ASHA KASIPRASAD, V. ITO WD 21(1)(1),

MA 750/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0358 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 12-12-2012
• Court: TRIBUNAL
• Section: 80IB

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . .. . . .. . , ,, , ! ! ! ! , ' ' ' ' # $% # $% # $% # $% , ,, , & ! & ! & ! & ! ' ' ' ' BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ('(' ' ) . / M.A. NO.750/MUM./2012 . / ITA NO. 2901/MUM./2011 *+ , ( &) - '.- / ASSESSMENT YEAR : 200708 ) MRS. ASHA KASHIPRASAD RINGSHIA PANDURANG SADAN, HANUMAN ROAD VILE PARLE (E), MUMBAI 400 057 .. /0 / APPLICANT ) V/S INCOME TAX OFFICER WARD21(1)(1), PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI 400 057 .... 12/0 / RESPONDENT !/ . / PERMANENT ACCOUNT NUMBER AACPR3758C !' 4 5 / REVENUE BY : MR. DIPAK KUMAR SINHA &) -6 4 5 / ASSESSEE BY : MR. RAKESH JOSHI )' 4 / DATE OF HEARING 19.04.2013 $ 78. 4 / DATE OF ORDER 10.05.2013 $ $ $ $ / ORDER # $% # $% # $% # $% , ,, , & ! & ! & ! & ! 9 9 9 9 / PER AMIT SHUKLA, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SEE SEEKS CERTAIN MODIFICATION IN THE ORDER DATED 12 TH SEPTEMBER 2012, PASSED IN REVENUES APPEAL IN ITA NO.2901/MUM./2011, TO THE EXTENT OF T HE DATE MENTIONED IN MRS. ASHA KASHIPRASAD RINGSHIA 2 THE COMMENCEMENT CERTIFICATE AS REFERRED TO BY THE TRIBUNAL AT SEVERAL PLACES IN THE ORDER. 2. IN THE PRESENT APPLICATION, THE ASSESSEE HAS MAINLY SOUGHT RECTIFICATION OF THE DATE OF COMMENCEMENT CERTIFICATE MENTIONED A S 17 TH OCTOBER 2004, TO BE READ AS 17 TH OCTOBER 2003. THE REASON FOR SUCH A MISTAKE HAS BE EN STATED THAT IN THE PAPER BOOK, THE ASSESSEE HAS FIL ED THE COMMENCEMENT CERTIFICATE WHICH WAS WRONGLY MENTIONING THE DATE O F STAMP AS 17 TH OCTOBER 2004, WHEREIN THE SIGNATURE OF THE COMPETENT AUTHOR ITY HAS BEEN MADE ON 17 TH OCTOBER 2003, WHICH IS EVIDENT FROM THE CERTIFICAT E PLACED IN THE PAPER BOOK AT PAGE13. IT HAS BEEN STATED THAT THIS CERTI FICATE WAS LATER ON AMENDED AND THE CORRECT DATE WAS RECTIFIED AS 17 TH OCTOBER 2003. 3. IN SUPPORT OF THIS CONTENTIONS, THE ASSESSEE AS WEL L AS THE ACCOUNTANT OF THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING T HE REASON FOR FURNISHING OF INCORRECT CERTIFICATE THAT ALSO ABOUT THE AMENDED C ERTIFICATE WHEREIN THE DATE WAS CORRECTED AND WHY IT COULD NOT BE FILED DUE TO INADVERTENT MISTAKE. IT HAS ALSO BEEN POINTED OUT THAT ULTIMATE FINDING OF THE TRIBUNAL WILL HAVE NO BEARING FROM THE DATE MENTIONED IN THE CERTIFICATE. IT HAS, THEREFORE, BEEN PRAYED THAT WHEREVER THE DATE OF COMMENCEMENT CERTI FICATE HAS BEEN MENTIONED AS 17 TH OCTOBER 2004, SHOULD BE READ AS 17 TH OCTOBER 2003. 4. BEFORE US, THE LEARNED COUNSEL HAS ALSO SUBMITTED T HAT THE WRONG CERTIFICATE WAS PLACED IN THE PAPER BOOK WHOLLY DUE TO INADVERTENT MISTAKE OF THE ACCOUNTANT AND IT WILL HAVE NO BEARING ON THE F INAL OUT COME OF THE TRIBUNAL ORDER BECAUSE ULTIMATELY THE TRIBUNAL HAS ALLOWED ASSESSEES CLAIM PURELY BASED ON THE INTERPRETATION OF THE PROVISO T O SECTION 80IB(10). 5. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, SUBMITTED THAT EVEN THOUGH THE FINAL FINDING OF THE TRIBUNAL RECORDED IN PARAS11 TO 14, WILL NOT HAVE MATERIAL AFFECT BUT THE ASSESSEE SHOU LD HAVE TAKEN DUE CARE IN FILING OF THE CORRECT CERTIFICATE BECAUSE CERTAIN P ORTION OF THE TRIBUNALS ORDER WOULD BE RENDERED INCORRECT. HE SPECIFICALLY DREW O UR ATTENTION TO PARA15 OF THE ORDER WHEREIN THE TRIBUNAL HAS ACCEPTED THE ASS ESSEES ALTERNATE MRS. ASHA KASHIPRASAD RINGSHIA 3 CONTENTIONS THAT THE COMMENCEMENT CERTIFICATE DATED 17 TH OCTOBER 2004, HAS BEEN ISSUED AFTER 1 ST APRIL 2004, THEREFORE, THE NOTIFICATION ISSUED BY THE CBDT WOULD BE SQUARELY APPLICABLE. 6. WE HAVE CONSIDERED THE CONTENTIONS OF THE EITHER PA RTY AND THE ORDER OF THE TRIBUNAL AS WELL AS THE MATERIAL AVAILABLE O N RECORD. THE ASSESSEE IS A DEVELOPER WHO HAD UNDERTAKEN HOUSING PROJECTS AT DH ARAVI SLUM AREA UNDER THE SCHEME OF GOVERNMENT OF MAHARASHTRA DULY APPROV ED BY THE SLUM REHABILITATION AUTHORITY (SRA). THE HOUSING PROJECT WAS ONLY FOR 1064.700 SQ.MTRS. WHICH WAS LESS THAN ONE ACRE. THE ASSESSEE HAS, THEREFORE, CLAIMED DEDUCTION ON THE PROFITS EARNED FROM THE SAID PROJE CT UNDER PROVISO TO SECTION 80IB(10). THE ASSESSING OFFICER HAS REJECTE D THE SAID CLAIM ON THE GROUND THAT UNDER THE PROVISO TO SECTION 80IB(10), THE HOUSING PROJECT APPROVED UNDER THE SCHEME OF THE STATE GOVERNMENT O R THE CENTRAL GOVERNMENT HAS TO BE NOTIFIED BY THE BOARD, SINCE T HE SCHEME ON WHICH THE ASSESSEE HAS DONE HER PROJECT HAS NOT BEEN NOTIFIED , THEREFORE, THE ASSESSEE WAS NOT ELIGIBLE FOR THE CLAIM OF DEDUCTION UNDER S ECTION 80IB(10). BEFORE THE LEARNED COMMISSIONER (APPEALS), THE NOTIFICATION OF THE CBDT WAS FILED BY THE ASSESSEE WHEREIN IT WAS PROVIDED THAT THE SCHEM E HAS NOW BEEN APPROVED BY THE CBDT, STATING THAT ANY PROJECT APPR OVED AFTER 1 ST APRIL 2004 AND BEFORE 31 ST MARCH 2008, WILL BE ELIGIBLE FOR DEDUCTION UNDER S ECTION 80IB(10) FROM ASSESSMENT YEAR 200506 ONWARDS. THE LEARNED COMMISSIONER (APPEALS), RELYING UPON THE SAID NOTIF ICATION, ALLOWED THE ASSESSEES CLAIM. ONE OF THE MAIN ISSUES BEFORE THE TRIBUNAL WAS WHETHER THE NOTIFICATION ISSUED BY THE CBDT IN TERMS OF THE PROVISO TO SECTION 80IB(10) ON 3 RD AUGUST 2010, WHICH WAS LATER ON MODIFIED ON 5 TH JANUARY 2011, PROVIDING TIME LIMIT OF APPROVAL OF PROJECT B Y THE LOCAL AUTHORITY