ITO WD 2(4), THANE V. SHIV OM UNIVERSAL, BADLAPUR

ITA 6754/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3105 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 07-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRIRAM BAJAJ
• Section: 80IB; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, AM AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 6754/MUM/2014 ( / ASSESSMENT YEAR: 2008 - 09 ) INCOME TAX OFFICER , WARD 2(4), MUMBAI / VS. SHIV OM UNIVERSAL, A - 10, GANESH KRUPA, NEAR SNEHA BUILDING, KATRAP, BADLAPUR (E) - 421 503 ./ ./ PAN/GIR NO. AAVFS 5403 J ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI VACHASPATI TRIPATHI / RESPONDENT BY : SHRI SHRIRAM BAJAJ / DATE OF HEARING : 02.06.2016 / DATE OF PRONOUNCEMENT : 22 .09.2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE REVENUE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - II , THANE (CIT(A) FOR SHORT) DATED 01.8.2014 , PARTLY ALLOWING THE A SSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) R/W S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09 VIDE ORDER DATED 28.3.2013 . 2. THE ONLY ISSUE ARISING PER THE INSTANT APPEAL IS THE MAINTAINABILITY IN LAW OF THE DEDUCTION U/S. 80 - IB(10) OF THE ACT CLAIMED BY THE ASSESSEE A BUILDER AND DE VELOPER , QUA ITS HOUSING PROJECT KRISHNA COMPLEX , BADLAPUR, THANE. THE SAME STANDS DENIED BY THE REVENUE ON THE GROUND THAT THE SAID PROJECT IS NOT COMPLETED BY 31.3.2008, THE 2 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL LAST DATE BY WHICH THE SAID PROJECT, APPROVED ON 22.5.2001 (I.E., PRIOR TO 01. 4.2004) OUGHT TO HAVE BEEN COMPLETED U/S. 80 - IB(10)( A ) (I) R/W EXPLANATION (II) THERETO . T HE ASSESSEES CASE, ON THE OTHER HAND, REST S ON THE FACT THAT SEVEN OF THE EIGHT BUILDINGS COMPRISING THE PROJECT, I.E., EXCEPT B UILDING A - 4, STAND COMPLETED BY 31.3.2 008, AS SIGNIFI ED BY COMPLETION CERTIFICATES. THE ASSESSEE BE ACCORDINGLY ALLOWED PROPORTIONATE DEDUCTION, I.E., OTHER THAN ON THE PROFIT RELATABLE TO BUILDING A - 4. THE LD. CIT(A) HAS ALLOWED THE ASSESSEES CLAIM FOLLOWING THE DECISION BY THE FIRST APPELLA TE AUTHORITY IN THE ASSESSEES CASE FOR A.Y. 2009 - 10, WHEREIN REFERENCE IS MADE TO THE FOLLOWING DECISIONS: CIT VS. VANDANA PROPERTIES [201 3 ] 353 ITR 36 (BOM); VISHWAS PROMOTERS (P) LTD. VS. ACIT [2013] 29 TAXMANN.COM 19 (MAD); AND CIT VS. BRAHMA ASSOCIAT ES [2011] 333 ITR 289 (BOM) 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD , INCLUDING THE CITED JUDGMENTS . 3.1 WE BEGIN BY REPRODUCING THE PROVISION AS UNDER: DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM CERTAIN INDUSTRIAL UNDERTAKI NGS OTHER THAN INFRASTRUCTURE DEVELOPMENT UNDERTAKINGS. 80 - IB . (1) WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED FROM ANY BUSINESS REFERRED TO IN SUB - SECTIONS (3) TO (11), (11A) AND (11B) (SUCH BUSINESS BEING HEREINAFTER REFERRED TO AS THE ELIGIBLE BUSINESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ALLOWED, 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. (2) . (10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS AP PROVED BEFORE THE 31ST DAY OF MARCH, 2008 BY A LOCAL AUTHORITY SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING 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, 3 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL (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 O F MARCH, 2008; (II) . (III) . 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 PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHIC H 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 ISSUED BY THE LOCAL AUTHORITY ; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE: PROVIDED .. (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 MUNICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE; (D) THE BUILT - UP AREA OF THE SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS INCLUD ED IN THE HOUSING PROJECT DOES NOT EXCEED FIVE PER CENT OF THE AGGREGATE BUILT - UP AREA OF THE HOUSING PROJECT OF TWO THOUSAND SQUARE FEET, WHICHEVER IS LESS. [ EMPHASIS , OURS ] 3.2 W E FIRSTLY OBSERVE THAT THE ASSESSEES CONTENTION THAT THE HOUSING PROJEC T COULD BE UNDER THE CIRCUMSTANCES RESTRICTED TO SEVEN BUILDINGS , OR THAT EACH BUILDING BE CONSIDERED AS A SEPARATE HOUSING PROJECT FOR THE PURPOSES OF SECTION 80 - IB(10), SO THAT A PROPORTIONATE DEDUCTION THERE - UNDER IS EXIGIBLE, IS MISPLACED AND DOES NOT FOLLOW A R EADING OF THE DECISIONS CITED AND RELIED UPON. RATHER, THE HON'BLE JURISDICTIONAL HIGH COURT IN BRAHMA ASSOCIATES (SUPRA) H AS CATEGORICALLY HELD THAT THE PROJECT AS APPROVED BY THE LOCAL AUTHORITY IS TO BE CONSIDERED AS THE HOUSING PROJECT FOR T HE PURPOSE S OF SECTION 80 - IB(10) AND , TWO, THAT A PROJECT THERE - UNDER IS A SINGLE 4 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL PROJECT , ON THE ENTIRE OF WHICH, WHERE ELIGIBLE, DEDUCTION U/S. 80 - IB (10) IS TO BE ALLOWED. WE EXTRACT THE RELEVANT PART OF THE SAID DECISION , WHICH IS CLEAR AND UNAMBIGUOUS , AS UNDER: ( REFER PARA 31 / PGS. 302 - 303, ALSO CATCH NOTES AT PGS. 290 - 291) SECTION 80 - IB(10) ALLOWS DEDUCTION TO THE ENTIRE PROJECT APPROVED BY THE LOCAL AUTHORITY AND NOT TO A PART OF THE PROJECT. IF THE CONDITIONS SET OUT IN SECTION 80 - IB(10) ARE SATISFI ED, THEN DEDUCTION IS ALLOWABLE ON THE ENTIRE PROJECT APPROVED BY THE LOCAL AUTHORITY AND THERE IS NO QUESTION OF ALLOWING DEDUCTION TO THE PART OF THE PROJECT . 3.3 BEFORE PROCEEDING FURTHER, WE MAY EXTRACT THE FINDINGS BY THE TRIBUNAL IN THE ASSESSE ES CASE FOR A.Y. 2009 - 10 (IN ITA NO. 5375/MUM/2013 DATED 08.6.2015/COPY ON RECORD), DISMISSING THE REVENUES APPEAL RAISING THE SAME ISSUE AND, ACCORDINGLY, RELIED UPON BEFORE US: 6. WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA) AND M/S. BRAHMA ASSOCIATES (SUPRA), WHICH IN TURN HAS BEEN AFFIRMED BY THE HON'BLE APEX COURT IN A BUNCH OF APPEAL S WITH LEAD IN CIVIL APPEAL NO.4476/2015 JUDGMENT DATED 29.04.201 5. ACCORDIN GLY , WE HOLD THAT THE ASSESSEE IS ENTITLED TO (ITS) C LAIM OF DEDUCTION U/S. 80IB(10) OF THE ACT IN RESPECT OF SEVEN BUILDINGS COMPLETED BEFORE 31.03.2008. ACCORDINGLY, WE UPHOLD THE ORDER OF THE C I T(A). THE GROUNDS OF APPEAL RAISED BY THE REVENU E ARE DISMISSED. THE HON'BLE JURISDICTIONAL HIGH COURT IN BRAHMA ASSOCIATES (SUPRA) HOLDS, ON THE CONTRARY, THAT THERE IS NO QUESTION OF ALLOWING DEDUCTION ON A PART OF THE PROJECT . THE TRIBUNALS ORDER (SUPRA) ACCEPT ING THE ASSESSEES CLAIM , STATING IT AS C OVERED BY THE DECISIONS IN VANDANA PROPERTIES (SUPRA) AND BRAHMA ASSOCIATES (SUPRA) , COULD , IN VIEW OF THE CLEAR INJUNCTION BY THE HON'BLE COURT IN BRAHMA ASSOCIATES (SUPRA) CLARIFYING THE SCOPE AND MEANING OF THE TERM HOUSING PROJECT U/S. 80 - IB(1 0) AS WELL AS THE SCOPE OF THE PROVISION ITSELF, IS THEREFORE APPARENTLY INCONSISTENT THEREWITH, I.E., THE LATTER DECISION , WHICH IS BINDING ON US. THERE IS NO DISCUSSION OF THE IMPORT OR THE CONTEXT OF THE EXTRACTED FINDINGS IN BRAHMA ASSOCIATES (SUPRA) , RENDERED IN THE 5 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL CONTEXT OF THE QUALIFYING CONDITION OF SECTION 80 - IB(10)(D), FORMING THE BASIS OF THE DECISION BY THE HONBLE COURT , IN THE SAID ORDER BY THE TRIBUNAL, WHICH UPHOLDS THE DECISION BY THE FIRST APPELLATE AUTHORITY ALLOWING DEDUCTION TO A PART OF THE PROJECT , REPRODUCING HIS FINDINGS AT PARA 5 OF ITS ORDER (WHICH IS FOLLOWED BY PARA 6, REPRODUCED ABOVE), AS UNDER: 5. THE ONLY ISSUE ARISING IN THIS APPEAL IS THE RELEVANT FINDINGS OF THE CIT(A) ARE AS UNDER: 4.1 THE L D. AR HAS VEHEMENTL Y RELIED UPON THE DECISION OF HON BLE HIG H COURT IN THE CASE OF CIT VS. VANDANA PROPERTIES (2012) 19 TAXMANN.COM 316 (BOM), WHEREIN IT H AS BEEN HELD THAT WHERE HOUSING PROJECT IS CONSISTED OF SEVERAL BUILDINGS/ THEN EVEN ONE BUILDING WITH SEVERAL RESIDENTI AL UNITS WOULD CONSTITUTE A HOUSING PROJECT U /S. 80 IB (10) OF THE ACT. SIMILARLY, IN THE CASE OF VISHWAS PROMOTERS (P) LTD. VS. ACIT (2013) 29 TAXMANN.COM 19 ( MAD ) , WHICH HAS BEEN ALSO RELIED UPON BY THE A PPE LL A N T , IT HAS BEEN HELD THAT EACH B LOCK COULD B E CONSIDERED AS A SEPARATE HOUSING PROJECT WHEN LARGER PROJECT CONSISTED OF VARIOUS BLOCKS. IN THIS CASE , DEDUCTION U/S. 80 IB (10) ON THE PRINCIPLES OF PROPORT IONALITY AS WELL AS BY REASON OF CONSTRUCTION ON THE MEANING OF EXPRESSION 'HOUSING PROJECT' HAS B EEN HELD TO BE ALLOWABLE. THE HON B LE MADRAS HIGH COURT WHILE DELIVERING THE JUDGMENT IN THIS CASE HAS RELIED UPON THE DECISIONS OF HON B LE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES (2011) 333 ITR 289 AND CIT VS. VANDANA PROPERTIES (2012) 206 TAXMAN 584. SINCE THE FACTS OF THE CASE OF THE APPELLANT ARE IDENTICA L THE DECISIONS OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA) AND HON B LE MADRAS HIGH COURT IN THE CASE OF VISHWAS PROMOTERS (P) LTD . (SUPRA) CLEARLY SUPPORT THE CASE OF APPELLANT. MOREOVER, THE DECISION OF HON'BLE BOMBAY HIGH COURT BEING JURISDICTIONAL ONE, IS BINDING ON ME. THEREFORE, I AM OF THE CONSIDERED VIEW THAT THE 7 BUILDINGS COMPLETED WITHIN THE STIPULATED TIME COMPRISING OF MORE THAN 1 ACRE BUILT UP ARE CONSTITUTE A SEPARATE HOUSING PROJECT IN THE CASE OF APPELLANT AND ACCORDINGLY, THE APPELLANT IS 6 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL ENTITLED TO DEDUCTION U/S. 80IB IN RESPECT OF THE PROFIT DERIVED FROM SUCH BUILDINGS. THUS, ONLY IN RESPECT OF BUILDING NO.A - 4 WHICH HAS NOT BEEN COMPLETED BEFORE 31/03/2008, THE APPELLANT IS NOT ENTITLED TO CLAIM THE DEDUCTION U/S 80IB(10) . FROM THE FACTS AVAILABLE ON RECORD, IT APPEARS THAT THE APPELLANT ITSELF HA S NOT CLAIMED DEDUCTION U/S. 80I B(10) ON BUILDING NO.A - 4 OF KRISHNA COMPLEX. HOWEVER, THE ASSE SSING OFFICER IS DIRECTED TO VERIFY THIS FACT FROM THE RECORD AN DISALLOW THE DEDUCTION U/S. 80IB(1) ONLY IN RESPECT OF THE BUILDING NO.A - 4 WHICH HAS NOT BEEN COMPLETED WITHIN THE STIPULATED TIME. [ EMPHASIS, OURS ] THERE IS, IT MAY BE EMPHASIZED , NO CONCEPT OF A PARTIAL SATISFACTION OF THE QUAL IFYING CONDITION /S , I.E., FOR ELIGI BILITY, OF A PROJECT ( WHICH IS THE SUBJECT MATTER OF ELIGIBILITY ) , SO THAT IT IS EITHER ELIGIBLE OR NOT , I.E., IN TERMS OF THE QUALIFYING CONDITIONS, RESULTING I N ITS PROFITS BEING EITHER DEDUCTIBLE OR NOT SO IN TERMS OF THE RELEVANT PROVISION. IN FACT, BR AHMA ASSOCIATES (SUPRA) STANDS SINCE UPHELD BY THE HONBLE APEX COURT (REPORTED AT CIT VS. SARKAR BUILDERS & O THERS [ 2015 ] 375 ITR 392 (SC) ) . FURTHER, THE OTHER DECISIONS RELIED UPON ARE IN DIFFERENT CONTEXT S . THE FACTUAL MATRIX OF A CASE CANNOT BUT BE KEP T IN VIEW TO FULLY APPRECIATE THE RATIO OF THE DECISION. IN VANDANA PROPERTIES (SUPRA) , THE HONBLE HIGH COURT WAS CONSIDERING THE ELIGIBILITY OF A BUILDING WHICH CAME UP MUCH LATER ON THE S ITE OF AN EXISTING HOUSING PROJECT , COMPLETED MUCH EARLIER . THE IS SUE WAS AS TO HOW THE LAND SIZE, WHICH IS REQUIRED PER SECTION 80 - IB(10)( B ) TO BE AT A MINIMUM OF ONE ACRE FOR A N ELIGIBL E HOUSING PROJECT , IS TO BE RECKONED; THE REVENUE DENYING THE CLAIM ON THE GROUND THAT THE LAND ALREADY CONSIDERED FOR THE EARLIER , COM PLETED (BEFORE 01/10/1998) PROJECT COULD NOT BE ONCE AGAIN TAK E N INTO ACCOUNT . EVEN CONSIDERING PROPORTIONATE LAND, ITS SIZE FELL BELOW ONE ACRE. THIS DID NOT FIND FAVOUR BOTH WITH THE TRIBUNAL AND THE HONBLE HIGH COURT WHICH CLARIFIED THAT LAND FOR THE PURPOSE OF A HOUSING PROJECT U/S. 80 - IB(10) DOES NOT NECESSARILY IMPLY A (WHOLLY) VACANT LAND. THE ADDITIONAL BUILDING E THAT CAME UP MUCH LATER WAS APPROV ED INDEPENDENTLY ON 11/10/2002 , ONLY AFTER THE STATUS OF THE 7 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL LAND WAS CONVERTED FROM SURPLUS VACA NT LAND TO WITHIN CEILING LAND BY THE STATE GOVERNMENT. A ND WAS THEREFORE TO BE CONSIDERED AS A SEPARATE PROJECT, INDEPENDENT OF THE EARLIER PROJECT, WITH WHICH IT HAD NO RELATION. AS LONG AS THEREFORE THE LAND SIZE AS PER THE PROJECT AS APPROVED WAS NO T LESS THAN ONE ACRE, DEDUCTION COULD NOT BE DENIED. IT WAS IN THIS CONTEXT THAT A SEPARATE BUILDING WAS CONSIDERED AS AN INDEPENDENT PROJECT . THE DECISION NOWHERE CONTRADICTS THE EARLIER DECISION BY THE HONBLE COURT IN BRAHMA ASSOCIATES (SUPRA). THE DECI SION IN VISHWAS PROMOTERS (P . ) LTD. (SUPRA) S TOOD AGAIN RENDERED IN A DIFFERENT CONTEXT, I.E., OF SECTION 80 - IB ( 10 ) (C) , WHEREIN RESTRICTION IS CAST ON THE SIZE OF THE RESIDENTIAL UNIT S IN A HOUSING PROJECT . CLEARLY, A RESIDENTIAL UNIT AND A HOUSING PROJECT , OF WHICH THE FORMER IS A PART/COMPONENT, ARE CONCEPTUALLY DIFFERENT, SIGNIFYING DIFFERENT OBJECTS/NOTIONS. TO SAY, THEREFORE, THAT EACH RESIDENTIAL UNIT IS A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80 - IB ( 10 )(C) , APART FROM BEING INCONSISTENT WITH REA LITY , IN CONTRADICTION WITH THE DECISION IN BRAHMA A SSOCIATES (SUPRA ) , UNEQUIVOCALLY CLARIFYING THE PROJECT TO BE ONE AS APPROVED BY THE LOCAL AUTHORITY AND, FURTHER, A SINGLE PROJECT . THIS ASPECT OF THE MATTER STANDS ALSO DISCUSSED AT LENGTH BY THE T RIBUN AL IN ASST. CIT V S. EKTA SANKALP D EVELOPERS [ 2015 ] 152 ITD 805 (M UM ) , W HICH WAS AGAIN IN THE CONTEXT OF SECTION 80 - IB (10)(C) . WHILE HOLDING, FOLLOW ING BRAHMA A SSOCIATES (SUPRA), A HOUSING PROJECT TO BE A SINGLE PROJECT QUA WHICH DEDUCTION, THEREFORE, CANNO T BE ALLOWED IN PART, THE TRIBUNAL WAS OF THE VIEW THAT THE CONDITION CONTAINED IN SECTION 80 - IB(10)(C) , HOWEVER, APPLIES QUA A RESIDENTIAL UNIT AND NOT THE PROJECT PER SE . AS SUCH, EACH RESIDENTIAL UNIT THAT SATISFIES THE CONDITION OF THE PROVISION WOULD FORM PART OF AN ELIGIBLE PROJECT. IN THE RESULT, THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION UNDER THE PROVISION IN RELATION TO THE PROFIT RELATABLE TO THE QUALIFYING RESIDENTIAL UNITS, I.E., IN PROPORTION. FURTHER, THE DECISION IN BRAHMA ASSOCIATES (SUPR A) IS ALSO RENDERED IN THE CONTEXT OF A QUALIFYING CONDITION, I.E., A CONDITION PRECEDENT, PER CL.(D) OF S. 80 - IB(10), AND FORMS ,AS AFORE - STATED, THE BASIS OF ITS DECISION . TO, THEREFORE, SAY THAT THE DECISION IN VANDANA PROPERTIES (SUPRA) AND BRAHMA ASSOC IATES (SUPRA) SQUARELY COVER THE 8 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL ISSUE AT LARGE, AS DOES THE TRIBUNAL VIDE ITS ORDER DATED 8/6/2015 SUPRA AND, THEREFORE, IS COVERED BY THE SAID ORDER BY THE TRIBUNAL ITSELF , CANNOT BE ACCEPTED. WHY, A PROJECT IS EITHER COMPLETE, OR NOT SO, BY A PARTICULAR DATE, SO THAT THE QUALIFYING CONDITION OF SECTION 80 - IB(10)(A) IS EITHER MET OR NOT . THE QUESTION OF IT BEING SATISFIED IN PART; THE PROJECT COMPRISING EIGHT BUILDINGS, ALL OF WHICH ARE ADMITTEDLY NOT COMPLETE BY 31.03.2008, DOES NOT ARISE. THE COURSE TH U S AVAILABLE FOR US IS TO REFER THE MATTER TO A LARGER BENCH OF THE TRIBUNAL. WE, HOWEVER, ON A CAREFUL AND ANXIOUS CONSIDERATION OF THE MATTER , INCLUDING THE DECISION IN BRAHMA ASSOCIATES (SUPRA), BINDING ON US, FOR THE REASONS STATED HEREINAFTER, ARE INCL INED TO AGREE WITH THE ASSESSEES CLAIM IN PREFERENCE TO THAT OF THE REVENUE. OUR CONCLUSION BEING IN AGREEMENT WITH THAT BY THE TRIBUNAL (SUPRA), WE DO NOT CONSIDER IT NECESSARY TO REFER THE MATTER TO A LARGER BENCH , ALSO EXPLAINING THE APPARENT CONFLICT OF THE SAID ORDER WITH THE JUDGMENT IN BRAHMA ASSOCIATES (SUPRA) . 3.4 T HE DISPUTE IN THE PRESENT CASE IS WITH REFERENCE TO THE DATE OF COMPLETION OF THE CONSTRUCTION OF THE HOUSING PROJECT, WHICH STANDS PROVIDED IN THE PROVISION ITSELF AS BEING THE DATE ON WHICH THE COMPLETION CERTIFICATE IS ISSUED IN RESPECT OF SUCH HOUSING PROJECT BY THE LOCAL AUTHORITY ( EXPLANATION (II) TO SEC . 