M/s Global Reality, Bhopal v. The ITO 3(1), Bhopal

ITA 145/IND/2011 | 2004-2005
Pronouncement Date: 29-09-2011 | Result: Allowed

Appeal Details

RSA Number 14522714 RSA 2011
Assessee PAN AADFG6679E
Bench Indore
Appeal Number ITA 145/IND/2011
Duration Of Justice 3 month(s) 1 day(s)
Appellant M/s Global Reality, Bhopal
Respondent The ITO 3(1), Bhopal
Appeal Type Income Tax Appeal
Pronouncement Date 29-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 29-09-2011
Assessment Year 2004-2005
Appeal Filed On 27-06-2011
Judgment 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.145/IND/2011 ITA NO.434/IND/2010 ITA NO.86/IND/2011 A.YS. 2004-05 TO 2006-07 M/S. GLOBAL REALITY BHOPAL PAN AADFG 6679 E APPELLANT VS ITO-3(1) BHOPAL RESPONDENT ITA NOS. 81 TO 85/IND/2011 A.YS. 2002-03 TO 2006-07 M/S. GLOBAL ESTATES BHOPAL PAN AADFG 6681 Q APPELLANT VS ITO-3(1) BHOPAL RESPONDENT APPELLANTS BY : S/SHRI H.P. VERMA & ASHISH GOYAL RESPONDENT BY : SHRI ARUN DEWAN SR. DR DATE OF HEARING : 6.9.2011 DATE OF PRONOUNCEMENT : 29.9.2011 2 O R D E R PER JOGINDER SINGH THESE APPEALS ARE BY THE ASSESSEES AGAINST THE DIFF ERENT ORDERS DATED 10.2.11 22.3.10 10.2.11 31.1.11 & 1 0.2.11 OF LD. CIT(A)-II BHOPAL. FIRST WE SHALL TAKE UP THE APPE ALS IN THE CASES OF M/S. GLOBAL REALITY WHEREIN THE ONLY GRO UND CONTESTED BY THE ASSESSEE IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHIN THE PROVISIONS OF INCOME- TAX ACT THE LD. FIRST APPELLATE AUTHORITY WAS NOT JUSTIFIED IN UPHOLDING THE WITHDRAWAL OF DEDUCTION U/S 80IB(10) AT RS.35 42 526/- (AY 2004-05) RS.23 42 464/- (AY 200 5-06) AND RS.9 62 915/- (AY 2006-07) AND IN CONFIRMING THE IM PUGNED ADDITIONS. 2. DURING HEARING OF THE APPEALS WE HAVE HEARD SHR I H.P. VERMA ALONG WITH SHRI ASHISH GOYAL LD. COUNSE L FOR ASSESSEE AND SHRI ARUN DEWAN LD. SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE MUN ICIPAL CORPORATION GRANTED SANCTION OF THE PROJECT ON 22.3 .2001 AND THE PROJECT WAS SANCTIONED BEFORE INSERTION OF SECT ION 80IB(10) 3 W.E.F. 1.4.2005 THEREFORE IT DOES NOT INCLUDE UND ER THE DEFINITION. IT WAS ALSO PLEADED THAT APPLICATION WA S MADE BY THE ASSESSEE ON 16.1.2008 THE SITE WAS INSPECTED BY TH E INSPECTOR MUNICIPAL CORPORATION ON 27.2.2008 AND T HE PROJECT WAS COMPLETED ON 27.2.2008 FOR WHICH OUR ATTENTION WAS INVITED TO CLARIFICATION ISSUED BY MUNICIPAL CORPORATION ON 23.3.2011. RELIANCE WAS PLACED UPON THE DECISION IN SMT. SAROJ KAPOOR (ITA NO.217/IND/2008) AND D.K. CONSTRUCTION (17 ITJ 1) (I.T.A.T. INDORE). ON THE OTHER HAND THE LD. SR. DR STRONGLY DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT THE COVERED AREA/BUILT-UP AREA IS MORE THAN THE PRESCRIBED LIMI T COMPLETION CERTIFICATE WAS ISSUED ON THE LATER DATE BY THE MUN ICIPAL AUTHORITIES THEREFORE THE DEDUCTION WAS RIGHTLY D ENIED TO THE ASSESSEE. RELIANCE WAS PLACED UPON THE DECISIONS IN MOOSA (AM) VS. CIT (294 ITR 1) (SC) AND RELIANCE JUTE & I NDUSTRIES LTD. VS. CIT (120 ITR 921) (SC). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSES SEE DECLARED 4 NIL INCOME IN ITS RETURN AFTER CLAIMING DEDUCTION U /S 80IB(10) OF THE ACT AMOUNTING TO RS. 35 42 526/- (AY 04-05) RS.23 42 464/- (AY 05-06) AND RS.9 62 915 (AY 06-07 ). THE ASSESSING OFFICER WAS OF THE VIEW THAT THE CLAIMED DEDUCTION IS ONLY AVAILABLE IN RESPECT OF ELIGIBLE HOUSING PROJE CT SUBJECT TO FULFILMENT OF CONDITIONS LAID DOWN IN THE SECTION. THE ASSESSING OFFICER HELD THAT THE DEDUCTION IS NOT ALLOWABLE TO THE ASSESSEE ESPECIALLY WHEN THE ASSESSEE HAS NOT SATISFIED THE CONDITIONS LAID DOWN UNDER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. ON APPEAL THE LD. CIT(A) APPROVED INITIATION OF PR OCEEDINGS U/S 147 AS THE BUILT-UP AREA OF TWO BUNGALOWS WAS MORE THAN 1500 SQ. FT. CONSEQUENTLY HE AFFIRMED WITHDRAWAL OF DE DUCTION U/S 80IB(10) OF THE ACT BEING INADMISSIBLE. THE ASSESS EE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 4. BEFORE COMING TO ANY CONCLUSION WE ARE REPRODUC ING HEREUNDER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT: [(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 PR OFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESS MENT YEAR FROM SUCH HOUSING PROJECT IF 5 ( A ) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSI NG PROJECT ON OR AFTER THE 1ST DAY OF OCTOBER 1998 AN D COMPLETES SUCH CONSTRUCTION ( 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 OF MARCH 20 08; ( 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 APPR OVED BY THE 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 SUC H HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROV ED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUS ING 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 O N 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 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 CENTR AL 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; ( 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 DEL HI OR MUMBAI OR WITHIN TWENTY-FIVE KILOMETRES FROM THE MUNICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND A ND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE; 6B [ AND ] ( D ) THE BUILT-UP AREA OF THE SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED FIVE PER CENT OF THE AGGREG ATE BUILT-UP AREA OF THE HOUSING PROJECT OR TWO THOUSAN D SQUARE FEET WHICHEVER IS LESS.] THE FOLLOWING CLAUSES (E) AND (F) SHALL BE INSERTED AFTER CLAUSE (D) OF SUB-SECTION (10) OF SE CTION 6 80-IB BY THE FINANCE (NO. 2) ACT 2009 W.E.F. 1-4- 2010 : ( E ) NOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUSING PROJECT IS ALLOTTED TO ANY PERSON NOT BEING AN INDIVIDUAL; AND ( F ) IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUSING PROJECT IS ALLOTTED TO A PERSON BEING AN INDIVIDUAL NO OTHER RESIDENTIAL UNIT IN SUCH HOUSI NG PROJECT IS ALLOTTED TO ANY OF THE FOLLOWING PERSONS NAMELY: ( I ) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL ( II ) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL 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 HEREBY 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 (INCLUDING THE CENTRAL OR STATE GOVERNMENT). ] IF THE AFORESAID SECTION IS ANALYSED IT SPEAKS ABO UT FULFILMENT OF CERTAIN CONDITIONS AND FURTHER IF KEP T IN JUXTAPOSITION WITH THE FACTS OF THE PRESENT APPEAL THE HOUSING P ROJECT WAS APPROVED BY THE LOCAL AUTHORITY ON 22.3.2001 (BEFOR E 1 ST DAY OF 2004) THEN THE SAME HAS TO BE COMPLETED ON OR BEFOR E 31 ST DAY OF MARCH 2008. THE ASSESSEE MADE APPLICATION TO TH E MUNICIPAL AUTHORITIES ON 16.1.2008 (PAPER BOOK PAGE 26) AND THE SITE WAS CLAIMED TO BE INSPECTED BY THE OFFICIA LS OF 7 MUNICIPAL CORPORATION ON 27.2.2008 (PAPER BOOK PAGE 32). THE COMPLETION CERTIFICATE WAS ISSUED TO THE ASSESSEE O N 4.5.2010 (PAPER BOOK PAGES 30 & 31) WHEREIN THE DATE OF COMP LETION HAS NOT BEEN MENTIONED. THE ASSESSEE CLAIMED THAT VIDE LETTER DATED 23.3.2011 (PAPER BOOK PAGE 32) CLARIFICATION WAS ISSUED BY THE MUNICIPAL CORPORATION WHEREIN THE DATE OF CO MPLETION HAS BEEN MENTIONED AS 27.2.2008. IN VIEW OF THESE F ACTS IT CAN BE SAID THAT THE ASSESSEE HAS COMPLIED WITH THE CON DITIONS AS CONTAINED IN SUB-SECTION (10) OF SEC. 80IB. AS PER SUB-CLAUSE (II) TO EXPLANATION THE DATE OF COMPLETION OF THE CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN ON THE DATE ON W HICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING P ROJECT IS ISSUED BY THE LOCAL AUTHORITY. SINCE THE CLARIFICAT ION WAS ISSUED BY THE MUNICIPAL CORPORATION REGARDING COMPLETION O F THE PROJECT THEREFORE THE PROVISIONS OF THE ACT HAVE BEEN DULY COMPLIED WITH. 5. THE ANOTHER REASON FOR DENIAL OF CLAIMED DEDUCTI ON BY THE ASSESSING OFFICER IS THAT THE BUILT-UP AREA OF THE BUNGALOWS IS MORE THAN THE MAXIMUM PRESCRIBED LIMIT OF 1500 8 SQ.FT. OF THE DWELLING UNIT. THE STAND OF THE ASSES SING OFFICER IS THAT DEFINITION OF THE BUILT-UP AREA WAS INSERTED W .E.F. 1.4.2005 BY THE FINANCE ACT 2004 VIDE SEC. 80IB(14)(A) CON SEQUENTLY THE LD. ASSESSING OFFICER DISALLOWED THE CLAIMED DE DUCTION. DURING APPELLATE PROCEEDINGS THE DENIAL WAS STRONG LY CONTESTED BY THE ASSESSEE BY PREFERRING WRITTEN SUB MISSION 3 WHICH ARE REPRODUCED HEREUNDER: IT IS SUBMITTED THAT THE LAND WAS ORIGINALLY PURCHASED BY SHRI ANUP SINGH AND AWTAR SINGH UNDER THE PURCHASE DEED DATED 04/07/1968 AND WAS SOLD TO PRARIVESH GRIH NIRMAN SAHAKARI SANSTHA IN THE YEAR 1905. HOWEVER SINCE PARIVESH GRIH NIRMAN SAHAKARI SANSTHA COULD NOT ABIDE BY THE CONDITIONS OF SALE THE PART OF THE LANDAT 1.84 ACRES WAS RESTORED BACK TO SHRI AWTAR SINGH UNDER THE COURT ORDER DATED 29/01/2001. IN THE MEAN TIME M/S PARIVESH GRIH NIRMAN SAHAKARI SANSTHA HAD OBTAINED THE PERMISSION FROM LOCAL AUTHORITY TO DEVELOP A PROJECT WITH TWO TYPES OF BUNGALOWS WITH BUILT AREA OF 1329 SQ. FT. AND 1461 SQ. FT WHICH WAS RENEWED BY THE APPELLANT ON 26/02/2002. AS PER THE PERMISSION THE BUILT UP AREA OF THE APPELLANT WAS LESS THAN 1500 SQ. FT. AS PER PARAMETERS LAID DOWN BY THE MUNICIPAL CORPORATION ACT./RULES. HOWEVER BY THE FINANCE ACT (NO.2) 2004 THE DEFINITION OF BUILT UP AREA WAS INSERTED IN SUB-CLAUSE (14) OF SEC. 80IB AS UNDER: SUB-CLAUSE -14 (A) BUILT UP AREA MEANS THE INNER MEASUREMENTS OF THE RESIDENTIAL UNIT AT THE FLOOR LEVEL INCLUDING T HE PROJECTIONS AND BALCONIES AS INCREASED BY THE 9 THICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COMMON AREAS SHARED WITH OTHER RESIDENTIAL UNITS] THE LD. ASSESSING OFFICER RELIED UPON THE DEFINITIO N OF BUILD UP AREA WHICH WAS MADE EFFECTIVE FROM 01/04/2005 AS THE ASSMT. YEAR UNDER CONSIDERATION WAS ASSMT. YEAR 2005-06 AND ACCORDINGLY HELD THAT THE APPELLANT WAS NOT ENTITLED TO DEDUCTION U/S 80IB(10) OF THE IT ACT. IN THIS CONNECTION IT IS SUBMITTED AS UNDER:- (I) THE LD. ASSESSING OFFICER OF SATISFIED THAT THE APPELLANT FULFILS ALL THE CONDITION LAID DOWN IN SE C. 80IB(10) EXCEPT THE CONDITION ABOUT BUILT UP AREA BEING LESS THAN 1500 SQ. FT. (II) THE BUILT UP AREA WAS NOT DEFINED UNDER THE IT ACT BY INSERTION OF THE PROVISIONS OF SEC.80IB (14)(A) AS STATED ABOVE FROM 01/04/2005. (III) EARLIER THE INCOME TAX ACT HAD NOT GIVEN ANY PARTICULAR DEFINITION OF BUILT UP AREA AND ACCORDINGLY THE POSITION AS EMERGING FROM M.P. NAGAR TATHA GRAH NIRMAN ADHINIYAM WAS TO BE ACCEPTED FOR THE PURPOSE OF IT ACT AS WELL. (IV) AS PER SAID POSITION THE PORCH AREA STAIR CA SE AREA TRRACE AREA BALCONY AREA LOBBY AREA DUCT AREA AND TOWER AREA WERE NOT INCLUDIBLE IN THE BUILDING AREA (AS PER DIFFERENT PROVISIONS MARKET I N YELLOW AND RED COLOUR AT DIFFERENT PAGES OF BHOPAL DEVELOPMENT PLAN 2005 AND M.P. NAGAR TATHA GRAH NIRMAN ADHINIYAM AND BHUMI VIKAS NIGAM 1984 ENCLOSED HEREWITH. (V) THE PROVISION OF SEC. 80IB WAS INTRODUCED FROM 01/04/99 TO GIVE A BOOST TO THE HOUSING INDUSTRY. SINCE INCOME TAX ACT DID NOT PROVIDE ANY DEFINITION OF THE BUILT UP AREA THE BUILDERS ALL OV ER INDIA TOOK THE CLUE ABOVE THE DEFINITION OF BUILT U P AREA FROM OTHER ACTS PREVAILING AT THE SAID TIME IN M.P. ALL THE BUILDERS AND THE APPELLANT RELIED UPON THE BUILT UP AREA GIVEN IN THE APPROVED MAP AND THE SAID BUILT UP AREA APPROVED BY THE MAP WAS LESS THAN 1500 SQ.FT. AS EVIDENT FROM THE MAP APPROVED BY