WILL HAVE ANY BEARING ON THE CLAIM OF DEDUCTION ON CORRE CT INTERPRETATION OF THE PROVISO TO SECTION 80IB(10). THE TRIBUNAL HELD THAT THE NOTIFICATION ISSUED BY THE CBDT FOR NOTIFYING THE SLUM AREA DEVELOPMENT SC HEME OF GOVERNMENT OF MAHARASHTRA HAS FURTHER PUT RESTRICTION BY PROVIDIN G TIME LIMIT FOR APPROVAL OF THE PROJECT BY A LOCAL AUTHORITY FROM A PARTICULAR DATE DEFEATS THE VERY PURPOSE OF THE PROVISO WHICH HAS BEEN BROUGHT IN TH E STATUTE W.E.F. 1 ST APRIL MRS. ASHA KASHIPRASAD RINGSHIA 4 2004, BECAUSE SUCH A PROVISO WAS BROUGHT TO REMOVE THE RIGOURS OF THE CONDITIONS LAID DOWN IN CLAUSES (A) AND (B) IN SECT ION 80IB(10) IN THE CASE OF HOUSING PROJECT CARRIED ON A SLUM AREA UNDER THE SC HEME OF THE STATE GOVERNMENT OR THE CENTRAL GOVERNMENT. FOR THE SAKE OF READY REFERENCE, THE FINDINGS OF THE TRIBUNAL IN PARAS11 TO 14 ARE REPR ODUCED HEREUNDER: 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENT IONS AND HAVE PERUSED THE FINDINGS OF THE LEARNED COMMISSIONER (A PPEALS) AS WELL AS THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS UNDERTAKEN A PROJECT UNDER THE SCHEME OF SLUM REHABILITATION AUT HORITY (SRA) FRAMED BY THE GOVT. OF MAHARASHTRA FOR CARRYING OUT A HOUSING PROJECT IN DHARAVI, WHICH IS ONE OF THE BIGGEST SLUM AREAS. THE ASSESSEE, VIDE LETTER OF INTENT DATED 3 RD JULY 2003, HAD SOUGHT FOR AN APPROVAL UNDER REGULATION OF 2.3 OF APPENDIX-4 OF DCR NO.33(10). T HE SRA HAS GIVEN THE INTIMATION OF APPROVAL ON 4 TH AUGUST 2003, WHEREIN VARIOUS TERMS AND CONDITIONS WERE REQUIRED TO BE FULFILLED BY THE ASSESSEE BEFORE THE COMMENCEMENT OF THE PROJECT. THE ASSESSEE COMPLIED WITH ALL THE OBJECTS AND THE TERMS GIVEN IN THE INTIMATION OF AP PROVAL VIDE LETTER DATED 12 TH APRIL 2004, TO THE EXECUTIVE ENGINEER, SRA, AND IN RESPONSE TO WHICH COMMENCEMENT CERTIFICATE WAS ISSUED ON 17 TH OCTOBER 2004. AFTER THE AMENDMENT BROUGHT IN THE STATUTE BY FINAN CE ACT, 2004, W.E.F. 1 ST APRIL 2004, VARIOUS CONDITIONS LAID DOWN IN CLAUSE S (A) AND (B) AND PARTICULARLY IN CLAUSE (B), WHEREIN ONE OF THE CONDITIONS FOR AVAILING THE DEDUCTION UNDER SECTION 80-IB(10), WAS THAT THE PROJECT SHOULD BE ON THE PLOT OF LAND WHICH HAS A MINIMUM A REA OF ONE ACRE, HAS BEEN RELAXED BY INSERTION OF A PROVISO. THE AME NDED PROVISION OF SECTION 80IB(10) R/W PROVISO, READS AS UNDER:- SECTION 80-IB(10) 1103[(10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE THE 31ST DAY OF MARCH, 2007, 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, (I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPR OVED BY THE LOCAL AUTHORITY BEFORE THE 1ST DAY OF APRIL, 2004, ON OR BEFORE THE 31ST DAY OF MARCH, 2008; MRS. ASHA KASHIPRASAD RINGSHIA 5 (II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN, OR , IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1ST DAY OF APRIL, 2004, WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN 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 P ROJECT IS ISSUED BY THE LOCAL AUTHORITY; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WH ICH HAS A MINIMUM AREA OF ONE ACRE PROVIDED THAT NOTHING CONTAINED IN CLAUSE (A) OR CLAUSE (B) SHALL APPLY TO A HOUSING PROJECT CARRIED OUT IN ACCORDANCE WITH A SCHEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT FOR RECONSTRUCTION OR REDEVELOPMENT OF EXISTING BUILDINGS IN AREAS DECLAR ED TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN F ORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BE HALF; 12. FROM THE PLAIN READING OF THE ABOVE, IT WOULD B E SEEN THAT THE CONDITION PRECEDENT FOR AVAILING THE DEDUCTION UNDE R SECTION 80IB(10), HAS BEEN GIVEN IN CLAUSES (A) AND (B). ON THESE CON DITIONS, RIDER HAS BEEN PUT BY THE PROVISO WHICH STARTS WITH A KIND OF NON-OBSTANTE CLAUSE THAT NOTHING CONTAINED IN CLAUSES (A) AND (B) SHALL APPL Y TO A HOUSING PROJECT WHICH HAS BEEN CARRIED OUT IN ACCORDANCE WITH THE SCHEME FRAMED BY THE CENTRAL GOVT. OR STATE GOVT. F OR RE-CONSTRUCTION OR RE-DEVELOPMENT IN AREAS TO BE SLUM UNDER ANY LAW AND IT FURTHER PROVIDES THAT SUCH A SCHEME SHOULD BE NOTIFIED BY T HE BOARD IN THIS BEHALF. THUS, AN EXCEPTION HAS BEEN CARVED OUT BY T HE PROVISO IN CASES OF HOUSING PROJECT DEVELOPMENT IN SLUM AREA UNDER A GOVT. SCHEME AND OVERRIDES THE CONDITION MENTIONED IN CLAUSES (A ) AND (B). THE SCHEME OF SRA CONTAINED IN REGULATION 33(10) OF DEV ELOPMENT CONTROL REGULATION FOR GREATER MUMBAI HAS BEEN NOTIFIED BY CBDT NOTIFICATION NO.67, DATED 3 RD AUGUST 2010, WHICH HAS BEEN INCORPORATED IN THE PRECEDING PARAGRAPHS. THIS NOTIFICATION WAS FURTHER CLARIFIED BY THE CBDT IN NOTIFICATION NO.2 OF 2011 DATED 5 TH JANUARY 2011, WHEREIN IT WAS PROVIDED THAT:- IN THE NOTIFICATION OF THE GOVT OF INDIA IN THE MIN ISTRY OF FINANCE, DEPARTMENT OF REVENUE, (CENTRAL BOARD OF D IRECT TAXES) NUMBER S.O. 1898(E), DATED THE 3 RD AUGUST, 2010 MRS. ASHA KASHIPRASAD RINGSHIA 6 (2010) 233 CTR (ST.) 56 2010) 43 DTR (ST.) 8] PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, P ARTII, SECTION 3, SUBSECTION (II), DATED THE 3 RD AUGUST, 2010, IN PARAGRAPH 2 FOR THIS NOTIFICATION SHALL COME INTO FORCE WITH EFFECT FROM THE DATE OF ITS PUBLICATION, READ THIS NOTIFICATION SHALL BE DEEMED TO APPLY TO PROJECTS APPROVED BY A LOCAL AUTHORITY UNDER THE AFORESAID SCHEME ON OR AFTER THE 1 ST DAY OF APRIL, 2004, AND BEFORE 31 ST DAY OF MARCH, 2008, THEREBY MAKING THE INCOMES ARISING FROM SUCH PROJECTS ELIGIBLE FOR DEDUCTION U NDER SUB SECTION (10) OF SECTION 80IB FROM THE ASSESSMEN T YEAR 20506 ONWARDS . 