80 - IB(10)(A) ) . THE FIRST ISSUE THEREFORE WOULD BE IF THE PROJECT COULD BE CONSIDERED AS COMPLETE, I.E., IN TERMS OF THE ACT, TO ANY EXTENT , IN VIEW OF THE ADMITTED POSITION THAT THE PROVISION CONTEMPLATES THE COMPLETION OF THE ENTIRE PROJECT AND NOT A PART OF IT. THAT IS, IF COGNIZANCE COULD BE GIVEN UNDER THE PROVISION TO THIS FACT OR, PUT DIFFERENTLY, COULD THE HOUSING PROJECT BE CONSIDERED AS COMPLETE TO ANY EXTENT WHERE THE SAME DOES NOT EXTEND TO ALL THE BUILDINGS OF THE PROJECT ? WE CONSIDER IT AS SO . OUR REASON FOR SO STATING IS THAT EACH OF THE BUILDINGS, STATED TO BE SEVEN (BEING A1, A2, A3, B1, B 2, C1 AND C2), STAND GRAN TED A COMPLETION CERTIFICATE IN TERMS OF R EGULATION 6 ( 6 ) OF THE DEVELOPMENT CONTROL REGULATIONS FOR GREATER MUMBAI, 1991 ISSUED UNDER 9 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL MAHARASHTRA R EGIONAL AND T OWN P LANNING A CT, 1966 (MRTP ACT ) , WHICH , ALONG WITH R EGULATION S 6 ( 7 ) AND 6 ( 8 ) , READ S A S UNDER: 6) COMPLETION CERTIFICATE: - THE OWNER, THROUGH HIS LICENSED PLUMBER, SHALL FURNISH A DRAINAGE COMPLETION CERTIFICATE TO THE COMMISSIONER IN THE FORM IN APPENDIX 'XIX'. THE OWNER THROUGH HIS LICENSED SURVEYOR/ENGINEER/STRUCTURAL ENGINEER/SUPERVISOR OR HIS ARCHITECT, WHO HAS SUPERVISED THE CONSTRUCTION, SHALL FURNISH A BUILDING COMPLETION CERTIFICATE TO THE COMMISSIONER IN THE FORM IN APPENDIX XX. THESE CERTIFICATES SHALL BE ACCOMPANIED BY THREE SETS OF PLANS OF THE COMPLETED DEVELOPMENT. THE COMMISSIONER S HALL INSPECT THE WORK AND, AFTER SATISFYING HIMSELF THAT THERE IS NO DEVIATION FROM THE APPROVED PLANS, ISSUE A CERTIFICATE OF ACCEPTANCE OF THE COMPLETION OF THE WORK IN THE FORM IN APPENDIX XXI . (7) OCCUPANCY CERTIFICATE: - ON RECEIPT OF THE ACCEPTANCE OF COMPLETION CERTIFICATE IN THE FORM IN APPENDIX XXI, THE OWNER, THROUGH HIS LICENSED SURVEYOR/ENGINEER/STRUCTURAL ENGINEER/SUPERVISOR OF HIS ARCHITECT SHALL SUBMIT TO THE COMMISSIONER A DEVELOPMENT COMPLETION CERTIFICATE IN THE FORM IN APPENDIX XVIII WIT H THREE COPIES OF THE COMPLETION PLAN, ONE OF WHICH SHALL BE CLOTH MOUNTED FOR RECORD. THE COMMISSIONER MAY INSPECT THE WORK AND AFTER SATISFYING HIMSELF THAT THERE IS NO DEVIATION FROM THE SANCTIONED PLANS, ISSUE AN OCCUPANCY CERTIFICATE IN THE FORM IN AP PENDIX XXII OR REFUSE TO SANCTION THE OCCUPANCY CERTIFICATE WITHIN 21 DAYS FROM THE DATE OF RECEIPT OF THE SAID COMPLETION CERTIFICATE, FALLING WHICH THE WORK SHALL BE DEEMED TO HAVE BEEN APPROVED FOR OCCUPATION, PROVIDED THE CONSTRUCTION CONFORMS TO THE S ANCTIONED PLANS. ONE SET OF PLANS, CERTIFIED BY THE COMMISSIONER AS THE COMPLETED PLANS, SHALL BE RETURNED TO THE OWNER ALONG WITH THE OCCUPANCY CERTIFICATE. WHERE THE OCCUPANCY CERTIFICATE IS REFUSED OR REJECTED, THE REASONS FOR REFUSAL OR REJECTION SHALL BE GIVEN IN INTIMATION OF THE REJECTION OR REFUSAL. (8) PART OCCUPANCY CERTIFICATE : - WHEN REQUESTED BY THE HOLDER OF THE DEVELOPMENT PERMISSION, THE COMMISSIONER MAY ISSUE A PART OCCUPANCY CERTIFICATE FOR A BUILDING OR PART THEREOF, BEFORE COMPLETION OF THE ENTIRE WORK AS PER THE DEVELOPMENT PERMISSION, PROVIDED SUFFICIENT PRECAUTIONARY MEASURES ARE TAKEN BY THE HOLDER TO ENSURE PUBLIC SAFETY AND HEALTH. THE OCCUPANCY CERTIFICATE SHALL BE SUBJECT TO THE OWNER'S INDEMNIFYING THE COMMISSIONER IN THE FORM I N APPENDIX XXIII. [ EMPHASIS, OURS ] 10 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL CLEARLY, THE COMPLETION CERTIFICATE , WHICH THE ACT PRESCRIBES AS SIGNIFYING COMPLETION, REPRESENTS A STAGE ANTERIOR TO THE ISSUE OF AN OCCUPANCY CERTIF ICATE. FURTHER, THOUGH THE ACT POSTULATES A COMPLETION CERTIFICATE IN RESPECT OF A HOUSING PROJECT, THE SAME , UNDER THE RELEVANT LAW, IS ONLY ISSUED QUA EACH SEPARATE BUILDING COMPRISING THE PROJECT . THIS ALSO EXPLAINS AS TO HOW AND WHY COMPLETION CERTIFIC ATES WERE ISSUED AT DIFFERENT TIMES (FROM 22/7/2005 TO 27/3/2008, AND FINALLY TO THE EIG H TH BUILDING ON 25/11/2009) FOR DIFFERENT BUILDINGS IN THE PRESENT CASE (REFER PARA 3 OF THE ASSESSMENT ORDER). EVEN ASSUMING THAT A COMPLETION CERTIFICATE IS FINALLY I SSUED, I.E., ON THE COMPLETION OF THE ENTIRE WORK AS PER THE SANCTIONED PLANS OF WHICH THERE IS THOUGH NO INDICATION, I T IS CLEAR THAT THE SAME REGULATIONS THAT PROVIDE FOR APPLICATION FOR A COMPLETION CERTIFICATE, I.E., FOR THE ENTIRE PROJECT, SI GNIFYI NG ITS COMPLETION AS PER THE APPROVED PLAN S , ALSO ENVISAGE THE ISSUE OF A COMPLETION AND, SUBSEQUENT THERETO, OCCUPANCY CERTIFICATE FOR A BUILDING OR PART OF IT, OBSERVING THE SAME PROCEDURE AND ADHERING TO THE SAME GUIDELINES, BY THE SAME AUTHORITY, AND ON THE SAME BASIS, I.E., A SATISFACTION , O N THE SAME PARAMETERS , AS IT DOES FOR GRANT ING COMPLETION AND , FO LLOW ING IT, OCCUPAN CY CERTIFICATE FOR THE ENTIRE PROJECT. THE SAME THUS HAS THE SAME VALIDITY IN THE EYES OF LAW , I.E., THE LAW UNDER WHICH IT IS GRA NTED . TO C LARIFY FURTHER, A BUILDING FORMING PART OF THE PROJECT, TO WHICH SUCH CERTIFICATE/S STANDS GRANTED, CANNOT BE UNDER THE RELEVANT REGULATIONS REGARDED AS ANY LESS COMPLETE TH A N WERE IT , INSTEAD OF A PART OF A HOUSING PROJECT, TO COMPRISE THE WHO LE PROJECT ITSELF. THAT IS , EVEN FORMING PART OF A PROJECT, THE COMPLETION CERTIFICATE ISSUE D THERETO ACCORDS A BUILDING THE SAME STATUS AS REGARDS ITS CO MPLETION AS IT WOULD WHERE SUCH CERTIFICATE IS ISSUED IN CASE OF A SINGLE BUILDING COMPRISING AN INDE PENDENT PROJECT. THE COMPLETION AND THE ( PART ) OCCUPANCY CERTIFICATE S ISSUE D DERIVE THEIR STRENGTH AND VALIDITY FROM THE SAME PRINCIP A L SOURCE, I.E., THE D&C R EGULATION S UNDER THE MRTP ACT, THAT CONFER VALIDITY TO THE COMPLETION O R A OCCUPANCY CERTIFICATE ISSUED BY THE LOCAL AUTHORITY. RATHER, AS IT APPEARS, SUCH CERTIFICATES ARE ISS UED ONLY BUILDING - WISE. FURTHER, THE ACT RECOGNIZING THE COMPLETION CERTIFICAT E QUA A PROJECT, I.E., AS 11 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL SIGNIFYING IT S COMPLETION, CANNOT THEREFORE POSSIBLY NOT RECOGNIZE THE C OMPLETION OF A BUILDING COMPRISING A PROJECT, I.E., BY DEDUCTION. W HY, WOULD NOT THE RELEVANT HOUSING PROJECT BE REGARDED AS COMPLETE, I.E., UNDER THE M R TP A CT AND, CONSEQUENTLY, UNDER THE A CT, UPON THE ISSUE OF A COMPLETION CERTIFICATE TO THE ONLY INCOMPL ETE ( EIGHTH ) BUILDING COMPRISING THE ASSESSEES PROJECT? IT WOULD BE AN ABSURDITY, A CONTRADICTION , TO SUGGEST OTHERWISE. WE ACCORDINGLY ANSWER THE QUESTION POSED IN THE AFFIRMATIVE. 3.5 WE MAY NEXT CONSIDER THE QUESTION IF THE DEDUCTION U/S. 80 - IB(10) CO ULD BE ALLOWED TO THE ASSESSEES RELEVANT HOUSING PROJECT, ADMITTEDLY COMPRISING EIGHT BUILDINGS , ON THE PROFIT DERIVED ON THAT PART OF THE PROJECT THAT IS COMPLETE , IGNORING THAT WHICH IS YET TO BE COMPLETED (BY THE PRESCRIBED DATE). WHERE THE SAID TWO PA RTS ARE, TO ANY EXTENT , RELATED, THERE IS NO QUESTION OF THE PROJECT BEING REGARDED AS COMPLETE TO ANY EXTENT. THE REASON IS THAT A PROJECT , TO BE CONSIDERED AS SUCH, MU ST NECESSARILY HAVE A LL THE QUALITATIVE ATTRIBUTES AND INGREDIENTS THEREOF , I.E., OF THE PROJECT AS APPROVED , WHICH ONLY WOULD QUALIFY IT AS REPRESENTING THE HOUSING PROJECT, AS APPROVED, WHICH IS, BY DEFINITION, A HOUSING PROJECT U/S . 80 - IB(10), AS EXPLAINED IN BRAHMA ASSOCIATES (SUPRA). FOR EXAMPLE, THE PROJECT MAY HAVE A SCHOOL, DISPEN SARY, A PARK, A CONVENIENT SHOPPING FACILITY , A COMMUNITY OR HEALTH/SPORTS CENTRE, ETC., I.E., AMENITIES, OR COMMON UTILITIES, WHICH IS/ ARE NOT COMPLETE. SURELY, PENDING THE COMPLETION OF THE SAME, OR SUCH LIKE PARTS OF THE PROJECT , FORMING AN INTEGRAL PAR T OF AND SERVICING THE ENTIRE PROJECT, THE PROJECT CANNOT BE REGARDED AS COMPLETE TO ANY EXTENT. W HERE , ON THE OTHER HAND, THE SAME CONCERNS TWO PARTS OF THE PROJECT, WHICH ARE INDEPENDENT OF EACH OTHER, AS (SAY) TWO RESIDENTIAL BUILDINGS , IT IS UNEXCEPTIO NAL AS TO WHY THE PROJECT CANNOT BE REGARDED AS COMPLETE TO THAT EXTENT, I.E., IN TERMS OF AND FOLLOWING THE COMPLETION PARAMETERS AS PRESCRIBED BY THE ACT ITSELF. THE INDEPENDENCE OF - COURSE SHOULD BE BOTH WITH REFERENCE TO CONSTRUCTION AS WELL AS FUNCTI ONAL . THE TWO BUILDINGS BEING INDEPENDENT OF EACH OTHER, COULD BE CONSTRUCTED INDEPENDENT OF EACH OTHER, AS SIGNIFIED BY THE ISSUE OF A SEPARATE COMPLETION CERTIFICATE QUA EACH BUILDING , 12 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL AS IN THE PRESENT CASE. WE SAY SO AS THE COMPLETION OF ONE SUCH (INDE PENDENT) BUILDING, IN RESPECT OF WHICH COMPLETION (OCCUPANCY) CERTIFICATE STANDS ISSUED, ADMITS OF HABITATION, PROVIDING THE INHABITANTS ACC ESS T O ALL THE INFRASTRUCTURAL FACILITIES AND AMENITIES OF THE PROJECT . R ESIDENCE AND LIVING, WHICH IS THE SOLE PURP OSE OF ANY RESIDENTIAL PROJECT, IS WHOLLY UN - INFLUENCED BY THE NON - COMPLETION (BY THE STIPULATED DATE) OF A SIMILAR BUILDING FORMING PART OF THE APPROVED HOUSING PROJECT. WE, IN DOING SO, HAVE ADOPTED A PURPOSIVE INTERPRETATION OF THE PROVISION. THIS IS AS IT WOULD BE MANIFESTLY UNJUST WHERE A PART OF THE PROJECT, COMPLETE IN ITSELF, IS NOT REGARDED AS QUALIFYING AS ELIGIBLE DESPITE COMPLYING WITH THE CONDITION S OF COMPLETION IN ITS RESPECT. WE EMPLOY THE WORD S COMPLETE IN ITSELF AS WHERE IT IS NOT SO , TH E PROJECT SUFFER S FROM A DEFICIENCY QUA A QUALITATIVE ATTRIBUTE THAT WOULD GET REMOVED ON THE COMPLETION OF THAT PART OF THE PROJECT . T HE STATUTE MANDATES THE COMPLETION OF THE ENTIRE PROJECT, IMPLYING FULL FUNCTIONALITY , SO THAT THERE COULD BE NO DILUTI ON ON THAT ASPECT THEREOF . AS SUCH , WHERE THERE ALL THE QUALITATIVE ATTRIBUTE S O F THE COMPOSITE PROJECT ARE IN PLACE, SO THAT IT CAN BE REGARDED AS REPRESENTING THE PROJECT AS DEFINED, WE SEE NO REASON AS TO WHY THE COMPLETION OF A PART OF THE PROJECT CANN OT BE REGARDED AS THE COMPLETION OF THE PROJECT, AS APPROVED, TO THAT EXTENT , ENTITLING IT TO PROPORTIONATE DEDUCTION . WE EMPHASIZE THIS IN VIEW OF THE CLEAR PROVISION OF LAW AS WELL AS THE CLEAR MANDATE OF THE DECISION IN BRAHMA ASSOCIATES (SUPRA), SO THA T THE DEDUCTION U/S. 80 - IB(10) IS TO EXTEN D TO A PROJECT AS A WHOLE, WHICH IS THE ONE, SINGLE PROJECT. IT IS EVEN OTHERWISE WELL SETTLED THAT ONLY A CUMULATIVE SATISFACTION OF ALL THE CONDITIONS OF ELIGIBILITY E NT ITLES THE SUBJECT UNDERTAKING TO QUALIFY AS ONE AND , FURTHER , THAT THERE IS NO EQUITY ABOUT TAX AND THE PROVISIONS OF THE TAXING STATUTES ARE TO BE STRICTLY CONSTRUED, AS ONCE AGAIN CLARIFIED BY THE HON'BLE JURISDICTIONAL HIGH COURT RECENTLY IN HUMAY U N SULEMAN MERCHANT VS. CCIT [2016] 73 TAXMAN N .CO M 2 (BOM). THIS IS MORE SO IN CASE OF AN EXEMPTION PROVISION AS EXPLAINED TIME AND AGAIN BY THE A PEX C OURT , AS IN NOV OP AN INDIA LTD. VS. CCE [1994] 73 ELT 769 (SC) . IN BRAHMA ASSOCIATES (SUPRA) , THE RATIO OF WHICH IS BINDING ON US, THE PROVISION UNDER REFE RENCE 13 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL WAS SECTION 80 - IB ( 10 )(D) , INSERTED W .E.F. 1.0 4 .2 005, PROVIDING COMMERCIAL USER, BY WAY OF CONVENIENT SHOPPING OR OTHER COMMERCIAL E STABLISHMENT TO A SPECIFIED EXTENT. THE TR IBUNAL ALLOWING DEDUCTION ON THE RESIDENTIAL PART OF THE PROJECT, THE HON BLE COURT HELD THAT THE PROVISION IS QUA DEDUCTION ON THE PROFITS OF THE ENTIRE HOUSING PROJECT, WHICH IS ONE , INDIVISIBLE PROJECT. THE TERM HOUSING PROJECT BEING NOT SPECIFICALLY DEFINED IN SECTION 80 - IB ( 10 ) , THE SAME WAS TO BE TAKEN AS APPROVED BY THE LOC AL AUTHORITY, I.E., FOR THE PURPOSE OF SECTION 80 - IB ( 10 ) . FURTHER, BEING A SUBSTANTIVE PROVISION, SECTION 80 - IB ( 10 ) (D) WOULD HAVE NO RETROSPECTIVE APPLICATION. THE RELEVANT YEAR BEING A.Y. 200 3 - 0 4, FOR WHICH THERE WAS NO RESTRICTION IN SECTION 80 - IB(10) AS TO COMMERC IAL USER , THE TRIBUNAL, IT CLARIFIED, HAD ERRED IN RESTRICTING THE DISALLOWANCE TO THE COMMERCIAL AREA QUA WHICH THERE FORE NO STIPULATION, I.E., TO ANY EXTENT, WHICH COULD NOT BE IMPORTED IN THE PROVISION, NOTING, WITH REFERENCE TO THE D &C R EGUL ATIONS OF DIFFERENT M UNICIPAL C ORPORATIONS, THE COMMERCIAL USER AS VARY ING BETWEEN 5% AND 50% OF THE TOTAL BUILT - UP AREA . THE SAID DECISION STANDS SINCE UPHELD IN S ARKAR BUILDERS ( SUPRA ) . THE WORD PROJECT I N BRAHMA A SSOCIATES (SUPRA) IS BEING THUS READ B Y US AS INCLUDING THAT PART OF THE APPROVED PROJECT WHICH HAS ALL THE ATTRIBUTES OF THE ENTIRE PROJECT. THIS IS TOWARD AND BY WAY OF A HARMONIOUS CONSTRUCTION AND RECONCILIATION BETWEEN THE INTENT AND OBJECT OF THE PROVISION ON ONE HAND, AND ITS LANGUAGE O N THE OTHER . WITHOUT DOUBT, COMPLETION OF THE PROJECT FORMS ONE OF THE QUALIFYING CONDITIONS FOR AN ELIGIBLE PROJECT. SO HOWEVER, THE COMPLETION OF THE CONSTRUCTION OF THE PART OF THE PROJECT NOT COMPLETED IS (TO BE) INDEPENDENT OF THAT COMPLETED (BY THE SPECIFIED DATE). THE TWO, AS EMPHASIZED , ARE , AGAIN, NOT FUNCTIO NALLY RELATED. RESIDENCE IN THE PART COMPLETED, AS IN SEVEN BUILDINGS IN THE INSTANT CASE, WOULD THUS NOT BE IMPACTED IN ANY MANNER BY THE NON - COMPLETION OF THE INCOMPLETE PART (EIGHTH BUILDI NG). THE C OMPLETION OF CONSTRUCTION, IT NEEDS TO BE APPRECIATED, IS A CONDITION EXTRINSIC AND NOT INTRINSIC TO THE PROJECT . IT MAY WELL BE THAT DESPITE ALL THE EFFORTS BY THE D EVELOPER, A PART COULD NOT BE COMPLETED WITHIN THE STATUTORILY DEFINED TIME 14 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL PERI OD. AGAIN, THERE COULD EXIST CONDITIONS OR OTHERWISE DEVELOP CIRCUMSTANCES IN THE ENVIRONMENT IMPEDING THE PROGRESS OF THE PROJECT, CAUSING ITS DELAY. THE STATUTORY MANDATE QUA COMPLETION, AS A QUALIFYING CONDITION, WOULD, THEREFORE, MEANINGFULLY APPLIED, IN OUR VIEW , EXTEND TO THAT PART OF THE PROJECT, WHICH HAS ALL THE INGREDIENTS OF THE PROJECT, AS APPROVED, I.E., IS CAPABLE OF BEING REGARDED AS A COMPLETE PROJECT IN ITSELF, SO THAT IT IS DEFICIENT ONLY WITH REFERENCE TO THE SIZE OF THE PROJECT . THE INC IDENT OF TAKING APPROVAL OF ALL THE BUILDINGS TOGETHER, OR OF CONCEIVING THE PROJECT AT A PARTICULAR SIZE, SHOULD NOT ACT AS A DETRIMENT IN PROVIDING RELIEF. THE LAND AREA WOULD ALSO, AS EXPLAINED IN VANDANA PROPERTIES (SUPRA) , HAVE TO BE TAKEN WITH REFERE NCE TO THE PROJECT AS APPROVED. WE ARE, WHEN WE SAY SO, ALSO CONSCIOUS THAT IT MAY WELL BE THAT THE REMAINING, INCOMPLETE PART OF THE PROJECT IS NOT BROUGHT TO COMPLETION E VEN SUBSEQUENTLY. THIS CONSIDERATION WOULD NOT DISTURB OUR CONCLUSION IN ANY MANNER. THE REASON IS SIMPLE, I.E., THAT THE PROJECT COMPLETED BY THE SPECIFIED DATE IS A COMPLETE PROJECT IN ITSELF, LIABLE TO BE REGARDED AS A SEPARATE PROJECT , ALBEIT SMALLER IN SIZE . THE FUNCTIONAL INDEPENDENCE WOULD ALSO ENSURE THAT THE COMPLETED PROJECT MEE TS THE APPROVAL STANDARDS UNDER THE D & C R EGULATIONS WITH REFERENCE TO WHICH A PROJECT I S APPROVED BY THE LOCAL AUTHORITY . IN SUM 4. T HE ASSESSEE STANDS ALLOWED RELIEF BY THE LD. CIT(A) F OLLOWING THE DECISION BY THE FIRST APPELLATE AUTHORITY IN THE ASSE SSEES CASE FOR A.Y. 200 9 - 10, WHICH STANDS SINCE UPHELD BY THE TRIBUNAL ( SUPRA ), WHICH FOUND THE DECISION S IN THE CASE OF VANDANA PROPERTIES (SUPRA) AND BRAHMA ASSOCIATES (SUPRA) AS SQUARELY COVER ING THE ISSUE AT HAND. THERE IS NO DISCUSSION OF THE FACTS O F THOSE CASE S AND/ OR THE RATIO DECENDI OF THOSE DECISIONS , OR EVEN OF THE LAW LAID DOWN PER THE SAID DECISIONS, WHICH ALONE IS BINDING. THE SAME, HOLDING A PROJECT AS APPROVED AS BEING THE HOUSING PROJECT U/S. 80 - IB(10) AND, THEREFORE, AS ONE, SINGLE PROJE CT, SO THAT THERE IS NO QUESTION OF A DEDUCTION ON A PART OF THE PROJECT, WHICH FORMS THE BASIS OF THE DECISION IN THESE JUDGMENTS , THE 15 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL SAID ORDER BY THE TRIBUNAL, RATHER THAN FO LLOWING THE HONBLE HIGH COURT, IS , WITH RESPECT , IN APPARENT CONFLICT THEREWI TH AND DE HORS THE SAME. THE DECISION IN VISHWAS PROMOTERS P . LTD. (SUPRA) , THE OTHER DECISION RELIED UPON IN - AS - MUCH AS THE SAME S TANDS REFERRED TO IN THE ORDER BY THE FIRST APPELLATE AUTHORITY WHICH FINDS R EPRODUC TION IN THE TRIBUNALS ORDER ( SUPRA ) , IS A LSO IN DIRECT CONFLICT WITH THE DECISION IN BRAHMA A SSOCIATES (SUPRA) , SINCE AFFIRMED BY THE APEX COURT IN SARKAR BUILDERS ( SUPRA ) . IT IS ALSO AXIOMATIC THAT A PROJECT EITHER QUALIFIES, I.E., AS A WHOLE, AS AN ELIGIBLE PROJECT , OR NOT . FOLLOWING THE TRIBUN ALS ORDER (SUPRA) COULD THUS ONLY BE AT THE PERIL OF NOT FOLLOWING AT LEAST PRIMA FACIE , THE BINDING DECISION IN BRAHMA ASSOCIATES (SUPRA), CLARIFYING THE SCOPE OF THE DEDUCTION U/S. 80 - IB(10) AND BINDING ON US. ON THE LD. AR BEING SO CONFRONTED BY THE B ENCH DURING HEARING , READING THE RELEVANT PART OF BRAHMA ASSOCIATES (SUPRA) , EXTRACTED ABOVE (REFER PARA 3.2) , HE WOULD, SEEKING TIME, PLACE ON RECORD T HE R EGULATIONS UNDER THE MRTP ACT ( WHICH STAND REPRODUCED IN THIS ORDER ) , FURTHER PLEADING THAT THE COM PLETION PARAMETERS FOR THE COMPLETION OF A BUILDING ARE THE SAME UNDER THE SAID REGULATIONS AS FOR THE HOUSING PROJECT AS A WHOLE , WHICH MUST THEREFORE BE TAKEN AS SIGNIFYING COMPLETION FOR THE PURPOSES OF THE ACT , RESTING HIS CASE AT THAT. WE, IN THIS R EGARD, OBSERVE THAT THE RELEVANT D & C REGULATIONS (WHICH ARE IN THE PUBLIC DOMAIN) ONLY SPEAK OF COMPLETION CERTIFICATE QUA A BUILDING AND, ACCORDINGLY , COMPLETION CERTIFICATES ARE ISSUED SEPARATELY FOR EACH BUILDING. THE HOUSING PROJECT WOULD THEREFORE BE CONSIDERED AS COMPLETE ON THE ISSUE OF A COMPLETION CERTIFICATE FOR THE LAST BUILDING. THOUGH WE ARE THEREFORE NOT REQUIRED TO CONSIDER A CASE WHERE THE D & C REGULATIONS PROVIDE FOR COMPLETION CERTIFICATE QUA A PROJECT, I.E., IN THE FACTS OF THE PRESE NT CASE, EVEN EXTENDING THE ARGUMENT , AS IT MAY BE SO IN A GIVEN CASE, OR WHERE EACH OF THE BUILDINGS FORM PART OF A COMPOSITE PROJECT, A COMPLETION CERTIFYING THAT ALL IT S FUNCTIONAL OR QUALITATIVE ATTRIBUTES ARE IN PLACE, CANNOT BUT BE REGARDED AS REPRE SENTING THE WHOLE PROJECT, ALBEIT SMALLER IN SIZE AND, THEREFORE, COMPLETE TO THAT EXTENT. THIS IS AS THE ISSUE OF A COMPLETION CERTIFICATE, 16 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL WHICH THE LAW STIPULATES AS SIGNIFYING COMPLETION, A QUALIFYING CONDITION FOR ELIGIBILITY, CANNOT BUT, AND DOES I NDEED, SIMILARLY, SIGNIFY COMPLETION, OF A BUILDING/S COMPRISING THE PROJECT. COMPLETION, IT MAY BE APPRECIATED, IS NOT A FUNCTIONAL ATTRIBUTE, OR A CONCOMITANT, OF A PROJECT . THE CONDITION OF COMPLETION BY A SPECIFIED DATE AS AN ELIGIBILITY CRITERION IS, ON THE OTHER HAND, EXTRINSIC TO THE PROJECT . IN A GIVEN CASE, IT MAY WELL BE OUTSIDE THE CONTROL OF THE DEVELOPER , RENDERING THE PROVIS I ON U N - COMPLIABLE . IN CONTRADISTINCTION , S. 80 - IB(10)(D), AS EXPLAINED IN SARKAR BUILDERS (SUPRA) , IS INEXTRICABLY LINKED WITH THE APPROVAL AND CONSTRUCTION OF A HOUSING PROJECT. THE SAME CANNOT BE SAID OF CLAUSE (A) THEREOF, WHICH MUST THEREFORE BE REGARDED AS THE STIPULATION. WHAT THUS OBTAINS FOR S. 80 - IB(10)(D) MAY NOT HOLD GOOD IN THE CONTEXT OF CLAUSE (A) THEREOF. THIS IS ALSO THE CONCLUSION THAT FOLLOWS A CAREFUL READING OF THE PROVISION OF LAW (SEC. 80 - IB(10)) AS WELL AS THE CITED DECISIONS. IN BRAHMA ASSOCIATES (SUPRA), BINDING ON US, THE HONBLE HIGH COURT WAS CONSIDERING THE CONDITION OF SEC. 80 - IB(10) (D), WHICH IM PINGES ON AN INHERENT FEATURE, THE CONFIGURATION OR A QUALITATIVE ASPECT OF THE PROJECT. THIS THUS THEN DISTINGUISHES THE SAID DECISION, I.E., WITH REFERENCE TO THE PRESENT CASE; IT BEING TRITE THAT A DECISION TO BE READ IN THE FACTUAL BACKDROP AND THE CON TEXT IN WHICH IT IS RENDERED. THIS IS AS THE WORDS TAKE THEIR COLOUR FROM THE CONTEXT IN WHICH THEY ARE USED ( CIT VS. VENKATESWAR HATCHERIES (P.) LTD. [ 1999 ] 237 ITR 174 (SC)). A GAIN , AS EXPLAINED IN GOODYEAR INDIA LTD. VS. STATE OF HARYANA AND ANOTHER [19 91] 188 ITR 402 (SC) , A PRECEDENT IS AN AUTHORITY ONLY FOR WHAT IT ACTUALLY DECIDES AND NOT WHAT MAY REMOTELY OR EVEN LOGICALLY FOLLOW FROM IT (ALSO: CIT V. SUN ENGINEERING WORKS (P.) LTD . (1992) 198 ITR 297 (SC); BLUE STAR LTD. V. CIT (1996) 217 ITR 514 ( BOM.)) . CONSIDERING IT AS A STIPULATION, RATHER THAN A QUALITATIVE ATTRIBUTE, THE SAME CAN BE REGARDED AS MET WHERE THE PROJECT IS OTHERWISE COMPLETE IN ALL RESPECTS, I.E., HAS ALL THE INGREDIENTS OF THE ENTIRE PROJECT, SAVE ITS SIZE. A PURPOSIVE AND HARMO NIOUS CONSTRUCTION OF THE PROVISION LEADS US TO REGARD THE CONDITION OF COMPLETION (BY A SPECIFIED DATE) AS A STIPULATION, SO THAT, THOUGH MANDATORY, SHALL HAVE THE EFFECT OF 17 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL EXCLUDING THAT PART OF THE PROJECT WHICH DOES NOT MEET THE SAID STIPULATION . RATH ER, C OULD, ONE MAY ASK, A UNIFORM COMPLETION DATE BE PRESCRIBED FOR ALL HOUSING PROJECTS, WHICH MAY VARY IN SEVERAL RESPECTS, BESIDES GET BESET WITH CONSTRUCTION ISSUES WHOLLY OUTSIDE THE PROVINCE OF THE BUILDER, I.E., GET EMBROILED IN FACTORS THAT ARE EXT RINSIC TO THE PROJECT. THE INTENT OF THE L EGISLAT URE IN PROVIDING A COMPLETION DATE , AS WE UNDERSTAND , IS TO RESTRICT THE BENEFIT TO WHERE THE PROJECT IS NOT SET ON AN INDEFINITE COURSE AND IS COMPLETE D IN A TIME BOUND MANNER. ANY EXIGENCY MAY INTERVENE TO DELAY A PROJECT. T HE STATUTORY MANDATE IS , NEVERTHELESS, TO BE RES PECTED . T HE PART OF THE PROJECT COMPLETED IN TIME, I.E., PER THE SAME STANDARDS AND PARAMETERS AS PRESCRIBED BY ACT FOR AND SIGNIFYING COMPLET ION , W OULD ACCORDINGLY RECOMMEND ITSELF AS ELIG IBLE FOR DEDUCTION. THE PROJECT COMPLETED SHOULD BE , W ITHOUT DOUBT, FUNCTIONALLY INDEPENDENT OF THAT NOT COMPLETE, HAVING ALL THE INGREDIENTS OF THE PROJECT AS APPROVED . THE REASON IS THAT ONLY A COMPLETED PROJECT CAN BE SAID TO CONTAIN ALL THE INGREDIENTS OF THE PROJECT, QUANTITATIVE OR QUALITATIVE. AS SUCH, ONLY A PROJECT WHICH CONTAINS ALL THE FEATURES OF THE WHOLE PROJECT CAN BE SAID TO BE A PROJECT, OR IS LIABLE TO BE CONSIDERED AS ONE SUCH, I.E., IN SUBSTANCE, BEING DEFICIENT - WITH REFERENCE TO THE ENTIRE PROJECT, ONLY IN SIZE. SO READING THE PROVIS I ON OF SECTION 80 - IB(10)(A) ALONG WITH EXPLANATION (II) THERETO WOULD ENSURE THE OBJECT OF THE PROVISION WHILE AT THE SAME TIME PREVENTING THE MISCHIEF SOUGHT TO BE CUR B ED BY CONFINING THE DEDUCTION TO A PROJECT THAT IS COMPLETE D WITHIN A REASONABLE TIME, SET AT FOUR YEARS FROM THE END OF THE YEAR OF ITS COMMENCEMENT, WITH THE EXISTING PROJECTS BEING ALSO ALLOWED , SIMILARLY, ANOTHER PERIOD OF FOUR YEARS, ESCHEWING ANY CHARGE OF INEQUITY. A HOUSING PROJECT WHICH IS COMPLETE IN ALL ITS FUNCTIONAL ASPECTS , MEETING ALL THE INFRASTRUCTUR AL FACILITIES THAT ON COMPLETION WOULD ACCRUE TO THE RESIDENTS THEREOF, CAN ONLY BE REGARDED AS REPRESENTING THE PROJECT AS APPROVED , BEARI NG ITS INGREDIENTS, SO THAT IT W OULD QU ALIFY AS AN ELIGIBLE PROJECT EVEN WHERE A PART OF THE RESIDENTIAL COMPLEX IS NOT COMPLETE BY THE SPECIFIED DATE. THIS IS AS IT IS AGAIN TRITE LAW THAT THOUGH BEING REQUIRED TO BE STRICTLY CONSTRUED, IN - AS - MUCH AS AN EXEMPTION IS AN EXCEPTION TO THE GENERAL RULE, ONCE THE SUBJECT FALLS 18 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL WITHIN THE PURVIEW OF THE PROVISION, SO THAT THE SAME IS APPLICABLE, IT IS TO BE CONSTRUED LIBERALLY (REFER: UNION OF INDIA V. WOOD PAPERS LTD. (1990) 4 SCC 256 : AIR 1991 SC 2049 ( AT PP. 2051 - 52 ) ; HANSRAJ GORDHANDAS V. H.H. DA VE AIR 1970 SC 755 ) . WE ALSO DERIVE SUPPORT FROM BAJAJ TEMPO LTD. VS. CIT [1992] 196 ITR 188 (SC) , WHEREIN IT STANDS HELD AS UNDER: [ HEAD NOTES AT PG. 189] A PROVISION IN A TAXING STATUTE GRANTING INCENTIVES FOR PROMOTING GROWTH AND DEVELOPMENT SHOULD BE CONSTRUED LIBERALLY; AND SINCE A PROVISION FOR PROMOTING ECONOMIC GROWTH HAS TO BE INTERPRETED LIBERALLY, THE RESTRICTION ON IT TOO HAS TO BE CONSTRUED SO AS TO ADVANCE THE OBJECTIVE OF THE SECTION AND NOT TO FRUSTRATE IT. TRUE, T HERE IS NO E QU ITY ABOUT TAX , AND THE TWO MAKE STRANGE B E D FELLOWS. HOWEVER, AS EXPLAINED IN R. B. JODHA M AL KUTHIALA VS. CIT [1971] 82 ITR 570 (SC) THAT TH OUGH EQUITABLE CONSIDERATIONS ARE IRRELEVANT IN INTERPRETING TAX LAWS, TH E SAME ARE TO BE INTERPRETED REASONABLY AND IN CONSONANCE WITH JUSTICE . THIS IN FACT STANDS OFT - REPEATED BY THE APEX COURT, AS IN CIT VS. GOTLA [1985] 156 ITR 323 (SC), HOLDING AS : THOUGH EQUITY AND TAXATION ARE OFTEN STRANGERS, ATTEMPTS SHOULD BE MADE THAT THESE DO NOT REMAIN ALWAYS SO AND IF A CONSTRUCTION RESULTS IN EQUITY RATHER THAN IN INJUSTICE, THEN SUCH CONSTRUCTION SHOULD BE PREFERRED TO THE LITERAL CONSTRUCTION. DECISION 5. IN THE PRESENT CASE THERE IS, AS APPARENT, NO FUNCTIONAL RELATIONSHIP OR DEPENDENCE BETWEEN THE BUILDINGS COMPL ETED AND THAT NOT COMPLETE D (BY THE SPECIFIED DATE 31.3.2008), WHICH ARE THUS INDEPENDENT OF EACH OTHER . THIS IS AS THE REVENUES ONLY OBJECTION IS THAT ONE OF THE EIGHT BUILDINGS COMPRISING THE ASSESSEES OTHERWISE ELIGIBLE HOUSING PROJECT U/S. 80 - IB(10 ), I.E., KRISHNA COMPLEX, IS NOT COMPLETE BY THAT DATE ; THE ASSESSEE HOLDING COMPLETION CERTIFICATES (BY THAT DATE) FOR THE OTHER SEVEN BUILDINGS OF THE PROJECT. WE, ACCORDINGLY, SEE NO REASON AS TO WHY DEDUCTION U/S.80 - IB(10) CANNOT BE ALLOWED ON THE PA RT THAT IS COMPLETED BY 31.3.2008. IN OUR VIEW, THEREFORE, THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION U/S.80 - IB(10) ON THE 19 ITA NO. 6754/MUM/2014 (A.Y. 2008 - 09) ITO VS. SHIV OM UNIVERSAL BUILDING / S COMPRISING THE HOUSING PROJECT FOR WHICH IT STANDS ISSUED A COMPLETION CERTIFICATE BY 31/3/2008. OUR DECISION , FOR THE RE ASONS STATED AT PARAS 3 . 1 THROUGH 4 OF THIS ORDER, CANNOT BE REGARDED AS IN BREACH OF THE CITED DECISIONS BY THE HONBLE JURISDICTIONAL HIGH COURT AND, BESIDES, IS ALSO IN AGREEMENT WITH THAT BY THE TRIBUNAL IN THE ASSESSEES CASE FOR A.Y. 2009 - 10. WE DECI DE ACCORDINGLY. 6. IN THE RESULT, THE R EVENUE S APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 22, 201 6 SD/ - SD/ - ( PAWAN SINGH ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 22 . 0 9 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITA T, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI