Dy. Commissioner of Income Tax, Lucknow v. M/s Fortuna Foundation Engineers and Consultants Pvt. Ltd., Lucknow

ITA 319/LKW/2013 | 2008-2009
Pronouncement Date: 11-04-2014 | Result: Dismissed

Appeal Details

RSA Number 31923714 RSA 2013
Assessee PAN AAACF3510H
Bench Lucknow
Appeal Number ITA 319/LKW/2013
Duration Of Justice 11 month(s) 9 day(s)
Appellant Dy. Commissioner of Income Tax, Lucknow
Respondent M/s Fortuna Foundation Engineers and Consultants Pvt. Ltd., Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 11-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 11-04-2014
Date Of Final Hearing 06-02-2014
Next Hearing Date 06-02-2014
Assessment Year 2008-2009
Appeal Filed On 02-05-2013
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.319/LKW/2013 ASSESSMENT YEAR:2008 - 09 DY.C.I.T. RANGE - 2 LUCKNOW. VS. M/S FORTUNA FOUNDATION ENGINEERS AND CONSULTANTS PVT. LTD. 22 G.B. MARG LUCKNOW. PAN:AAACF3510H (APPELLANT) (RESPONDENT) C.O.NO.18/LKW/2013 (IN ITA NO.319/LKW/2013) ASSESSMENT YEAR:2008 - 09 M/S FORTUNA FOUNDATION ENGINEERS AND CONSULTANTS PVT. LTD. 22 G.B. MARG LUCKNOW. PAN:AAACF3510H VS. DY.C.I.T. RANGE - 2 LUCKNOW. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI ALOK MITRA D.R. ASSESSEE BY SHRI S. K. GARG ADVOCATE SHRI P. K. KAPOOR C.A. DATE OF HEARING 06/02/2014 DATE OF PRONOUNCEMENT 1 1 /04/2014 O R D E R PER A. K. GARODIA A.M. THE APPEAL IS FILED BY THE REVENUE AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST THE ORDER OF CIT (A) - I LUCKNOW DATED 06/02/2013 FOR ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL ARE AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN RELYING UPON THE ORDERS OF HON'BLE ITAT IN ASSESSMENT YEARS 2005 - 06 2006 - 07 AND 2007 - 08 FOR HOLDING THAT THE ASSESSEE FULFILLED THE CONDITION LAID DOWN IN SECTION 2 80IB(10)(B) REGARDING AREA OF TH E PLOT OF LAND BEING MINIMUM ONE ACRE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE AS A BUILDER HAD UNDERTAKEN THREE PLOTS ON WHICH THE HOUSING PROJECT WAS STARTED AND THAT WAS NOT A SINGLE PLOT HAVING A MINIMUM AREA OF ONE ACRE. 2. APPELLANT CRAVES LE AVE TO ADD OR AMEND THE GROUND OF APPEAL AS STATED ABOVE AS AND WHEN NEED OF DOING SO ARISES WITH THE PRIOR PERMISSION OF THE HON'BLE BENCH. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION ARE AS UNDER: 1. BECAUSE THE 'CIT(A)' HAS GROSS LY ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING 'DENIAL' OF RESPONDENT/ASSESSEE'S CLAIM FOR EXEMPTION UNDER SECTION 80IB(10) OF THE ACT ON THE GROUND THAT THE REQUISITE 'COMPLETION CERTIFICATE' HAD NOT BEEN OBTAINED AND SUBMITTED BY 31.03.2008. 