13. THE PROVISO INSERTED W.E.F 1 ST APRIL 2005, THUS RELAXES THE CONDITIONS GIVEN IN CLAUSES (A) AND (B) OF SECTION 80-IB TO REMOVE THE PROBLEM OF REHABILITATION AND DEVELOPMENT OF SLUM A REA. THE INTENTION OF THE LEGISLATURE IN BRINGING SUCH AN AMENDMENT CA N ALSO BE GAZED FROM THE SPEECH OF THE FINANCE MINISTER AT THE TIME OF INTRODUCTION OF THE BILL, WHICH READS AS UNDER:- 110. A SMALL PROBLEM HAS PLAGUED THE RECONSTRUCTION AND DEVELOPMENT OF EXISTING BUILDINGS UNDER APPROVED PL ANS IN THE CITY OF MUMBAI. PERHAPS THE PROBLEM IS THERE IN SOME OTHER CITIES TOO. I, THEREFORE, PROPOSE TO REL AX THE CONDITION OF MINIMUM PLOT SIZE OF ONE ACRE IN THE C ASE OF HOUSING PROJECTS, AS LONG AS THE PROJECTS ARE IMPLE MENTED IN ACCORDANCE WITH A SCHEME FOR RECONSTRUCTION OR DEVELOPMENT APPROVED BY THE CENTRAL OR STATE GOVERNMENT. 14. THUS, RIGOURS OF THE CONDITIONS ENUMERATED IN C LAUSES (A) AND (B) OF SECTION 80-IB, HAS BEEN RELAXED BY THE LEGIS LATURE TO ACHIEVE CERTAIN SOCIOECONOMIC OBJECT AND, THEREFORE, PROVI SO TO SECTION 80-IB SHOULD BE GIVEN A LIBERAL INTERPRETATION SO AS TO N OT TO DEFEAT A GENUINE CLAIM FOR DEDUCTION BY A DEVELOPER WHO UNDERTAKES T O DEVELOP A HOUSING PROJECT IN A SLUM AREA UNDER THE SCHEME APP ROVED BY THE CENTRAL OR STATE GOVT. THE CBDT WHICH HAD ISSUED TH E NOTIFICATION AFTER MORE THAN FIVE YEARS OF THE AMENDMENT, HAS PUT A TI ME LIMIT OF THOSE HOUSING PROJECTS WHICH HAS BEEN APPROVED BY THE LOC AL AUTHORITY ON/OR AFTER 1 ST APRIL 2004. SUCH A TIME LIMIT CAN DEFEAT THE BASIC PURPOSE OF THE PROVISO FOR WHICH IT WAS ENACTED AS IN THE SAID PROVISO, THE TIME LIMIT PROVIDED IN CLAUSE (A) OF SECTION 80-IB(10) H AS NOT BEEN SPECIFICALLY MADE APPLICABLE, THEREFORE, SUCH A TIM E LIMIT CANNOT BE IMPOSED BY WAY OF SUBORDINATE LEGISLATION. SUCH NOT IFICATION CAN ONLY CLARIFY THE STATUTORY PROVISIONS AND NOT OVER-RIDE THEM OR RESTRICT THE OPERATION OF THE MAIN ENACTMENT. THEREFORE, IN OUR CONSIDERED OPINION, THE TIME LIMIT OF APPROVAL ON/OR AFTER 1 ST APRIL 2004, WILL NOT BE APPLICABLE IN THE CASE OF THE PROVISO TO SECTION 80 IB(10). MRS. ASHA KASHIPRASAD RINGSHIA 7 THUS, THE CLAIM OF THE ASSESSEE WAS ALLOWED IN THE AFORESAID MANNER WITHOUT RELYING ON THE CONTENTS OF THE COMMENCEMENT CERTIFICATE. 7. HOWEVER, THE TRIBUNAL HAD TAKEN NOTE OF THE FACT TH AT THE COMMENCEMENT CERTIFICATE WAS GIVEN ON 17 TH OCTOBER 2004, THEREFORE, THE COMMENCEMENT OF THE PROJECT OR RATHER APPROVAL OF T HE PROJECT BY THE LOCAL AUTHORITY CAN BE SAID TO HAVE BEEN TAKEN FROM SUCH A DATE. THESE FACTS HAVE BEEN MENTIONED IN PARAS10, 11 AND AGAIN IN PARA15 OF THE TRIBUNAL ORDER. IN PARA15, THE TRIBUNAL HAD COMMENTED THAT THE APP ROVAL OF THE PROJECT BY THE LOCAL AUTHORITY ON 17 TH OCTOBER 2004, CAN BE TAKEN AS DATE OF APPROVAL WHICH IS AFTER 1 ST APRIL 2004. FOR THE SAKE OF READY REFERENCE, PARA 15 OF THE ORDER IS REPRODUCED HEREIN BELOW: 15. MOREOVER, IN THE INSTANT CASE, THE APPROVAL WHI CH WAS GIVEN ON 4 TH AUGUST 2003, WAS LOADED WITH LOT OF TERMS AND COND ITIONS TO BE FULFILLED BEFORE THE COMMENCEMENT. IT WAS ONLY AFTE R SUCH TERMS AND CONDITIONS WERE FULFILLED, THE ASSESSEE WAS GIVEN T HE COMMENCEMENT CERTIFICATE ISSUED AFTER 1 ST APRIL 2004, I.E., ON 17 TH OCTOBER 2004 TO START THE PROJECT. IN SUCH A CASE OR SITUATION, IT CANNOT BE HELD THAT THE ASSESSEES PROJECT IS NOT LIABLE FOR DEDUCTION UNDE R SECTION 80-IB, ONCE ALL OTHER CONDITIONS ARE FULFILLED. IN THIS CASE, O NE CAN SAY THAT THE DATE OF COMMENCEMENT I.E., 17 TH OCTOBER 2004, CAN BE TAKEN AS THE DATE OF APPROVAL AS IT WAS FROM THIS DATE THE APPROVAL GIVE N BY THE SRA BECOMES OPERATIVE. THUS, THE CONTENTIONS OF THE LEA RNED DEPARTMENTAL REPRESENTATIVE CANNOT BE SUSTAINED. THE AFORESAID FINDINGS NOW ARE NOT REQUIRED IN VIEW OF THE FACT THAT THE DATE OF COMMENCEMENT CERTIFICATE IS 17 TH OCTOBER 2003 AND NOT 17 TH OCTOBER 2004. 8. THEREFORE, WHEREVER THE DATE OF COMMENCEMENT CERTIF ICATE HAS BEEN MENTIONED AS 17 TH OCTOBER 2004, SHOULD BE READ AS 17 TH OCTOBER 2003. SINCE THE ULTIMATE FINDING RECORDED BY THE TRIBUNAL IN PA RAS11 TO 14, WILL NOT HAVE MUCH BEARING ON THE OUT COME OF THE RESULT, THEREFO RE, SUCH A CORRECTION SHOULD BE READ IN THE ORDER. 9. THUS, THE MISC. APPLICATION PREFERRED BY THE ASSESS EE IS TREATED AS ALLOWED ONLY FOR THE REASON THAT THE TRIBUNAL IN IT S ORDER, VIDE PARAS12 TO MRS. ASHA KASHIPRASAD RINGSHIA 8 14, HAS ALLOWED ASSESSEES CLAIM IN VIEW OF THE INT ERPRETATION OF THE PROVISO TO SECTION 80IB(10) AND HAS NOT GONE INTO THE ASPEC T OF THE DATE OF COMMENCEMENT CERTIFICATE. 10. 6 : &) -6 4 ('(' ' ) !' ; ) < 9. IN THE RESULT, ASSESSEES M.A. IS TREATED AS ALL OWED. $ 4 8. = > ): 10 TH MAY 2013 8 4 < ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH MAY 2013 SD/- . .. . . .. . ! ! ! ! P.M. JAGTAP ACCOUNTANT MEMBER SD/- # # # # $% $% $% $% & ! & ! & ! & ! AMIT SHUKLA JUDICIAL MEMBER MUMBAI, > ) > ) > ) > ) DATED: 10 TH MAY 2013 $ 4 1&#( ?(. / COPY OF THE ORDER FORWARDED TO : (1) &) -6 / THE ASSESSEE; (2) !' / THE REVENUE; (3) @ () / THE CIT(A); (4) @ / THE CIT, MUMBAI CITY CONCERNED; (5) ('C 1&&) , , / THE DR, ITAT, MUMBAI; (6) D- E / GUARD FILE. 2( 1& / TRUE COPY $) / BY ORDER 1 . FG / PRADEEP J. CHOWDHURY '6H &) F' / SR. PRIVATE SECRETARY * / I / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI