M/s Raj Reality, Bhopal V. The DCIT 1(1), Bhopal

ITA 534/IND/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82679 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 27-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: H P VERMA; N D PATWA S
• Keywords: Rule of consistency; Competent authority
• Section: 143(3); 234B; 80IB; 32; 147; 131; 132; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI MUKU L KR. SHRAWAT, JUDICIAL MEMBER PAN NO. AAHFR4768B ITA NO. 533 & 534/IND/2012 A.Y. : 2005-06 & 2007-08. M/S.RAJ REALITY, FF-11B, MANSAROVAR COMPLEX, BHOPAL VS. DY. CIT, 1(1) BHOPAL (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.P.VERMA AND SHRI N. D. PATWA, ADVOCATES REVENUE BY : SHRI R. A. VERMA, SR. DR / DATE OF HEARING : 11.09.2014 /DATE OF PRONOUNCEMENT: 19.09.2014 / O R D E R PER P.K.BANSAL, A.M. BOTH THESE APPEALS FILED BY THE ASSESSEE HAVE THE C OMMON ISSUE, THEREFORE, THEY ARE DISPOSED OF BY THIS COMM ON ORDER. 2. IN THE ASSESSMENT YEAR 2005-06, SINCE THE ASSESSEE DID NOT PRESS GROUND NOS. 1 & 2, THEREFORE, ONLY GROUND S REMAIN FOR ADJUDICATION SURVIVING ARE GROUND NOS. 3 & 4. 3. GROUND NO. 3 IN ASSESSMENT YEAR 2005-06 AND GROUND NOS. 1 TO 4 IN ASSESSMENT YEAR 2007-08 RELATE TO TH E SAME ISSUE I.E. DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) , WHILE RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 2 GROUND NO. 4 IN ASSESSMENT YEAR 2005-06, GROUND NO . 4 IN ASSESSMENT YEAR 2005-06, GROUND NO. 5 IN ASSESSMENT YEAR 2007-08 RELATE TO IMPOSITION OF THE INTEREST U/S 23 4B AND 234C OF THE INCOME-TAX ACT, 1961. 4. THE BRIEF FACTS RELATING TO GROUND NO. 3 IN ASSESSM ENT YEAR 2005-06 AND GROUND NOS. 1 TO 4 IN ASSESSMENT Y EARS 2007- 08 RELATE TO THE CLAIM OF DEDUCTION U/S 80IB(10). T HE FACTS RELATING TO THESE GROUNDS ARE THAT THERE HAD BEEN S EARCH AND SEIZURE IN THE CASE OF THE ASSESSEE U/S 132 AT THE RESIDENTIAL /BUSINESS PREMISES IN THE CASE OF SHRI RAJENDRA BHA NDARI AND SHRI JAYANT BHANDARI. THE ASSESSEE FILED RETURN ON 31.10.2005 DECLARING NIL INCOME AFTER CLAIMING THE DEDUCTION U /S 80IB(10) IN EACH OF THE ASSESSMENT YEAR. IN THE ASSESSMENT YEAR 2005-06, THE RETURNED INCOME WAS ACCEPTED U/S 143(1). SUBSEQ UENTLY, THE PROCEEDING U/S 147 WERE INITIATED AND THE ASSESSMEN T U/S 147 READ WITH SECTION 143(3) WAS COMPLETED DISALLOWING THE CLAIM OF THE DEDUCTION U/S 80IB(10). SIMILARLY, THE CLAIM OF THE DEDUCTION U/S 80IB(10) WHILE FRAMING THE ASSESSMENT U/S 143( 3) WAS DISALLOWED IN ASSESSMENT YEAR 2007-08. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) CONFIRMED THE DISALLOWANCE. THE LD. AUTHORIZED REPRESENTATIVE BEF ORE US RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 3 CONTENDED THAT THE ASSESSEE IS ENGAGED IN THE BUSIN ESS OF DEVELOPER AND CONSTRUCTION. THE LD. AUTHORIZED REPR ESENTATIVE SUBMITTED BEFORE US THAT THE ASSESSING OFFICER DISA LLOWED THE CLAIM ON TWO COUNTS, ONE, THE ASSESSEE WAS NOT THE OWNER OF THE LAND AS THE BUILDING PERMISSION WAS OBTAINED BY THE SELLER ON 24.4.2003, WHILE THE ASSESSEE BOUGHT THE LAND ON 2. 7.2003. THE OTHER REASON WHY THE ASSESSING OFFICER HAS DISALLOW ED WAS THAT THE ASSESSEE WAS TO SUBMIT THE COMPLETION CERTIFICA TE OF THE PROJECT WITHIN THE STIPULATED TIME. AS THE ASSESSEE COULD NOT GET COMPLETION CERTIFICATE WITHIN THE STIPULATED TIME, THEREFORE, THE ASSESSEE WAS NOT ENTITLED FOR THE DEDUCTION U/S 80I B(10). SO FAR AS THE FIRST ISSUE THAT THE ASSESSEE WAS NOT THE OW NER OF THE LAND, THE LD. AUTHORIZED REPRESENTATIVE POINTED OUT THAT THE LD. CIT(A) HAD DECIDED IN FAVOUR OF THE ASSESSEE. THE CIT(A) TOOK THE VIEW THAT THE OWNERSHIP OF THE LAND OR PERMISSION FOR DE VELOPING OF THE LAND IN THE NAME OF DEVELOPMENT IS NOT NECESSARY. A GAINST THIS FINDING OF THE CIT(A), THE REVENUE HAS NOT COME UP IN APPEAL. THE ONLY OBJECTION, THEREFORE, REMAINS THAT THE ASSESSE E HAS NOT COMPLETED THE PROJECT WITHIN THE STIPULATED TIME. I N THIS REGARD IT WAS SUBMITTED THAT THE ASSESSEE OBTAINED THE COMPLE TION CERTIFICATE FROM MUNICIPAL AUTHORITIES VIDE CERTIFI CATE DATED RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 4 25.9.2010. THE DATE OF THE COMPLETION OF THE PROJEC T WAS 31.3.2008. OUR ATTENTION WAS DRAWN IN THIS REGARD T OWARDS THE CERTIFICATE ISSUED BY SANJEEV AGRAWAL, ARCHITECT, W HICH STATES THAT THE PROJECT HAS BEEN COMPLETED IN ITS ALL RESPECTS UP TO 25.2.2008. HE CONTENDED THAT THE PROJECT HAS TO BE COMPLETED BY 31.3.2008. THE ASSESSING OFFICER HAS RECORDED THE S TATEMENT OF THE ARCHITECT, WHO HAS ISSUED THE CERTIFICATE ON 25 .3.2010. HE ALSO RELIED ON THE STATEMENT OF SHRI S.K. MUDGAL RE CORDED U/S 131 BY THE ASSESSING OFFICER. OUR ATTENTION WAS DRA WN TOWARDS QUESTION NO.2 IN WHICH SHRI MUDGAL HAS STATED THAT THE COMPLETION CERTIFICATE WAS ISSUED AFTER HAVING SITE INSPECTION BY SHRI D.P. CHOURASIA ON 26.3.2010. RELIANCE WAS PLEA DED BY THE LD. AUTHORIZED REPRESENTATIVE ON THE DECISION OF C IT VS. CHD DEVELOPERS LIMITED, IN I.T.A.NO. 298/DEL/2013. IT W AS ALSO POINTED OUT BY HIM THAT DURING THE ASSESSMENT YEAR 2006-07, THE RELIEF U/S 80IB(10) WAS DULY ALLOWED BY THE ASSESSI NG OFFICER. SINCE THE RELIEF HAS BEEN ALLOWED DURING THE ASSESS MENT YEAR 2006-07 ON THE PRINCIPLES OF RULE OF CONSISTENCY, T HE RELIEF BE ALLOWED TO THE ASSESSEE DURING THE IMPUGNED ASSESSM ENT YEAR. 5. THE LD. SENIOR DR, ON THE OTHER HAND, RELIED ON THE ORDER OF THE LD. CIT(A), ESPECIALLY PARA 13 AND VEHEMENT LY CONTENDED RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 5 THAT AS PER EXPLANATION TO SECTION 80IB(10), SUB CL AUSE (2), IT IS APPARENT THAT THE DATE OF COMPLETION OF CONSTRUCTIO N OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WH ICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING P ROJECT IS ISSUED BY THE LOCAL AUTHORITY. THIS IS UNDISPUTED FACT THA T THE MUNICIPAL CORPORATION HAS ISSUED THE COMPLETION CERTIFICATE O N 29.5.2010. HE CONTENDED THAT THE DECISION OF HON'BLE DELHI HIG H COURT IN THE CASE OF CIT VS. CHD DEVELOPERS LIMITED (SUPRA), IS NOT APPLICABLE. RELIANCE WAS ALSO PLACED ON THE FOLLOWING DECISIONS OF INDORE BENCH OF THIS TRIBUNAL :- (I) AGRAWAL BUILDERS VS. ACIT, I.T.A.NO. 337/IND/2010. (II) ACIT VS. ASNANI BUILDERS, I.T.A.NOS. 177 & 168/IND/2013. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE NOTED THAT IN THIS CASE, TH E ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF THE ASSESSEE U/ S 80IB(10) ON TWO GROUNDS, FIRST, THAT THE ASSESSEE IS NOT THE OW NER AND THE PERMISSION OF THE PROJECT IS NOT IN THE NAME OF THE ASSESSEE, SECOND, THAT THE PROJECT HAS NOT BEEN COMPLETED WIT HIN THE STIPULATED TIME. THE ASSESSEE WENT IN APPEAL AGAINS T THE ORDER OF RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 6 THE ASSESSING OFFICER IN RESPECT OF FIRST OBJECTION . THE CIT(A) DECIDED IN FAVOUR OF THE ASSESSEE FOLLOWING THE DEC ISION OF RADHEY DEVELOPERS OF GUJARAT HIGH COURT IN WHICH IT WAS HE LD THAT DEDUCTION U/S 80IB(10) IS AVAILABLE TO THE DEVELOPE R. HE NEED NOT BE THE OWNER OF THE LAND AND PERMISSION NEED NOT BE IN HIS NAME. AGAINST THIS FINDING OF THE CIT(A), WE NOTED THAT N O APPEAL HAS BEEN FILED BY THE REVENUE. IN RESPECT OF THE SECOND REASON FOR WHICH THE CLAIM OF THE ASSESSEE WAS REJECTED, WE NO TED THAT THE CIT(A) TOOK THE VIEW THAT THE PROJECT HAS BEEN COMP LETED ON 25.3.2010 AND, THEREFORE, HE SUSTAINED THE DISALLOW ANCE. THUS, ONLY ISSUE BEFORE US IS WHETHER THE ASSESSEE COMPLI ED WITH THE CONDITIONS FOR THE COMPLETION OF THE PROJECT BEFORE THE STIPULATED TIME. THIS IS AN UNDISPUTED FACT THAT THE PROJECT OF THE ASSESSEE WAS APPROVED ON 24.4.2003. AT THE RELEVANT TIME I.E . ON 24.4.2003, WHEN THE APPROVAL WAS GRANTED, THE PROVI SIONS OF SECTION 80IB(10) READ AS UNDER :- SECTION 80-IB(10) PRIOR TO THE AMENDMENT OF 1.4.20 05 : SUB S. BY FINANCE (NO.2) ACT, 2004 ( 23 OF 2004), SECTION 18(D), FOR SUB-SECTION (10) W.E.F. 1.4.2005). EARLI ER SUB- SECTION (10) WAS AMENDED BY THE FINANCE ACT, 2000 ( 10 OF 2001), SECTION 39(E)(I) AND (II) ( W.E.F. 1.4.2001) , BY FINANCE RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 7 ACT, 2003 ( 32 OF 2003), SECTION (C) (I) AND (II) ( W.E.F. 1.4.2002). SUB-SECTION (10), BEFORE SUBSTITUTION BY FINANCE (NO.2) ACT, 2004, STOOD AS UNDER :- (10) THE AMOUNT OF PROFITS IN CASE OF AN UNDERTAK ING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31 ST DAY OF MACH, 2005, BY A LOCAL AUTHORITY, SHALL BE HUNDRED PER CENT, OF THE PROFITS DERIVED IN ANY PRE VIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING P ROJECT 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 W HICH HAS MINIMUM AREA OF ONE ACRE; AND (C) THE RESIDENTIAL UNIT HAS A MINIMUM BUILT-UP AREA OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNI T IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WI THIN TWENTY-FIVE KILOMETERS FROM THE MUNICIPAL ITA 298/2 013 PAGE 2 OF 21 LIMITS OF THESE CITIES AND ONE THOUSAN D AND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE. RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 8 7. SOON AFTER FINANCE (NO.2) ACT W.E.F. 1.4.2005 HAS BEEN AMENDED THE PROVISION WHICH READ AS UNDER :- 80-IB. (1) WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED FRO M ANY BUSINESS REFERRED TO IN SUB-SECTIONS (3) TO[(11 ), (11A) AND (11B)] (SUCH BUSINESS BEING HEREINAFTER REFERRE D TO AS THE ELIGIBLE BUSINESS), THERE SHALL, IN ACCORDAN CE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE A LLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, A DEDUCTION FROM SUCH PROFITS AND GAINS OF AN AMOUNT EQUAL TO SUCH PERCENTAGE AND FOR SUCH NUMBER OF ASSESSMENT YEARS AS SPECIFIED IN THIS SECTION. ................................................... ........................... ................................................... ........................... ................................................... ........................... ................................................... ........................... [(10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UND ERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE THE 31ST DAY OF MARCH, [2008] BY A LOCAL AUTHORITY SHALL BE HUNDRED PER CENT OF THE PR OFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUS ING PROJECT IF,- (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCTOBER, 1998 AND COMPLETES SUCH CONSTRUCTION,- (I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY BEFORE THE 1ST DAY OF APRIL, 2004, ON OR BEFORE THE 31ST DAY OF MARCH, 2008; (II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN, OR, IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1ST DAY OF APRIL, 2004, WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WH ICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. EXPLANATION.-FOR THE PURPOSES OF THIS CLAUSE,- (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HO USING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH T HE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUTHORITY; (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETI ON CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORI TY; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAN D WHICH HAS A MINIMUM AREA OF ONE ACRE: PROVIDED THAT NOTHING CONTAINED IN CLAUSE (A) OR CLAUSE (B) SHALL APPLY TO A HOUSING PROJECT CARRIED OUT IN ACCORDANCE WITH A SC HEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT FOR RECONS TRUCTION OR RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 9 REDEVELOPMENT OF EXISTING BUILDINGS IN AREAS DECLAR ED TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BEHALF; (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP AREA OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITY OF DELHI OR MUMBAI OR WITHIN TWENTY-FIVE KILOMETRES FROM THE MU NICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEE T AT ANY OTHER PLACE; [AND] (D) THE BUILT-UP AREA OF THE SHOPS AND OTHER COMM ERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED FIV E PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR TWO THOUSAN D SQUARE FEET, WHICHEVER IS LESS.] THE FOLLOWING CLAUSES (E) AND (F) SHALL BE INSERTED AFTER CLAUSE (D) OF SUB- SECTION (10) OF SECTION 80-IB BY THE FINANCE (NO.2) ACT, 2009, W.E.F. 1-4-2010 : (E) NOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUS ING PROJECT IS ALLOTTED TO ANY PERSON NOT BEING AN INDI VIDUAL; AND (F) IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUS ING PROJECT IS ALLOTTED TO A PERSON BEING AN INDIVIDUAL , NO OTHER RESIDENTIAL UNIT IN SUCH HOUSING PROJECT IS ALLOTTED TO ANY OF THE FOLL OWING PERSONS, NAMELY:- (I) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHIL DREN OF SUCH INDIVIDUAL, (II) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA, (III) ANY PERSON REPRESENTING SUCH INDIVIDUAL, TH E SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN W HICH SUCH INDIVIDUAL IS THE KARTA. [EXPLANATION.-FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY TO ANY UNDERTAKING WHICH EXECUTES THE HOUSING PROJECT AS A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDIN G THE CENTRAL OR STATE GOVERNMENT).] 8. WE MAY MENTION THAT THIS IS THE ASSESSMENT YEAR 20 05- 06 IN WHICH THE ASSESSEE HAS CLAIMED THE DEDUCTION U/S 80IB(10). FROM THE PERUSAL OF THE SUB SECTION, IT I S APPARENT THAT THE ASSESSEE IS ENTITLED FOR THE DEDUCTION, IF HE C OMPLIED WITH ALL RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 10 THE CONDITIONS AS HAS BEEN STIPULATED, AT THE TIME WHEN THE ASSESSEE HAS COMMENCED THE DEVELOPMENT. THIS IS AN UNDISPUTED FACT THAT IN THE CASE OF THE ASSESSEE, THE PROJECT WAS APPROVED ON 24.4.2003. THEREFORE, AS PER SECTION 80IB(10)(A)(I) AS AMENDED W.E.F. 1.4.2005, THE ASSESSEE WAS REQUIRED TO COMPL ETE THE CONSTRUCTION ON OR BEFORE 31 ST DAY OF MARCH, 2008. EXPLANATION (II) OF SECTION 80IB(10) DEFINES THE DATE OF COMPLE TION OF THE CONSTRUCTION. IT CLEARLY STATES THAT THE DATE OF CO MPLETION OF THE CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF S UCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITIES. 9. FROM THE PERUSAL OF THE PROVISION OF SECTION 80IB(1 0) AS WAS IN EXISTENCE, WHEN THE ASSESSEES PROJECT WAS A PPROVED I.E. ON 24.4.2003, WE NOTED THAT THE CONDITION AS STIPUL ATED UNDER EXPLANATION (II) TO SECTION 80IB ABOUT THE COMPLETI ON OF THE PROJECT AND ISSUE OF THE CERTIFICATE BY THE LOCAL A UTHORITY WAS NOT THERE. THERE WAS ONLY THREE CONDITIONS WHICH HAVE T O BE COMPLIED WITH BY THE PROJECT, THE FIRST CONDITION WAS THAT P ROJECT SHOULD HAVE BEEN APPROVED BEFORE 31 ST MARCH, 2005, AND THE UNDERTAKING SHOULD HAVE COMMENCED THE DEVELOPMENT O F CONSTRUCTION OF HOUSING PROJECT ON OR AFTER 1 ST OCTOBER, 1998. THE RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 11 SIZE OF THE PROJECT SHOULD HAVE A MINIMUM AREA OF 1 ACRE AND IN CASE THE RESIDENTIAL UNITS HAS A MINIMUM BUILT UP A REA OF 1000 SQ.FT., IF IT IS SITUATED WITHIN THE CITIES OF DELH I OR MUMBAI OR WITHIN 25 KMS. FROM MUNICIPAL LIMIT OF THESE CITIES AND 1500 SQ.FT. IF IT IS SITUATED IN ANY OTHER PLACE. THE CO NDITION THAT COMPLETION OF THE PROJECT BEFORE 31 ST MARCH, 2008, OR WITHIN 4 YEARS OR WITHIN 5 YEARS HAS BEEN BROUGHT INTO SECTI ON 80IB. ONLY BY THE FINANCE ACT, 2004, NOT PRIOR TO THAT. THIS I S SETTLED POSITION OF LAW THAT THE LAW EXISTING AT THE PARTIC ULAR POINT OF TIME WILL BE APPLICABLE UNLESS AND UNTIL IT IS SPEC IFICALLY MADE RETROSPECTIVE BY THE LEGISLATOR. IN OUR OPINION, TH E ASSESSEE IS EXPECTED TO COMPLETE THE PROJECT AS PER THE APPROVE D PLAN AT A PARTICULAR POINT OF TIME AND THE ASSESSEE IS NOT EX PECTED TO DO OR FULFILL THE CONDITIONS WHICH ARE NOT IN EXISTENCE A T THE RELEVANT POINT OF TIME OR MADE COMPULSORY AFTER MAKING SUCH AMENDMENT IN THE ACT FROM THE FUTURE DATE. WHEN THE PROJECT A PPROVED, THE COMPETENT AUTHORITY HAS GIVEN SPECIFIED DATE THAT P ROJECT SHOULD HAVE COMPLETED BY THAT DATE. THE SECTION 80IB(10), WHICH WAS IN EXISTENCE THERE NOWHERE REQUIRED THE ASSESSEE TO CO MPLETE THE PROJECT WITHIN A PARTICULAR PERIOD. THEREFORE, IN O UR VIEW, THE RESTRICTION, WHICH HAS BEEN IMPOSED SUBSEQUENTLY BY AMENDING RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 12 THE PROVISIONS OF THE LAW WILL NOT APPLY TO THE ASS ESSEE THAT THE PROJECT SHOULD HAVE BEEN COMPLETED WITHIN FOUR YEAR S FROM THE END OF THE FINANCIAL YEAR IN WHICH HOUSING IS APPRO VED BY THE LOCAL AUTHORITIES. 10. WE HAVE GONE THROUGH THE DECISIONS AS HAS BEEN RELI ED UPON BY THE LD. SENIOR DR. WE NOTED THAT THE DECISI ON OF M/S. AGRAWAL BUILDERS, BHOPAL, IN I.T.A.NO. 337/IND/20-1 0 WILL NOT ASSIST THE REVENUE. THIS DECISION RELATES TO THE CO NDITION IMPOSED BY THE FINANCE ACT, 2004, W.E.F. 1.4.2005. IN THIS DECISION ALSO, THE HON'BLE TRIBUNAL HAS CLEARLY HELD THAT THE LAW APPLICABLE TO THE RELEVANT ASSESSMENT YEAR WILL BE APPLICABLE. HO N'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHD DEVELOPERS LI MITED, 266 CTR 60 (DEL) HAS ALSO TAKEN THE SIMILAR VIEW. WE NO TED THAT INDORE BENCH, INDORE IN I.T.A.NO. 177/IND/2013 IN T HE CASE OF M/S.ASNANI BUILDERS & DEVELOPERS, BHOPAL, AS RELIED BY THE LD. SENIOR DR HAS TAKEN A CONTRARY VIEW VIDE ORDER DATE D 08.10.2013, BUT SUBSEQUENT TO THAT ORDER, WE NOTED THE DECISION OF THE HON'BLE DELHI HIGH COURT DATED 22.01.2014. N O OTHER HIGH COURTS DECISION WHICH IS IN FAVOUR OF THE REVENUE OR TAKING A DIFFERENT VIEW FROM AS HAS BEEN TAKEN BY THE HON'BL E DELHI HIGH COURT IN THE CASE OF CIT VS. CHD DEVELOPERS, WAS PR ODUCED RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 13 BEFORE US. IN VIEW OF THESE FACTS, THE DECISION OF HON'BLE HIGH COURT EVEN THOUGH IT IS NOT OF JURISDICTIONAL HIGH COURT, IN OUR OPINION, HAS MORE PERSUASIVE VALUE. WE, THEREFORE, SET-ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND ALLOW THE GRO UND TAKEN BY THE ASSESSEE IN BOTH THE ASSESSMENT YEARS. 11. GROUND NO. 4 IN ASSESSMENT YEAR 2005-06 AND 5 IN ASSESSMENT YEAR 2006-07 RELATE TO CHARGING OF INTER EST U/S 234B & 234C. THESE GROUNDS ARE CONSEQUENTIAL IN NATURE A ND WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO RECOMPUT E THE INTEREST U/S 234B & 234C ON THE INCOME AS MAY BE FINALLY DET ERMINED IN CONSEQUENCE OF THIS ORDER. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 IS PARTLY ALLOWED WHILE THE APPEAL FOR ASSESSMENT YEAR 2007-08 IS ALLOWED. SD/- SD/- (MUKUL KR. SHRAWAT) (P. K. BANSAL) JUDICIAL MEMBER ACCOUNTANT M EMBER INDORE; DATED 19/09/2014 CPU*SPS RAJ REALITY, BHOPAL I.T.A.NOS. 533 & 534/IND/2012 A.YS.. 2005-06 & 2 007-08 14 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ' $ / CONCERNED CIT 4. $ ( ) / THE CIT(A), INDORE 5. ' **' , ' , / DR, ITAT, INDORE 6. . / GUARD FILE. / BY ORDER, (ASSTT.REGISTRAR) ITAT, INDORE 1. DATE OF DICTATION- 11.09.2014 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.09.2014 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S. .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 26. 09.2014 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER