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

ITA 63/IND/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7524 (ITAT-INDORE)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 06-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Keywords: Initiation of penalty proceedings
• Section: 143(3); 80HHC; 80IB

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.63/IND/2011 AY: 2006-07 M/S DEEP MOHINI BHOPAL PAN ASE FD-2569B ..APPELLANT V/S. ASSTT. COMMISSIONER OF INCOME TAX 1(1), BHOPAL ..RESPONDENT APPELLANT BY : SHRI H.P. VERMA ALONG WITH SHRI GIRISH AGRAWAL RESPONDENT BY : SHRI ARUN DEWAN DATE OF HEARING 11.1.2012 DATE OF PRONOUNCEMENT 6 .2 .2012 O R D E R PER JOGINDER SINGH THE ASSESSEE IS AGGRIEVED BY THE ORDER DATED 24.3.2 011 PASSED BY THE LEARNED CIT(A), BHOPAL ON THE FOLLOWI NG GROUNDS :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE CLAIM OF RS. 25,73,325/- U/S 80IB(10) OF THE INCOME TAX ACT WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE. 2 2. THAT UNDER THE CIRCUMSTANCES CHARGING OF INTEREST U/S 234B, U/S 234A AND U/S 234D IS NOT JUSTIFIED. 3. THAT UNDER THE CIRCUMSTANCES, INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) IS NOT JUSTIFIED. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I H.P. VERMA ALONG WITH SHRI GIRISH AGRAWAL, LEARNED COUNS EL FOR THE ASSESSEE, WHO STRONGLY OPPOSED THE ORDERS OF THE LO WER AUTHORITIES BY FURTHER SUBMITTING THAT SINCE THE AS SESSEE HAD ALREADY APPLIED TO THE MUNICIPAL AUTHORITIES FOR IS SUING COMPLETION CERTIFICATE BUT BECAUSE OF NON-ISSUE OF CERTIFICATE ON THE PART OF THE MUNICIPAL AUTHORITIES, THE CLAIM OF THE ASSESSEE U/S 80IB(10) OF THE ACT CANNOT BE REJECTED. THE ASS ESSEE HAS FULFILLED ALL THE REQUIREMENTS AS PRESCRIBED UNDER THE ACT FOR CLAIMING THE DEDUCTION. ON THE OTHER HAND, SHRI ARUN DEWAN, LEARNED SENIOR DR, STRONGLY DEFENDED THE ORDERS OF THE AUTHORITIES BELOW BY SUBMITTING THAT THE ASSESSEE W AS NEVER ISSUED COMPLETION CERTIFICATE EVEN TILL TODAY BY TH E MUNICIPAL AUTHORITIES AND THE PROJECT SHOULD HAVE BEEN COMPLE TED BY 31 ST MARCH, 2008 WHEREAS THE ASSESSEE APPLIED FOR COMPLE TION CERTIFICATE ON 10.11.2008, THEREFORE, IT WAS CONTEN DED THAT THE CLAIM OF THE ASSESSEE WAS RIGHTLY REJECTED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE 3 MATERIAL AVAILABLE ON FILE. BRIEF FACTS OF THE CAS E ARE THAT THAT THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF BUILD ERS AND LAND DEVELOPER AND DEVELOPING THE HOUSING PROJECT. THE A SSESSEE CLAIMED DEDUCTION U/S 80IB (10) OF THE AC ON THE GR OUND THAT THE ASSESSEE HAS FULFILLED ALL THE REQUIREMENTS AS PRES CRIBED UNDER THE ACT. HOWEVER, THE AO HAS DISALLOWED THE CLAIM OF DEDUCTION U/S 80 IB(1O) FOR THE REASONS THAT THE ASSESSEE IS NOT UNDERTAKING DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT AS HE IS NEITHER OWNER NOR THE SELLER OF LAND. THE ASS ESSEE IS MERELY ACTING AS A CONTRACTOR. IT IS FURTHER STATED BY THE ASSESSING OFFICER THAT THE NO REGISTRY IS BEING MADE FOR THE CONSTRUCTION WORK. IT HAS ALSO BEEN OBSERVED BY THE ASSESSING OF FICER THAT VIRTUALLY NO INVESTMENT HAS BEEN MADE BY THE ASSESS EE IN THE SAID PROJECT. THE PROJECT IS NOT APPROVED AS A WHOL E BY THE MUNICIPAL CORPORATION AS INDIVIDUAL PERMISSION HAS BEEN GIVEN. FURTHER THE PERMISSION IS GIVEN TO DEEP COLONIZER A ND NOT TO THE ASSESSEE AND THE LOCAL AUTHORITY HAS NOT ISSUED COM PLETION CERTIFICATE TO THE ASSESSEE. IN THIS VIEW OF THE M ATTER, THE LEARNED ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSES SEE U/S 80IB(10) OF THE ACT. 4. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X 4 (APPEALS) AFTER CONSIDERING THE FACTS, SUBMISSIONS OF THE ASSESSEE AND THE LEGAL POSITION PLACED BEFORE HIM BY WAY OF VARIOUS CASE LAWS, DISMISSED THE APPEAL OF THE ASSESSEE WITH THE FOLLOWING OBSERVATIONS :- I HAVE GONE THROUGH THE ASSESSMENT ORDER, SUBMISSION OF THE AR AND THE DOCUMENTS SUBMITTED BEFORE ME. THE AO HAS DISALLOWED THE CLAIM OF DEDUCTION U/S 80 IB(1O) FOR THE REASONS THAT THE APPELLANT IS NOT UNDERTAKING DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT AS HE IS NEITHER OWNER NOR THE SELLER OF LAND. THE APPELLANT IS MERELY ACTING AS A CONTRACTOR. IT IS FURTHER STATED BY THE AO THAT THE NO REGISTRY IS BEING MADE FOR THE CONSTRUCTION WORK. IT HAS ALSO BEEN OBSERVED BY THE AO THAT VIRTUALLY NO INVESTMENT HAS BEEN MADE BY THE APPELLANT IN THE SAID PROJECT. THE PROJECT IS NOT APPROVED AS A WHOLE BY THE MUNICIPAL CORPORATION AS INDIVIDUAL PERMISSION HAS BEEN GIVEN. FURTHER THE PERMISSION IS GIVEN TO DEEP COLONIZER AND NOT TO THE APPELLANT AND THE LOCAL AUTHORITY HAS NOT ISSUED COMPLETION CERTIFICATE TO THE APPELLANT. THE LEARNED AR ON THE OTHER HAND SUBMITTED THAT THE APPELLANT HAS COMPLIED WITH ALL THE REQUIREMENTS AS LAID DOWN IN SECTION 80IB(10). THOUGH THE PERMISSION IS NOT IN THE NAME OF THE APPELLANT BUT THE APPELLANT HAS ENTERED INTO JOINT VENTURE AGREEMENT WITH DEEP COLONIZER. FURTHER, THE REGISTRY DONE ON PLOT OR COMPLETED BUILDING IS NOT THE CONDITION MENTIONED IN THE SECTION 80IB(10). THE REGISTRY IS DONE ON PLOT FOR THE REASON THAT THE PURCHASER WANTS TO TAKE LOAN FROM THE BANK AND FOR THE CONVENIENCE OF THE PURCHASER THE ARRANGEMENT IS SO MADE WHICH IN NO WAY VIOLATES THE CONDITIONS LAID DOWN IN SECTION 80IB( I 0). IT IS ONLY TO FACILITATE THE PROCESS OF LOAN BY THE PURCHASER FROM THE BANK. HOWEVER, THE POSSESSION IS GIVEN ON THE COMPLETION OF THE BUILDING ONLY. THE APPELLANT HAS AGREEMENT WITH THE PURCHASER FOR THE CONSTRUCTION OF HOUSE/RESIDENTIAL UNIT SO DESPITE THE REGISTRY DONE AT PLOT LEVEL 5 POSSESSION IS GIVEN ONLY AFTER PAYMENT OF FINAL INSTALLMENT/ AMOUNT ON CONSTRUCTION AND COMPLETION OF HOUSE/ UNITS. THUS THE APPELLANT IS NOT ACTING MERELY AS A CONTRACTOR BUT AS A BUILDER AND DEVELOPER OF THE AFORESAID PROJECT AND DEDUCTION U/S 80IB(L0) IS AVAILABLE TO THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS .. THE APPELLANT HAS LAND WHICH HAS COME BY WAY OF JOINT VENTURE AGREEMENT SO NO INVESTMENT IN LAND HAS BEEN MADE BY THE APPELLANT. HOWEVER, THE INVESTMENT IN CONSTRUCTION OF THE PROJECT IS MADE BY THE APPELLANT ONLY. FURTHER THE APPELLANT HAS APPLIED FOR THE ISSUANCE OF COMPLETION CERTIFICATE BUT THE SAME IS NOT ISSUED BY THE MUNICIPAL CORPORATION AND THE APPELLANT IS HELPLESS IN THE MATTER AS THE SAME IS TO BE ISSUED BY THE MUNICIPAL AUTHORITIES. IN VIEW OF THE ABOVE FACTS AND THE ELABORATE WRITTEN SUBMISSION AS REPRODUCED HEREIN ABOVE, THE APPELLANT HAS REQUESTED FOR ALLOWING DEDUCTION U/S 80IB(10) WHICH HAS BEEN DISALLOWED BY THE AO WHILE COMPLETING THE ASSESSMENT U/S 143(3) FOR A. Y. 2006-07. I TEND TO AGREE WITH THE AO ON SOME ISSUES. IT IS TRUE THAT THE PERMISSION IS IN THE NAME OF DEEP COLONIZER AND NOT IN THE NAME OF THE APPELLANT. BUT THE APPELLANT HAS ENTERED INTO JOINT VENTURE AGREEMENT WITH DEEP COLONIZER FOR DEVELOPMENT OF HOUSING PROJECT ON THE SAID LAND. THUS, THE PERMISSION IN THE NAME OF DEEP COLONIZER ARE INDIRECTLY IN THE NAME OF APPELLANT ALSO. SO ON THIS POINT I AM NOT IN AGREEMENT WITH THE AD. FURTHER, THE PROVISIONS OF SECTION 80 IB(10) SPEAKS OF PROJECT SHOULD BE APPROVED AND IN THE PRESENT CASE THE PROJECT IS APPROVED AND THE DEDUCTION UNDER THIS SECTION IS AVAILABLE TO THE DEVELOPER OF THE PROJECT. THE AO HAS ALSO MENTIONED THAT THE APPELLANT IS MERELY ACTING AS A CONTRACTOR. ON THIS POINT ALSO I DO NOT AGREE WITH THE CONTENTION OF THE AD. THOUGH THE REGISTRY IS DONE ON PLOT LEVEL AND THEREAFTER THE CONSTRUCTION OF THE PROJECT IS DONE BY THE APPELLANT BUT THE SAME CANNOT BE SAID TO HAVE BEEN DONE AS A CONTRACTOR. THE APPELLANT HAS AGREEMENT WITH PURCHASER FOR FULL CONSTRUCTION OF THE HOUSE/UNIT 6 PERTAINING TO THE APPROVED PROJECT. THE SALES ARE ALSO BOOKED FOR THE ENTIRE PROPERTY INCLUDING THE PLOT AND THE RESIDENTIAL UNIT. THE REGISTRY ON PLOT LEVEL IS MADE FOR THE CONVENIENCE OF THE PURCHASER ONLY SO THAT BANK LOAN CAN BE TAKEN. THUS, IT CANNOT BE SAID THAT THE APPELLANT IS ACTING MERELY AS A CONTRACTOR. THE AO HAS FURTHER MENTIONED THAT NO REGISTRY IS DONE FOR FULL CONSTRUCTION WORK. AS STATED ABOVE THAT THE REGISTRY FOR PLOT IS DONE FOR THE CONVENIENCE OF THE PURCHASER, BUT THE APPELLANT HAS AGREEMENT WITH THE PURCHASERS FOR CONSTRUCTION OF FULL PROPERTY. MOREOVER, THE POSSESSION IS GIVEN ONLY AFTER COMPLETION OF THE CONSTRUCTION. SO, PRACTICALLY THOUGH REGISTRY IS NOT MADE FOR CONSTRUCTED PROPERTY BUT IT IS BEING TRANSFERRED TO THE BUYER ONLY AFTER COMPLETION OF THE CONSTRUCTION. THUS, IT CANNOT BE SAID THAT NO NEW RESIDENTIAL PROPERTY IS BEING CONSTRUCTED BY THE APPELLANT FOR WHICH DEDUCTION U/S 80IB(L0) HAS BEEN CLAIMED AT RS.25,73,325/-. THUS, THE APPELLANT WAS RIGHT IN CLAIMING THAT HE IS THE DEVELOPER OF THE PROPERTY FOR WHICH DEDUCTION IS CLAIMED U/S 80IB(10) AND NOT A CONTRACTOR AS HELD BY THE A.O. THE AO HAS FURTHER MENTIONED THAT NO INVESTMENT IS MADE BY THE APPELLANT IN THE PROJECT. ON THIS POINT ALSO I AM NOT IN AGREEMENT WITH THE AO. THE APPELLANT HAS ENTERED INTO JOINT VENTURE AGREEMENT WITH DEEP COLONIZER SO NO INVESTMENT IN LAND IS TO BE MADE BECAUSE LAND HAS BEEN CONTRIBUTED BY DEEP COLONISERS. THUS, INVESTMENT IN LAND PERTAINING TO THE APPROVED PROJECT IS NOT TO BE MADE AS THE PROJECT IS UNDER JOINT VENTURE AGREEMENT. HOWEVER, THE APPELLANT HAS UNDERTAKEN THE ENTIRE CONSTRUCTION OF THE PROJECT AND THEREFORE BY ALL ACCOUNTS HE BECOMES ELIGIBLE FOR DEDUCTION U/S 80IB(10). THE AO HAS ALSO MENTIONED THAT PROJECT IS NOT APPROVED AS A WHOLE. THIS POINT IS ALSO NOT CORRECT. I HAVE SEEN THE APPROVAL LETTERS ENCLOSED ALONGWITH THE SUBMISSION FILED BY THE LD. AR. ALL OF THEM ARE ISSUED BY THE DIFFERENT OFFICES OF THE GOVERNMENT BUT THEY ARE FOR THE SAME PROJECT CONSTRUCTED ON THE LAND BEARING KH. NO.1 0/2, 1112. L-KH, III MEASURING 5.30 ACRES. THE APPROVAL CERTIFICATES ARE ISSUED BY 7 MUNICIPAL CORPORATION, BHOPAL FOR BUILDING CONSTRUCTION, COLONY PRAKOSHT FOR DEVELOPMENT OF LAND, JOINT DIRECTOR TOWN AND COUNTRY PLANNING AND BY LAND REVENUE OFFICER CAPITAL PROJECT, BHOPAL. ALL THESE PERMISSIONS ISSUED BY THE DIFFERENT AUTHORITIES ARE FOR THE SAME PROJECT AS DISCUSSED ABOVE AND HENCE IT IS NOT CORRECT TO SAY THAT PROJECT IS NOT APPROVED AS A WHOLE. LASTLY, THE AO HAS MENTIONED THAT THE PROJECT IS NOT COMPLETED BEFORE THE DUE DATE AND NO PROJECT COMPLETION CERTIFICATE HAS BEEN TAKEN FROM LOCAL AUTHORITY. ON THIS POINT I AM IN AGREEMENT WITH THE LEARNED AO. ONE OF THE BASIC CONDITION FOR CLAIMING DEDUCTION U/S 80 LB(1O) IS THAT THE COMPLETION CERTIFICATE FROM LOCAL AUTHORITY SHOULD BE OBTAINED BY THE APPELLANT BEFORE 31.03.2008. IN THE PRESENT CASE NO SUCH CERTIFICATE IS ISSUED. THOUGH THE APPELLANT HAS STATED THAT IT HAS APPLIED FOR ISSUANCE OF THE CERTIFICATE BUT FACT IS THAT THE SAME IS NOT ISSUED BEFORE 31.03.2008 AND EVEN TILL TODAY. SO THE APPELLANT HAS NOT FULFILLED ONE OF THE BASIC CONDITION OF THE SECTION 80IB(10). THUS, THE APPELLANT IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) AND THE AO WAS JUSTIFIED IN DENYING THE CLAIM OF DEDUCTION U/S 80LB(10), AS ONE OF THE CONDITION FOR OBTAINING COMPLETION CERTIFICATE ON OR BEFORE 31.03.2008 HAS NOT BEEN FULFILLED BY THE APPELLANT. THEREFORE, KEEPING IN VIEW OF THE FACTS OF THE CASE, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT'S PROJECT WAS NOT FULFILLING THE CONDITION LAID DOWN U/S 80IB(10)(A) AND, HENCE, NOT ELIGIBLE FOR DEDUCTION U/S 80IB(L0). IT MAY BE NOTED THAT THE DEDUCTION U/S 80IB(10) IS ALLOWED ONLY IF THE HOUSING PROJECT FULFILLS ALL THE CONDITIONS LAID DOWN UNDER CLAUSES ((A), (B), (C) AND (D) OF SECTION 80IB(L0) OF THE 1. T. ACT WHILE IN THE INSTANT CASE, THE CONDITION LAID DOWN IN THE EXPLANATION TO CLAUSE (A) IS NOT FULFILLED BY THE APPELLANT. THE SUBMISSION OF THE APPELLANT THAT DEDUCTION U1S 80IB HAS BEEN INCORPORATED WITH VIEW TO PROVIDE INCENTIVE TO HOUSING 8 PROJECTS AND, THEREFORE, A LIBERAL INTERPRETATION MAY BE GIVEN TO THE PROVISIONS OF THE SECTION AND THE APPELLANT MAY BE ALLOWED DEDUCTION U/S 80LB (L0) AS IT FULFILLS THE OBJECTIVES OF THE PROVISION, IS ALSO NOT TENABLE. IT MAY BE NOTED THAT IT IS ESSENTIAL TO FULFILL THE CONDITIONS LAID DOWN IN THE SECTION TO ENABLE THE ASSESSEE TO HAVE THE BENEFIT OF THAT SECTION AND FULFILLMENT OF THE OBJECTIVE OF THE PROVISIONS OF SECTION 80IB(L0) WITHOUT FULFILLING THE CONDITIONS LAID DOWN IN PLAIN AND UNAMBIGUOUS LANGUAGE SHALL NOT ENABLE THE APPELLANT TO HAVE THE BENEFIT OF THE SECTION. THE LIBERAL INTERPRETATION AS SUGGESTED BY THE APPELLANT CANNOT BE CONSTRUED TO THESE PLAIN AND UNAMBIGUOUS WORDS TO MITIGATE THE HARDSHIP TO THE APPELLANT. IN THIS REGARD REFERENCE MAY BE MADE TO SOME OF THE DECISIONS OF THE COURTS. THE HON'BLE SUPREME COURT HAD AN OCCASION TO CONSIDER THIS ISSUE IN REGARD TO DEDUCTION U/S 80HHC IN THE CASE OF A.M. MOOSA V, CIT (2007) 294 ITR 0001 (SC) WHEREIN IT WAS OBSERVED AS UNDER :- 'UNDOUBTEDLY. SECTION 80HHC HAS BEEN INCORPORATED WITH A VIEH' TO PROVIDING INCENTIVE TO EXPORT HOUSES, EVEN THOUGH A LIBERAL INTERPRETATION HAS TO BE GIVEN TO SUCH A PROVISION, THE INTERPRETATION HAS TO BE AS PER THE WORDING OFTHE SECTION. IF THE WORDING OF THE SECTION IS CLEAR, THEN BENEFITS WHICH ARE NOT AVAILABLE UNDER THE SECTION CANNOT BE CONFERRED BY IGNORING OR MISINTERPRETING WORDS IN RHE SECTION. .. SIMILAR VIEW HAS BEEN EXPRESSED BY THE HON'BLE SUPREME COURT IN THE CASE OF PETRON ENGINEERING CONSTRUCTION (PVT.) LTD. V, CENTRAL BOARD OF DIRECT TAXES (1989) 175 ITR 0523 (SC) IN CONTEXT OF CLAIM OF DEDUCTION U/S 80-0. WHEREIN THE HON'BLE SUPREME COURT HELD AS UNDER :- 'FULFILLMENT OF THE OBJECTIVES OF THE PROVISIONS OF SECTION 80-0, WITHOUT 9 FULFILLING THE CONDITIONS LAID DOWN IN PLAIN AND CLEAR LANGUAGE WILL NOT ENABLE THE ASSESSEE TO LTAVE THE BENEFIT OF THE SECTION. IT IS TRUE THAT AN EXEMPTION PROVISION SHOULD BE LIBERALLY CONSTRUCTED, BUT THIS DOES NOT MEAN THAT SUCH LIBERAL CONSTRUCTION SHOULD BE MADE EVEN BY DOING VIOLENCE TO THE PLAIN MEANING OF SUCH EXEMPTION PROVISION. LIBERAL CONSTRUCTION WILL BE MADE WHEREVER IT IS POSSIBLE TO BE MADE 'WITHOUT IMPAIRING THE LEGISLATIVE REQUIREMENT AND THE SPIRIT OF THE PROVISION. ' IN THE CASE OF PATIL VIJAY KUMAR & OTHER V: UNION OF INDIA 151 ITR 48 (KAR.), THE HON'BLE KARNATAKA HIGH COURT OBSERVED THAT WHEN THE MEANING OF WORDS IS CLEAR AND UNAMBIGUOUS, THE COURT HAS TO GIVE EFFECT TO IT WHATEVER BE THE CONSEQUENCES, AS THE COURT HAS NO JURISDICTION TO MITIGATE HARSH CONSEQUENCES OF THE STATUTE, IF ANY, THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND LEGAL POSITION OF THE ISSUE I AM OF THE CONSIDERED OPINION THAT SINCE THE APPELLANT HAS NOT FULFILLED THE CONDITIONS LAID DOWN IN PLAIN AND CLEAR LANGUAGE OF SECTION 80IB(LO), THE APPELLANT WAS NOT ELIGIBLE TO HAVE BENEFIT OF DEDUCTION U/S 80IB (10) OF THE ACT. ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. FOR BETTER APPRECIATION OF THE FACTS, WE ARE REPROD UCING HEREUNDER THE RELEVANT PROVISIONS OF THE ACT I.E. S ECTION 80IB(10) :- [(10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT S APPROVED BEFORE THE 31ST DAY OF MARCH, 6A [ 2008 ] BY A LOCAL AUTHORITY SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR F ROM SUCH HOUSING PROJECT IF, 10 (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 SU CH CONSTRUCTION, (I)IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPR OVED BY THE LOCAL AUTHORITY BEFORE THE 1ST DAY OF APRIL, 20 04, ON OR BEFORE THE 31ST DAY OF MARCH, 2008; (II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN, O R, 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 WHICH THE HOUSING PROJECT IS APPROVED BY TH E 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 HOUSING PR OJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE O N WHICH THE 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 COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS I SSUED BY THE LOCAL AUTHORITY; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND W HICH 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 ACC ORDANCE WITH A SCHEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT FOR RECONSTRUCTION OR REDEVELOPMENT OF E XISTING BUILDINGS IN AREAS DECLARED TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTI FIED BY THE BOARD IN THIS BEHALF; (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP AR EA 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 MUNICIPAL LIMITS OF THESE CITIE S AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE; 6B [ AND ] (D) THE BUILT-UP AREA OF THE SHOPS AND OTHER COMME RCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT 11 EXCEED FIVE PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR TWO THOUSAND SQUARE FEET, WHICHE VER IS LESS.] THE FOLLOWING CLAUSES (E) AND (F) SHALL BE INSERT ED 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 INDIVIDUAL; 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 FOLLOWING PERSONS, NAMELY: (I)THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHILD REN OF SUCH INDIVIDUAL, (II) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDI VIDUAL IS THE KARTA, (III)ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA. 6C [ EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y 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). ] IF THE CONCLUSION DRAWN IN THE IMPUGNED ORDER AND T HE FACTS NARRATED BEFORE US BY LEARNED REPRESENTATIVES OF BO TH THE SIDES ARE ANALYSED, WE FIND THAT THE LAY OUT PLAN WAS APP ROVED BY THE MUNICIPAL CORPORATION ON 16.3.2004 AND THE ASSESSEE MOVED APPLICATION BEFORE THE MUNICIPAL AUTHORITIES ON 10. 11.2008 CLAIMING THAT THE PROJECT WAS COMPLETED ON 15.6.200 6. IT IS VERY STRANGE WHEN THE PROJECT WAS CLAIMED TO BE COMPLETE D ON 12 15.6.2006 AS TO WHY THE ASSESSEE MOVED APPLICATION ON 10.11.2008. IT IS CRYSTAL CLEAR THAT THE PROJECT W AS NOT COMPLETED WITHIN THE STIPULATED PERIOD AND, THEREFORE, NO COM PLETION CERTIFICATE WAS ISSUED TO THE ASSESSEE BY THE MUNI CIPAL AUTHORITIES, CONSEQUENTLY, IT COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER, LEARNED COMMISSIONER OF INCOME T AX (APPEALS) AND EVEN BEFORE THE TRIBUNAL, THEREFORE, THE ASSESS EE HAS NOT FULFILLED THE BASIC CONDITIONS PROVIDED U/S 80IB(10 ) OF THE ACT. THE ASSESSEE WAS TO COMPLETE THE PROJECT ON OR BEFO RE 31.3.2008, THEREFORE, WE FIND NO INFIRMITY IN THE IMPUGNED ORD ER DENYING THE BENEFIT OF SECTION 80IB(10) OF THE ACT. SUB-CLAUSE (II) OF EXPLANATION TO CLAUSE (A) TO SUB-SECTION 10 OF SECT ION 10IB CLEARLY STATES THAT THE DATE OF COMPLETION OF THE CONSTRUCT ION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WH ICH COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING P ROJECT IS ISSUED BY THE LOCAL AUTHORITY. SINCE THE COMPLETION CERTIF ICATE EVEN COULD NOT BE PRODUCED BEFORE THE TRIBUNAL BY THE ASSESSEE , THEREFORE, THE BENEFIT OF THIS SECTION CANNOT BE EXTENDED TO T HE ASSESSEE, CONSEQUENTLY, THE STAND OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS AFFIRMED. GROUND NO. 1 IS ACCORDINGLY DISMISSED. GROUND NO. 2 IS CONSEQUENTIAL IN NATURE. 13 GROUND NO. 3 DOES NOT ARISE OUT OF THE IMPUGNED OR DER AND AS SUCH DISMISSED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMI SSED. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER FEBRUARY 6 , 2012 COPY TO APPELLANT/RESPONDENT/CIT/CIT(A)/DR DN/-