M/s. Soumya Homes Pvt. Ltd., Bhopal V. The ACIT 3(1), Bhopal

ITA 710/IND/2013

• Counselvise Citation: 71022714 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 05-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Retrospective amendment
• Section: 80IB; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 710/IND/2013 A.Y. : 2007-08 M/S. SOUMYA HOMES PRIVATE LIMITED, BHOPAL ITO, WARD 1(2), BHOPAL VS APPELLANT RESPONDENT PAN NO. ABFCS3603C APPELLANT BY : NONE RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 22.09.2015 DATE OF PRONOUNCEMENT : 22 . 09 .2015 -: 2: - 2 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II, BHOPAL, DATED 25.10.2013 FOR THE ASSE SSMENT YEAR 2007-08. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN DEC LARING NIL INCOME WAS FILED ON 2.11.2007 AFTER DEDUCTING R S. 11,52,603/- CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF HOUSING PROJECT IN THE NAME AND STYLE OF SOUMYA VIHAR, KALIBARI, BHEL & SOUMYA ENCLAVE, CHUNNA BHAT TI, BHOPAL. ON THE BASIS OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2008-09, RE-ASSESSMENT PROCEEDINGS U/S 147 HAVE BEEN INITIATED FOR THE YEAR UNDER CONSIDERATIO N AFTER RECORDING REASONS THEREFOR AND SUPPLIED TO THE ASSE SSEE ALSO MAINLY ON THE GROUND THAT THE ASSESSEE DID NOT FULF ILL THE PRESCRIBED CONDITIONS FOR CLAIMING DEDUCTION U/S 80 IB OF THE INCOME-TAX ACT, 1961. THE AO MADE THE ADDITION OF R S. 11,52,603/- U/S 80IB(10) OF THE INCOME-TAX ACT, 196 1. THE AO -: 3: - 3 HAS DISCUSSED ELABORATELY THE CONDITIONS PRESCRIBED FOR ALLOWANCE OF SUCH CLAIM, WHICH THE ASSESSEE DOES NO T FULFIL. THE ASSESSEE IS NOT FULFILLING THE REQUIREMENTS OF SECTION 80IB(10), WHICH READ AS UNDER :- 1. THE ASSESSEE IS NOT UNDERTAKING DEVELOPMENT AND CONSTRU CTION OF HOUSING PROJECT. THE ASSESSEE IS NEITHER THE OWNER NOR THE SELLER OF THE LAND ON WHICH PROJECT IS CLAIMED TO H AVE BEEN UNDERTAKEN. 2. THE ASSESSEE IS MERELY ACTING AS A CONTRACTOR TO TH E CUSTOMERS TO WHOM LAND HAS BEEN SOLD. 3. N O REGISTRY WHATSOEVER I S BEING MADE FOR THE CONSTRUCTION WOR K DONE BY THE ASSESSEE. 4. INTENTION BEHIND ANY DEDUCTION U/S 80IB IS TO PROMO TE INVESTMENT IN A PARTICULAR SECTOR, WHICH IS LESS PR OFITABLE. IN ASSESSEES CASE VIRTUALLY NO INVESTMENT WAS MADE TO START THE PROJECT AND RETURN ON CAPITAL OR PROFITAB ILITY IS VERY SUBSTANTIAL. 5. PERMISSION FOR THE PROJECT IS GIVEN TO THE SAUDHYA BHEL SHRAMIK CRIH NLRMAN SAHKARI SANSTLIA MYDT. AND NOT TO THE ASSESSEE, HENCE IT CAN BE DEFINITELY SAID THAT THE ASSESSEE HAS -: 4: - 4 NOT GOT ANY APPROVAL FOR THE AFORESAID CONSTRUCTION WHICH IS CLAIMED AS A PROJECT. CONDITION FOR APPROVAL OF THE PROJECT IS ALSO PRIMARILY FOR DENYING EXEMPTION TO SUCH KIND OF CONSTRUCTION RECEIPTS. 6. POSSESSION WAS GIVEN BEFORE OBTAINING THE COMPLETION CERTIFICATE WHICH IS A GROSS VIOLATION OF CONDITION NUMBER 7 OF APPROVAL CERTIFICATE AND HENCE AS PER CONDITION 8 CERTIFICAT E STANDS CANCELLED AUTOMATICALLY. HENCE THE PROJECT IS WITHOUT ANY APPROVAL CERTIFICATE AND WITHOUT THE PERMISSION. WHILE U/S 80IB(10) IT IS ESSENTIAL REQUIREMENT FOR THE DEDUCTION THAT PROJECT SHOULD HE APPROVED BY A LOCAL AUTHORITY WHILE IN CASE OF ASSESSEE WHOLE PROJECT IS WITHOUT THE PERMISSION. 7. THE ASSESSEE HAS NOT TAKEN COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY WHICH IS TO BE TAKEN AS PER THE AMENDED PROVISIONS OF THE SECTION 80IB(L0). SINCE THE PROJECT OF THE ASSESSEE IS CLAIMED TO BE COMPLETED ON 31.03.2006 THE YEAR WITH THE PREVIEW OF AMENDED PROVISIONS. 8. THE ASSESSEE IS BUILDING HOUSES WHICH ARE MORE THAN 1500 SQ.FT. IN AREA THIS VIOLATE THE CONDITION FOR ALLOWABILITY OF 80IB DEDUCTION AS IT VIOLATES SECTION 80IB(10)(C). -: 5: - 5 THE ASSESSEE IS, THEREFORE, NOT ELIGIBLE FOR DEDUCT ION U/S 80IB(10). THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB FOR AN AMOUNT OF RS. 11,52,603/-. THE SAME IS, THEREFORE, REJECTED. 3. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS CONFIRMED THE ADDITION AT RS. 11,52,603/- MADE U/S 80IB(10) OF THE ACT. 4. NOBODY APPEARED ON BEHALF OF THE ASSESSEE. 5. THE LD. SENIOR D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE HEARD THE LD. SENIOR D.R. I FIND THAT IN TH IS CASE THE ASSESSEE HAS NOT APPLIED FOR COMPLETION CERTIFI CATE FROM LOCAL AUTHORITY AND IN THE INSTANT CASE, THE ASSESS EE HAS NOT OBTAINED THE PERMISSION FROM INDORE MUNICIPAL CORPO RATION. THE SECTION REQUIRES THAT WHERE THE PROJECTS ARE AP PROVED BEFORE 01.04.2004, THE CONSTRUCTION SHOULD BE COMPL ETED BEFORE 31.03.2008. BUT IN THIS CASE, THE ASSESSEE H AS NOT COMPLETED THE CONSTRUCTION OF HOUSING PROJECT ON OR BEFORE 31 ST MARCH, 2008. THE ASSESSEE HAS NOT RECEIVED THE COMP LETION CERTIFICATE TILL 31.03.2008. THEREFORE, THE ASSESSE E HAS NOT -: 6: - 6 FULFILLED THE CONDITIONS LAID DOWN IN SECTION 80IB( 10), THEREFORE, I AM OF THE VIEW THAT THE LD. CIT(A) IS JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE. IN A RECENT JU DGMENT THE HON'BLE JURISDICTIONAL 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 AGAINST THE ASSESSEE B Y HOLDING AS UNDER :- 19. THE PROVISION SUCH AS CLAUSE (A) AS AMENDED, SENSU STRICTO, CANNOT BE CONSIDERED AS A NEW CONDITION AND THAT TOO INCAPABLE OF COMPLIANCE. INASMUCH AS, CLAUSE (A) DEALS WITH THE TIME FRAME WITHIN WHICH THE HOUSING PROJECT 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 PROJECT S APPROVED BY THE LOCAL AUTHORITY BEFORE 31.03.2007, INSTEAD OF 31.03.2005 - AS WAS PROVIDED IN THE UNAMENDED PROVISION. THEREFORE, NECESSITY WAS FELT TO MAKE DISTINCTION BETWEEN THE TWO CLASSES OF HOUSING PROJECTS FOR SPECIFYING THE TIME FRAME FOR -: 7: - 7 COMPLETION. THE ONE APPROVED BY THE LOCAL AUTHORITY BEFORE 1ST DAY OF APRIL, 2004; AND THE OTHER CLASS OF HOUSING PROJECT APPROVED BY THE LOCA L AUTHORITY ON OR AFTER 1ST APRIL 2004 TILL 31.03.200 7. IN EITHER CASE, THE TIME FRAME FOR COMPLETION OF PROJECT HAS BEEN PRESCRIBED AS FOUR YEARS. IN THAT, THE PROJECT APPROVED BEFORE 1ST APRIL, 2004 HAS BEEN GIVEN TIME TO COMPLETE BEFORE 31.03.2008; AND IN THE LATTER CATEGORY I.T.A.NOS.40/2012, 36/2012 & 35/2012 WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. 