2. BECAUSE ON A DUE CONSIDERATION OF THE UNDISPUTED FACTS OF THE CASE AS HAVE BEEN SO NOTED ALSO BY THE CIT(A) TO THE EFFECT THAT: - ( A ) THE HOUSING PROJECT IN THE NAME OF FORTUNA APARTMENT HAD DULY BEEN COMPLETED/EXECUTED BY 31.03.2008 WHICH WAS THE STIPULATED DATE FOR COMPLETION OF THE PROJECT IN THE INSTANT CASE; ( B ) SUCH COMPLETION STOOD FULLY PROVED BESIDES OTHERS BY THE FACT THAT THE SITE PLAN OF THE PROJECT (WHICH CONTAINED CERTAIN DEVIATIONS) HAD DULY BEEN SUBMITTED BEFORE THE LUCKNOW DEVELOPME NT AUTHORITY THE DESIGNATED AUTHORITY UNDER U.P. URBAN (PLANNING & DEVELOPMENT) ACT 1973; ( C ) THE LUCKNOW DEVELOPMENT AUTHORITY HAD TAKEN DUE COGNIZANCE OF 'COMPLETION OF PROJECT' (WELL BEFORE 31.03.2008) AND AS PER 'RULE OF COMPOUNDING' INITIAL FEE AMOUNTIN G TO RS.75 000/ - HAD ALSO BEEN PAID; ( D ) AFTER SUBMITTING THE SITE PLAN ALONG WITH APPLICATION FOR 'COMPOUNDING' A FORMAL APPLICATION FOR ISSUING COMPLETION CERTIFICATE HAD ALSO BEEN FILED ON 27.03.2008. THE CIT(A) SHOULD HAVE HELD THAT ESSENCE OF THE REQUIREMENT OF SECTION 80IB(10) HAD DULY BEEN COMPLIED 3 WITH AND THE RESPONDENT/ASSESSEE HAD BECOME ELIGIBLE FOR EXEMPTION THERE UNDER. 3. BECAUSE THE CERTIFICATE DATED 23.10.2009 AS HAD BEEN ISSUED BY LUCKNOW DEVELOPMENT AUTHORITY AFTER COMPLYING WITH THE PROVISIONS AS LAID DOWN IN SECTION 15A OF UTTAR PRADESH URBAN (PLANNING & DEVELOPMENT) ACT 1973 RELATED BACK TO THE COMPLETION OF PROJECT ON 14.03.2008 AND IN ANY CASE TO THE DATE ON WHICH FORMAL APPLICATION FOR OBTAINING COMPLETION CERTIFICATE WAS FILED I.E. ON 27.03.2008 AND THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON FACTS IN TAKING A VIEW TO THE CONTRARY. 4. BECAUSE THE ORDER DATED 22.08.2012 AS PASSED BY THE HON'BLE INCOME TAX APPELLATE TRIBUNAL IN T HE RESPONDENT/ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2006 - 07 DESERVED TO BE READ WITH THE CLARIFICATION SUBMITTED BY THE RESPONDENT/ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS AND THE 'CIT(A)' HAS ERRED IN NOT CONSIDERING THE SAME WHILE UPHOL DING ''DENIAL' OF RESPONDENT/ASSESSEE'S CLAIM FOR EXEMPTION UNDER SECTION 80IB(10). 5. BECAUSE 'DENIAL' OF RESPONDENT/ASSESSEE'S CLAIM UNDER SECTION 80IB(10) WAS NOT IN ACCORDANCE WITH LETTER AND SPIRIT OF THE SAID PROVISION OF LAW AS HAD COME TO BE INTERPRETED IN LARGE NUMBER OF CASE LAWS AND ON A DUE CONSIDERATION OF THE SAME THE RESPONDENT/ASSESSEE'S CLAIM DESERVES TO BE ALLOWED. 4. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE PROVISIONS OF SECTION 80IB(10) WERE AMENDED FROM 01/04/2005 AND ALL PROVISIONS DO NOT HAVE THE CLAUSE REGARDING DATE OF COMPLETION OF THE PROJECT. HE ALSO SUBMITTED THAT IN THE PRESENT CASE THE APPROVAL WAS GRANTED BY APPROPRIATE AUTHORITY PRIOR TO 01/04/2004 AND THEREFORE THE OLD PROVISIONS ARE APPLI CABLE IN THE PRESENT CASE AND NOT THE AMENDED PROVISIONS. REGARDING THE I.T.A.T. DECISION IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07 IN I.T.A. NO.283/LKW/2012 DATED 22/08/2012 COPY OF WHICH IS AVAILABLE ON PAGE NOS. 113 TO 141 OF THE PAPER BOOK H E SUBMITTED THAT IT IS NOTED BY THE TRIBUNAL IN 4 THIS ORDER ALSO THAT AS PER THE TRIBUNAL DECISION IN ASSESSEES OWN CASE FOR EARLIER YEARS I.E. ASSESSMENT YEAR 2005 - 06 AND SUBSEQUENT YEAR I.E. ASSESSMENT YEAR 2007 - 08 THE ISSUE UNDER DISPUTE WAS DECIDED B Y THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND IT WAS HELD THAT THE PROJECT WAS COMPLETED PRIOR TO 31/03/2008. IN THIS REGARD HE DRAWN OUR ATTENTION TO PARA 14 AND 15 OF THE TRIBUNAL ORDER. HE SUBMITTED THAT THEREFORE INSTEAD OF FOLLOWING THIS TRIBUNAL O RDER FOR ASSESSMENT YEAR 2006 - 07 THE OTHER TWO TRIBUNAL ORDERS IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005 - 06 AND 2007 - 08 SHOULD BE FOLLOWED. HE ALSO SUBMITTED THAT A JUDGMENT OF HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. TARNETAR COR PORATION IN TAX APPEAL NO.1241 OF 2011 DATED 12/09/2012 IS AVAILABLE ON PAGE NO. 142 TO 145 OF THE PAPER BOOK AND AS PER THIS JUDGMENT IT WAS HELD BY HON'BLE GUJARAT HIGH COURT THAT WHEN THE ASSESSEE HAS APPLIED FOR DUE PERMISSION PRIOR TO 31/03/2008 THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. HE SUBMITTED THAT IN THE PRESENT CASE APPLICATION WAS MADE BY THE ASSESSEE ON 14/03/2008 AS PER THE COPY AVAILABLE ON PAGE NO. 108 & 109 OF THE PAPER BOOK AND THEREFORE BY FOLLOWING THIS JUDGM ENT OF HON'BLE GUJARAT HIGH COURT DEDUCTION SHOULD BE ALLOWED TO THE ASSESSEE. HE ALSO SUBMITTED A COPY OF THE JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. CHD DEVELOPERS LIMITED IN ITA NO. 298/2013 DATED 22.01.2014 AND PLACED RE LIANCE ON THE SAME. 5. AS AGAINST THIS LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A) REGARDING ELIGIBILITY OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE ACT FOR THE REASON THAT THE PROJECT WAS NOT COMPLETED BEFORE 31/03/2008. REG ARDING THE OTHER OBJECTION RAISED BY THE REVENUE IN ITS APPEAL THAT THE AREA OF THE PLOT OF LAND WAS UNDER ONE ACRE HE SUPPORTED THE ASSESSMENT ORDER. 5 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE. FIRST OF ALL WE REPRODUCE THE RELEVANT PARAS OF THE TRIBUNAL ORDER FOR ASSESSMENT YEAR 200 6 - 07 (SUPRA). THESE PARAS ARE PARA NO. 16 TO 21 AND THE SAME ARE REPRODUCED FROM PAGE NO. 134 TO 139 OF THE PAPER BOOK: 16. THEREFORE WHATEVER FINDINGS ARE GIVEN BY THE TRIBUNAL IN ASSESSMENT YEARS 2005 - 06 AND 2007 - 08 WITH REGARD TO THE COMPLETION OF PROJECT IT WAS IN THE ABSE NCE OF ANY DOCUMENTARY EVIDENCE RATHER IT WAS ON ASSUMPTION OF CERTAIN FACTS BY THE TRIBUNAL. BUT IN THE INSTANT CASE BEFORE THE LD. CIT(A) COMPLETION CERTIFICATE WAS FILED FOR THE FIRST TIME AND THE LD. CIT(A) TOOK COGNIZANCE THEREOF AND GIVEN A SPECIF IC FINDING IN THE LIGHT OF EXPLANATION BELOW SECTION 80IB(10)(A) OF THE ACT THAT DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT SHALL BE TAKEN TO BE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL A UTHORITY I.E. LDA. THE