The ACIT, 1(2), Bhopal V. M/s. Bhawani Housing & Investment Pvt. Ltd., Bhopal

ITA 496/IND/2013

• Counselvise Citation: 49622714 RSA 2013
• Duration Of Justice: 2 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 24-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: N D PATWA
• Keywords: Competent authority
• Section: 143(3); 80IB

Judgement Text

ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 496/IND/2013 A.Y.1009-10 ACIT 1(2) BHOPAL ::: APPELLANT VS BHAWANI HOUSING & INVESTMENT PVT. LTD. BHOPAL ::: RESPONDENT APPELLANT BY SHRI R.A. VERMA RESPONDENT BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA DATE OF HEARING 8.6.2015 DATE OF PRONOUNCEMENT 3.8 .2015 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF THE LEARNED CIT(A), RAIPUR CAMP AT BHOPAL , DATED 28.3.2013. ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 2 2. THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE CONSTRUCTION AND DEVELOPMENT OF COLONIES. THE RE TURN OF INCOME WAS FILED DECLARING INCOME AT RS.3,64,189/- AND THE ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED AT THE TOTAL INCOME OF RS.45,32,836/-. THIS ADDITION WAS ON ACCOUNT OF DENIAL OF DEDUCTION U/S 80IB(10) OF THE AC T OF RS. 41,68,647/-. AGAINST THIS, THE ASSESSEE PREFERRE D FIRST APPEAL BEFORE THE LEARNED CIT(A) AND THE LEARNED CIT(A) GRANTED RELIEF TO THE ASSESSEE. 3. WE HAVE HEARD BOTH THE SIDES IN DETAIL. THE ASSESS ING OFFICER DENIED THE BENEFIT U/S 80IB(10) OF THE ACT FOR THE REASON THAT THE ASSESSEE HAS ACTED IN THE CAPACITY OF A CONTRACTOR AS THE REGISTRY WAS ONLY FOR THE PLOT AND NO T FOR COMPLETED UNITS AND THE COMPLETION CERTIFICATE WAS NOT OBTAINED FROM THE COMPETENT AUTHORITY AND ALSO MORE TH AN ONE UNIT HAS BEEN SOLD TO A SINGLE PERSON, HENCE, THE ASSESSEE VIOLATED THE PROVISIONS OF SECTION 80IB(10) OF THE ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 3 ACT. FIRSTLY WE WOULD LIKE TO STATE THAT THE CONDITI ON OF SELLING MORE THAN ONE RESIDENTIAL UNIT IN THE HOUSING PROJECT TO ANY PERSON HAS BEEN INCORPORATED BY THE AMENDMENT BROUGHT IN W.E.F. IST APRIL, 2010. THEREF ORE, THIS CONDITION IS NOT APPLICABLE FOR THE ASSESSMENT Y EAR 2009-10 WHICH IS UNDER CONSIDERATION. THEREFORE, THI S PLEA OF THE REVENUE WAS RIGHTLY REJECTED BY THE LEARNED CI T(A). 