20. THUS UNDERSTOOD, SIMILAR TIME FRAME FOR COMPLETION OF HOUSING PROJECT HAS BEEN GIVEN TO BOT H CLASS OF HOUSING PROJECTS. MOREOVER, THE EXPLANATIO N BELOW CLAUSE (A), IN PARTICULAR (II), APPLIES TO BO TH CLASS OF HOUSING PROJECTS UNIFORMLY. IT POSTULATES THAT 'THE DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT' SHALL BE TAKEN TO BE 'THE DATE ON WHICH COMPLETION CERTIFICATE' IN RESPECT OF SUCH -: 8: - 8 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 AUTHORITY ON OR BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE - TO BECOME 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 THE LOCAL AUTHORITY. NO MORE AND NO LESS. THUS, ENOUGH INDICATION AND ALSO SUFFICIENT TIME HAS I.T.A.NOS.40/2012, 36/2012 & 35/2012 BEEN GIVEN TO BOTH THE CLASS OF HOUSING PROJECTS TO FULF ILL 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 FULF ILL THE REQUIREMENT OF COMPLETION OF CONSTRUCTION IN TI ME FRAME SPECIFIED FOR THE RESPECTIVE CATEGORY OF -: 9: - 9 HOUSING PROJECTS. THIS HAS BEEN DONE IN LARGER PUBLIC INTEREST - TO ENSURE THAT THE BENEFIT IS GIV EN ONLY TO SUCH PROJECTS WHO WOULD FURTHER THE GOAL OF PROVIDING LOW COST ECONOMIC HOUSES TO THE DESERVING PERSONS IN REASONABLE TIME. 21. CONCEDEDLY, IT IS WITHIN THE DOMAIN OF PARLIAMENT TO EXTEND BENEFIT OR PRIVILEGE TO CERTAI N CLASS OF PERSONS AND ALSO TO WITHDRAW THE SAME FOR JUST REASONS. THAT CANNOT 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 HOUSING PROJECTS, AS A CONDITION PRECEDENT TO AVAIL BENEFIT OF DEDUCTION. IN THE PAST, SUCH STIPULATION WAS IN PLACE, BUT, LATER ON, IT WAS DONE AWAY WITH. HOWEVER, BY AMENDMENT WHICH CAME INTO EFFECT FROM 1ST APRIL, 2005, THE CONDITION FOR COMPLETION OF PROJECT WITHIN SPECIFIED TIME HAS I.T.A.NOS.40/2012 , 36/2012 & 35/2012 BEEN REINTRODUCED, WHILE -: 10: - 10 GIVING SUFFICIENT TIME (FOUR YEARS) TO THE ASSESSEE TO COMPLY FOR BEING ENTITLED TO GET DEDUCTION. 22. A PRIORI, IT IS NOT A CASE OF IMPOSING NEW CONDITION, MUCH LESS, WITH RETROSPECTIVE EFFECT AS HAS BEEN ARGUED BEFORE US; UNLIKE INTRODUCTION OF NEW CONDITION IN THE SHAPE OF CLAUSE (D) - WHICH OBVIOUSLY COULD BE APPLIED ONLY PROSPECTIVELY, AS HELD BY THE SUPREME COURT IN THE AFORESAID DECISIONS. CLAUSE (A) STANDS ON A COMPLETELY DIFFERENT PEDESTAL. IT CANNOT BE TREATED AS A NEW CONDITION LINKED TO THE APPROVAL AND CONSTRUCTION O R HAVING RETROSPECTIVE EFFECT AS SUCH. FOR, IT GIVES AT LEAST FOUR YEARS' TIME FRAME TO BOTH CLASS OF HOUSI NG PROJECTS; TO WIT, HOUSING PROJECTS APPROVED PRIOR T O 1ST APRIL, 2004 OR AFTER 1ST APRIL, 2004. THE FOUR YEARS PERIOD OBVIOUSLY HAS PROSPECTIVE EFFECT, ALBE IT LIMITING THE PERIOD FOR COMPLETION 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 -: 11: - 11 INCAPABLE OF COMPLIANCE. IT IS ALSO NOT A CASE OF WITHDRAWAL OF VESTED RIGHT OF THE DEVELOPER, AS SUCH. NO DEVELOPER CAN CLAIM 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 SPECIFIED TIME FRAME. IF THE DEVELOPER DOES NOT COMPLETE THE HOUSING PROJECT WITHIN SPECIFIED TIME, WILL NOT RECEIVE THAT BENEFIT. THERE IS NO COMPULSI ON ON HIM TO COMPLETE THE PROJECT IN FOUR YEARS. NOTABLY, EVEN THE APPROVALS TO THE CONSTRUCTION OF HOUSING PROJECT GRANTED BY THE LOCAL AUTHORITY SPECIFY THE DATE WITHIN WHICH THE CONSTRUCTION MUST BE COMPLETED, AS PER THE TIME FRAME SPECIFIED IN TH E PERMISSION. IF THE PROJECT IS NOT COMPLETED WITHIN THE STIPULATED TIME, THE DEVELOPER IS FREE TO GET THAT PERIOD RENEWED OR EXTENDED FROM THE LOCAL AUTHORITY AS PER THE APPLICABLE RULES AND REGULATIONS. THE PROVISION FOR CLAIMING TAX -: 12: - 12 DEDUCTION FROM PROFITS, CAN CERTAINLY PRESCRIBE FOR REASONABLE CONDITIONS AND MORE SO TIME FRAME FOR COMPLETION OF THE PROJECT, IN LARGER PUBLIC INTERES T. 23. SUFFICE IT TO OBSERVE THAT, NO COMPARISON CAN B E DRAWN BETWEEN THE NEW CONDITION PRESCRIBED IN TERMS OF CLAUSE (D) AND THAT OF CLAUSE (A). CONDITI ON IN CLAUSE (A), NEITHER OPERATES RETROSPECTIVELY NOR CAN BE SAID TO BE ABSURD, 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 RELEVANT TO AN Y ASSESSMENT YEAR); AND THE PURPOSE UNDERLYING THE SAME - WHICH IS INTER ALIA BURDEN ON THE PUBLIC -: 13: - 13 EXCHEQUER DUE TO WAIVER OF COMMENSURATE REVENUE - THE STIPULATION FOR OBTAINING COMPLETION CERTIFICAT E FROM THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, MUST BE CONSTRUED AS MANDATORY. THE FACT THAT COMPLIANCE OF THAT CONDITION IS DEPENDENT ON THE MANNER IN WHICH THE PROPOSAL IS PROCESSED BY THE LOCAL AUTHORITY, THE PROVISION CANNOT BE CONSTRUED AS A DIRECTORY REQUIREMENT. IT IS A SUBSTANTIVE PROVISION MANDATING ISSUANCE OR GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY BEFORE THE CUT O FF DATE OR SPECIFIED TIME, AS A PRECONDITION TO GET TH E BENEFIT OF TAX DEDUCTION. ELSE, IT WILL THEN BE OPE N TO THE ASSESSEE TO RELY ON OTHER CIRCUMSTANCES OR I.T. A. NOS. 40/2012, 36/2012 & 35/ 2012 EVIDENCE TO PLEAD THAT THE HOUSING PROJECT IS COMPLETE - REQUIR ING ENQUIRY INTO THOSE MATTERS BY THE TAX AUTHORITIES - SANS A COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY IN THAT BEHALF. A PRIORI, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE IS SUFFICIENT, WOULD LEAD TO UNCERTAINTY ABOUT THE DATE OF COMPLETION OF THE -: 14: - 14 PROJECT WHICH IS THE HALLMARK FOR AVAILING OF THE BENEFIT OF TAX DEDUCTION. ONLY WITH THIS INTENT THE LEGISLATURE IN ITS WISDOM HAS PREDICTED THAT, 'THE COMPLETION OF CONSTRUCTION' 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 CERTIFICAT E OR SUCH CERTIFICATE ISSUED BY THE LOCAL AUTHORITY AFTE R THE CUT OFF DATE, WOULD NOT ONLY RESULT IN REWRITIN G OF THE EXPRESS PROVISION AND RUN CONTRARY TO THE UNAMBIGUOUS POSITION 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.40/2012, 36/2012 & 35/2012 LOCAL AUTHORITY. INDEED, IN A GIVEN CASE IF THE ASSESSEE IS ABLE TO SUBSTANTIATE THAT THE COMPLETION CERTIFICAT E -: 15: - 15 '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 CONTROL, THE ARGUMENT OF SUBSTANTIAL COMPLIANCE OF THE PROVISION CAN BE TESTED. ANY OTHER INTERPRETATION WOULD RESUL T NOT ONLY IN UNCERTAINTY (IN FINALIZATION OF ASSESSMENT PROCEEDINGS DUE TO NON-ISSUANCE OR DELAYED ISSUANCE OF SUCH CERTIFICATE BY THE LOCAL AUTHORITY AND PRONE TO MANIPULATIONS AT THE 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 LITIGATION. IF THE ASSESSEE HAS FAILED TO COMPLY WITH 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 OF TAX DEDUCTION OFFERED TO H IM ON THAT COUNT. -: 16: - 16 25. WE CANNOT BE OBLIVIOUS OF THE FACT THAT THE MUNICIPAL 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 DISPENSATI ON PROVIDED IS TO ISSUE PARTIAL OR FULL OCCUPATION CERTIFICATE; AND THEREAFTER ISSUE COMPLETION CERTIFICATE AFTER REMOVAL OF ALL THE DEFICIENCIES POINTED OUT BY THE LOCAL AUTHORITY. IN SOME STATES, THE MUNICIPAL LAW MAY PROVIDE FOR ISSUING PARTIAL O R FULL COMPLETION CERTIFICATE. THE REQUIREMENT OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y, AS ENVISAGED IN SECTION 80IB(10)(A) OF THE INCOME TAX ACT, WHICH IS A CENTRAL ENACTMENT DEALING WITH THE SPECIAL SUBJECT OF TAXATION, HOWEVER, IS, OF ON LY ONE CERTIFICATE - WHICH IS FULL COMPLETION CERTIFIC ATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DA TE. THAT IS TO LEND CREDENCE TO THE FACTUM OF COMPLETIO N OF THE ENTIRE HOUSING PROJECT IN ALL RESPECTS AS PE R THE APPROVAL GRANTED BY THE LOCAL AUTHORITY. IT CAN -: 17: - 17 BE SAFELY ASSUMED THAT THE LEGISLATURE WAS CONSCIOUS OF THIS POSITION, FOR WHICH, EXPRESS PROVISION HAS BEEN MADE AS TO THE MEANING OF THE DATE OF COMPLETION OF THE HOUSING PROJECT LINKED TO THE 'DATE ON WHICH' COMPLETION CERTIFICATE 'IS ISSU ED' BY THE 'LOCAL AUTHORITY', AS PREDICATED IN EXPLANATION (II) THEREUNDER. 26. WE ACCORDINGLY HOLD THAT ISSUANCE OF COMPLETION CERTIFICATE, AFTER THE CUT OFF DATE BY T HE LOCAL AUTHORITY BUT, MENTIONING THE DATE OF COMPLETION OF PROJECT BEFORE THE CUT OFF DATE DOES NOT FULFILL THE CONDITION SPECIFIED IN CLAUSE (A) OF SE CTION 80IB (10) READ WITH EXPLANATION (II) THEREUNDER. WE REJECT THE ARGUMENT OF THE ASSESSEE THAT THE EFFECT OF AMENDED CLAUSE (A) OF SUB-SECTION 10 OF SECTION 80IB, WHICH HAS COME INTO FORCE WITH EFFECT FROM 1 ST APRIL, 2005 ,HAS RETROSPECTIVE EFFECT OR THAT IT IS UNJUST IN ANY MANNER OR INCAPABLE OF COMPLIANCE AT ALL. SIMILARLY, THE REQUIREMENT OF SECURING COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y -: 18: - 18 BEFORE THE CUT OFF DATE IS NOT DIRECTORY, IN VIEW O F THE EXPRESS PROVISION IN SECTION 80IB(10)(A) AND THE EXPLANATION (II) THEREUNDER. THE COMPLETION CERTIFICATE GRANTED BY THE LOCAL AUTHORITY MUST BEA R THE DATE OF HAVING BEEN ISSUED BEFORE THE CUT OFF DATE. 27. THAT TAKES US TO THE ARGUMENT OF THE ASSESSEE THAT THE STIPULATION IN SECTION 80IB(10)(A ) OF COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY BEFORE THE CUT OFF DATE, CANNOT BE APPLIE D IN THE CASE OF ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD. IN OUR OPINION, THE PROVISION IN THE FORM OF SECTION 80IB (10)(A), APPLIES UNIFORMLY TO ALL THE ASSESSEES - BE IT FOLLOWING WORK IN PROGRESS ACCOUNTING METHOD OR OTHERWISE. THE BENEFIT OF DEDUCTION UNDER THIS PROVISION CAN BE AVAILED BY THE ASSESSEE FOLLOWING THE WORK IN PROGRESS ACCOUNTING METHOD, PROVIDED HE HAS COMPLIED WITH THE STIPULATION OF HAVING PRODUCED COMPLETION CERTIFICATE ISSUED BY THE LOCAL -: 19: - 19 AUTHORITY BEFORE THE CUT OFF DATE, AS MAY BE APPLICABLE IN HIS CASE. IN OTHER WORDS, IF THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY BEFORE 1 ST APRIL, 2004, HE MUST SUBMIT COMPLETION CERTIFICATE ISSUED BY THE AUTHORITY HAVING BEEN ISSUED BEFORE THE 31 ST MARCH, 2008. WHEREAS, IN THE CASE OF HOUSING PROJECT APPROVED ON OR AFTER 1 ST APRIL, 2004, THE ASSESSEE CAN AVAIL OF THE BENEFIT PROVIDED COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORITY IS WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR 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 DISALLOWANCE OR WITHDRAWAL OF THE BENEFIT CLAIMED BY HIM ON THAT COUNT. 28. ACCORDINGLY, THESE APPEALS SUCCEED. THE IMPUGNED JUDGMENT OF THE TRIBUNAL IS SET ASIDE; -: 20: - 20 AND IN THE FACTS OF THE PRESENT CASE, THE DECISION OF THE ASSESSING OFFICER TO DISALLOW DEDUCTION UNDER SECTION 80IB(10)(A) OF THE INCOME TAX ACT IS UPHELD. NO ORDER AS TO COSTS. 7. THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSIDERE D THE SWEEP OF AMENDED CLAUSE (A) OF THE PROVISION UNDER SUB- SECTION (10) OF SECTION 80IB OF THE ACT AND HELD TH AT THE PROVISIONS OF CLAUSE (A), AS AMENDED, SEN SUSTRICTO CANNOT BE CONSIDERED AS NEW CONDITION AND THAT TOO INCAPABLE OF COMPLIANCE. THE CLAUSE DEALS WITH THE TIME FRAME WI THIN WHICH THE HOUSING PROJECT WAS EXPECTED TO BE COMPLETED TO GET THE BENEFIT OF PRESCRIBED DEDUCTION. THE HON'BLE HIGH C OURT HAS HELD THAT ISSUANCE OF COMPLETION CERTIFICATE AFTER THE CUT OFF DATE BY THE LOCAL AUTHORITY BUT MENTIONING IN THE D ATE OF THE COMPLETION OF PROJECT BEFORE CUT OFF DATE, DOES NOT FULFIL THE CONDITION SPECIFIED IN CLAUSE (A) OF SECTION 80IB(1 0) READ WITH EXPLANATION 2 THEREUNDER. IN VIEW OF THIS FINDING, I FIND NO MERIT IN THE APPEAL OF THE ASSESSEE. I, RESPECTFULL Y, FOLLOWING -: 21: - 21 THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT, DISMISS THE APPEAL OF THE ASSESSEE 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 22ND SEPTEMBER, 2015. CPU* 2230.9