LD. CIT(A) HAS ALSO GIVEN A FINDING THAT THE COMPLETION CERTIFICATE WAS SOUGHT THE ASSESSEE IN THE NAME OF SHRI KARUNA SHANKER DUBEY WHO WAS EXPIRED LONG BACK AND THE CERTIFICATE WAS ALSO ISSUED IN HIS NAME. THEREFORE THE CERTIFI CATE HAS NO EVIDENTIAL VALUE AND CANNOT BE RELIED UPON FOR THE PURPOSE OF DETERMINING THE DATE OF COMPLETION OF THE HOUSING PROJECT. IN THE LIGHT OF THESE FACTS THE ISSUE WITH REGARD TO THE DATE OF COMPLETION OF THE HOUSING PROJECT REQUIRES A FRESH ADJUD ICATION BY THE TRIBUNAL WITHOUT BEING INFLUENCED BY THE EARLIER ORDERS OF THE TRIBUNAL AS THOSE ORDERS CAN BE CALLED TO BE AN ORDER PER INCURIAM. 17. WE HAVE ALSO EXAMINED VARIOUS JUDGMENTS REFERRED TO BY THE ASSESSEE ON THE POINT OF RULE OF CONSISTENCY AND WE FIND THAT IN ALL THOSE JUDGMENTS IT HAS BEEN REPEATEDLY HELD THAT THE PRINCIPLE OF RES JUDICATA ARE NOT APPLICABLE IN THE INCOME - TAX PROCEEDINGS AND EVERY ASSESSMENT YEAR IS INDEPENDENT ASSESSMENT YEAR BUT THE RULE OF CONSISTENCY SHOULD BE FOLLOWED IF A PARTICULAR VIEW IS TAKEN BY THE TRIBUNAL IN A PARTICULAR YEAR WITH RESPECT TO CERTAIN FACTS THE SAME VIEW SHOULD BE FOLLOWED IN SUCCEEDING YEARS UNLESS AND UNTIL THE FACTS ARE CHANGED. IN THE INSTANT CASE THE EARLIER VIEW OF THE TRIBUNAL IS BASED ON ASSUMPTION OF FACTS WHEREAS IN THE INSTANT 6 ASSESSMENT YEAR THE RELEVANT FACTS ARE PLACED BEFORE THE TRIBUNAL. THEREFORE THE TRIBUNAL IS NOT SUPPOSED TO FOLLOW ITS ORDERS OF EARLIER YEARS. IF CERTAIN RELEVANT FACTS ARE PLACED ON RECORD THE ISSUE RE QUIRES A PROPER ADJUDICATION IN THE LIGHT OF THE RELEVANT PROVISIONS OF THE ACT. 18. WITH REGARD TO THE DATE OF COMPLETION EXPLANATION WAS PROVIDED BELOW SECTION 80IB(10)(A) OF THE ACT. ACCORDING TO THIS EXPLANATION THE DATE OF COMPLETION OF CONSTRUCTI ON OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. IN THE INSTANT CASE UNDISPUTEDLY COMPLETION CERTIFICATE WAS ISSUED BY THE LOCAL AUTHORITY THOUGH IN THE NAME OF A DEAD PERSON ON 23.10.2009. FOR CLAIMING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT THE HOUSING PROJECT SHOULD HAVE BEEN COMPLETED BEFORE 31.3.2008 AS PER PROVISIONS OF SECTION 80IB(10)(A)(I) OF THE ACT. THE RELEVANT CLAUSE 80IB(10) AND EXPLANATION ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: - [(10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED 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 (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 31 ST DAY OF MARCH 2008; (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 [BUT NOT LATER THAN THE 31 ST DAY OF MARCH 2005] WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY; (III) IN A CASE WHERE A HO USING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1 ST DAY OF APRIL 2005 WITHIN FIVE YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY.] 7 EXPLANATION. FOR THE PURPOSES OF THIS CLAU SE (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 WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUT HORITY; (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; 19. FOR CLAIMING DEDUCTION UNDER SECTION 80I B(10) OF THE ACT THE ASSESSEE IS REQUIRED TO FULFILL BASIC REQUISITE CONDITIONS THAT THE HOUSING PROJECT SHOULD HAVE BEEN APPROVED BEFORE 1 ST APRIL 2004 AND SHOULD HAVE BEEN COMPLETED BEFORE 31.3.2008. IF ANY OF THE CONDITION IS NOT FULFILLED THE ASSESS EE WOULD NOT BE ENTITLED FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. WITH RESPECT TO THE APPROVAL OF THE HOUSING PROJECT THERE IS NO DISPUTE AND ADMITTEDLY IT WAS GRANTED BEFORE 1 ST APRIL 2004 BY THE LOCAL AUTHORITY BUT WITH REGARD TO THE DATE OF COMPLETION OF THE PROJECT AS PER PROVISIONS OF SECTION 80IB(10) OF THE ACT AND ITS EXPLANATION IT WAS TO BE COMPLETED BEFORE 31.3.2008 BUT THE SAME WAS IN FACT COMPLETED ONLY ON 23.10.2009. 20. DURING THE COURSE OF HEARING OUR ATTENTION AS INVITED TO THE APPLICATIONS DATED 14.3.2008 AND 27.3.2008 APPEARING AT PAGES 23 AND 25 OF THE COMPILATION OF THE ASSESSEE WITH THE SUBMISSION THAT ON 14.3.2008 AN APPLICATION WAS FILED FOR SEEKING PERMISSION FOR COMPOUNDING WITH REGARD TO THE ADDITIONAL CONSTRUCTION AND ON THIS APPLICATION THE ASSESSEE WAS ASKED TO DEPOSIT ` 75 000 BY THE LDA. THERE IS ONE MORE LETTER OF THE LDA ON THE SAME DATE AVAILABLE AT PAGE NO.24 OF THE COMPILATION OF THE ASSESSEE FROM WHICH IT IS EVIDENT THAT SOME MAP APPROVAL OF DESIGN WAS RECEIVED AND THROUGH THIS LETTER IT WAS INFORMED TO THE ASSESSEE THAT THE ASSESSEE HAS TO CONTACT THE COMPETENT AUTHORITY ON 4.4.2008 FOR RECEIVING THE OBJECTIONS UNDER SECTION 15(3) IF ANY. THEREAFTER ANOTHER APPLICATION DATED 27.3.2008 WHICH IS AVAIL ABLE AT PAGE 25 OF THE COMPILATION OF THE ASSESSEE WAS SUBMITTED TO THE LDA. THIS APPLICATION WAS ALSO FILED ON BEHALF OF A DEAD PERSON. ON PERUSAL OF THIS APPLICATION IT APPEARS THAT THROUGH THIS 8 APPLICATION COMPLETION CERTIFICATE WAS SOUGHT. THEREA FTER COMPLETION CERTIFICATE WAS GRANTED TO SHRI KARUNA SHANKER DUBEY A DEAD PERSON WHICH IS APPEARING AT PAGE 26 OF THE COMPILATION OF THE ASSESSEE. IN THIS CERTIFICATE A REFERENCE WAS MADE TO A PERMIT NO.24939 DATED 6.11.2008. THOUGH THIS LETTER MAY BE ISSUED TO A DEAD PERSON BUT IT HAS ITS OWN EVIDENTIARY VALUE WITH REGARD TO THE COMPLETION OF THE PROJECT. IN THIS CERTIFICATE A REFERENCE WAS MADE TO A PERMIT NO.24939 DATED 6.11.2008 MEANING THEREBY THE PROCESS OF COMPLETION OF THE PROJECT WA S NOT FINALIZED TILL 6.11.2008 AND SOME PERMIT NUMBER WAS ISSUED. FROM A CAREFUL PERUSAL OF THIS COMPLETION CERTIFICATE NO INFERENCE CAN BE DRAWN FROM ANYWHERE THAT THE PROJECT WAS COMPLETED BEFORE 31.3.2008. 