M/s. Deep Mohini, Bhopal V. The ACIT 1(1), Bhopal

ITA 471/IND/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99001 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 14-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: N D PATWA
• Keywords: Retrospective amendment; Initiation of penalty proceedings
• Section: 234B; 80IB

Judgement Text

M/S DEEP MOHINI ITA NO. 471/IND/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 471/IND/2013 A.Y.2007-08 M/S DEEP MOHINI BHOPAL PAN AAEFD 2569B ::: APPELLANT VS ASSTT.COMMR. OF INCOME TAX 1(1) BHOPAL ::: RESPONDENT APPELLANT BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 16 .9.2015 DATE OF PRONOUNCEMENT 2 3 .9.2015 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LEARNED CIT(A), RAIPUR DATED 22.3.201 3. M/S DEEP MOHINI ITA NO. 471/IND/2013 2 2. THE ASSESSEE IS A PARTNERSHIP FIRM DERIVING INCOME FROM CIVIL CONSTRUCTION BY WAY OF DEVELOPMENT AND BU ILDING HOUSING PROJECTS. THE RETURN OF INCOME WAS FILED DEC LARING INCOME AT RS. 10,300/- ON 29.10.2007 AFTER CLAIMING DEDUCTION OF RS. 28,93,422/- UNDER SECTION 80IB(10) OF THE INCOME TAX ACT, 1961. IN THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER FOUND THAT THE ASSESSEE IS NOT FULF ILLING ALL THE CONDITIONS LAID DOWN UNDER SECTION 80IB(10) OF T HE INCOME TAX ACT, 1961. HE, THEREFORE, DID NOT ALLOW THE CLAIMED DEDUCTION. THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY HOLDING AS UNDER :- 6. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF THE APPELLANT. I FIND THA T THE APPELLANT HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO REBUT THE FINDING OF THE A.O. THAT THE APPROVAL WAS FOR THE PURPOSES OF BUILDING CONSTRUCTION AND APPROVAL HAS NOT BEEN GIVEN FOR M/S DEEP MOHINI ITA NO. 471/IND/2013 3 DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT. THE APPELLANT HAS ALSO FAILED TO REBUT THE FINDING OF FACT RECORDED BY THE A.O. AFTER EXAMINATION OF THE BOOKS OF ACCOUNTS THAT THERE WAS NO TRANSACTION IN THE BOOKS OF ACCOUNTS INDICATING DEVELOPMENT/SALE OF THE LAND. THE A.O. HAS RECORDED HIS FINDING OF FACT THAT THE APPELLANT HAS NOT ACCOUNTED FOR THE EXPENSES AS PER THE AGREEMENT IN THE BOOKS OF ACCOUNTS. THE APPELLANT HAS NOT REBUTTED THE ASSERTION OF THE A.O. THAT THE APPELLANT IS NOT SEL LING ANY CONSTRUCTED PROPERTY. THE APPELLANT HAS MERELY RECORDED THE RECEIPTS IN ITS BOOKS OF ACCOUNTS, HOWEVER, NO REGISTRY WAS CARRIED OUT. THE APPELLANT HAS FAILED TO BRING ON RECORD ANY EVIDENCE TO THE EFFECT THAT THE APPELLANT WAS NOT ACTING MERELY AS A CONTRACTOR TO THE CUSTOMER FOR WHICH CONSTRUCTION CHARGES WERE BEING PAID BY THE CUSTOMERS. IT IS M/S DEEP MOHINI ITA NO. 471/IND/2013 4 HYPOTHETICAL TO ASSUME ANY SUCH BUSINESS OF DEVELOPMENT OF HOUSING PROJECT WITHOUT THERE BEING SUFFICIENT CAPITAL OF THE PARTNERS. THE APPELLANT H AS NOT REBUTTED THE ALLEGATION OF THE A.O. THAT THE APPELLANT IS NOT UNDERTAKING DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT. THE APPELLANT HAS ALSO NOT REBUTTED THE ALLEGATION OF THE A.O. THAT T HE APPELLANT IS NEITHER THE OWNER NOR THE SELLER OF TH E LAND ON WHICH PROJECT IS CLAIMED TO HAVE BEEN UNDERTAKEN. THE A.O. ON EXAMINATION OF THE BOOKS OF ACCOUNTS OF THE APPELLANT