4. REGARDING ANOTHER ISSUE OF CONTRACT VS. DEVELOPER, WE HOLD THAT THE ASSESSEE HAS PURCHASED THE LAND ON 7.8.200 6 AND CONVERTED THE SAME BY OBTAINING NO OBJECTION CERTIFICATE FROM THE CONCERNED DEPARTMENT ON 10.1.200 7. THE ASSESSEE ALSO OBTAINED COLONIZERS LICENCE FROM THE MUNICIPAL CORPORATION, BHOPAL, ON 28.5.2003. THE LAY O UT PLAN WAS APPROVED BY THE TOWN AND COUNTRY PLANNING DEPARTMENT IN THE ASSESSES NAME. THE ASSESSEE OBTAINED BUILDING PERMISSION FROM THE MUNICIPAL CORPORATION FO R THE ENTIRE LAND. THE PROJECT WAS COMPLETED WELL WITHIN TH E TIME ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 4 LIMIT IN DECEMBER, 2010 AFTER OBTAINING CONSTRUCTION PERMISSION FROM BHOPAL MUNICIPAL CORPORATION ON 30.3.2007. THE ASSESSEE NOTIFIED TO THE MUNICIPAL CORPORATION ABOUT THE COMPLETION OF THE PROJECT IN DECEMBER, 2010 WHICH WAS INFORMED BY LETTER DATED 25.6.2011 FOR ISSUING THE COMPLETION CERTIFICATE. TH IS APPLICATION WAS ACKNOWLEDGED BY THE BHOPAL MUNICIPAL CORPORATION UNDER ITS SEAL. THE BUYERS HAVE TAKEN POSSESSION OF COMPLETED HOUSES AND HAVE GOT REGULAR ELECTRICITY CONNECTION IN THEIR NAMES. THE REGULAR EL ECTRICITY CONNECTION IS AVAILABLE ON COMPLETION OF UNIT. THE PURCHASERS ARE ALSO PAYING HOUSE TAX AND OCCUPIED THE UNITS. AN ARCHITECT CERTIFICATE WAS ALSO SUBMITTED TO MUNICIPAL CORPORATION, BHOPAL, REGARDING COMPLETION OF THE ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 5 PROJECT. IN THE CASE OF CHD DEVELOPERS VS. ACIT, CI RCLE 3(1), NEW DELHI, HON'BLE DELHI HIGH COURT HAS HELD AS UNDER :- THE ASSESSEE IS EXPECTED TO COMPLETE THE PROJECT AS PER THE APPROVED PLAN AT A PARTICULAR POINT OF TIME AND THE ASSESSEE IS NOT EXPECTED TO DO OR TO FULFILL THE CONDITIONS WHICH ARE NOT IN EXISTENCE A T THE RELEVANT POINT OF TIME OR MADE COMPULSORY AFTER MAKING SOME AMENDMENT IN THE ACT FROM THE FUTURE DATE. SINCE THE ASSESSEE WAS TO COMPLETE THE PROJECT ON OR BEFORE AND 31.03.2009 AND REQUEST WAS DULY MADE WITH THE COMPETENT AUTHORITY ON 05.11.2009 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 UNLESS AND UNTIL SOME CONTRARY FACTS ARE ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 6 BROUGHT ON RECORD EVIDENCING THAT THE ASSESSEE CONTRAVENED THE CONDITIONS CONTAINED IN THE APPROVAL GRANTED BY SUCH COMPETENT AUTHORITY. AS PER SUB-SECTION (10) OF SECTION 80IB(10), THE BENEF IT WILL BE HUNDRED PERCENT SUBJECT TO FULFILLMENT OF CERTAIN CONDITIONS. HOWEVER, THIS CONDITION WAS SUBSTITUTED BY THE FINANCE (NO. 2) ACT OF 2009 WITH EFFECT FROM 01.04.2009 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 01.04.2005, THEREFORE, THE ASSESSEE IS 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. ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 7 EVEN IN THE CASE WHERE THE LAND WAS NOT IN THE NAME OF THE ASSESSEE, THEN ALSO THE CLAIM OF DEDUCTION U/S 80IB(10 ) OF THE ACT WAS HELD TO BE ALLOWABLE. HON'BLE GUJARAT HIGH COURT IN THE CASE OF CASE OF CIT VS. RADHE DEVELOPERS ; 341 ITR 402 (GUJ.) HELD THE ASSESSEE HAD, IN PART PERFORMANCE OF THE AGREEMENT TO SELL THE LAND IN QUESTION, WAS GIVEN POSSESSION THEREOF AND HAD ALSO CARRIED OUT THE CONSTRUCTION WORK FOR DEVELOPMENT OF THE HOUSING PROJECT. COMBINED READING OF S. 2(47)(V) AND S. 53A OF THE TRANSFER OF PROPERTY ACT WOULD LEAD TO A SITUATION WHERE THE LAND WOULD BE FOR THE PURPOSE OF IT ACT DEEMED TO HAVE BEEN TRANSFERRED TO THE ASSESSEE. IN THAT VIEW OF THE MATER, FOR THE PURPOSE OF INCOME DERIVED FROM SUCH PROPERTY, THE ASSESSEE WOULD BE THE OWNER OF THE LAND FOR THE PURPOSE ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 8 OF THE SAID ACT. IT IS EQUALLY TRUE THAT SUCH TITLE WOULD PASS ONLY UPON EXECUTION OF A DULY REGISTERED SALE DEED. HOWEVER, FOR THE LIMITED PURPOSE OF THESE PROCEEDINGS, ONE IS NOT CONCERNED WITH THE QUESTION OF PASSING OF THE TITLE OF THE PROPERTY BUT ONLY EXAMINING WHETHER FOR THE PURPOSE OF BENEFIT UNDER S. 80IB(10), THE ASSESSEE COULD BE CONSIDERED AS THE OWNER OF THE LAND IN QUESTION. FOR THE LIMITED PURPOSE OF DEDUCTION U/S 80IB(10), THE ASSESSEE HAD SATISFIED THE CONDITION OF OWNERSHIP ALSO, EVEN IF IT WAS NECESSARY. THE TRIBUNAL COMMITTED NO ERROR IN HOLDING THAT THE ASSESSES WERE ENTITLED TO THE BENEFIT U/S 80IB(10) EVEN WHERE THE TITLE OF THE LANDS HAD NOT PASSED ON TO THE ASSESSEE AND IN SOME CASE, THE DEVELOPMENT PERMISSIONS MAY ALSO HAVE BEEN OBTAINED IN THE ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 9 NAME OF THE ORIGINAL LAND OWNERS. IT IS NOT EVEN TH E CASE OF THE REVENUE THAT OTHER CONDITIONS OF S. 80I B WERE NOT FULFILLED. IN THE CASE CIT VS. TARNETAR CORPORATION (2012) 26 TAXMAN.COM 180(GUJ.) IT WAS HELD THAT IN THE PRESENT CASE, THEREFORE, THE FACT THAT THE APPELLANT HAD COMPLETED THE CONSTRUCTION WELL BEFOR E 31 ST MARCH, 2008 IS NOT IN DOUBT. IT IS, OF COURSE, TRU E THAT FORMALLY BU PERMISSION WAS NOT GRANTED BY THE MUNICIPAL AUTHORITY BY SUCH DATE. IT IS EQUALLY TRU E THAT EXPLANATION TO CLAUSE (A) TO SECTION 88IB(10) LINKS THE COMPLETION OF THE CONSTRUCTION TO THE BU PERMISSION BEING GRANTED BY THE LOCAL AUTHORITY. HOWEVER, NOT EVERY CONDITION OF THE STATUTE CAN BE SEEN AS MANDATORY. IF SUBSTANTIAL COMPLETION THEREO F IS ESTABLISHED ON RECORD, IN A GIVEN CASE, THE COUR T ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 10 MAY TAKE A VIEW THAT MINOR DEVIATION THEREOF WOULD NOT VITIATE THE VERY PURPOSE FOR WHICH THE DEDUCTIO N WAS BEING MADE AVAILABLE. IN THE PRESENT CASE, THE FACTS ARE PECULIAR. THE ASSESSEE HAS NOT ONLY COMPLETED THE CONSTRUCTION TW O YEARS BEFORE THE FINAL DATE AND APPLIED FOR BU PERMISSION. SUCH BU PERMISSION WAS NOT REJECTED ON THE GROUND THAT CONSTRUCTION WAS NOT COMPLETED, BUT ON SOME OTHER TECHNICAL GROUND. IN THAT VIEW OF MATTER, GRANTING RELIEF OF DEDUCTION CANNOT BE HELD TO BE ILLEGAL. IN ACIT VS. SURENDRA DEVELOPERS IN ITA NOS. 2743 TO 2745/DEL/2010 IT WAS HELD AS UNDER :- THE LD. CIT(A), IT IS SEEN, HAS GRANTED RELIEF TO THE APPELLANT ON THE BASIS OF THE FACT THAT THOUGH THE APPELLANT HAD APPLIED FOR COMPLETION CERTIFICATE BEFORE THE LOCAL AUTHORITY IN TIME, THE SAID CERTIF ICATE ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 11 WAS NOT ISSUED IN TIME BY THE LOCAL AUTHORITY. SUCH ISSUANCE OF COMPLETION CERTIFICATE HAS BEEN HELD AN D IN OUR OPINION, CORRECTLY SO, TO BE BEYOND THE CONT ROL OF THE ASSESSEE. HON'BLE ITAT, DELHI BENCH IN THE CASE OF M/S GIRIJA COLONISERS IN ITA NOS. 2417 TO 2422/DEL/2011 HAS HE LD AS UNDER :- IN THE LIGHT OF THE FACTS NARRATED IN A.O.S REMAND REPORT AND FACTS AVAILABLE ON RECORD, THE LD. CIT(A ) HAS TAKEN A VIEW THAT THE APPELLANT HAS COMPLETED THE CONSTRUCTION MUCH PRIOR TO 31.03.2008 AND HAD FULFILLED ALL REQUIREMENTS/FORMALITIES OF THE COMPLETION CERTIFICATE AS NOTIFIED BY THE CORPORATION AT THE TIME OF FILING APPLICATION FOR ISSUANCE OF COMPLETI ON CERTIFICATE ON 26.11.2007. THE LD. CIT(A) HAS ALSO RECORDED A FINDING THAT SALES OF ALL RESIDENTIAL ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 12 UNITS IN RESPECT OF THREE PROJECTS WERE MATERIALIZE D ON OR BEFORE 31.03.2008. THE MUNICIPAL AUTHORITY HAS NOT POINTED OUT ANY DEFECT AND IRREGULARITY IN THE APPELLANTS APPLICATION DATED 26.11.2007 SUBMITTED FOR ISSUANCE OF COMPLETION CERTIFICATE OF ALL THE SAID PROJECTS. THEREFORE, IN THE LIGHT OF F ACTS FOUND BY THE LD. CIT(A) AND REASONS GIVEN BY HIM AND RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF ITAT, PUNE BENCH B IN THE CASE HINDUSTAN SAMUHA AWAS LIMITED (SUPRA), WE DO NOT FIND ANY REASON TO TAKE A VIEW OTHER THAN THE VIEW TAKEN BY THE LD. CIT(A) IN THE PRESENT CASE. WE, THEREFORE, UPHOLD THE ORDER OF LD. CIT(A) AND DISMISS ALL THESE APPEALS FILED BY THE REVENUE. HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SARKAR BUILDERS DATED 15.5.2015 WHEREIN HON'BLE SUPREME COU RT HELD AS UNDER :- ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 13 (G) FROM THIS PROVISION, THEREFORE, IT IS CLEAR TH AT THE HOUSING PROJECT CONTEMPLATED UNDER SUB- SECTION (10) OF SECTION 80IB INCLUDES COMMERCIAL ESTABLISHMENTS OR SHOPS ALSO. NOW, BY WAY OF AN AMENDMENT IN THE FORM OF CLAUSE (D), AN ATTEMPT IS MADE TO RESTRICT THE SIZE OF THE SAID SHOPS AND/OR COMMERCIAL ESTABLISHMENTS. THEREFORE, BY NECESSARY IMPLICATION, THE SAID PROVISION HAS TO BE READ PROSPECTIVELY AND NOT RETROSPECTIVELY. AS IS CLEAR FROM THE AMENDMENT, THIS PROVISION CAME INTO EFFECT ONLY FROM THE DAY THE PROVISION WAS SUBSTITUTED. THEREFORE, IT CANNOT BE APPLIED TO THOSE PROJECTS WHICH WERE SANCTIONED AND COMMENCED PRIOR TO 01.04.2005 AND COMPLETED BY THE STIPULATED DATE, THOUGH SUCH STIPULATED DATE IS AFTER 01.04.2005. ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 14 21. THESE ASPECTS ARE DEALT WITH BY VARIOUS HIGH COURTS ELABORATELY AND CONVINCINGLY IN THEIR JUDGMENTS. IT IS NOT NECESSARY TO GO INTO THE DETAILED REASONING GIVEN BY THESE HIGH COURTS. HOWEVER, WE WOULD LIKE TO EXTRACT THE FOLLOWING DISCUSSION FROM THE JUDGMENT DATED 25.07.2014 OF THE BOMBAY HIGH COURT IN ITA NOS. 201 AND 308 OF 2012 WHERE THIS VERY ASPECT IS ANSWERED IN THE FOLLOWING MANNER : 36.THERE IS YET ANOTHER REASON FOR COMING TO THE AFORESAID CONCLUSION. TAKE A SCENARIO WHERE AN ASSESSEE FOLLOWING THE PROJECT COMPLETION METHOD OF ACCOUNTING, HAS COMPLETED THE HOUSING PROJECT APPROVED BY THE LOCAL AUTHORITY COMPLYING WITH ALL THE CONDITIONS AS SET OUT IN SECTION 80IB(10) AS IT STOOD PRIOR TO IST APRIL, 2005. IF WE WERE TO ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 15 ACCEPT THE ARGUMENT OF THE REVENUE, THEN IN THAT EVENT, DESPITE HAVING COMPLETED THE ENTRIE CONSTRUCTION PRIOR TO IST APRIL, 2005 AND COMPLYING WITH ALL THE CONDITIONS OF SECTION 80IB(10) AS IT STOOD THEN, THE ASSESSEE WOULD BE DISENTITLED TO THE ENTIRE DEDUCTION CLAIMED IN RESPECT OF SUCH HOUSING PROJECT MERELY BECAUSE HE OFFERED HIS PROFITS TO TAX IN THE A.Y. 2005-06 AND DENIED THE SAME FROM A.Y. 2005- 06 AND THEREAFTER. IT COULD NEVER HAVE BEEN THE INTENTION OF THE LEGISLATURE THAT THE DEDUCTION UNDER SECTION 80IB(10) AVAILABLE TO A PARTICULAR ASSESSEE WOULD BE DETERMINED ON THE BASIS OF THE ACCOUNTING METHOD FOLLOWED. THIS, TO OUR MIND AND AS RIGHTLY SUBMITTED BY MR. MISTRY, WOULD LEAD TO STARTLING RESULTS. WE THEREFORE HAVE NO HESITATION IN HOLDING THAT ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 16 SECTION 80IB(10) IS PROSPECTIVE IN NATURE AND CAN HAVE NO APPLICATION TO A HOUSING PROJECT THAT IS APPROVED BEFORE 31 ST MARCH, 2005. AS THE DEDUCTION SOUGHT TO BE CLAIMED UNDER SECTION 80IB(10) IS INSEPARABLY LINKED WITH THE DATE OF APPROVAL OF THE HOUSING PROJECT, IT WOULD MAKE NO DIFFERENCE IF THE CONSTRUCTION OF THE SAID PROJECT WAS COMPLETED ON OR AFTER IST APRIL, 2005 OR THAT THE PROFITS WERE OFFERED TO TAX AFTER IST APRIL, 2005 I.E. IN A.Y. 2005-06 OR THEREAFTER. WE THEREFORE FIND NO SUBSTANCE IN THE ARGUMENT OF THE REVENUE THAT NOTWITHSTANDING THE FACT THAT THE HOUSING PROJECT WAS APPROVED PRIOR TO 31 ST MARCH 2005, IF THE CONSTRUCTION WAS COMPLETED ON OR AFTER IST APRIL, 2005 OR IF THE PROFITS ARE BROUGHT TO TAX IN THE A.Y. 2005-06 OR THEREAFTER, THE SAID ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 17 HOUSING PROJECT WOULD HAVE TO COMPLY WITH THE PROVISIONS OF CLAUSE (D OF SECTION 80IB(10). TO OUR MIND, WE DO NOT THINK THAT THE CONDITION/RESTRICTION LAID DOWN IN CLAUSE (D) OF SECTION 80IB(10) HAS TO BE REVISITED AND/OR LOOKED AT AND COMPLIED WITH IN THE ASSESSMENT EYAR IN WHICH THYE PROFITS ARE OFFERED TO TAX BY THE ASSESSEE. WHEN THE ASSESSEE CLAIMS A DEDUCTION UNDER SECTION 80IB(10) THE ASSESSEE IS REQUIRED TO COMPLY WITH SUCH A CONDITION ONLY IF IT IS ON THE STATUTE BOOK ON THE DATE OF THE APPROVAL OF THE HOUSING PROJECT AND IT HAS NOTHING TO DO WITH THE YEAR IN WHICH THE PROFITS ARE BROUGHT TO TAX BY THE ASSESSEE. WE HAVE COME TO THIS CONCLUSION ONLY BECAUSE WE FIND THAT CLAUSE (D) OF SECTION 80IB(10) IS INEXTRICABLY LINKED TO ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 18 THE DATE OF THE APPROVAL OF THE HOUSING PROJECT AND THE SUBSEQUENT DEVELOPMENT / CONSTRUCTION OF THE SAME AND HAS NOTHING TO DO WITH THE PROFITS DERIVED THEREFROM. WE MAY HASTEN TO ADD THAT IF A PARTICULAR CONDITION IS NOT INSEPARABLY LINKED TO THE DATE OF APPROVAL OF THE HOUSING PROJECT, DIFFERENT CONSIDERATIONS WOULD ARISE. HOWEVER, WE ARE NOT CALLED UPON TO DECIDE ANY SUCH CONDITION AND HENCE WE ARE NOT LAYING DOWN ANY GENERAL PROPOSITION OF LAW SAVE AND EXCEPT THAT CLAUSE (D)OF SECTION 80IB(10) BEING A CONDITION LINKED TO THE DATE OF THE APPROVAL OF THE HOUSING PROJECT, WOULD NOT APPLY TO ANY HOUSING PROJECT THAT WAS APPROVED PRIOR TO 31 ST MARCH, 2005 IRRESPECTIVE OF THE FACT THAT THE PROFITS OF THE SAID HOUSING ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 19 PROJECT ARE BROUGHT TO TAX AFTER THE SAID PROVISION WAS BROUGHT INTO FORCE. 22. AT THIS JUNCTURE, WE WOULD LIKE TO QUOTE THE FOLLOWING PASSAGE FROM COMMISSIONER OF INCOME TAX, U.P. VS. M/S SHAH SADIQ AND SONS (1987) 3 HON'BLE SUPREME COURT 516 : 14. UNDER THE INCOME TAX ACT OF 1922, THE ASSESSEE WAS ENTITLED TO CARRY FORWARD THE LOSSES OF THE SPECULATION BUSINESS AND SET OFF SUCH LOSSES AGAINST PROFITS MADE FROM THAT BUSINESS IN FUTURE YEARS. THE RIGHT OF CARRYING FORWARD AND SET OFF ACCRUED TO THE ASSESSEE UNDER THE ACT OF 1922. A RIGHT WHICH HAD ACCRUED AND HAD BECOME VESTED CONTINUED TO BE CAPABLE OF BEING ENFORCED NOTWITHSTANDING THE REPEAL OF THE STATUTE UNDER WHICH THAT RIGHT ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 20 ACCRUED UNLESS THE REPEALING STATUTE TOOK AWAY SUCH RIGHT EXPRESSLY OR BY NECESSARY IMPLICATION. THIS IS THE EFFECT OF SECTION 6 OF THE GENERAL CLAUSES ACT, 1897. 15. IN THIS CASE THE SAVING PROVISION IN THE REPEALING STATUTE IS NOT EXHAUSTIVE OF THE RIGHTS WHICH ARE SAVED OR WHICH SURVIVE THE REPEAL OF THE STATUTE UNDER WHICH SUCH RIGHT HAD ACCRUED. IN OTHER WORDS, WHATEVER RIGHTS ARE EXPRESSLY SAVED BY THE SAVINGS PROVISION STAND SAVES. BUT THAT DOES NOT MEAN THAT RIGHTS WHICH ARE NOT SAVED BY THE SAVINGS PROVISION ARE EXGINGUISHED OR STAND IPSO FACTO TERMINATED BY THE MERE FACT THAT A NEW STATUTE REPEALING THE OLD STATUTE IS ENACTED. RIGHTS ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 21 WHICH HAVE ACCRUED ARE SAVED UNLESS THEY ARE TAKEN AWAY EXPRESSLY. THIS IS THE PRINCIPLE BEHIND SECTION 6 OF THE GENERAL CLAUSES ACT, 1897. THE RIGHT TO CARRY FORWARD LOSSES WHICH HAD ACCRUED UNDER THE REPEALED INCOME TAX ACT OF 1922 IS NOT SAVED EXPRESSLY BY SECTION 297 OF THE INCOME TAX ACT, 1961. BUT IT IS NOT NECESSARY TO SAVE A RIGHT EXPRESSLY IN ORDER TO KEEP IT ALIVE AFTER THE REPEAL OF THE OLD ACT OF 1922. SECTION 6(2) SAVES ACCRUED RIGHTS UNLESS THEY ARE TAKEN AWAY BY THE REPEALING STATUTE. WE DO NOT FIND ANY SUCH TAKING AWAY OF THE RIGHTS BY SECTION 297 EITHER EXPRESSLY OR BY IMPLICATION ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 22 23. THE AFORESAID DISCUSSION PERSUADES US TO CONC LUDE THAT THE JUDGMENTS OF THE HIGH COURTS, WHICH ARE IMPUGNED IN THESE APPEALS, TAKE CORRECT VIEW THAT T HE ASSESSES WERE ENTITLED TO THE BENEFIT OF SECTION 80 IB(10). AS A RESULT, THESE APPEALS FAIL AND ARE HEREBY DISMISSED. 5. THE ASSESSEE COMPLETED THE PROJECT WELL IN TIME W HICH IS ESTABLISHED BY VARIOUS EVIDENCES. THE ASSESSEE APPLI ED FOR COMPLETION CERTIFICATE WELL IN TIME. SECTION 301 OF M.P. MUNICIPAL CORPORATION ACT, 1956 PROVIDES THAT WHEN COMMISSIONER FAILS TO ISSUE COMPLETION CERTIFICATE TH EN BUILDING CAN BE OCCUPIED. THE ASSESSEE HAD ALL THE RISK AND REWARDS OF PROJECTS TILL THE COMPLETION OF THE PROJE CT. POSSESSION WAS GIVEN ONLY AFTER COMPLETION. ALL THESE FACTS ESTABLISH THAT THE ASSESSEE IS A DEVELOPER. THE ASSESSE E ACIT VS. BHAWANI HOUSING & INVESTMENT PVT. LTD ITA NO. 496/IND/2013 23 HAS FULFILLED ALL THE CONDITIONS FOR DEDUCTION U/S 80 IB(10) OF THE ACT. WE, THEREFORE, UPHOLD THE ORDER OF THE LEA RNED CIT(A) 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. PRONOUNCED IN OPEN COURT ON 3 RD AUGUST, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 3 RD AUGUST, 2015 DN/-