21. WHERE THERE IS NO AMBIGUITY IN THE RELEV ANT PROVISIONS OF THE INCOME - TAX ACT THERE CANNOT BE ANY QUESTION OF ITS CONSTRUCTION LIBERALLY. IN SECTION 80IB(10) OF THE ACT IT HAS BEEN MADE EMPHATICALLY CLEAR THAT IF THE HOUSING PROJECT IS APPROVED BEFORE 1 ST APRIL 2004 AND IS COMPLETED BEFORE 31 .3.2008 THE ASSESSEE WOULD BE ENTITLED FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND THROUGH ITS EXPLANATION (I) IT HAS BEEN MADE CLEAR THAT THE DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT SHALL BE TAKEN TO BE DATE ON WHICH COMPLETION CERT IFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. THEREFORE THERE IS NO IOTA OF DOUBT IN THE INTERPRETATION OF EXPLANATION BELOW SECTION 80IB(10) OF THE ACT AND ACCORDING TO THE SAID EXPLANATION THE DATE OF COMPLETION OF THE P ROJECT IN THE INSTANT CASE SHALL BE TAKEN TO BE THE DATE OF ISSUANCE OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY I.E. 23.10.2009. SINCE THE HOUSING PROJECT WAS COMPLETED AFTER 31.3.2008 THE ASSESSEE HAS NOT FULFILLED THE SECOND REQUISITE CONDITION F OR CLAIMING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND THEREFORE THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 6.1 FROM THE ABOVE PARAS OF THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07 WE FIND THAT EVEN AFTER CONSIDERING THE EARLIER TWO TRIBUNAL ORDERS IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005 - 06 AND 2007 - 08 IT WAS HELD BY THE TRIBUNAL THAT THESE TRIBUNAL ORDERS ARE DISTINGUISHABLE AND THEREFORE CANNOT BE FOLLOWED AND THEREAFTER THE TR IBUNAL HAS DECIDED THE ISSUE AGAINST THE ASSESSEE AFTER EXAMINING THE FACTUAL 9 POSITION AND ALL THE JUDGMENTS AVAILABLE UPTO THAT TIME. HENCE IN THE PRESENT CASE THE ISSUE REGARDING ALLOWABILITY OF DEDUCTION TO THE ASSESSEE U/S 80IB(10) IS COVERED AGAINS T THE ASSESSEE BY THIS TRIBUNAL ORDER RENDERED IN ASSESSEES OWN CASE. HOWEVER WE FEEL IT PROPER THAT WE SHOULD EXAMINE THE APPLICABILITY OF HON'BLE GUJARAT HIGH COURT AND HON'BLE DELHI HIGH COURT JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE. 6.2 FI RST OF ALL WE EXAMINE THE APPLICABILITY OF HON'BLE GUJARAT HIGH COURT JUDGMENT RENDERED IN THE CASE OF CIT VS. TARNETAR CORPORATION (SUPRA). IN THAT CASE IT IS OBSERVED BY HON'BLE GUJARAT HIGH COURT THAT THE ASSESSEE HAS APPLIED FOR A COMPLETION CERTIFI CATE ON 15/02/2006 WHICH WAS REJECTED ON 01/07/2006. ON THE BASIS OF THESE FACTS IT IS OBSERVED BY HON'BLE HIGH COURT THAT SUCH PERMISSION WAS NOT REJECTED ON THE GROUND THAT THE CONSTRUCTION WAS NOT COMPLETED BUT IT WAS REJECTED ON SOME OTHER TECHNICAL GROUND. THEREAFTER IT WAS HELD THAT IN THIS VIEW OF THE MATTER GRANTING BENEFIT OF DEDUCTION CANNOT BE HELD TO BE ILLEGAL. IN THE PRESENT CASE THE FACTS ARE DIFFERENT. IN THE PRESENT CASE IT IS THE CLAIM OF THE ASSESSEE THAT APPLICATION FOR B.U. WAS MADE BY THE ASSESSEE PRIOR TO 31/03/2008 AS PER THE COPY OF APPLICATION AVAILABLE ON PAGE NO. 108 OF THE PAPER BOOK. BUT W E FIND THAT A RECEIPT IS AVAILABLE ON PAGE NO. 109 OF THE PAPER BOOK IN WHICH IT IS STATED THAT RECEIVED A PROPOSAL DESIGN OF PLOT/HOUSE NO. 15 J RD UNDER NONSCHEME - MAP APPROVALS SCHEME/AREA FROM MR KARUNA SHANKAR DUBEY FOR RESIDENTIAL PURPOSE ALONG WITH ENCLOSURES. THERE IS A NOTE ON THIS PAGE NO. 109 THAT MR. KARUNA SHANKAR DUBEY HAS TO CONTACT THE COMPETENT AUTHORITY (BHAWAN SECTION) ON 04/04/2008 BETWEEN 12 TO 2 P.M. FOR RECEIVING OBJECTIONS U/S 15(3) IF ANY OR FURTHER INFORMATION IN THIS REGARD FAILING WHICH THIS APPLICATION MAY GET REJECTED. HE ALSO SPECIFIED THAT IN CASE THE APPLICATION IS FOUND TO BE FIT FOR CONSTRUC TION THE ASSESSEE WILL BE REQUIRED TO DEPOSIT MALBA CHARGES WATER CHARGES ETC. BY A SPECIFIED DATE WHICH WILL BE PRIOR TO 08/04/2008. THESE NOTINGS ON PAGE NO. 109 GOES TO SHOW THAT THIS 10 APPLICATION SUBMITTED BY THE ASSESSEE ON 14/03/2008 IS NOT FOR B.U ./ COMPLETION CERTIFICATE BUT IT IS FOR APPROVAL OF THE MAP FOR CONSTRUCTION OF RESIDENTIAL PROPERTY. THE B.U. WAS ISSUED BY THE AUTHORITY ON 23/10/2009 AS PER THE COPY OF THE SAME AVAILABLE ON PAGE NO. 110 OF THE PAPER BOOK. IN THIS CERTIFICATE DATED 23 /10/2009 THERE IS NO MENTION OF THIS APPLICATION DATED 14/03/2008. IN FACT THERE IS MENTION OF PERMISSION NO. 24939 DATED 06/11/2008. MOREOVER IT IS NOT THE CASE OF THE ASSESSEE IN THE PRESENT CASE THAT THE APPLICATION WAS REJECTED BY THE AUTHORITIES PRIOR TO 31/03/2008 ON A DIFFERENT BASIS AS IN THE CASE OF CIT VS. TARNETAR CORPORATION (SUPRA). THEREFORE IN THE FACTS OF THE PRESENT CASE THIS JUDGMENT OF HON'BLE GUJARAT HIGH COURT IS NOT RENDERING ANY HELP TO THE ASSESSEE. 6.3 NOW WE EXAMINE THE AP PLICABILITY OF JUDGMENT OF HON'BLE DELHI HIGH COURT CITED BY LEARNED A.R. OF THE ASSESSEE. AS PER PARA 10 OF THIS JUDGMENT WE FIND THAT IT IS NOTED THAT APPROVAL FOR THE PROJECT WAS GIVEN BY MATHURA & BRINDAVAN DEVELOPMENT AUTHORITY ON 16/03/2005 WHEREAS IN THE PRESENT CASE THE APPROVAL WAS GIVEN BY THE COMPETENT AUTHORITY PRIOR TO 01/04/2004. FOR THE PROJECTS APPROVED PRIOR TO 01/04/2004 SUB CLAUSE (1) OF CLAUSE (A) OF CLAUSE (10) OF SECTION 80IB IS APPLICABLE WHEREAS FOR PROJECTS APPROVED DURING 01/04 /2004 TO 31/03/2005 SUB CLAUSE (II) OF CLAUSE (A) OF SUB CLAUSE 10 OF SECTION 80IB IS APPLICABLE. IN THE SAME PARA I.E. PARA 10 HON'BLE DELHI HIGH COURT HAS REFERRED TO TWO JUDGMENTS OF HON'BLE GUJARAT HIGH COURT AND HON'BLE KARNATAKA HIGH COURT. THE J UDGMENT OF HON'BLE GUJARAT HIGH COURT REFERRED TO BY HON'BLE DELHI HIGH COURT IS THE JUDGMENT RENDERED IN THE CASE OF MANAN CORPORATION 29 TAXMAN 15. IN THAT CASE THE ISSUE IN DISPUTE BEFORE HON'BLE GUJARAT HIGH COURT WAS REGARDING RESTRICTION OF COMMER CIAL CONSTRUCTION TO THE EXTENT OF 3% OF THE TOTAL BUILT UP AREA OR 5 000 SQ. FT. WHICHEVER IS HIGHER. IN RESPECT OF THIS RESTRICTION IT WAS HELD THAT THE SAME HAS TO BE APPLIED PROSPECTIVELY AND NOT RETROSPECTIVELY. IN THIS REGARD WE WOULD LIKE TO OB SERVE THAT THIS RESTRICTION REGARDING CONSTRUCTION OF 11 COMMERCIAL PROPERTY IS AS PER CLAUSE NO. (D) OF SECTION 80IB WHERE THERE IS NO REFERENCE MADE TO THE PROJECTS APPROVED PRIOR TO 01/04/2005 BUT IN CLAUSE (A) OF SUB SECTION (10) OF SECTION 80IB THERE AR E TWO SPECIFIC CLAUSES ONE FOR PROJECTS APPROVED PRIOR TO 01.04.2004 AND THE OTHER FOR PROJECTS APPROVED BETWEEN 01.04.2004 TO 31.03.2005 . HENCE THIS JUDGMENT OF HONBLE GUJARAT HIGH COURT IS NOT APPLICABLE IN THE PRESENT CASE. THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT REFERRED TO BY HON'BLE DELHI HIGH COURT IS THE JUDGMENT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE V S . ANRIYA PROJECT MANAGEMENT SERVICES (P.) LTD. [2012] 209 TAXMAN 0001. IN THIS CASE ALSO THE DISPUTE BEFORE THE HON'BLE COURT WAS REGARDING CALCULATING THE AREA OF RESIDENTIAL UNIT I.E. 1 500 SQ. FT. AND NOT REGARDING THE COMPLETION OF THE PROJECT BEFORE 31/03/2008 OR WITHIN FOUR YEARS FROM THE END OF THE YEAR OF APPROVAL AS PER CLAUSE (A) OF SECTION 80IB(10). HENCE BOTH THESE JUDGMENT S ARE NOT APPLICABLE WHICH ARE REGARDING CLAUSE (A) OF SECTION 80IB(10) OF THE ACT. MOREOVER WE HAVE SEEN THAT IN THE PRESENT CASE AS PER PAGE NO. 108 AND 109 OF THE PAPER BOOK THE ASSESSEE COULD NOT ESTABL ISH THAT IT HAS MADE APPLICATION TO THE CONCERNED AUTHORITY FOR COMPLETION OF PROJECT ON 14/03/2008. IN FACT WE HAVE NOTED THAT AS PER THE DOCUMENTS AVAILABLE ON PAGE NO. 109 IT APPEARS THAT THIS APPLICATION DATED 14/03/2008 WAS IN RESPECT OF CONSTRUCTI ON OF PROJECT TO BE DONE AND NOT FOR ANY COMPLETED PROJECT. HENCE IN THE FACTS OF THE PRESENT CASE EVEN THIS JUDGMENT OF HON'BLE DELHI HIGH COURT IS NOT RENDERING ANY HELP TO THE ASSESSEE. WE THEREFORE DECIDE THIS ISSUE AGAINST THE ASSESSEE BY FOLLOW ING THE EARLIER TRIBUNAL DECISION IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07. IN THE RESULT THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. 7. REGARDING THE REVENUES APPEAL IN RESPECT OF THE AREA OF THE LAND BEING ONE ACRE OR NOT WE FIND THA T EVEN AS PER LETTER DATED 17/01/2013 IT IS STATED BY THE ASSESSING OFFICER THAT ON THIS ISSUE THE TRIBUNAL DECISION DATED 08/04/2010 IS IN FAVOUR OF THE ASSESSEE BUT SINCE THE DEPARTMENT HAS NOT 12 ACCEPTED THIS TRIBUNAL ORDER AND FILED AN APPEAL BEFORE HO N'BLE HIGH COURT THIS GROUND HAS BEEN RAISED BY THE REVENUE. SINCE THE ISSUE INVOLVED IN THE REVENUES APPEAL IS COVERED AGAINST THE REVENUE W E DECLINE TO INTERFERE IN THE ORDER OF LEARNED CIT(A) ON THIS ASPECT. IN THE RESULT THE APPEAL OF THE REVENU E IS DISMISSED. 8. IN THE COMBINED RESULT THE CROSS OBJECTION AND THE APPEAL OF THE REVENUE ARE DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 / 04/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR ITAT LUCKNOW