THE MUNICIPAL CORPORATION. (VI) THE APPELLANT BUILD UP THE BUNGALOW REGAL AN D ROYAL AS PER MAP APPROVED BY THE MUNICIPAL CORPORATION. THE MEASUREMENT OF THE BUILT UP AREA 10 ARE ABSOLUTELY IN ACCORDANCE WITH THE MAP APPROVED BY THE MUNICIPAL CORPORATION ON 22/03/2001 AND RENEWED ON 26/02/2002 AND NO FAULT HAS BEEN FOUND WITH THE ULTIMATE CONSTRUCTION AND THE MAP APPROVED. (VII) THE APPELLANT RELIED UPON THE PROVISIONS OF S EC. 80IB(10) AND LAUNCHED ITS PROJECT IN THE YEAR 2001. THE APPELLANT DECLARED THE BUILT UP AREA OF 1329 SQ. FT. AND 1461 SQ. FT AS PER THE MAP APPROVED BY MUNICIPAL CORPORATION. THE APPELLANT FIXED UP THE PRICES OF THE DUPLEX BUNGALOWS AFTER TAKING IN TO CONSIDERATION THE FACT THAT THE APPELLANT WILL NOT BE LIABLE TO PAY ANY INCOME TAX AND ACCORDINGLY TRANSFERRED THE PART OF BENEFIT OF DEDUCTION TO CUSTOMERS. HE STARTED BOOKING OF THE BUNGALOWS IN THE YEAR 2001 AND MOST OF BUNGALOWS WERE BOOKED MUCH BEFORE 01/04/2005. (VIII) AFTER THE INSERTION OF THE DEFINITION OF THE BUILT UP AREA IN SEC. 80IB(14)(A) THE APPELLANT WAS NOT ABLE TO CHANGE THE BUILT UP AREA OR THE PRICE FIX ED WITH THE CUSTOMERS. (IX) YOUR HONOUR WILL APPRECIATE THAT THE APPELLANT HAS ACTED UPON THE PROVISIONS OF SEC. 10(B) AS PREVAILING IN THE YEAR-2001 & 2002 (SEC. 80IB(14(A) WAS NOT IN PLACE) AND AS PER SAID PROVISIONS THE APPELLANT WAS ENTITLED TO THE BENEF IT OF DEDUCTION U/S 80IB(10) OF THE IT ACT. (X) SUCH A BENEFIT CAN NOT WITHDRAWN FROM THROUGH APPELLANT HAS ACTED UPON THE LEGALLY ASSURED POSITION. IN THIS CONNECTION THE APPELLANT RELIES UPON THE FOLLOWING M.P. HIGH COURT AND SUPREME COURT DECISIONS. (A) G.S.DALL & FLOOR MILLS VS. STATE OF M.P. (1987) 20 V.K.N 117 (B) STATE OF M.P. VS. G.S.DALL & FLOOR MILLS (1990) 187 ITR 478. (XI) THE FACTS OF THE SAID CASE ARE IDENTICAL WITH THE CASE OF APPELLANT WHICH ARE DISCUSSED BELOW: THE STATE GOVT. ISSUED A NOTIFICATION ON 23/10/1981 WHICH EXEMPTED THE CLAIM OF DEALERS FROM PAYMENT OF SALES TAX WHO HAD SET UP AN INDUSTRY IN THE SPECIFIED DISTRICTS. 11 (D) FOLLOWING THE SAID ORDER DATED 12/01/1983 GIVIN G A CLASSIFICATION THAT THE BENEFIT OF EXEMPTION FROM SALES TAX WILL BE AVAILABLE TO THE INDUSTRIES OTHER THAN THE TRADITIONAL INDUSTRIES. (E) THE HONOURABLE M.P. HIGH COURT AND LETTER ON TH E HONOURABLE SUPREME COURT HELD THAT THE ENTITLEMENT OF THE BENEFIT CAN NOT BE WITHDRAWN FROM THE BENEFICIARY ON THE LATER DATE IF THE BENEFICIARY HAS BONAFIDELY ACTED UPON THE ASSURANCE OF THE GOVT. (F) IN THE PRESENT CASE ALSO THE APPELLANT HAS ACTE D UPON IN THE YEAR 2001 AND 2002 ON DEFINITION THE BUILT UP AREA AS PER MAP APPROVED BY THE MUNICIPAL CORPORATION AS PER THERE ACT AND RULES AND BECAME ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80IB. SUCH A BENEFIT CAN NOT BE WITHDRAWN FROM THE APPELLANT ON THE BASIS OF DEFINITION COMING INT O EXISTENCE AFTER 01/04/2005. IN VIEW OF THE ABOVE IT IS REQUESTED THAT THE DEDUCTION CLAIMED BY THE APPELLANT U/S 80IB BE KINDLY ALLOWED AND DISALLOWANCE OF DEDUCTION AT RS.23 42 464/- BE KINDLY RESTORED TO THE APPELLANT. ACCORDINGLY THE APPEAL BE KINDLY ALLOWED. IN CONTINUATION OF THE EARLIER SUBMISSIONS THE ASS ESSEE HAS ALSO SUBMITTED AS UNDER : YOUR HONOUR WILL APPRECIATE THAT LD. ASSESSING OFFICER HAS DENIED THE DEDUCTION U/S. 80IB(10) TO T HE APPELLANT IN THE ASSMT. YEAR 2005-06 ON THE SOLE GR OUND THAT THE BUILT UP AREA OF THE BUNGLOWS OF THE HAM ILTION PROJECT AS PER DEFINITION PROVIDE IN SECTION 80IB(1 4)(A) FROM 01-04-2005 ARE MORE THAN 1500 SQ. FT. ON INSPECTION/MEASUREMENT OF THE TWO BUNGLOWS BY REGD. ENGINEER THE LD. ASSESSING OFFICER FOUND THAT THE BUILT UP AREA OF REGAL BUNGALOWS WAS 1994 SQ. FT. WHICH WAS CLAIMED BY THE APPELLANT TO BE AT1329 SQ. FT. A ND OF CLASSIC BUNGLOWS WAS 1919 SQ. FT AS AGAINST 1461 CLAIMED BY THE APPELLANT. IN THIS CONNECTION THE F URTHER SUBMISSIONS OF THE APPELLANT ARE AS UNDER:- 12 (A) IT IS SUBMITTED THAT THE MEASUREMENTS TAKEN BY THE ABOVE SAID REGD. VALUER ARE SAID TO BE IN ACCORDANCE WITH THE DEFINITION OF BUILT UP AREA GIVEN IN SECTION 80IB(14(A). ON PERUSAL OF THE SECTION. YOUR KIND ATTENTION IS INVITED TO THE DEFINITION GIVEN IN SEC. 80IB14(A) OF THE INCOME TAX ACT WHICH IS REPRODUCED AS UNDER :- BUILT UP AREA MEANS THE INNER MEASUREMENTS OF THE RESIDENTIAL UNIT AT THE FLOOR LEVEL INCLUDING THE PROJECTIONS AND BALCONIES AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COMMON AREAS SHARED WITH OTHER RESIDENTIAL UNITS]; ON PLAIN READING OF SECTION IT WILL BE EVIDENT THA T THE BUILT UP AREA DOES NOT INCLUDE ANY PROJECTION OR BALCONIES WHICH ARE NOT SURROUNDED BY THE WALLS AS THE SECTION STATES THAT THE BUILT UP AREA INCLUDES PROJECTION AND BALCONIES AS INCREASED BY THICKNESS OF WALLS AND IT IMPLIES THAT IF THERE ARE NO SURROUNDING WALLS THE PROJECTIONS AND BALCONIES CAN NOT BE INCLUDED AS A BUILT UP AREA WHILE THE REGD. VALUER HAS INCLUDED EVEN THE PORCH IN THE BUILT UP AREA. AS PER SAID INTERPRETATION OF SEC.80IB(14)(A) THE BUILT UP AREA OF BOTH THE BUNGALOWS IS MUCH LESS THAN 1500 SQ. FT. EVEN AS PER DEFINITION PROVIDED IN THE ABOVE SAID SECTION. (B)(I) WITHOUT PREJUDICE TO THE ABOVE IT IS SUBMITTED THAT THE BUILT UP AREA WAS DEFINED IN THE IT ACT FOR THE FIRST TIME BY THE FINANCE ACT NO.2 O F 2004 (RECEIVED ASSENT OF PRESIDENT OF INDIA ON 10/09/2004) ON 10/09/2004 AND WAS MADE EFFECTIVE FROM 01/04/2005. (II) EARLIER THE INCOME TAX ACT HAD NOT GIVENANY PARTICULAR DEFINITION OF BUILT UP AREA AND ACCORDINGLY THE POSITION AS EMERGING FROM THE GENERAL LAWS LIKE M.P. NAGAR TATHA GRAH NIRMAN ADHINIYAM AND M. P. BHUMI VIKAS NIYAM 1984 HAS TO BE ACCEPTED FOR THE PURPOSE OF IT ACT AS WELL. THE BUILT UP AREA IS DEFINED IN THE DEFINIT ION OF FLOOR AREA RATIO IN RULE-2(29) READ WITH RULE-58 OF M.P. BHUMI VIKAS RULES WHICH READ AS UNDER:- RULE-2(29). THE BUILT UP AREA AS STATED WOULD CONSTRUE THE TOTAL BUILT UP AREA ON ALL FLOORS WITH THE EXCEPTION OF LIFT WELLS SERVICE DUCTS MACHINE 13 ROOM FOR LIFTS WATER TANKS COVERED PARKING AREA ONE ENTRANCE LOBBY/FOYER ON GROUND FLOOR CORRIDORS ARCADES MUMPTEE STAIRCASE BUT INCLUSIVE OF COVERED PROJECTION EXCEEDING THE LIMIT S PRESCRIBED UNDER RULE-58. RULE-58. (I) PROJECTION INTO OPEN SPACES-EVERY OPEN SPACE PROVIDED EITHER INTERIOR OR EXTERIOR SHALL BE KEPT FREE ANY ERECTION THEREON AND SHALL BE OPEN TO THE SKY EXCEPT AS BELOW:- A. CORNICE ROOF OR WEATHER SHADE NOT MORE THAN 0.75 METER WIDE; B. SUNSHADE OVER WINDOWS/VENTILATORS OR OTHER OPENING NOT MORE THAN 0.75 METER WIDE; C. CANOPY AT LEVEL NOT LOWER THAN LINTEL LEVEL OF THE FIRST FLOOR BUT NOT TO BE USED AS A SIT OUT WITH CLEARANCE OF 1.5 METRES BETWEEN THE PLOT BOUNDARY AND THE CANOPY; D. PROJECTED BALCONY AT HIGHER FLOOR OF WIDTH NOT MORE THAN 1.20 METER; PROVIDED THAT THE BALCONY AREA MAY BE MERGED WITH THE ADJOINING ROOM TO THE EXTENT OF 10 PER CENT OF THE FLOOR AREA AND] E. PROJECTING ROOMS BALCONIES (SEE CLAUSE [D]) AT ALTERNATE FLOORS SUCH THAT ROOMS OF THE LOWER TWO FLOORS GET LIGHT AND AIR AND THE PROJECTION BEING NOT MORE THAN THE HEIGHT OF THE STOREY IMMEDIATELY BELOW:- HOWEVER THESE PROJECTIONS INTO OPEN SPACES SHALL NOT REDUCE THE MINIMUM REQUIRED OPEN FRONT REAR OR SIDE SPACES. (2) ACCESSORY BUILDING THE FOLLOWING ACCESSORY BUILDING MAY BE PERMITTED IN THE OPEN SPACES. (A) IN EXISTING BUILDINGS SANITARY BLOCK 2.4 METER S IN HEIGHT SUBJECT TO A MAXIMUM OF 4 SQUARE METERS IN THE REAR OPEN SPACE AT A DISTANCE OF 1.5 METERS FROM THE REAR BOUNDARY MAY BE PERMITTED. (B) PARKING LOCK UP GARAGES NOT EXCEEDING 2.6 METRES FROM PLINTH LEVEL IN HEIGHT AND AN AREA NOT EXCEEDING 20 SQUARE METRES SHALL BE PERMITTED IN THE SIDE OR REAR OPEN SPACES AT A DISTANCE OF 7.5 14 METRES FROM ANY ROAD LINE OR THE FRONT BOUNDARY OF THE PLOT. PROVIDED THAT THE SPACE ALLOWED FOR GARAGE MAY BE PERMITTED TO BE USED FOR ANY OTHER PURPOSE AND CONSTRUCTION UP TO ONE MORE FLOOR ON IT MAY BE ALLOWED. HOWEVER THE AREA SO ALLOWED SHALL BE INCLUDED IN THE COVERED AREA BUT SHALL BE TREATED AS AN EXCEPTION TO OPEN SPACE; AND (C) SUCTION TANK AND PUMP ROOM EACH UP TO 2.5 SQUARE METRE IN AREA (3) PROJECTIONS INTO STREET IN EXISTING BUILT UP OR CONGESTED AREAS NO PROJECTION OF ANY SORT WHATEVER EXCEPT SUN-SHADES EXTENDING MORE THAN 23 CENTIMETRES BELOW A HEIGHT OF 4.3 METRES SHALL PROJECT OVER THE ROAD OR OVER ANY DRAIN OR OVER ANY PORTION OUTSIDE THE BOUNDARIES OF THE SIDE PROVIDED THAT THE PROJECTION ARISING OUT OF THE VERTICAL PAR T OF THE RAIN WATER SPOUTS PROJECTING AT THE ROAD LEVEL OR THE WATER PIPE MAY BE PERMITTED IN ACCORDANCE WITH THE DRAINAGE PLAN: PROVIDED THAT IN CONGESTED SHOPPING STREETS NOT HAVING HEAVY VEHICULAR TRAFFIC THE AUTHORITY MAY AS A SPECIAL CASE ALLOW PROJECTION OF BALCONIES NOT MORE THAN 0.75 METRE IN WIDTH OVER FOOTPATHS AT A HEIGHT NOT TOWER THAN 3.65 METRES FROM THE CENTRE TIME OF THE STREET. (4) PORTICOES IN EXISTING DEVELOPED AREA PORTICOES IN BAZAR AREAS OF EXISTING DEVELOPED AREAS MAY BE PERMITTED TO PROJECT ON ROAD LAND SUBJECT TO THE FOLLOWING LIMITATION:- (A)PORTICOES MAY BE ALLOWED ON SUCH ROADS LEAVING (A) MINIMUM CLEAR SPACE OF 19 METRES BETWEEN KERBS; (B) IT SHALL NOT BE LESS THAN 3 METRES WIDE; (C) NOTHING SHALL BE ALLOWED TO BE CONSTRUCTED ON THE PORTION WHICH SHALL BE USES AS AN OPEN TERRACE; (D) NOTHING SHALL BE ALLOWED TO PROJECT BEYOND THE LINE OR ARCADES; AND (E) THE SPACE UNDER THE PORTICO SHALL BE PAVED AND CHANNELLED ACCORDING TO THE DIRECTIONS OF THE AUTHORITY. 15 (5) SUNSHADES OVER WINDOWS AND VENTILATORS PROJECTIONS OF SUNSHADES OVER WINDOWS OR VENTILATOR IN EXISTING BUILT UP OR CONGESTED AREA S WHEN PERMITTED BY THE AUTHORITY SHALL FULFIL THE FOLLOWING CONDITIONS:- (A) NO SUN-SHADE SHALL BE PERMITTED OVER THE ROAD OR OVER ANY DRAIN OR OVER ANY PORTEN OUTSIDE THE BOUNDARIES OF THE SITE BELOW A HEIGHT OF 2.8 METRES FROM THE ROAD LEVEL. (B) SUNSHADES PROVIDED ABOVE A HEIGHT OF 2.8 METRES FROM THE GROUND LEVEL SHALL BE PERMITTED TO PROJECT UP TO A MAXIMUM WIDTH OF 60 CENTIMETRES IF THE ROAD OVER WHICH THEY PROJECT EXCEEDS 9 METRES IN WIDTH; AND (C) NO SUNSHADE SHALL BE PERMITTED ON ROADS LESS THAN 9 METRES WIDTH OR ON ROADS HAVING NO FOOTPATHS. ON PERUSAL OF THE ABOVE SAID RULES IT MAY BE SEEN THAT THE PARKING AREA (PORCH) PROJECTION FOR STAIRS AND VERANDA (ENTRANCE LOBBY) STAIR CASE COVERED WASH ROOM WITH SHADE AND PROJECTIONS FOR BALCONY AND ELEVATIONS ARE NOT INCLUDED IN THE BUILT UP ARE A DEFINED IN M.P. BHUMI VIKAS RULES 1984. (III) THE PROVISIONS OF SEC.80IB(10) WAS INTRODUCES BY THE FINANCE ACT99 AND WAS MADE EFFECTIVE FROM 01/04/2000 TO MITIGATE THE HOUSING PROBLEM FACED BY THE COUNTRY. SINCE INCOME TAX ACT DID NOT PROVIDE ANY DEFINITION OF THE BUILT UP AREA TILL THEN AN THEREFORE ALL THE BUILDERS AND THE APPELLANT RELIED UPON THE BUILT UP AREA GIVEN IN THE MAP APPROVED BY THE LOCAL AUTHORITY AND THE SAID BUILT UP AREA APPROVED BY THE MAP IN THE CASE OF THE APPELLANT WAS LESS THAN 1500 SQ. FT. AS EVIDENT FROM THE MAP APPROVED BY THE LOCAL AUTHORITY. (IV) THE APPELLANT RELIED UPON THE PROVISIONS OF SEC. 80IB(10) AND LAUNCHED ITS PROJECT ON 25/02/2002. THE APPELLANT DECLARED THE BUILT UP AREA AS PER MAP APPROVED BY LOCAL AUTHORITY. THE APPELLANT FIXED UP THE PRICES OF THE DUPLEX BUNGLOWS AFTER TAKING INTO CONSIDERATION THE FACT THAT THE APPELLANT WILL NOT BE LIABLE TO PAY ANY INCOME TAX AND ACCORDINGLY TRANSFERRED THE PART OF THE BENEFIT OF DEDUCTION TO THE CUSTOMERS. HE 16 STARTED BOOKING OF THE BUNGLOWS IN THE YEAR 2002 AND MANY OF THE BUNGLOWS WERE BOOKED MUCH BEFORE 10-09-2004 (WHEN THE FINANCE ACT (NO. 2)2004 WAS PASSED). (V) AFTER THE INSERTION OF THE DEFINITION OF THE B UILT UP AREA IN SEC. 80IB(14)(A) BY THE FINANCE ACT NO. 2 PASSED ON 10/09/2004 THE APPELLANT WAS NOT ABLE TO CHANGE THE BUILT UP AREA OR THE PRICE S FIXED WITH CUSTOMERS OR THE PROSPECTIVE CUSTOMERS OF THE SAME BUNGALOWS IN THE SAME PREMISES. (VI) YOUR HONOUR WILL APPRECIATE THAT THE APPELLANT HAS ACTED UPON THE PROVISIONS OF SEC 80(IB) AS PREVAILING IN THE YEAR 2003 (SEC.80IB(14)(A) WAS NOT IN PLACE) AND AS PER SAID PROVISIONS THE APPELLANT WAS ENTITLED TO THE BENEFIT OF DEDUCTION U/S 80IB(10) OF THE IT ACT. SUCH A BENEFIT CAN NOT WITHDRAWN FROM THE APPELLANT WHEN THE APPELLANT HAS ACTED UPON THE LEGALLY ASSURED POSITION EMERGING FROM THE ENACTMENTS. IN THIS CONNECTION THE APPELLANT RELIES UPON THE FOLLOWING M.P. HIGH COURT AND SUPREME COURT DECISIONS. (A) S.DAL & FLOOR MILLS VS. STATE OF M.P.(1987) 20 V.K.N.117 (B) STATE OF M.P. VS. G.S.DALL MILLS (1990) 187 ITR 478 (VII) IN THE PRESENT CASE ALSO THE APPELLANT HAS ACTED UPON IN THE YEAR 2003 ON DEFINITION OF THE BUILT UP AREA AS PER MAP APPROVED BY THE LOCAL AUTHORITY AS PER THEIR ACT AND RULES AND BECAME ENTITLED TO THE BENEFIT OF DEDUCTION U/. 80IB. YOUR HONOUR WILL APPRECIATED THAT ENTITLEMENT OF ANY PROJECT FOR THE BENEFIT OF SEC.80IB HAVE TO BE IN T HE LIGHT OF THE LAW PREVAILING ON THE DATE OF COMMENCEMENT OF THE PROJECT. (VIII) ON THE ABOVE SAID FACTS AND LEGAL POSITION A S STATED ABOVE THE OBJECTIONS OF THE ASSESSING OFFICER THAT THE BUILT UP AREA OF DWELLING UNIT EXCEEDS 1500 SQ. FT. CAN NOT BE ACCEPTED. IT MAY BE SEEN THAT INCOME TAX ACT AS PREVAILING AT THE TIME OF LAUNCH OF THE PROJECT DID NOT DEFINE THE BUILT UP AREA AND BY THE DEFINITION GIVEN IN M.P. NAGAR GRIH NIRMAN ADHINIYAM AND M.P. BHUMI VIKAS NIYAS 1984 THE BUILT UP AREA OF THE UNIT ARE 17 1329 AND 1461 SQ. FT AND THEREFORE THE ASSESSEE IS ENTITLED TO THE DEDUCTION U/S 80IB(10) OF THE IT ACT. IN THIS CONNECTION YOUR KIND ATTENTION IS INVITED TO THE ITAT NAGPUR BENCH DECISION IN THE CASE OF ITO VS. AIR DEVELOPERS AS REPORTED ON (2009) 123 TTJ (NAGPUR) 959. 6. IF THE SUBMISSIONS OF THE ASSESSEE ARE KEPT IN JUXTAPOSITION WITH THE FACTS OF THE PRESENT APPEAL WE ARE SUPPOSED TO ANALYSE BUILT-UP AREA AS PER DEFINITI ON PROVIDED IN SEC. 80IB(14)(A) WITH EFFECT FROM 1.4.2005 WHICH M EANS THE INNER MEASUREMENT OF THE RESIDENTIAL UNIT AT THE FL OOR LEVEL INCLUDING THE PROJECTION AND THE BALCONIES AS INCR EASED BY THE THICKNESS OF WALLS BUT DOES NOT INCLUDE THE COMMON AREAS SHARED WITH THE OTHER RESIDENTIAL UNIT WHEREAS THE LD. ASSESSING OFFICER HAS INCLUDED THE AREA COVERED BY THE OUTER WALLS ALSO IN PLACE OF TAKING THICKNESS OF WALLS. AT THE SAME TIM E THE PROJECTIONS AND BALCONIES WHICH ARE NOT SURROUNDED BY THE WALLS AS SECTION STATES CANNOT BE INCLUDED IN BU ILT-UP AREA MEANING THEREBY THAT THE PROJECTIONS AND BALCONIES CANNOT BE INCLUDED IN BUILT-UP AREA. BUILT-UP AREA WAS DEFI NED FOR THE FIRST TIME BY THE FINANCE ACT NO.2 OF 2004 (RECEIVED THE ASSENT OF 18 THE PRESIDENT OF THE INDIA ON 10.9.2004) AND WAS MA DE EFFECTIVE FROM 1.4.2005. EARLIER THE I.T. ACT HAD N OT GIVEN ANY PARTICULAR DEFINITION OF BUILT-UP AREA AND ACCORDIN GLY THE POSITION AS EMERGING FROM THE GENERAL LAWS LIKE M.P. NAGAR T ATHA GRIH NIRMAN ADHINIYAM AND M.P. BHUMI VIKAS NIYAM 1984 H AS TO BE ACCEPTED FOR THE PURPOSES OF I.T. ACT AS WELL FO R THE STATE OF MADHYA PRADESH. THE BUILT-UP AREA IS DEFINED IN THE DEFINITION OF FLOOR AREA RATIO IN RULE 2(29) R.W. RULE 58 OF M .P. BHUMI VIKAS RULE WHICH READS AS UNDER: RULE-2(29). THE BUILT UP AREA AS STATED WOULD CONSTRUE THE TOTAL BUILT UP AREA ON ALL FLOORS WITH THE EXCEPTION OF LIFT WELLS SERVICE DUCTS MACHINE ROO M FOR LIFTS WATER TANKS COVERED PARKING AREA ONE ENTRANCE LOBBY/FOYER ON GROUND FLOOR CORRIDORS ARCADES MUMPTEE STAIRCASE BUT INCLUSIVE OF COVERE D PROJECTION EXCEEDING THE LIMITS PRESCRIBED UNDER RU LE- 58. RULE-58. (1) PROJECTION INTO OPEN SPACES EVERY OPEN SPACE PROVIDED EITHER INTERIOR OR EXTERIOR SHALL BE KEPT FREE ANY ERECTION THEREON AND SHALL BE OPEN TO THE SKY EXCEPT AS BELOW:- A. CORNICE ROOF OR WEATHER SHADE NOT MORE THAN 0.75 METRE WIDE; 19 B. SUNSHADE OVER WINDOWS/VENTILATORS OR OTHER OPENING NOT MORE THAN 0.75 METRE WIDE; C. CANOPY AT LEVEL NOT LOWER THAN LINTEL LEVEL OF THE FIRST FLOOR BUT NOT TO BE USES AS A SIT OUT WI TH CLEARANCE OF 1.5 METRES BETWEEN THE PLOT BOUNDARY AND THE CANOPY; D. PROJECTED BALCONY AT HIGHER FLOORS OF WIDTH NOT MORE THAN 1.20 METRE; PROVIDED THAT THE BALCONY ARE A MAY BE MERGED WITH THE ADJOINING ROOM TO THE EXTENT OF 10 PERCENT OF THE FLOOR AREA AND] E. PROJECTING ROOMS BALCONIES (SEE CLAUSE [D]) AT ALTERNATE FLOORS SUCH THAT ROOMS OF THE LOWER TWO FLOORS GET LIGHT AND AIR AND THE PROJECTION BEING N OT MORE THAN THE HEIGHT OF THE STOREY IMMEDIATELY BELO W: HOWEVER THESE PROJECTIONS INTO OPEN SPACES SHALL NOT REDUCE THE MINIMUM REQUIRED OPEN FRONT REAR OR SIDE SPACES. (2) ACCESSORY BUILDING THE FOLLOWING ACCESSORY BUILDINGS MAY BE PERMITTED IN THE OPEN SPACES. (A) IN EXISTING BUILDINGS SANITARY BLOCK 2.4 METRE S IN HEIGHT SUBJECT TO A MAXIMUM OF 4 SQUARE METRES I N THE REAR OPEN SPACE AT A DISTANCE OF 1.5 METRES FRO M THE REAR BOUNDARY MAY BE PERMITTED. (B) PARKING LOCK UP GARAGES NOT EXCEEDING 2.6 METRES FROM PLINTH LEVEL IN HEIGHT AND AN AREA NOT EXCEEDING 20 SQUARE METRES SHALL BE PERMITTED IN TH E SIDE OR REAR OPEN SPACE AT A DISTANCES OF 7.5 METRE S FROM ANY ROAD LINE OR THE FRONT BOUNDARY OF THE PLO T. PROVIDED THAT THE SPACE ALLOWED FOR GARAGE MAY BE PERMITTED TO BE USED FOR ANY OTHER PURPOSE AND CONSTRUCTION UP TO ONE MORE FLOOR ON IT MAY BE ALLOWED. HOWEVER THE AREA SO ALLOWED SHALL BE INCLUDED IN THE COVERED AREA BUT SHALL BE TREATED A S AN EXCEPTION TO OPEN SPACE; AND (C) SUCTION TANK AND PUMP ROOM EACH UP TO 2.5 SQUARE METRE IN AREA. (3) PROJECTIONS INTO STREET IN EXISTING BUILT UP OR CONGESTED AREAS NO PROJECTION OF ANY SORT WHATEVER EXCEPT SUN-SHADES EXTENDING MORE THAN 23 CENTIMETRES BELOW A HEIGHT OF 4.3 METRES SHALL PROJ ECT OVER THE ROAD OR OVER ANY DRAIN OR OVER ANY PORTION 20 OUTSIDE THE BOUNDARIES OF THE SIDE PROVIDED THAT TH E PROJECTION ARISING OUT OF THE VERTICAL PART OF THE RAIN WATER SPOUTS PROJECTING AT THE ROAD LEVEL OR THE WA TER PIPE MAY BE PERMITTED IN ACCORDANCE WITH THE DRAINAGE PLAN: PROVIDED THAT IN CONGESTED SHOPPING STREETS NOT HAVING HEAVY VEHICULAR TRAFFIC THE AUTHORITY MAY A S A SPECIAL CASE ALLOW PROJECTION OF BALCONIES NOT MORE THAN 0.75 METRE IN WIDTH OVER FOOTPATHS AT A HEIGHT NOT LOWER THAN 3.65 METRES FROM THE CENTRE LINE OF THE STREET. (4) PORTICOES IN EXISTING DEVELOPED AREA PORTICOES IN BAZAR AREAS OF EXISTING DEVELOPED AREAS MAY BE PERMITTED TO PROJECT ON ROAD LAND SUBJECT TO THE FOLLOWING LIMITATION:- (A) PORTICOES MAY BE ALLOWED ON SUCH ROADS LEAVING A MINIMUM CLEAR SPACE OF 19 METRES BETWEEN KERPS; (B) IT SHALL NOT BE LESS THAN 3 METRES WIDE; (C) NOTHING SHALL BE ALLOWED TO BE CONSTRUCTED ON THE PORTION WHICH SHALL BE USED AS AN OPEN TERRACE ; (D) NOTHING SHALL BE ALLOWED TO PROJECT BEYOND THE LINE OR ARCADES; AND (E) THE SPACE UNDER THE PORTICO SHALL BE PAVED AND CHANNELLED ACCORDING TO THE DIRECTIONS OF THE AUTHORITY. (5) SUNSHADES OVER WINDOWS AND VENTILATORS PROJECTIONS OF SUNSHADES OVER WINDOWS OR VENTILATOR S IN EXISTING BUILT-UP OR CONGESTED AREAS WHEN PERMITTED BY THE AUTHORITY SHALL FULFIL THE FOLLOWI NG CONDITIONS:- (A) NO SUN-SHADE SHALL BE PERMITTED OVER THE ROAD OR OVER ANY DRAIN OR OVER ANY PORTEN OUTSIDE THE BOUNDARIES OF THE SITE BELOW A HEIGHT OF 2.8 METRES FROM THE ROAD LEVEL. (B) SUNSHADES PROVIDED ABOVE A HEIGHT OF 2.8 METRES FROM THE GROUND LEVEL SHALL BE PERMITTED TO PROJECT UP TO A MAXIMUM WIDTH OF 60 CENTIMETRES IF THE ROAD OVER WHICH THEY PROJECT EXCEEDS 9 METRES I N WIDTH; AND 21 (C) NO SUNSHADE SHALL BE PERMITTED ON ROADS LESS THAN 9 METRES WIDTH OR ON ROADS HAVING NO FOOTPATHS . 7. IF THE AFORESAID RULES ARE ANALYSED IT MAY BE S EEN THAT PARKING AREA (PORCH) PROJECTION FOR STAIRS AN D VARANDA (ENTRANCE LOBBY) STAIRCASE AND COVERED WASHROOM WI TH SHADE AND PROJECTION FOR BALCONIES AND ELEVATION ARE NOT INCLUDED IN THE BUILT-UP AREA AS DEFINED IN M.P. BHUMI VIKAS RU LE 1984. 8. THE PROVISION OF SEC. 80IB(10) WAS INTRODUCED BY THE FINANCE ACT 1999 AND WAS MADE EFFECTIVE FROM 1.4.2 005 TO MITIGATE THE HOUSING PROBLEMS FACED BY THE NATION. SINCE I.T. ACT DID NOT PROVIDE DEFINITION OF THE BUILT-UP AREA TILL THEN THEREFORE THE ASSESSEE CONVENIENTLY RELIED UPON TH E BUILT-UP AREA MAP APPROVED BY THE LOCAL AUTHORITY WHICH WAS LESS THAN 1500 SQ.FT. AS IS EVIDENT FROM THE MAP APPROVED BY THE LOCAL AUTHORITY. THE PROJECT WAS APPROVED ON 22.3.2001 BE FORE THE INTRODUCTION OF SEC. (I.E. 1.4.2005) THEREFORE TH E DEFINITION SHALL NOT BE APPLICATION TO THE ASSESSEE. THE MEASUREMENT OF THE UNIT IS SUMMARISED AS UNDER: PER DVO PER ASSESSEE PER REGISTERED SALE DEED 22 PER SECTION 80IB(14)(A) INTRODUCED W.E.F. 1.4.2005 PER BHUMI VIKAS ADHINIYAM 1973. PB 14-15 REGAL 6 1994.16 AO PAGE 2 1315.02 PB 11 1330.53 PAGE 11 (SYNOPSIS) ROYAL 22 1919.98 AO PAGE 3 1315.02 PB 11 (SAME SIZE AS REGAL 6) 1050.00 PAGE 19 (SALE OF INCOMPLETE STRUCTURE. MAP APPROVED FOR 1461 SQ.FT. PAGE 28 9. ANOTHER OBJECTION RAISED BY THE LD. SR. DR IS TH AT THE COMPLETION CERTIFICATE WAS ISSUED BY THE LOCAL AUTH ORITY ON 4.5.2010 FOR WHICH OUR ATTENTION WAS INVITED TO PAP ER BOOK PAGE 30 & 31. IT WAS CLARIFIED BY THE LD. COUNSEL FOR TH E ASSESSEE THAT CLARIFICATION WAS ISSUED VIDE LETTER DATED 23.3.201 1 (PAPER BOOK PAGE 32) WHEREIN THE DATE OF COMPLETION WAS MENTION ED AS 27.2.2008. THIS ASSERTION OF THE ASSESSEE WAS NOT C ONTROVERTED BY THE REVENUE THEREFORE THE CASE OF THE ASSESSEE FINDS SUPPORT FROM THE DECISION IN THE CASE OF D.K. CONST RUCTION 17 ITJ 1 (INDORE ITAT) WHEREIN IT WAS HELD THAT DATE O F ISSUE OF COMPLETION CERTIFICATION IS NOT CRUCIAL BUT DATE OF COMPLETION OF PROJECT IS RELEVANT THEREFORE DELAY IN OBTAINING THE CERTIFICATE WILL NOT AFFECT ADVERSELY THE ASSESSEE BECAUSE THE ASSESSEE CAN ONLY APPLY WITHIN THE PRESCRIBED LIMIT AND THE POWERS OF THE ISSUANCE OF THE CERTIFICATE LIES WITH THE AUTHORITI ES. IF THERE IS 23 ANY DELAY ON THE PART OF THE MUNICIPAL AUTHORITIES THE ASSESSEE SHOULD NOT BE PENALISED ESPECIALLY WHEN IT WAS CLAR IFIED BY THE MUNICIPAL AUTHORITIES VIDE CLARIFICATION DATED 23.3 .2011 MENTIONING THE DATE OF COMPLETION AS 27.3.2008. THE DATES ARE SUMMARISED AS UNDER: PERMISSION NO. 834/0103 PERMISSION NO. 2428/0301 PERMISSION NO. 2190/1200 DATE OF APPROVAL 2.1.2003 PB PAGE18 22.3.2001 PB PAGE 22 16.12.2000 PB PAGE 26 APPLICATION FOR OBTAINING COMPLETION CERTIFICATE 16.1.2008 16.1.2008 16.1.2008 COMPLETION CERTIFICATE 4.3.2010 PB PAGE 20 4.3.2010 PB PAGE 20 28.8.2009 PB PAGE 28 CLARIFICATION BY