 80-IB(10) WERE NOT SATISFI ED, THEREFORE, THE CLAIM OF DEDUCTION COULD NOT BE ALLOWED TO THE ASSESSEE. 8.5. ON APPEAL BEFORE THE LD. CIT(A) THE CLAIM OF THE ASSESSEE WAS EXAMINED AND ULTIMATELY THE ASSESSMENT ORDER WAS U PHELD. THE AGGRIEVED ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 8.6. IF THE TOTALITY OF FACTS AVAILABLE ON RECORD A ND THE ASSERTION MADE BY THE LD. RESPECTIVE COUNSELS ARE KEPT IN JUXTAPOSITI ON, BROADLY THE LD. CIT(A) IS INFLUENCED BY THE SALE TRANSACTIONS WITH RAJASTH AN GLOBAL SECURITIES LTD., WHEREIN PURSUANT TO SUMMONS U/S 131 ISSUED TO RAJAS THAN GLOBAL SECURITIES LTD., IT WAS CONFIRMED THAT THE AMOUNT OF RS. 5,36, 89,920/- WAS PAID TO THE ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 10 ASSESSEE AS ADVANCE FOR PURCHASE OF 37 FLATS IN KRI SHNALOK PROJECT. HOWEVER, WHAT IT MAY THE MOOT ISSUE TO BE ADJUDICATED BY US PERTAINS TO SEC. 80- IB(10). WE FURTHER FIND THAT AS CONTAINED IN PARA 1.2 (PAGE 5) OF THE IMPUGNED ORDER, THE LD. CIT(A) HAS EXAMINED THE SU BMISSIONS OF THE ASSESSEE AND THE REASON OF DENIAL OF DEDUCTION TO T HE ASSESSEE BY THE LD. ASSESSING OFFICER. THE RELEVANT PORTION FROM THE IM PUGNED ORDER IS REPRODUCED HEREUNDER: IT WAS FURTHER SUBMITTED THAT ADDL. CIT WRONGLY TR IES TO PROVE THAT SALE WITH M/S. RAJASTHAN GLOBAL SECURITIES LTD . (RGSL) ARE NOT ACCOUNTED FOR PROPERLY AND UNDUE PROFIT HAS ARI SEN ON ACCOUNT OF 80-IB WHEREAS THESE ARE NORMAL BUSINESS TRANSACTIONS UNDERTAKEN BY ASSESSEE COMPANY WITH M/ S RAJASTHAN GLOBAL SECURITIES LTD. HAVING NO MUTUAL R ELATION WHATSOEVER. THE ASSESSING OFFICER HAS OBJECTED TO THE ISSUE OF PREFERENTIAL SHARES AND ITS VALUATION. THE ASSESSEE COMPANY HAS ISSUED PREFERENTIAL SHARES TO VARIOUS PERSONS AS PE R SEBI GUIDELINES AND APPROVAL OF BOMBAY STOCK EXCHANGE. T HE ASSESSEE COMPANY IS A LISTED COMPANY AND DOES NOT A H ANY DISCRETION ABOUT THE ISSUE PRICE AND REQUIRE TO ISS UE SHARES THROUGH PREFERENTIAL ALLOTMENT ONLY AT THE RATE AS PER SEBI GUIDELINES AND APPROVED BY STOCK EXCHANGE. DURING T HE YEAR THE ASSESSEE COMPANY HAS CALCULATED AVERAGE MARKET PRIC E AS PER GENERAL MEETING, CERTIFICATION BY STATUTORY AUDITOR ETC., HAS SUBMITTED TO BOMBAY STOCK EXCHANGE AND HAS ISSUED T HE PREFERENTIAL SHARE AFTER GETTING APPROVAL FROM BOMB AY STOCK EXCHANGE. THESE ARE NORMAL BUSINESS TRANSACTIONS BE CAUSE THESE ARE ISSUED AS PER SEBI AND STOCK EXCHANGE GUI DELINES. THESE SHARES ARE ISSUED TO A NUMBER OF COMPANIES AN D INDIVIDUALS AND NOT ONLY TO RGSL. VALUATION OF THES E SHARES ARE DONE AS PER SEBI AND STOCK EXCHANGE GUIDELINES WHIC H WERE AS PER AVERAGE MARKET RATS AND APPROVED BY BOARD OF DIRECTORS AND GENERAL MEETING OF CHD, STATUTORY AUDITOR AND B OMBAY STOCK EXCHANGE APPROVAL. THERE IS NO CLOSE OR REMOT E NEXUS BETWEEN CHD AND RGSL. THERE IS NO COMMON RELATION A MONG THE DIRECTORS OR MAJOR SHARE HOLDERS. SINCE CHD IS LISTED ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 11 COMPANY IT HAS NO CONTROL OVER MARKET RATE OR GUIDE LINES OF SEBI AND STOCK EXCHANGE. IT IS IMMATERIAL FOR CHD W HAT ITS SHAREHOLDER DOES WITH THEIR INVESTMENTS. AS REGARD ASSESSING OFFICER S OBSERVATION THAT THE ASSESSEE HAS BOOKED SUBSTANTIAL SALES WITH RESPECT TO NON 80-IB PROJECT AND HAS BOO KED SUBSTANTIAL SALES WITH RESPECT TO 80-IB PROJECT, IT WAS SUBMITTED THAT THESE ARE NORMAL BUSINESS TRANSACTIONS WHICH C HD HAS UNDERTAKEN DURING THIS YEAR FOR EARNING PROFITS IN 80-IB PROJECT AS WELL AS NON 80-IB PROJECTS. 8.7. IF THE AFORESAID IS ANALYZED, WE FIND THAT THE GRIEVANCE OF THE REVENUE IS THAT THE SALES MADE TO M/S RAJASTHAN GLOBAL SECU RITIES LTD. ARE NOT PROPERLY ACCOUNTED FOR AND UNDUE PROFIT HAS ARISEN ON ACCOUNT OF SEC. 80-IB, WHEREAS THE CLAIM OF THE ASSESSEE IS THAT IT IS A N ORMAL BUSINESS TRANSACTION AND THE ASSESSEE HAS NO MUTUAL RELATION WHAT-SO-EV ER WITH M/S RAJASTHAN GLOBAL SECURITIES LTD. SO FAR AS THE BUILT UP AREA IS CONCERNED, AS HAS BEEN ALLEGED BY THE REVENUE THAT IT IS BEYOND THE PRESCR IBED LIMIT OF 1500 SQ. FT., WE HAVE PERUSED THE SANCTION PLAN, SUBMISSIONS BEFO RE THE ASSESSING OFFICER AS WELL AS BEFORE THE LD. CIT(A) AND THE BREAK UP DIMENSIONS ADDUCED BY THE ASSESSEE. SUCH BREAK UP EVEN HAS BEEN REPRODUCE D AT PAGES 7 & 8 OF THE IMPUGNED ORDER, AS PER WHICH THE TOTAL AREA HAS BEE N CLAIMED BY THE ASSESSEE AT 1492.43 SQ. FT. 8.8. ANOTHER POINT MENTIONED IN THE ASSESSMENT OR DER FOR DENYING DEDUCTION BY THE ASSESSING OFFICER IS THAT THE ASS ESSEE DID NOT FILE THE BIFURCATION. HOWEVER, WE FIND THAT SUCH BIFURCATION WAS DULY FILED BY THE ASSESSEE THAT TOO ROOM-WISE OF ALL THE UNITS. STILL THE DEDUCTION WAS DENIED ON THE PRESUMPTION THAT THE BASIS OF ARRIVING AT SU CH FIGURE WAS NOT ADDUCED BY THE ASSESSEE. WE ARE NOT IN AGREEMENT WITH THE FINDING OF THE ASSESSING OFFICER ON TWO COUNTS- FIRSTLY, THE APPROVAL WAS G RANTED BY THE COMPETENT AUTHORITY; AND SECONDLY SUCH BIFURCATION IS AS PER SANCTIONED PLAN WHICH ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 12 WAS FILED BEFORE THE ASSESSING