CAME TO THE CONCLUSION THAT NO NEW RESIDENTIAL PROPERTY IS BEING CONSTRUCTED OR TRANSFERRED BY THE APPELLANT. THE A.O. HAS RECORDED HIS FINDING OF FACT THAT THE PROJ ECT IS NOT APPROVED AS A WHOLE BY BMC, ON THE CONTRARY, INDIVIDUAL BUILDING PERMISSION HAS BEEN GIVEN. AS PERMISSION FOR THE PROJECT WAS IN THE M/S DEEP MOHINI ITA NO. 471/IND/2013 5 NAME OF M/S DEEP COLONISERS, IT WAS INCUMBENT UPON HE APPELLANT TO PROVE BEYOND ALL SHADOWS OF DOUBT THAT THE RISK AND REWARD OF THE PROJECT VESTE D WITH THE APPELLANT, HOWEVER, THE APPELLANT HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THE SAME. THE LETTERS CLAIMED TO HAVE BEEN SUBMITTED TO BMC THUS THE AUTHENTICITY OF THE LETTER IS DOUBTFUL AND THERE IS ENOUGH DOUBT ON THE SANCTITY OF SAID LETTE RS. THE DECISIONS RELIED UPON BY THE APPELLANT ARE NOT COMING TO THE RESCUE OF THE APPELLANT IN VIEW OF DISTINGUISHED FACTS. HENCE, I AM CONVINCED THAT THE APPELLANT DID NOT FULFILL THE CONDITIONS FOR CLAIMI NG DEDUCTION U/S 80IB(10). THEREFORE, THE ADDITION MADE BY THE A.O. IS SUSTAINED. THIS GROUND OF APPEAL IS ACCORDINGLY DISMISSED. AGAINST THE ORDER OF THE LEARNED CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS :- M/S DEEP MOHINI ITA NO. 471/IND/2013 6 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.28,93,422/- BEING DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IB(10) WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACTS PROPERLY AND THUS THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IS UNJUST, UNFAIR AND BAD IN LAW. 2. THAT UNDER THE CIRCUMSTANCES, CHARGING OF INTEREST U/S 234B OF RS.76,891/- AND U/S 234C OFRS.4,991/- IS NOT JUSTIFIED. 3.THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE,INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C ) IS NOT JUSTIFIED. M/S DEEP MOHINI ITA NO. 471/IND/2013 7 3. GROUND NO. 3 IS IN RESPECT OF INITIATION OF P ENALTY PROCEEDINGS WHICH IS PRE-MATURE TO BE DECIDED. 4. GROUND NO. 2 IS FOR CHARGING INTEREST U/S 234B OF THE ACT OF RS.76,891/- AND U/S 234C OF THE ACT AT RS.4,991/-. CHARGING OF INTEREST IN THESE SECTIONS I S MANDATORY AND, THEREFORE, THESE GROUNDS ARE ALSO DISMISSED. 5. GROUND NO. 1 RELATES TO CONFIRMING THE ACTION OF T HE ASSESSING OFFICER IN DISALLOWING THE CLAIM UNDER SECT ION 80IB(10) OF THE INCOME TAX ACT, 1961. FOR NOT ALLOWI NG THE CLAIM OF THE ASSESSEE ONE OF THE REASONS IS THAT THE ASSESSEE DID NOT SUBMIT THE COMPLETION CERTIFICATE FR OM THE BHOPAL MUNICIPAL CORPORATION WHICH IS THE LOCAL AUTHORIT Y. 6. WE HAVE HEARD BOTH THE SIDES. FROM RECORD WE F IND THAT THE MUNICIPAL CORPORATION, BHOPAL, HAS GIVEN THE PERMISSION CERTIFICATE NO. NC1160-02358-0304 DATED M/S DEEP MOHINI ITA NO. 471/IND/2013 8 16.3.2004 AND AS PER THE PROVISIONS OF SECTION 80IB(1 0) OF THE INCOME TAX ACT, 1961 THE ASSESSEE WAS TO COMPLETE THE PROJECT BY 31 ST MARCH, 2008 AND OBTAIN THE COMPLETION CERTIFICATE IN RESPECT OF THE HOUSING PROJECT ISSUED BY THE LOCAL AUTHORITY I.E. MUNICIPAL CORPORATION, BHOPAL. 7. BEFORE US, IT WAS SUBMITTED THE ASSESSEE HAS SUBMI TTED AN APPLICATION FOR COMPLETION ON 15.9.2011. ALSO AN ARCHITECT SAINI & SAINI ASSOCIATES REPORT IN FORM OF TO WHOMSOEVER IT MAY CONCERN ISSUED ON 15.6.2006 REGARDING COMPLETION OF THE PROJECT. FROM THIS WE FI ND THAT THE APPLICATION WITH WHICH THE CERTIFICATE OF THE ARCHI TECT IS ATTACHED IS SUBMITTED ON 15.9.2011 ITSELF AND THE CERTIFICATE OF THE ARCHITECT HAS VALUE WITH REGARD COMP LETION OF THE PROJECT IN TERMS OF SECTION 80IB(10) OF THE ACT. IN A RECENT JUDGMENT THE HON'BLE JURISDICTIONAL HIGH COUR T OF MADHYA PRADESH IN THE CASE OF CIT VS. M/S GLOBAL REALI TY; M/S DEEP MOHINI ITA NO. 471/IND/2013 9 ITA NO. 40/2012 AND OTHERS HAS DECIDED THE ISSUE AGAINS T THE ASSESSEE BY HOLDING AS UNDER :- 19. THE PROVISION SUCH AS CLAUSE (A) AS AMENDED, SENSU STRICTO, CANNOT BE CONSIDERED AS A NEW CONDITION AND THAT TOO INCAPABLE OF COMPLIANCE. INASMUCH AS, CLAUSE (A) DEALS 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 PROJECT S APPROVED BY THE LOCAL AUTHORITY BEFORE 31.03.2007, INSTEAD OF 31.03.2005 - AS WAS PROVIDED IN THE UNAMENDED PROVISION. THEREFORE, NECESSITY WAS FELT TO MAKE DISTINCTION BETWEEN 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 OTHER CLASS OF M/S DEEP MOHINI ITA NO. 471/IND/2013 10 HOUSING PROJECT APPROVED BY THE LOCAL AUTHORITY ON O R 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 APRIL, 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 FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. 20. THUS UNDERSTOOD, SIMILAR TIME FRAME FOR COMPLETION OF HOUSING PROJECT HAS BEEN GIVEN TO BOT H CLASS OF HOUSING PROJECTS. MOREOVER, THE EXPLANATIO N BELOW CLAUSE (A), IN PARTICULAR (II), APPLIES TO BO TH CLASS OF HOUSING PROJECTS UNIFORMLY. IT POSTULATES THAT 'THE DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT' SHALL BE TAKEN TO BE 'THE DATE ON WHICH M/S DEEP MOHINI ITA NO. 471/IND/2013 11 COMPLETION CERTIFICATE' IN RESPECT OF SUCH HOUSING PROJECT 'IS ISSUED BY THE LOCAL AUTHORITY'. IF EXPLANATION (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 AFTER 01.10.1998 MUST POSSESS COMPLETION CERTIFICATE ISSUED 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 'COMPLETES SUCH CONSTRUCTION' WOULD BE THE DATE ON WHICH COMPLETION CERTIFICATE IS ISSUED BY THE LOCAL AUTHORITY. NO MORE AND NO LESS. THUS, ENOUGH INDICATION AND ALSO SUFFICIENT TIME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN GIVEN TO BOTH THE CLASS OF HOUSING PROJECTS TO FULFILL TH AT CONDITION. THE PROVISION IS IN THE NATURE OF LIMITI NG M/S DEEP MOHINI ITA NO. 471/IND/2013 12 THE BENEFIT OF DEDUCTION TO THE SPECIFIED HOUSING PROJECTS, AND NOT TO THOSE WHO FAIL TO FULFILL THE REQUIREMENT OF COMPLETION OF CONSTRUCTION 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 PROJECTS WHO WOULD FURTHER THE GOAL OF PROVIDING LO W COST ECONOMIC 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 PERSONS AND ALSO TO WITHDRAW THE SAME FOR JUST REASONS. THAT CANNOT BE QUESTIONED, UNLESS SHOWN TO BE UNCONSTITUTIONAL IN FORM OR ITS SUBSTANCE. IT WA S THUS OPEN TO THE PARLIAMENT, TO PROVIDE FOR A CUT O FF DATE FOR COMPLETION OF THE HOUSING PROJECTS, AS A CONDITION PRECEDENT TO AVAIL BENEFIT OF DEDUCTION. IN M/S DEEP MOHINI ITA NO. 471/IND/2013 13 THE PAST, SUCH STIPULATION WAS IN PLACE, BUT, LATER ON, IT WAS DONE AWAY WITH. HOWEVER, BY AMENDMENT WHICH CAME INTO EFFECT FROM 1ST APRIL, 2005, THE CONDITION FOR COMPLETION OF PROJECT WITHIN SPECIFIE D TIME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN REINTRODUCED, WHILE GIVING SUFFICIENT TIME (FOUR YEARS) TO THE ASSESSEE TO COMPLY FOR BEI NG ENTITLED TO GET DEDUCTION. 22. A PRIORI, IT IS NOT A CASE OF IMPOSING NEW CONDITION, MUCH LESS, WITH RETROSPECTIVE EFFECT AS HAS BEEN ARGUED BEFORE US; UNLIKE INTRODUCTION OF NEW CONDITION IN THE SHAPE OF CLAUSE (D) - WHICH OBVIOU SLY COULD BE APPLIED ONLY PROSPECTIVELY, AS HELD BY THE SUPREME COURT IN THE AFORESAID DECISIONS. CLAUSE (A ) STANDS ON A COMPLETELY DIFFERENT PEDESTAL. IT CANNO T BE TREATED AS A NEW CONDITION LINKED TO THE APPROVA L AND CONSTRUCTION OR HAVING RETROSPECTIVE EFFECT AS M/S DEEP MOHINI ITA NO. 471/IND/2013 14 SUCH. FOR, IT GIVES AT LEAST FOUR YEARS' TIME FRAME TO BOTH CLASS 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 THE PERIOD FOR COMPLETION OF THE PROJECT, TO AVAIL OF THE BENEFIT. FOUR YEARS' TIME FRAME FOR COMPLETION OF THE PROJECT, BY NO STANDARDS, CAN BE SAID TO BE UNREASONABLE, HARSH, ABSURD OR INCAPABLE OF COMPLIANCE. IT IS ALSO NOT A CASE OF WITHDRAWAL OF VESTED RIGHT OF THE DEVELOPER , AS SUCH. NO DEVELOPER CAN CLAIM 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 SPECI FIED TIME FRAME. IF THE DEVELOPER DOES NOT COMPLETE THE HOUSING PROJECT WITHIN SPECIFIED TIME, WILL NOT REC EIVE M/S DEEP MOHINI ITA NO. 471/IND/2013 15 THAT BENEFIT. THERE IS NO COMPULSION ON HIM TO COMPLETE THE PROJECT IN FOUR YEARS. NOTABLY, EVEN T HE 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 PROJECT 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 PROVISION FOR CLAIMING TAX DEDUCTION FROM PROFITS, CAN CERTAINLY PRESCRIBE FOR REASONABLE CONDITIONS AND MORE SO TIM E FRAME FOR COMPLETION OF THE PROJECT, IN LARGER PUBL IC INTEREST. 23. SUFFICE IT TO OBSERVE THAT, NO COMPARISON CAN B E DRAWN BETWEEN THE NEW CONDITION PRESCRIBED IN TERMS OF CLAUSE (D) AND THAT OF CLAUSE (A). CONDITI ON IN M/S DEEP MOHINI ITA NO. 471/IND/2013 16 CLAUSE (A), NEITHER OPERATES RETROSPECTIVELY NOR CA N BE SAID TO BE ABSURD, UNJUST OR EXPECTING I.T.A.NOS.40/2012, 36/2012 & 35/2012 THE ASSESSEE TO COMPLY WITH SOMETHING WHICH IS IMPOSSIBLE TO ACHIEVE. 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 I N ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR); AND THE PURPOSE UNDERLYING THE SAME - WHICH IS INTE R ALIA BURDEN ON THE PUBLIC EXCHEQUER DUE TO WAIVER O F COMMENSURATE REVENUE - THE STIPULATION FOR OBTAININ G COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY BEFO RE THE CUT OFF DATE, MUST BE CONSTRUED AS MANDATORY. THE FACT THAT COMPLIANCE OF THAT CONDITION IS M/S DEEP MOHINI ITA NO. 471/IND/2013 17 DEPENDENT ON THE MANNER IN WHICH THE PROPOSAL IS PROCESSED BY THE LOCAL AUTHORITY, THE PROVISION CANNOT BE CONSTRUED AS A DIRECTORY REQUIREMENT. IT IS A SUBSTANTIVE PROVISION MANDATING ISSUANCE OR GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY BEF ORE THE CUT OFF DATE OR SPECIFIED TIME, AS A PRECONDITI ON TO GET THE BENEFIT OF TAX DEDUCTION. ELSE, IT WILL THE N BE OPEN TO THE ASSESSEE TO RELY ON OTHER CIRCUMSTANCES OR I.T.A. NOS. 40/2012, 36/2012 & 35/ 2012 EVIDENCE TO PLEAD THAT THE HOUSING PROJECT IS COMPLETE - REQUIRING ENQUIRY INTO THOSE MATTERS BY THE TAX AUTHORITIES - SANS A COMPLETION CERTIFICATE ISS UED BY THE LOCAL AUTHORITY IN THAT BEHALF. A PRIORI, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE IS SUFFICIENT, WOULD LEAD TO UNCERTAINTY ABOUT THE DATE OF COMPLETION OF THE PROJECT WHICH IS THE HALLMARK FOR AVAILING OF THE BENEFIT OF TAX DEDUCTION. ONLY WITH M/S DEEP MOHINI ITA NO. 471/IND/2013 18 THIS INTENT THE LEGISLATURE IN ITS WISDOM HAS PREDICATED THAT, 'THE COMPLETION OF CONSTRUCTION' O F THE HOUSING PROJECT IS TAKEN TO BE 'THE DATE ON WHI CH' THE COMPLETION CERTIFICATE 'IS ISSUED' BY THE LOCAL AUTHORITY. TO INTERPRET IT TO INCLUDE AN EX POST FA CTO CERTIFICATE OR SUCH CERTIFICATE ISSUED BY THE LOCAL AUTHORITY AFTER THE CUT OFF DATE, WOULD NOT ONLY RE SULT IN REWRITING OF THE EXPRESS PROVISION AND RUN CONTR ARY TO THE UNAMBIGUOUS POSITION 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 HOUSI NG 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, 36/2012 & 35/2012 LOCAL AUTHORITY. INDEED, IN A GIVEN CASE IF THE ASSESSEE IS M/S DEEP MOHINI ITA NO. 471/IND/2013 19 ABLE TO SUBSTANTIATE THAT THE COMPLETION CERTIFICAT E 'WAS IN FACT ISSUED' BY THE LOCAL AUTHORITY BEFORE T HE CUT OFF DATE, BUT COULD NOT BE PRODUCED BY HIM WITH IN TIME DUE TO REASONS BEYOND HIS CONTROL, THE ARGUMEN T OF SUBSTANTIAL COMPLIANCE OF THE PROVISION CAN BE TESTED. ANY OTHER INTERPRETATION WOULD RESULT NOT O NLY IN UNCERTAINTY (IN FINALIZATION OF ASSESSMENT PROCEEDINGS DUE TO NON-ISSUANCE OR DELAYED ISSUANCE OF SUCH CERTIFICATE BY THE LOCAL 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 INVESTING WIDE DISCRETION IN THAT AUTHORITY, WHICH, EVENTUALLY, MAY ONLY END UP IN GETTING EMBROILED IN LITIGATION. IF THE ASSESSEE HAS FAILED TO COMPLY WI TH THE CONDITION OF OBTAINING COMPLETION CERTIFICATE F ROM THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, HE MUST M/S DEEP MOHINI ITA NO. 471/IND/2013 20 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 MUNICIPAL LAWS OF DIFFERENT STATES ARE NOT UNIFORM IN RESPECT OF 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 T O ISSUE PARTIAL OR FULL OCCUPATION CERTIFICATE; AND THEREAFTER ISSUE COMPLETION CERTIFICATE AFTER REMOV AL OF ALL THE DEFICIENCIES POINTED OUT BY THE LOCAL AUTHORITY. IN SOME STATES, THE MUNICIPAL LAW MAY PROVIDE FOR ISSUING PARTIAL OR FULL COMPLETION CERTIFICATE. THE REQUIREMENT OF COMPLETION CERTIFIC ATE 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 ONE M/S DEEP MOHINI ITA NO. 471/IND/2013 21 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 O F THIS POSITION, FOR WHICH, EXPRESS PROVISION HAS BEE N MADE AS TO THE MEANING OF THE DATE OF COMPLETION OF THE HOUSING PROJECT LINKED TO THE 'DATE ON WHICH' COMPLETION CERTIFICATE 'IS ISSUED' BY THE 'LOCAL AUTHORITY', AS PREDICATED IN EXPLANATION (II) THEREUNDER. 26. WE ACCORDINGLY HOLD THAT ISSUANCE OF COMPLETIO N CERTIFICATE, AFTER THE CUT OFF DATE BY THE LOCAL AUTHORITY BUT, MENTIONING THE DATE OF COMPLETION OF PROJECT BEFORE THE CUT OFF DATE DOES NOT FULFILL TH E CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 80IB ( 10) M/S DEEP MOHINI ITA NO. 471/IND/2013 22 READ WITH EXPLANATION (II) THEREUNDER. WE REJECT TH E ARGUMENT OF THE ASSESSEE THAT THE EFFECT OF AMENDED CLAUSE (A) OF SUB-SECTION 10 OF SECTION 80IB, WHICH HAS COME INTO FORCE WITH EFFECT FROM 1 ST APRIL, 2005 ,HAS RETROSPECTIVE EFFECT OR THAT IT IS UNJUST IN A NY MANNER OR INCAPABLE OF COMPLIANCE AT ALL. SIMILARLY , THE REQUIREMENT OF SECURING COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DA TE IS NOT DIRECTORY, IN VIEW OF THE EXPRESS PROVISION IN SECTION 80IB(10)(A) AND THE EXPLANATION (II) THEREUNDER. THE COMPLETION CERTIFICATE GRANTED BY T HE LOCAL AUTHORITY MUST BEAR THE DATE OF HAVING BEEN ISSUED BEFORE THE CUT OFF DATE. 27. THAT TAKES US TO THE ARGUMENT OF THE ASSESSEE THAT THE STIPULATION IN SECTION 80IB(10)(A ) OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL M/S DEEP MOHINI ITA NO. 471/IND/2013 23 AUTHORITY BEFORE THE CUT OFF DATE, CANNOT BE APPLIE D IN THE CASE OF ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD. IN OUR OPINION, 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 BENEFIT OF DEDUCTION UNDER THIS PROVISION CAN BE AVAILED BY THE ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD, PROVIDED HE HAS COMPLIED WITH THE STIPULATION OF HAVING PRODUCED COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE IN HI S CASE. IN OTHER WORDS, IF THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY BEFORE 1 ST APRIL, 2004, HE MUST SUBMIT COMPLETION CERTIFICATE ISSUED BY THE AUTHORITY HAVING BEEN ISSUED BEFORE THE 31 ST M/S DEEP MOHINI ITA NO. 471/IND/2013 24 MARCH, 2008. WHEREAS, IN THE CASE OF HOUSING PROJECT APPROVED ON OR AFTER 1 ST APRIL, 2004, THE ASSESSEE CAN AVAIL OF THE BENEFIT PROVIDED COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY IS WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE CONCERNED HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. IF THIS CONDITION I S 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 DISALLOWANCE OR WITHDRAWAL OF THE BENEFIT CLAIMED BY HIM ON THAT COUNT. 28. ACCORDINGLY, THESE APPEALS SUCCEED. THE IMPUGNED JUDGMENT OF THE TRIBUNAL IS SET ASIDE; AND IN THE FACTS OF THE PRESENT CASE, THE DECISION OF THE ASSESSING OFFICER TO DISALLOW DEDUCTION UNDER M/S DEEP MOHINI ITA NO. 471/IND/2013 25 SECTION 80IB(10)(A) OF THE INCOME TAX ACT IS UPHELD . NO ORDER AS TO COSTS. 8. THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSIDER ED THE SWEEP OF AMENDED CLAUSE (A) OF THE PROVISION UNDER SUB-SECTION (10) OF SECTION 80IB OF THE ACT AND HELD THAT THE PROVISIONS OF CLAUSE (A), AS AMENDED, SEN SUSTRICTO CAN NOT BE CONSIDERED AS NEW CONDITION AND THAT TOO INCAPABLE OF COMPLIANCE. THE CLAUSE DEALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJECT WAS EXPECTED TO BE COMPLET ED TO GET THE BENEFIT OF PRESCRIBED DEDUCTION. THE HON'BL E HIGH COURT HAS HELD THAT ISSUANCE OF COMPLETION CERTIFICATE 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 S ECTION 80IB(10) READ WITH EXPLANATION 2 THEREUNDER. IN VIEW OF THIS FINDING, WE FIND NO MERIT IN THE APPEAL OF THE AS SESSEE. M/S DEEP MOHINI ITA NO. 471/IND/2013 26 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. PRONOUNCED IN OPEN COURT ON 23 RD SEPTEMBER, 2015 SD SD (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 23 RD SEPTEMBER, 2015 DN/-