MUNICIPAL CORPORATION DT. 23.3.2011 PB PAGE 21 23.3.2011 PB PAGE 25 23.3.2011 PB PAGE 29 DATE OF COMPLETION MENTIONED 23.3.2008 PB PAGE 21 8.3.2008 PB PAGE 25 14.3.2008 PB PAGE 29 IF THE AFORESAID DATES ARE ANALYSED IT CAN BE SAID THAT THE PROJECT WAS COMPLETED ON 23.3.2008 8.3.2008 & 14.3 .2008 RESPECTIVELY WHICH ARE WITHIN TIME AND AS PER THE PROVISIONS OF THE ACT. THE DEFINITION OF BUILT-UP AREA U/S 80IB THEREFORE APPLIED TO PROJECT APPROVED ON OR AFTER 1.4.2005 C ONSEQUENTLY THE DEFINITION DOES NOT APPLY TO THE PRESENT APPELL ANTS AS THEIR PROJECTS WERE APPROVED ON 8.10.1998. EVEN OTHERWISE AT THE 24 INCEPTION SECTION 80IB IS A BENEFICIAL LEGISLATION THEREFORE A LIBERAL CONSTRUCTION UNDER THE FACTS STATED ABOVE IN FAVOUR OF THE ASSESSEE SHOULD BE ADOPTED. SIMILARLY WHERE TW O INTERPRETATIONS ARE POSSIBLE THE VIEW FAVOURING TH E ASSESSEE SHOULD BE PREFERRED. THIS PROPOSITION IS SUPPORTED BY THE DECISIONS IN GOVIND DAS (103 ITR 123) (SC) GEM GRA NITES (271 ITR 322) (SC) BAJAJ TEMPO LTD. (196 ITR 188) (SC) CIT VS. MADHAV PAL JATIA (105 ITR 179) (SC) AND VEGETAB LE PRODUCTS (88 ITR 192) (SC). 10. SECTION 80IB PROVIDES DEDUCTION FOR CERTAIN UNDERTAKINGS WHICH COMMENCE THEIR BUSINESS WITHIN T HE SPECIFIED PERIOD. SECTION 80IB(3)(I) PROVIDES WHER EBY DEDUCTION IS PROVIDED FOR INDUSTRIAL UNDERTAKING CO MMENCING BUSINESS BETWEEN 1.4.1991 AND UP TO 31.3.1995. SIMI LARLY U/S 80IB(3)(II) PROVIDES DEDUCTION FOR COLD STORAGES CO MMENCED BUSINESS BETWEEN 1.4.1995 UP TO 31.3.2002. IF THE B USINESS COMMENCES WITHIN THIS PERIOD THE DEDUCTION IS ALLO WABLE FOR TEN CONSECUTIVE ASSESSMENT YEARS WHEREAS SECTION 80 IB(10) PROVIDES DEDUCTION FOR HOUSING PROJECTS WHICH ARE A PPROVED ON 25 OR AFTER 1.10.1998 AND UP TO 31.3.2008. THEREFORE SECTION 80IB(10)(A) CLEARLY DIFFERENTIATES THE PROJECTS (AP PROVED BETWEEN (A) 1.10.1998 TO 31.3.2004 (B) 1.4.2004 TO 31.3.2005 AND (C) 1.4.2005 TO 31.3.2008). IN CASE THE PROJECT IS APPROVED BETWEEN THESE SPECIFIED DATES THE ENTIRE PROJECT M AY BE ALLOWABLE TO THE ASSESSEE. IF THE IMPUGNED SECTION IS ANALYSED IT IS BASED UPON THE APPROVAL OF THE PROJECT. THE A MENDMENT BY FINANCE (NO.2) ACT 2004 THEREFORE REQUIRES TO BE INTERPRETED HARMONIOUSLY CONSIDERING THE SCHEME OF THE ACT. IN THE PRESENT APPEALS THE PROJECTS WERE APPROVED PRIOR T O AMENDMENTS THEREFORE IF THE DEFINITION IS SAID TO BE APPLIED TO THE PROJECTS ALREADY APPROVED PRIOR TO 1.4.2005 IT WOULD MEAN THAT THE ASSESSEE WOULD BE REQUIRED TO DEMOLISH ITS PROJECTS AND AGAIN RECONSTRUCT THE SAME SO THAT THE ASSESSEE FITS INTO EXEMPTION. THIS IS NOT THE INTENTION OF THE LEGISLA TURE BECAUSE IT MAY AFFECT THE VESTED RIGHTS OF THE ASSESSEE CONSE QUENTLY CANNOT BE SAID TO BE OF RETROSPECTIVE EFFECT. THE S ECTION REQUIRES THE ASSESSEE TO BUILD THE PROJECT WITHIN T HIS SPECIFIED LIMIT ALREADY APPROVED WHEN THE AMENDMENT WAS NOT O N THE 26 STATUTE BOOKS CONSEQUENTLY IF THE SECTION IS INTE RPRETED TO BE APPLICABLE EVEN TO THE EXISTING PROJECTS THE SAME WILL LEAD TO THE ABSURDITY AND THAT IS NOT THE INTENTION OF THE LEGISLATURE BECAUSE ULTIMATELY IT WILL LEAD TO A NATIONAL LOSS. THE INTENTION OF THIS LEGISLATURE AND THE RATIO LAID DOWN IN ACIT VS . SETH DEVELOPERS P. LTD. (33 SOT 277) (MUM) SUPPORTS THE CASE OF THE ASSESSEE WHEREIN IT WAS HELD AS UNDER: NOW THE QUESTION WHETHER THE DEFINITION CLAUSE MENTIONED ABOVE CAN BE DEEMED AS RETROSPECTIVE WE ARE AFRAID WE HAVE TO ANSWER AGAINST THE REVENUE. NUMBER ONE THE ENACTMENT ITSELF CLEARLY SPECIFIES THAT CLAUSE WILL HAVE EFFE CT FROM 1.4.2005. NUMBER TWO IT IS NOT A PROCEDURAL SECTION BUT A DEFINITION SECTION WHERE AN ENLARGED MEANING IS GIVEN TO THE TERM BUILT-UP AREA AND SUCH ENLARGED MEANING WOULD NOT HAVE BEEN IN THE REALM OF UNDERSTANDING OF ANY PERSON PRIOR TO ITS INTRODUCTION AND ASSESSEES WOULD HAVE GONE AHEAD WITH THEIR RESPECTIVE PROJECTS BASED ON A COMMON UNDERSTANDING OF THE TERM BUILT-UP AREA. THUS THE ENLARGED MEANING IF GIVEN A RETROSPECTIVE EFFECT WILL DEFINITELY AFFECT THE VESTED RIGHTS OF AN ASSESSEE. THEREFORE WE HAVE NO HESITATION TO CONCLUDE THAT THE DEFINITION HAD ONLY PROSPECTIVE EFFECT FROM 1.4.2005. VARIOUS HON'BLE COURTS HAVE DECIDED THAT THE DEFINI TION OF BUILT-UP AREA U/S 80IB(14) IS NOT RETROSPECTIVE B UT ONLY 27 PROSPECTIVE. THE FOLLOWING JUDICIAL PRONOUNCEMENTS SUPPORT THE CASE OF THE ASSESSEE: 1. ACIT VS. SAROJ KAPOOR (14 ITJ 585) (I.T.A.T. IN DORE); 2. BRAHMA ASSOCIATES VS. JCIT (122 TTJ (PUNE) (SB) 433); 3. GV CORPORATION (133 TTJ 178) (MUM); 4. DCIT VS. BRIGADE ENTERPRISES (119 TTJ 269) (BANG ); 5. ACIT VS. SETH DEVELOPERS (33 SOT 277) (MUM); 6. BRAHMA ASSOCIATES (315 ITR (AT) 268) (PUNE) (SB) ; 7. AIR DEVELOPERS (14 ITJ 206) (I.T.A.T. NAGPUR). IF THE AFORESAID JUDICIAL PRONOUNCEMENTS ARE KEPT I N JUXTAPOSITION WITH THE FACTS OF THE PRESENT APPEALS IT CAN BE SAID THAT THE ASSESSEES ARE GOVERNED BY THE M.P. VI KAS ADHINIYAM READ WITH BHOPAL MASTER PLAN 2005 THE A SSESSEES HAVE TAKEN THE BUILT-UP AREA AS PER DEFINITION GIVE N UNDER MASTER PLAN 2005 (PAPER BOOK PAGE 24) WHICH DEFINE S BUILDABLE AREA WHICH EXCLUDES THE COMMON AREAS M UMTEE BALCONY ETC. CONSEQUENTLY THE AREAS OF THESE EXEM PTED STRUCTURES IS NOT TO BE INCLUDED IN THE BUILT UP AR EA. THE STATE OF MADHYA PRADESH HAS FRAMED MADHYA PRADESH STATE BHUM I VIKAS RULES 1984 IN THIS REGARD TO CONTROL AND REG ULATE THE DEVELOPMENT AND CONSTRUCTION FOR THE ENTIRE STATE. THE MUMTEE AREA AND PORCH/COVERED PARKING IS NOT INCLUDED IN T HE BUILT UP 28 AREA. THE SAME RULE IS ENFORCED IN THE JURISDICTIO N OF BHOPAL MUNICIPAL CORPORATION. THE APPROVAL GRANTED BY THE BHOPAL MUNICIPAL CORPORATION AFTER PROCESSING AND COMPUTIN G THE COVERED AREA AND FLOOR AREA IS BASED ON THESE BHUMI VIKAS RULES 1984 ONLY. 11. THE ASSESSEE HAS CONSTRUCTED THE HOUSES AS PER SANCTIONED PLAN APPROVED BY THE MUNICIPAL AUTHORITI ES AND NO DEVIATION WAS POINTED OUT. EVEN OTHERWISE FINALLY COMPLETION CERTIFICATE WAS ALSO ISSUED TO THE ASSESSEE. IF TH ERE WOULD HAVE BEEN ANY DEVIATION IN THE CONSTRUCTION CONTRARY TO THE SANCTIONED PLAN THERE WAS NO QUESTION OF ISSUANCE OF COMPLETION CERTIFICATE. WE FURTHER FIND THAT AS PER THE SANCTIONED PLAN (PAGE 15 OF THE PAPER BOOK) THE TO TAL BUILT UP AREA IS 123.54 SQ. MTR. AS PER REGISTERED SALE DEED (PAGES 8 TO 12 OF THE PAPER BOOK) THE AREA SOLD IS ALSO 125.4 SQ. MTR. AS MENTIONED IN SCHEDULE (PAGE 11 OF THE PAPER BOOK) I N THE CASE OF REGAL-6 RESIDENTIAL UNIT WHICH IS A DUPLEX HOUS E AND THE BUILT UP AREA ON GROUND FLOOR IS 70.54 SQ. MTR. AND 62.00 SQ. MTR. ON THE FIRST FLOOR MEANING THEREBY THAT THERE IS NO DEVIATION 29 FROM THE SANCTIONED PLAN. IF THE EXEMPTED AREAS AS PER THE DEFINITION OF RULE 2(29) READ WITH RULE 58 OF THE M .P. BHUMI VIKAS RULES (REPRODUCED HEREINABOVE) ARE KEPT IN JU XTAPOSITION WITH THE FACTS OF THE PRESENT APPEAL THEN THE CLEAR POSITION IS EMERGING THAT THE TOTAL BUILT UP AREA REMAINS WITHI N THE SPECIFIED LIMIT OF 1500 SQ.FT. AS PROVIDED UNDER SE CTION 80IB(14)(A) OF THE ACT. SUB-SECTION (10) OF SECTION 80IB OF THE ACT WAS INSERTED BY THE FINANCE (NO.2) ACT 2004 WI TH EFFECT FROM 1.4.2005. PRIOR TO ITS SUBSTITUTION SUB-SECT ION (10) AS AMENDED BY THE FINANCE ACT 2000 WITH EFFECT FROM 1.4.2001 AND FINANCE ACT 2003 WITH EFFECT FROM 1.4.2002 REA DS AS UNDER :- (10) THE AMOUNT OF PROFIT IN CASE OF AN UNDERTAKIN G DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE 31 ST DAY OF MARCH 2005 BY A LOCAL AUTHORITY SHALL BE 100% OF THE PROFIT DERIVED IN ANY 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 IST DAY OF OCTOBER 1998 (B) THE PROJECT IS ON THE SIZE OF THE PLOT OF LAND WHICH HAS A MINIMUM AREA OF 1 ACRE AND 30 (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT UP AREA OF 1000 SQ.FT. WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WITHIN 25 KMS FROM THE MUNICIPAL LIMITS OF THESE CITIES AND 1500 SQ.FT. AT ANY OTHER PLACE THE ASSESSEE ACTED UPON THE PROVISION OF SECTION 80 IB AS PREVAILING IN THE YEAR 2003 (AS SECTION 80IB(14)(A) WAS NOT ON THE STATUTE BOOK AS THE SAME WAS INSERTED BY THE FI NANCE (NO. 2) 2004 WITH EFFECT FROM 1.4.2005 THEREFORE THE ASSESSEE IS ENTITLED TO THE BENEFIT OF SECTION 80IB(10) OF THE ACT AND SUCH BENEFIT CANNOT BE WITHDRAWN FROM THE ASSESSEE ESPEC IALLY WHEN THE ASSESSEE HAS ACTED UPON LEGALLY ASSURED PO SITION EMERGING FROM THE ENACTMENTS. IT IS PERTINENT TO ME NTION HERE THAT THE INCOME TAX ACT PREVAILING AT THE TIME OF L AUNCH OF THE PROJECT DID NOT DEFINE THE BUILT UP AREA AND BY THE DEFINITION PROVIDED IN M.P. NAGAR GRAH NIRMAN ADHINIYAM AND M. P. BHUMI VIKAS NIYAM 1984 THE BUILT UP AREA OF THE U NIT IS LESS THAN THE PRESCRIBED LIMIT OF 1500 SQ. FT. CONSEQUE NTLY THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) OF T HE ACT. THE RATIO LAID DOWN BY THE NAGPUR BENCH OF THE TRIBUNAL IN THE CASE 31 OF ITO VS. AIR DEVELOPERS (2009) 123 TTJ (NAG) 959 FURTHER SUPPORTS THE CASE OF THE ASSESSEE. IN VIEW OF THES E FACTS AND JUDICIAL PRONOUNCEMENTS THE APPEALS OF THE ASSESSE E ARE ALLOWED. 12. NOW WE SHALL TAKE UP THE APPEALS OF M/S GLOBAL ESTATES (ITA NOS. 81 TO 85/IND/2011). WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. THE ISSUE IN A LL THESE APPEALS IS COMMON TO THE ISSUE RAISED IN THE CASE O F GLOBAL REALILTIES. WE HAVE VERIFIED THE PERMISSION NO. 834 /01-03 CERTIFICATE DATED 2.1.2003 COMPLETION CERTIFICATE BY THE ASSESSEES ENGINEER DATED 3.1.2008 AND ALSO THE COM PLETION CERTIFICATE DATED 4.3.2010 ISSUED BY THE MUNICIPAL CORPORATION AND ALSO THE CERTIFICATE BY THE MUNICIPAL CORPORATI ON DATED 23.3.2011 CLARIFYING THE DATE OF COMPLETION ON 23.3 .2008. WE HAVE ALSO VERIFIED PERMISSION NO. 2428/03-04 THE P ERMISSION CERTIFICATE DATED 22.3.2001 AND COMPLETION CERTIFIC ATE OF THE ASSESSEES ENGINEER DATED 3.1.2008 THE COMPLETION CERTIFICATE DATED 4.3.2010 ISSUED BY THE MUNICIPAL CORPORATION AS WELL AS LETTER OF CLARIFICATION ISSUED BY THE MUNICIPAL COR PORATION DATED 32 23.3.2011 WHEREIN THE DATE OF COMPLETION HAS BEEN C LARIFIED AS 8.3.2008. WE HAVE ALSO VERIFIED THE PERMISSION NO. 2190/1200 THE PERMISSION CERTIFICATE DATED 16.12.200 THE COM PLETION CERTIFICATE OF THE ASSESSEES ENGINEER DATED 3.1.20 08 AND THE COMPLETION CERTIFICATE ISSUED BY THE MUNICIPAL CORP ORATION DATED 28.8.2009. WE HAVE ALSO VERIFIED THE CLARIFI CATION LETTER ISSUED BY THE MUNICIPAL CORPORATION DATED 23.3.2011 . ALL THESE DOCUMENTS ARE PLACED ON RECORD AND WERE ALSO BEFORE THE LOWER AUTHORITIES. DURING HEARING OF THESE APPEALS THE LEARNED REPRESENTATIVES OF BOTH THE SIDES SUBMITTED THAT TH E ISSUES AND FACTS OF THESE APPEALS ARE IDENTICAL WITH THE FACTS CONTAINED IN THE APPEALS OF M/S GLOBAL REALITY (SUPRA). THE LEA RNED REPRESENTATIVES ALSO ASSERTED THAT THE ARGUMENTS IN THESE APPEALS WILL REMAIN THE SAME. 13. IN VIEW OF OUR ABOVE DECISION IN THE CASE OF M/S GLOBAL REALITY (SUPRA) AS THE FACTS AND ISSUES ARE IDENTICAL THESE APPEALS OF THE ASSESSEE ARE ALSO ALLOWED. FINALLY ALL THE APPEALS OF THE ASSESSEE ARE ALLOWE D. 33 ORDER PRONOUNCED IN THE OPEN COURT ON 29.9.2011. SD SD (R.C.SHARMA) (JOGINDER SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29.9.2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE !VYAS!