OFFICER. UNCONTROVER TEDLY SUCH BIFURCATION WAS FILED DURING ASSESSMENT STAGE, FIRST APPELLATE STAGE AND EVEN BEFORE US. IT IS ALSO NOT IN DISPUTE THAT THE APPROVAL WAS GRA NTED BY THE COMPETENT AUTHORITY TO THE ASSESSEE ON 16-3-2005 MEANING THER EBY THE PROJECT WAS APPROVED BEFORE THE AMENDMENT INSERTED/ SUBSTITUTED BY FINANCE (NO.2) ACT OF 2004, W.E.F. 1-4-2005. PRIOR TO ITS SUBSTITUTION , SUB-SECTION (10), AS AMENDED BY THE FINANCE ACT, 2000, W.E.F. 1-4-2001 A ND FINANCE ACT 2003 WITH RETROSPECTIVE EFFECT FROM 1-4-2002, READ AS UN DER: (10) THE AMOUNT OF PROFITS IN CASE OF AN UNDERTAKI NG DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31 ST DAY OF MARCH, 2005 BY A LOCAL AUTHORITY, SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEA R RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF, - (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1 ST DAY OF OCTOBER, 1998; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WH ICH HAS A MINIMUM AREA OF ONE ACRE; AND (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP ARE A OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WI THIN TWENTY-FIVE KILOMETERS FROM THE MUNICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEE T AT ANY OTHER PLACE. 8.9. IF THE AFORESAID POSITION OF LAW EXISTING AT T HE TIME WHEN THE PLAN WAS SANCTIONED/ APPROVAL WAS GRANTED TO THE ASSESSEE I S ANALYZED , THERE WAS NO CONDITION LIKE PRODUCTION OF COMPLETE CERTIFICATE. THIS IS A SETTLED LEGAL PROPOSITION OF LAW THAT THE LAW EXISTING AT THE PAR TICULAR POINT OF TIME WILL BE APPLICABLE UNLESS AND UNTIL IT IS SPECIFICALLY MADE RETROSPECTIVE BY THE ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 13 LEGISLATURE. THE SUBSTITUTION SO MADE, IS THEREFORE , APPLICABLE PROSPECTIVELY AND NOT RETROSPECTIVELY. THERE IS AN UNCONTROVERTED FACT THAT APPROVAL WAS GRANTED TO THE ASSESSEE ON 16-3-2005, CONSEQUENTLY THE ASSESSEE WAS EXPECTED TO COMPLETE THE PROJECT ON OR BEFORE 31-3- 2009. NOW THE QUESTION ARISES WHETHER THE PROJECT WAS COMPLETED BY THE ASS ESSEE WITHIN TIME. AS IS EVIDENT FROM THE LETTER OF THE ASSESSEE DATED 5-11- 2008 ADDRESSED TO THE VICE CHAIRMAN MATHURA VRINDAVAN DEVELOPMENT AUTHORITY, O N WHICH THE SEAL AND SIGNATURE OF THE CONCERNED AUTHORITY IS AFFIXED (PAGE 28 OF THE PAPER BOOK), IT HAS BEEN SPECIFICALLY REQUESTED THAT THE CONSTRUCTION HAS BEEN COMPLETED AND FURTHER REQUEST HAS BEEN MADE FOR GRA NT OF COMPLETION CERTIFICATE OF PHASE-I, MEANING THEREBY, IF NOT EAR LIER, THE PROJECT WAS PRESUMED TO BE COMPLETE AS ON 5-11-2008 BECAUSE THE CONCERNED DEVELOPMENT AUTHORITY HAS NEITHER SAID THAT THE PRO JECT WAS NOT COMPLETE NOR COMPLETION CERTIFICATE WAS ISSUED TO THE ASSESSEE. IN THE ABSENCE OF ANY VARIATION OR ALLEGATION IF SUCH CERTIFICATE IS NOT ISSUED TO THE ASSESSEE, WHETHER THE ASSESSEE CAN BE PENALIZED FOR THE ACT O F AN AUTHORITY ON WHICH IT HAS NO CONTROL, THE OBVIOUS REPLY IS THAT FOR THE F AULT OF OTHERS ANYBODY SHOULD NOT BE PENALIZED, MORE SPECIFICALLY WHEN THE PROJECT WAS APPROVED ON 16-3-2005. THEREFORE, THE LAW APPLICABLE AS ON DATE WILL BE APPLICABLE TO THE ASSESSEE. IT IS NOT EXPECTED THAT THE ASSESSEE WILL DEMOLISH THE CONSTRUCTION WORK WHICH IS ALREADY IN PROGRESS AND AGAIN COMPLY WITH THE DIRECTION OF THE LAW WHICH WAS INSERTED ON A LATER DATE WHICH IS PRO SPECTIVE IN NATURE. IF THE INTENTION OF THE LEGISLATURE WOULD HAVE BEEN TO MAK E IT EFFECTIVE FROM RETROSPECTIVE EFFECT, NOTHING PREVENTS THE LEGISLAT URE TO DO SO. 8.10. IF THE ISSUE IS ANALYZED IN THE LIGHT OF CASE LAWS CITED BEFORE US, WE FIND THAT THE HONBLE KARNATAKA HIGH COURT VIDE JUD GMENT DATED 29 TH ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 14 FEBRUARY 2012 IN THE CASE OF CIT & ANOTHER VS. M/S ANRIYA PROJECT MANAGEMENT SERVICES PVT. LTD. (ITA NO. 138 OF 2010) , CONSIDERED THE DECISION LIKE CIT & ORS. VS. G.R. DEVELOPERS (ITA N O. 355/2009) AND HELD THAT DEFINITION OF BUILT UP AREA WAS INSERTED BY FI NANCE (NO.2) ACT OF 2004, WHICH CAME INTO EFFECT FROM 1-4-2005, IS PROSPECTIV E IN NATURE AND HAS NO APPLICATION TO THE HOUSING PROJECTS WHICH WERE APPR OVED BY LOCAL AUTHORITY PRIOR TO THAT DATE, STRONGLY SUPPORTS THE CASE OF T HE ASSESSEE. IT WAS HELD BY THE HONBLE HIGH COURT THAT THE ASSESSEE WAS ENTITL ED TO HUNDRED PER CENT BENEFIT OF SEC. 80-IB(10). 8.11. ANOTHER CASE CITED WAS FROM VISAKHAPATNAME BE NCH OF THE ITAT IN THE CASE OF M/S VISHNU BUILDERS VS. ACIT (ITA NOS. 178, 179 & 180/VIZAG/2011), ORDER DATED 27 TH JULY 2011. IN THAT CASE ALSO, COMPLETION CERTIFICATE WAS NOT FILED BEFORE THE ASSESSING OFFI CER AND THE PROOF OF MUNICIPAL TAX ASSESSMENT OF VARIOUS FLAT OWNERS ES TABLISHING THAT THE HOUSING PROJECT WAS COMPLETED BEFORE SEPTEMBER 2008 WAS FILED. SINCE THERE WAS NO PRACTICE OF ISSUING THE PROJECT COMPLETION C ERTIFICATE, THEREFORE, IT WAS HELD THAT IT WAS NOT A CONDITION PRECEDENT OF FILI NG THE COMPLETION CERTIFICATE FOR ALLOWING DEDUCTION U/S 80-IB(10) OF THE ACT. 8.12. IN THE CASE OF CIT VS. TARNETAR CORPORATION ( TAX APPEAL NO. 1241 OF 2011), THE HONBLE GUJARAT HIGH COURT VIDE JUDGMENT DATED 12-9-2012, OBSERVED THAT THE CONFIRMATION ISSUED BY MUNICIPAL AUTHORITIES WAS FILED ON 15-2-2006 AND WAS REJECTED ON 1-7-2006. THE ASSESSE E ALSO PAID PENALTY FOR REGULARIZATION OF THE UNITS. SINCE CONSTRUCTION WAS COMPLETED WELL BEFORE 31 ST MARCH 2008, THE OUTER LIMIT FOR SUCH CONSTRUCTION AND THE PERMISSION WAS NOT GRANTED BY THEY MUNICIPAL AUTHORITY, IT WAS HELD THAT FULFILLING OF ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 15 EVERY CONDITION IS NOT MANDATORY AND IF THERE IS A SUBSTANTIAL COMPLIANCE, THE MINOR DEVIATION THEREOF WOULD NOT VITIATE THE VERY PURPOSE OF DEDUCTION. 8.13. THE ITAT DELHI BENCH G IN THE CASE OF ACIT VS. SURENDRA DEVELOPERS ETC. (ITA NOS. 2743 TO 2745 & ITA NOS. 3 056 TO 3058/DEL/2010) VIDE ORDER DATED 1-8-2012, HELD THAT WHEREIN THE ASSESSEE APPLIED FOR COMPLETION CERTIFICATE BEFORE THE LOWER AUTHORITIES IN TIME AND SUCH CERTIFICATE WAS NOT ISSUED BY THE LOCAL AUTHORITY, SUCH NON-ISSUANCE WAS BEYOND THE CONTROL OF THE ASSESSEE. WHILE COMING TO THIS CONCLUSION THE BENCH ALSO CONSIDERED ANOTHER CASE OF M/S GIRIJA CO LONIZERS (ITA NOS. 2417 TO 2422/DEL/11 ORDER DATED 9-12-2011). 8.14. THE LD. SR. D.R. ALSO PLACED RELIANCE UPON TH E DECISION OF THE TRIBUNAL OF CHENNAI BENCH IN ACIT VS. VISWAS PROMOTERS P. LTD. (2010) 005 ITR (TRIB) 0449 ON THE ISSUE OF BUILT UP AREA NOT EXCEE DING 1500 SQ. FT. IT WAS HELD THAT IF THIS CONDITION IS NOT FULFILLED, THE A SSESSEE IS NOT ELIGIBLE FOR DEDUCTION. HOWEVER, WE FIND THAT IN THE PRESENT APP EAL, THE BUILT UP AREA IS BELOW THE PRESCRIBED LIMIT OF 1500 SQ. FT. THEREFOR E, THIS DECISION MAY NOT HELP THE REVENUE BEING DISTINGUISHABLE ON FACTS. 8.15. IF THIS ISSUE IS ANALYZED WITH THE VIEW POINT OF RULE OF CONSISTENCY, WE ARE OF THE CONSIDERED OPINION THAT THOUGH THE PRINC IPLE OF RES-JUDICATA IS NOT APPLICABLE TO THE INCOME-TAX PROCEEDINGS, YET FOR T HE SAKE OF CONSISTENCY AND FOR THE PURPOSES OF FINALITY IN ALL LITIGATIONS, IN CLUDING LITIGATION ARISING OUT OF FISCAL STATUTES, EARLIER DECISIONS ON THE SAME Q UESTION SHOULD NOT BE REOPENED UNLESS SOME FRESH FACTS ARE BROUGHT ON REC ORD IN SUBSEQUENT ASSESSMENT YEAR. FOR A.Y. 2006-07, EVEN THE LD. CI T(A) DECIDED THE ISSUE IN ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 16 FAVOUR OF THE ASSESSEE, WHICH WAS CONFIRMED BY THE TRIBUNAL (SUPRA), THEREFORE, UNLESS AND UNTIL ANY NEW MATERIAL FACTS ARE BROUGHT ON RECORD, THE REVENUE IS NOT PERMITTED TO TAKE A U TURN, WHILE DENYING THE CLAIMED DEDUCTION TO THE ASSESSEE, THAT TOO ON SAME FACTS A ND CIRCUMSTANCES. OUR VIEW IS FORTIFIED BY THE DECISION OF HONBLE JURISD ICTIONAL HIGH COURT IN THE CASE OF CIT V. A.R.J. SECURITY PRINTERS 264 ITR 27 6 (DEL.); AND THE RATIO LAID DOWN IN CIT VS. NEO POLY PACK (P) LTD. 245 ITR 492 (DEL.); BERGER PAINTS INDIA LTD. VS. CIT 266 ITR 99 (SC); CIT VS. LAGAN KALA UPVAN 259 ITR 489 (DEL.); AND UNION OF INDIA & OTHERS VS. KAU MUDINI NARAYAN DALAL & ANOTHER 249 ITR 219 (SC). FROM THIS ANGLE ALSO, T HE ASSESSEE IS HAVING A STRONG CASE IN ITS FAVOUR. 8.16. LEAVE APART, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS EXPECTED TO COMPLETE THE PROJECT AS PER THE APPROVE D PLAN AT A PARTICULAR POINT OF TIME AND THE ASSESSEE IS NOT EXPECTED TO D O OR TO FULFILL THE CONDITIONS WHICH ARE NOT IN EXISTENCE AT THE RELEVA NT POINT OF TIME OR MADE COMPULSORY AFTER MAKING SOME AMENDMENT IN THE ACT F ROM THE FUTURE DATE. SINCE THE ASSESSEE WAS TO COMPLETE THE PROJECT ON O R BEFORE 31-3-2009 AND REQUEST WAS DULY MADE WITH THE COMPETENT AUTHORITY ON 5-11-2008 MENTIONING THAT THE PROJECT HAS BEEN COMPLETED AND COMPLETION CERTIFICATE MAY BE ISSUED AND IF THE SAME IS NOT ISSUED BY THE COMPETENT AUTHORITY THE ASSESSEE SHOULD NOT BE PENALIZED FOR THE SAME UNLES S AND UNTIL SOME CONTRARY FACTS ARE BROUGHT ON RECORD EVIDENCING THAT THE ASS ESSEE CONTRAVENED THE CONDITIONS CONTAINED IN THE APPROVAL GRANTED BY SUC H COMPETENT AUTHORITY. AS PER SUB-SECTION (10) OF SEC. 80-IB, THE HOUSING PROJECT WHICH WERE APPROVED BEFORE 31 ST DAY OF MARCH, 2008, THE BENEFIT WILL BE HUNDRED PE R CENT SUBJECT TO FULFILLMENT OF CERTAIN CONDITIONS. HOWEVER, THIS CONDITION WAS ITA NO. 2902 & 4694/DEL/2010 M/S CHD DEVELOPERS LTD. 17 SUBSTITUTED BY THE FINANCE (NO.2) ACT OF 2009 WITH EFFECT FROM 1-4-2009, WHICH HAS BEEN FURTHER EXPLAINED BY SUB-CLAUSE (II) TO THE EXPLANATION REGARDING COMPLETION CERTIFICATE. HOWEVER, SINCE TH E APPROVAL WAS GRANTED TO THE ASSESSEE ON 1-4-2005, THEREFORE, THE ASSESSEE I S NOT EXPECTED TO FULFILL THE CONDITIONS WHICH WERE NOT ON THE STATUTE WHEN SUCH APPROVAL WAS GRANTED TO THE ASSESSEE. THEREFORE, THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED. 9. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED IN PART AND THAT OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 26-09-2012. SD/- SD/- ( SHAMIM YAHYA ) ( JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26-09-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR