M/S PRAGATI CONSTRUCTION CO., Bhopal V. THE ITO-2(1), Bhopal

ITA 575/IND/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4431 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 24-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: N D PATWA
• Keywords: Retrospective amendment
• Section: 80IB; 147; 148; 15

Judgement Text

1 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ITA NO. 575/IND/2016 A.Y. 2005-06 PRAGATI CONSTRUCTION CO., BHOPAL PAN AAEFM 7518 H :: APPELLANT VS ITO-2(1), BHOPAL :: RESPONDENT ASSESSEE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA RESPONDENT BY SHRI MOHD. JAVED DATE OF HEARING 2 4. 8 .2016 DATE OF PRONOUNCEMENT 03. 10 .2016 O R D E R PER SHRI B.C. MEENA, AM THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, BHOPAL, DATED 04.12.2015 WHEREIN THE DISALLOWANCE OF RS.6,83,525/- CLAIMED BY THE ASSESSEE U/S 80-IB( 10) HAS BEEN CHALLENGED. 2. FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGE D IN THE BUSINESS OF CIVIL CONSTRUCTION AND TRANSPORTATION O F MATERIAL. IT FILED ITS RETURN ON 31.10.2005 SHOWING AN INCOME OF RS.4,650/- 2 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 AFTER CLAIMING DEDUCTION U/S 80IB(10) OF THE I.T. A CT AT RS.6,83,525/-. THE CASE WAS REOPENED AFTER RECORDIN G THE REASONS FOR MAKING REASSESSMENT U/S 147 AND A NOTIC E U/S 148 OF THE ACT WAS ISSUED. THE ASSESSMENT WAS COMPLETED U/S 143(3)/147 BY THE ASSESSING OFFICER DISALLOWING THE CLAIM OF DEDUCTION U/S 80IB(10) ON THE FOLLOWING GROUNDS: A) THE APPROVAL FOR THE IMPUGNED HOUSING PROJECT IS NOT IN THE NAME OF THE ASSESSEE. THUS, THE ASSESSEE HAS ACTED ONLY AS CONTRACTOR AND NOT AS BUILDER. FURTHER, THE DEVELOPMENT PERMISSION ISSUED BY THE T & C PLANNING , BHOPAL IS ALSO NOT IN THE NAME OF THE ASSESSEE. APP ROVAL OF THE BHOPAL MUNICIPAL CORPORATION IS FOR RE-ERECTIO N OR ALTERATION WHICH DOES NOT FALL WITHIN THE DEFINITI ON OF DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT A S ENVISAGED U/S 80IB(10) OF THE ACT. B) NO COLONIZER LICENSE WAS OBTAINED BY THE ASSESSE E. C) THE REGISTRIES OF THE FLATS/SHOPS HAVE BEEN EFFE CTED BY MPSRTC THROUGH ITS MD IN MOST OF THE CASES. THIS CLEARLY STIPULATES THAT THE ASSESSEE HAD CARRIED OU T 3 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 CONSTRUCTION WORK ON BEHALF OF THE MPSRTC. THUS, TH E ASSESSEE HAD ACTED MERELY AS CONTRACTOR. D) THE APPROVED VALUER DURING THE ASSESSMENT PROCEE DING FOR THE ASSESSMENT YEAR 2006-07 HAS FOUND THAT THE BUILT UP AREA OF COMMERCIAL SHOPS IS 30.52% OF THE TOTAL BUILT UP AREA OF THE PROJECT. THUS, THE REQUIREMENT OF SECTION 80IB(10) HAS BEEN VIOLATED. BEING AGGRIEVED, THE ASSESSEE APPROACHED THE LD. CI T(A), WHO CONFIRMED THE ADDITION FOLLOWING THE ORDER OF THE M .P. HIGH COURT. NOW, THE ASSESSEE IS BEFORE US. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. ON THE O THER HAND, LD. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORIT IES AND SUBMITTED THAT ISSUE IS COVERED AGAINST THE ASSESSE E BY THE JUDGMENT OF THE HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. M/S. GLOBAL REALITY, I.T.A.NO. 40/2 012 AND OTHERS. 4. THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT C ONTROVERT THE ASSERTION MADE BY THE LD. DR. 4 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BEL OW. WE FIND THAT IN A RECENT JUDGMENT, THE HON'BLE JURISDICTIONA L HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. M/S GLOBAL REALITY; 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, S ENSU STRICTO, CANNOT BE CONSIDERED AS A NEW CONDITION AN D THAT TOO INCAPABLE OF COMPLIANCE. INASMUCH AS, CLAUSE (A ) DEALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJEC T WAS EXPECTED TO BE COMPLETED, TO GET THE BENEFIT OF THE PRESCRIBED DEDUCTION. NOTABLY, THE AMENDED SECTION 80IB (10) (A) EXTENDS THE BENEFIT EVEN TO THE HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY BEFORE 31.03.2007, INSTEAD OF 31.03.2005 - AS WAS PROVIDED IN THE UNAMENDED PROVISION. THEREFORE, NECESSITY WAS F ELT TO MAKE DISTINCTION BETWEEN THE TWO CLASSES OF HOUSING PROJECTS FOR SPECIFYING THE TIME FRAME FOR COMPLETI ON. THE ONE APPROVED BY THE LOCAL AUTHORITY BEFORE 1ST DAY OF APRIL, 2004; AND THE OTHER CLASS OF HOUSING PROJECT APPROVED BY THE LOCAL AUTHORITY ON OR AFTER 1ST APR IL 2004 5 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 TILL 31.03.2007. IN EITHER CASE, THE TIME FRAME FOR COMPLETION OF PROJECT HAS BEEN PRESCRIBED AS FOUR Y EARS. IN THAT, THE PROJECT APPROVED BEFORE 1ST APRIL, 2004 H AS BEEN GIVEN TIME TO COMPLETE BEFORE 31.03.2008; AND IN TH E LATTER CATEGORY I.T.A.NOS.40/2012, 36/2012 & 35/2012 WITHI N FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WH ICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY . 20. THUS UNDERSTOOD, SIMILAR TIME FRAME FOR COMPLET ION OF HOUSING PROJECT HAS BEEN GIVEN TO BOTH CLASS OF HOU SING PROJECTS. MOREOVER, THE EXPLANATION BELOW CLAUSE (A ), IN PARTICULAR (II), APPLIES TO BOTH CLASS OF HOUSING P ROJECTS UNIFORMLY. IT POSTULATES THAT 'THE DATE OF COMPLETI ON OF CONSTRUCTION OF HOUSING PROJECT' SHALL BE TAKEN TO BE 'THE DATE ON WHICH 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 AUTHORIT Y ON OR BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE - TO BECOME 6 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 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 T HE LOCAL AUTHORITY. NO MORE AND NO LESS. THUS, ENOUGH INDICA TION AND ALSO SUFFICIENT TIME HAS I.T.A.NOS.40/2012, 36/ 2012 & 35/2012 BEEN GIVEN TO BOTH THE CLASS OF HOUSING P ROJECTS TO FULFILL THAT CONDITION. THE PROVISION IS IN THE NATURE OF LIMITING THE BENEFIT OF DEDUCTION TO THE SPECIFIED HOUSING PROJECTS, AND NOT TO THOSE WHO FAIL TO FULFILL THE REQUIREMENT OF COMPLETION OF CONSTRUCTION IN TIME FRAME SPECIFI ED FOR THE RESPECTIVE CATEGORY OF HOUSING PROJECTS. THIS HAS B EEN DONE IN LARGER PUBLIC INTEREST - TO ENSURE THAT THE BENEFIT IS GIVEN ONLY TO SUCH PROJECTS WHO WOULD FURTHER THE G OAL OF PROVIDING LOW 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 PER SONS AND ALSO TO WITHDRAW THE SAME FOR JUST REASONS. THAT CA NNOT BE QUESTIONED, UNLESS SHOWN TO BE UNCONSTITUTIONAL IN FORM OR ITS SUBSTANCE. IT WAS THUS OPEN TO THE PARLIAMENT, TO PROVIDE FOR A CUT OFF DATE FOR COMPLETION OF THE HO USING 7 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 PROJECTS, AS A CONDITION PRECEDENT TO AVAIL BENEFIT OF DEDUCTION. IN THE PAST, SUCH STIPULATION WAS IN PLA CE, BUT, LATER ON, IT WAS DONE AWAY WITH. HOWEVER, BY AMENDM ENT WHICH CAME INTO EFFECT FROM 1ST APRIL, 2005, THE CO NDITION FOR COMPLETION OF PROJECT WITHIN SPECIFIED TIME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN REINTRODUCED, WHILE GIVING SUFFICIENT TIME (FOUR YE ARS) TO THE ASSESSEE TO COMPLY FOR BEING ENTITLED TO GET DEDUCT ION. 22. A PRIORI, IT IS NOT A CASE OF IMPOSING NEW COND ITION, MUCH LESS, WITH RETROSPECTIVE EFFECT AS HAS BEEN AR GUED BEFORE US; UNLIKE INTRODUCTION OF NEW CONDITION IN THE SHAPE OF CLAUSE (D) - WHICH OBVIOUSLY COULD BE APPLIED ON LY PROSPECTIVELY, AS HELD BY THE SUPREME COURT IN THE AFORESAID DECISIONS. CLAUSE (A) STANDS ON A COMPLET ELY DIFFERENT PEDESTAL. IT CANNOT BE TREATED AS A NEW C ONDITION LINKED TO THE APPROVAL AND CONSTRUCTION OR HAVING RETROSPECTIVE EFFECT AS SUCH. FOR, IT GIVES AT LEAS T 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 HA S PROSPECTIVE EFFECT, ALBEIT LIMITING THE PERIOD FOR COMPLETION 8 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 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 C LAIM VESTED RIGHT TO COMPLETE THE HOUSING PROJECT I.T.A.NOS.40/2012, 36/2012 & 35/2012 IN INDEFINITE PERIOD. THE RIGHT ARISING FROM SECTION 80IB , IS COUPLED WITH THE OBLIGATION OR DUTY TO COMPLETE THE PROJECT IN S PECIFIED TIME FRAME. IF THE DEVELOPER DOES NOT COMPLETE THE HOUSING PROJECT WITHIN SPECIFIED TIME, WILL NOT RECEIVE THA T BENEFIT. THERE IS NO COMPULSION ON HIM TO COMPLETE THE PROJE CT IN FOUR YEARS. NOTABLY, EVEN THE APPROVALS TO THE CONS TRUCTION OF HOUSING PROJECT GRANTED BY THE LOCAL AUTHORITY S PECIFY THE DATE WITHIN WHICH THE CONSTRUCTION MUST BE COMP LETED, 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 EXT ENDED FROM THE LOCAL AUTHORITY AS PER THE APPLICABLE RULE S AND REGULATIONS. THE PROVISION FOR CLAIMING TAX DEDUCTI ON FROM PROFITS, CAN CERTAINLY PRESCRIBE FOR REASONABLE CON DITIONS 9 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 AND MORE SO TIME FRAME FOR COMPLETION OF THE PROJEC T, IN LARGER PUBLIC INTEREST. 23. SUFFICE IT TO OBSERVE THAT, NO COMPARISON CAN B E DRAWN BETWEEN THE NEW CONDITION PRESCRIBED IN TERMS OF CL AUSE (D) AND THAT OF CLAUSE (A). CONDITION IN CLAUSE (A) , NEITHER OPERATES RETROSPECTIVELY NOR CAN BE SAID TO BE ABSU RD, 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 IN ANY PREVIOUS YEAR RELEVAN T TO ANY ASSESSMENT YEAR); AND THE PURPOSE UNDERLYING THE SA ME - WHICH IS INTER ALIA BURDEN ON THE PUBLIC EXCHEQUER DUE TO WAIVER OF COMMENSURATE REVENUE - THE STIPULATION FO R OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUT HORITY BEFORE THE CUT OFF DATE, MUST BE CONSTRUED AS MANDA TORY. THE FACT THAT COMPLIANCE OF THAT CONDITION IS DEPEN DENT ON THE MANNER IN WHICH THE PROPOSAL IS PROCESSED BY TH E 10 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 LOCAL AUTHORITY, THE PROVISION CANNOT BE CONSTRUED AS A DIRECTORY REQUIREMENT. IT IS A SUBSTANTIVE PROVISIO N MANDATING ISSUANCE OR GRANT OF COMPLETION CERTIFICA TE BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE OR SPEC IFIED TIME, AS A PRECONDITION TO GET THE BENEFIT OF TAX DEDUCTI ON. ELSE, IT WILL THEN BE OPEN TO THE ASSESSEE TO RELY ON OTH ER 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 ISSUED BY THE LOCAL AUTHORITY IN THAT BEHALF. A PRIORI, THE ARGUM ENT OF SUBSTANTIAL COMPLIANCE IS SUFFICIENT, WOULD LEAD TO UNCERTAINTY ABOUT THE DATE OF COMPLETION OF THE PRO JECT WHICH IS THE HALLMARK FOR AVAILING OF THE BENEFIT O F TAX DEDUCTION. ONLY WITH THIS INTENT THE LEGISLATURE IN ITS WISDOM HAS PREDICTED THAT, 'THE COMPLETION OF CONST RUCTION' OF THE HOUSING PROJECT IS TAKEN TO BE 'THE DATE ON WHICH' THE COMPLETION CERTIFICATE 'IS ISSUED' BY THE LOCAL AUTHORITY. TO INTERPRET IT TO INCLUDE AN EX POST FACTO CERTIFI CATE OR SUCH CERTIFICATE ISSUED BY THE LOCAL AUTHORITY AFTER THE CUT OFF DATE, WOULD NOT ONLY RESULT IN REWRITING OF THE EXP RESS 11 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 PROVISION AND RUN CONTRARY TO THE UNAMBIGUOUS POSIT ION PRONOUNCED IN THE SECTION, BUT ALSO DOING VIOLENCE TO THE LEGISLATIVE INTENT. FOR, EXPLANATION (II) WILL THEN HAVE TO BE READ AS 'DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE AS CERTIFIED BY THE LOCAL AUTHORITY IN THAT BEHALF', IRRESPECTIVE OF TH E DATE OF ISSUANCE OF SUCH CERTIFICATE BY THE I.T.A.NOS.40/20 12, 36/2012 & 35/2012 LOCAL AUTHORITY. INDEED, IN A GIV EN CASE IF THE ASSESSEE IS ABLE TO SUBSTANTIATE THAT T HE COMPLETION CERTIFICATE 'WAS IN FACT ISSUED' BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, BUT COULD NOT BE PRODUCED BY HIM WITHIN TIME DUE TO REASONS BEYOND HIS CONTRO L, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE OF THE PROVISION CAN BE TESTED. ANY OTHER INTERPRETATION WOULD RESULT NOT O NLY IN UNCERTAINTY (IN FINALIZATION OF ASSESSMENT PROCEEDI NGS DUE TO NON-ISSUANCE OR DELAYED ISSUANCE OF SUCH CERTIFI CATE BY THE LOCAL AUTHORITY AND PRONE TO MANIPULATIONS AT T HE END OF THE LOCAL AUTHORITY); BUT ALSO HAVE TO YIELD TO THE SUBJECTIVE SATISFACTION OF THE ASSESSING AUTHORITY AND OF INVESTING WIDE DISCRETION IN THAT AUTHORITY, WHICH, EVENTUALLY, MAY ONLY END UP IN GETTING EMBROILED IN 12 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 LITIGATION. IF THE ASSESSEE HAS FAILED TO COMPLY WI TH THE CONDITION OF OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, HE MUST TAKE THE CONSEQUENCE THEREFOR AND OF DENIAL OF THE BENEFIT O F TAX DEDUCTION OFFERED TO HIM ON THAT COUNT. 25. WE CANNOT BE OBLIVIOUS OF THE FACT THAT THE MUN ICIPAL 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 TO ISSUE PARTI AL OR FULL OCCUPATION CERTIFICATE; AND THEREAFTER ISSUE COMPLE TION CERTIFICATE AFTER REMOVAL OF ALL THE DEFICIENCIES P OINTED OUT BY THE LOCAL AUTHORITY. IN SOME STATES, THE MUNICIP AL 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 TAXAT ION, HOWEVER, IS, OF ONLY ONE CERTIFICATE - WHICH IS FUL L COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y BEFORE THE CUT OFF DATE. THAT IS TO LEND CREDENCE TO THE F ACTUM OF 13 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 COMPLETION OF THE ENTIRE HOUSING PROJECT IN ALL RES PECTS 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 BEEN MAD E AS TO THE MEANING OF THE DATE OF COMPLETION OF THE HOUSIN G PROJECT LINKED TO THE 'DATE ON WHICH' COMPLETION CE RTIFICATE 'IS ISSUED' BY THE 'LOCAL AUTHORITY', AS PREDICATED IN EXPLANATION (II) THEREUNDER. 26. WE ACCORDINGLY HOLD THAT ISSUANCE OF COMPLETI ON CERTIFICATE, AFTER THE CUT OFF DATE BY THE LOCAL AU THORITY BUT, MENTIONING THE DATE OF COMPLETION OF PROJECT BEFORE THE CUT OFF DATE DOES NOT FULFILL THE CONDITION SPECIFIED I N CLAUSE (A) OF SECTION 80IB (10) READ WITH EXPLANATION (II) THE REUNDER. WE REJECT THE ARGUMENT OF THE ASSESSEE THAT THE EFF ECT OF AMENDED CLAUSE (A) OF SUB-SECTION 10 OF SECTION 80I B, WHICH HAS COME INTO FORCE WITH EFFECT FROM 1 ST APRIL, 2005 ,HAS RETROSPECTIVE EFFECT OR THAT IT IS UNJUST IN A NY MANNER OR INCAPABLE OF COMPLIANCE AT ALL. SIMILARLY, THE REQUIREMENT OF SECURING COMPLETION CERTIFICATE ISSU ED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE IS NOT DIRE CTORY, IN VIEW OF THE EXPRESS PROVISION IN SECTION 80IB(10)(A ) AND THE 14 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 EXPLANATION (II) THEREUNDER. THE COMPLETION CERTIFI CATE GRANTED BY THE LOCAL AUTHORITY MUST BEAR THE DATE O F HAVING BEEN ISSUED BEFORE THE CUT OFF DATE. 27. THAT TAKES US TO THE ARGUMENT OF THE ASSESS EE THAT THE STIPULATION IN SECTION 80IB(10)(A) OF COMPLETIO N CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE TH E CUT OFF DATE, CANNOT BE APPLIED IN THE CASE OF ASSESSEE FOL LOWING THE WORK IN PROGRESS ACCOUNTING METHOD. IN OUR OPIN ION, THE PROVISION IN THE FORM OF SECTION 80IB (10)(A), APPLIES UNIFORMLY TO ALL THE ASSESSEES - BE IT FOLLOWING WO RK IN PROGRESS ACCOUNTING METHOD OR OTHERWISE. THE BENEFI T OF DEDUCTION UNDER THIS PROVISION CAN BE AVAILED BY TH E ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD, PROVIDED HE HAS COMPLIED WITH THE STIPULATI ON OF HAVING PRODUCED COMPLETION CERTIFICATE ISSUED BY TH E LOCAL AUTHORITY BEFORE THE CUT OFF DATE, AS MAY BE APPLIC ABLE IN HIS CASE. IN OTHER WORDS, IF THE HOUSING PROJECT WA S APPROVED BY THE LOCAL AUTHORITY BEFORE 1 ST APRIL, 2004, HE MUST SUBMIT COMPLETION CERTIFICATE ISSUED BY THE AU THORITY HAVING BEEN ISSUED BEFORE THE 31 ST MARCH, 2008. WHEREAS, IN THE CASE OF HOUSING PROJECT APPROVED ON OR AFTER 1 ST APRIL, 15 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 2004, THE ASSESSEE CAN AVAIL OF THE BENEFIT PROVIDE D COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y IS WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEA R IN WHICH THE CONCERNED HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. IF THIS CONDITION IS NOT FULFILLED , THE ASSESSEE WHO MAINTAINS WORK IN PROGRESS ACCOUNTING METHOD AND HAS CLAIMED DEDUCTION UNDER SECTION 80IB(10)(A) MUST SUFFER THE CONSEQUENCE OF DISALLOW ANCE OR WITHDRAWAL OF THE BENEFIT CLAIMED BY HIM ON THAT CO UNT. 28. ACCORDINGLY, THESE APPEALS SUCCEED. THE IMPUGNE D JUDGMENT OF THE TRIBUNAL IS SET ASIDE; AND IN THE F ACTS OF THE PRESENT CASE, THE DECISION OF THE ASSESSING OFF ICER TO DISALLOW DEDUCTION UNDER SECTION 80IB(10)(A) OF THE INCOME TAX ACT IS UPHELD. NO ORDER AS TO COSTS. 6. THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSID ERED THE SWEEP OF AMENDED CLAUSE (A) OF THE PROVISION UNDER SUB-SECTION (10) OF SECTION 80IB OF THE ACT AND HELD THAT THE P ROVISIONS OF CLAUSE (A), AS AMENDED, SEN SUSTRICTO CANNOT BE CON SIDERED 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 COMPLETED TO GET THE BENEFIT OF PRES CRIBED 16 PRAGATI CONSTRUCTION CO. ITA NO.575/IND/2016 DEDUCTION. THE HON'BLE HIGH COURT HAS HELD THAT ISS UANCE OF COMPLETION CERTIFICATE AFTER THE CUTOFF DATE BY THE LOCAL AUTHORITY BUT MENTIONING IN THE DATE OF THE COMPLETION OF PRO JECT BEFORE CUTOFF DATE, DOES NOT FULFIL THE CONDITION SPECIFIE D IN CLAUSE (A) OF SECTION 80IB(10) READ WITH EXPLANATION 2 THEREUNDER . IN VIEW OF THIS FINDING, WE FIND NO MERIT IN THE APPEAL OF THE ASSESSEE. WE, RESPECTFULLY, FOLLOWING THE DECISION OF HON'BLE JUR ISDICTIONAL HIGH COURT, DISMISS THE APPEAL OF THE ASSESSEE. 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 03.10.201 6. SD/- (O.P. MEENA) ACCOUNTANT MEMBER SD/- ( D.T. GARASIA) JUDICIAL MEMBER DATED : 03.10.2016