TMI Blog2017 (1) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... d benefit of Section 80IB(10) of the Act to the assessee so that the intended purposes of beneficial provisions can be fully achieved. The Courts shall not adopt to the principles of contemporance expositio when the plain language of the statute is clear and unambiguous. Considering the factual matrix we are of the view that the proviso introduced by Finance Act , 2004 clearly grant relief to slum redevelopment or reconstruction projects which are approved by Central Government or State Government and the scheme is notified by the Board. The Board Notification clearly stipulate that benefit shall be granted to the projects approved by a local authority under the aforesaid scheme on or after the 1st day of April, 2004, and before 31st day of March, 2008, while in the case of the assessee the projects are approved prior to 1st day of April 2004 as set out above in preceding para’s, and the assessee is not able to establish its entitlement to deduction u/s 80IB(10) of the Act at the first stage itself for reason cited above. Thus, the contention of the assessee cannot be accepted and hence are rejected. - Decided against assessee - ITA Nos.4389 & 4390/Mum/2014 - - - Dated:- 9-12- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,487/- under section 80IB(10), being the income from approved housing project. The ld. Assessing Officer rejected the claim of the assessee on the ground that the assessee has not been notified by CBDT. The ld. Assessing Officer assessed the income under section 143(3) of the Act determining the total income at ₹ 28,69,487/-, rejecting the claimed deduction, vide assessment order dated 30/10/2008. 2.3. On appeal before the Ld. Commissioner of Income Tax (Appeals), the stand taken in the assessment order was affirmed. Before the Ld. Commissioner of Income Tax (Appeals) this stand of the assessee was that the conditions stipulated under section 80IB(10) has been satisfied by the assessee, therefore, eligible for deduction. 2.4. Aggrieved by the order of the Ld. Commissioner of Income Tax (Appeals) the assessee preferred appeal before the Tribunal, wherein the assessee produced CBDT notification dated 03/08/2010, accordingly the Tribunal vide order dated 14/10/2011 (ITA NO. 3090/MUM/2010), set aside the order of the Ld. Commissioner of Income Tax (Appeals) and restored the matter to the file of the Assessing Officer to decide the claim of the assessee, afresh made under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project is approved by the local authority; (iii) in a case where a housing project has been approved by the local authority on or after the 1st 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. Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on 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 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 Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 (page No. 9 to 14 of the paper book) considered the proposal of the assessee and principally approved the same with certain conditions as enumerated therein. Commencement Certificate for building No. C-2 was issued to the assessee on 29/06/2002 (page No. 19 of the paper book) subject to condition enumerated in communication dated 10/07/1998 (supra). Full occupation certificate for Rehabilitation of building No.A was issued to the assessee on 27/01/2001. Full occupancy certificate for building No. C-1 was issued on 02/06/2003 and for building No.B was issued on 27/04/2004. Full occupation permission for sale of building No.C-2 was issued on 17/01/2008 (No.SRA/Eng/ 731/HE/PL/AP/OCC). 2.9 Under the aforementioned facts, now we shall deal with the legal position and objections raised in the impugned order. One of the objections raised by the Ld. Commissioner of Income Tax (Appeals) is that the plot of land on which rehabilitation was done by the assessee is less than one acre. The stand of the Department is that minimum one acre land is required for getting the benefit of deduction. However, we note that as per amendment by the Finance Act (No.2) 2004, w.e.f. 01/04/2005, a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause ( d ) seeks to substitute sub-section (10) of the said section so as to provide, inter alia , a hundred per cent, deduction of the profits derived by an undertaking developing and building housing projects approved by a local authority before 31st March, 2007 instead of 31st March, 2005 under the existing provisions, subject to the conditions that ( a ) such undertaking has commenced or commences development and construction of the housing project on or after 1st October, 1998 and completes the construction within four years, from the end of the financial year in which the housing project is approved by the local authority; ( b ) the project is on the size of a plot of land which has a minimum area of one acre except in the case of 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, and such scheme is notified by the Board in this behalf; ( c ) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and it further provides that such a scheme should be notified by the Board in this behalf. Thus, an exception has been carved out by the 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 Development Control Regulation for Greater Mumbai has been notified by CBDT Notification no.67, dated 3rd August 2010. This notification was further clarified by the CBDT in Notification no.2 of 2011 dated 5th January 2011, wherein it was provided that:- In the notification of the Govt of India in the Ministry of Finance, Department of Revenue, (Central Board of Direct Taxes) number S.O. 1898(E), dated the 3rd August, 2010 (2010) 233 CTR (ST.) 56 2010) 43 DTR (St.) 8] published in the Gazette of India, Extraordinary, Part II, section 3, sub section (ii), dated the 3rd 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 1st day of April, 2004, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural construction of its words . (Ref : Re,Micklethwait, (1885) 11 Ex 452, p. 456; referred to in Tenant v. Smith, (1892) AC 150, p. 154 (HL) (LORD HALSBURY); St. Aubyn v. A.G., (1951) 2 All ER 473, p. 485: 1952 AC 15 (HL) (LORD SIMONDS); Member Secretary, Andhra Pradesh State Board for Prevention and Control of Water Pollution v. Andhra Pradesh Rayons Ltd., AIR 1989 se 611, p. 614 : (1989) 1 SCC 44; Saraswati Sugar Mills v. Haryana State Board, AIR 1992 se 224, p. 228 : 1992 (1) see 418.) . In a classic passage LORD CAIRNS stated the principle thus: If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable, construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute . (Ref: Partington v. A.G., (1869) LR 4 HL 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 : 1990 (2) SCC 71; Sutlej Cotton Mills Ltd. v. Commissioner of Incometax, West Bengal, AIR 1991 SC 218, p. 220 : (1992) Supp (1) SCC 50; Saraswati Sugar Mills v, Haryana State Board, AIR 1992 SC 224, p. 228 : 1992 (1) SCC 418; Oswal Agro Mills Ltd v. Collector of Central Excise, AIR 1993 SC 2288, p. 2291 : 1993 Supp. 3 SCC 716; Calcutta Jute Manufacturing Co. v, Commercial Tax Officer, AIR 1997 SC 2920, p. 2923 : (1997) 6 SCC 262; Orissa State Warehousing Corporation v, CIT: JT 1999 (2) SC 527, p. 539 : AIR 1999 SC 1388, p. 1397 : (1999) 4 SCC 197; The Federation of Andhra Pradesh Chamber of Commerce and Industry v, State of Andhra Pradesh, AIR 2000 SC 2905, p. 2906 : (2000) 6 SCC 550; Commissioner of Central Excise v. Kisan Sahkari Chinni Mills Lid., AIR 2001 SC 3379, p. 3380 : (2001) 6 SCC 697; Union of India v, Azadi Bachao Andolan, AIR 2004 SC 1107, p. 1137 : 2003 Supp (2) JT 205. Relying upon this passage LORD UPJOHN said: fiscal measures are not built upon any theory of taxation. (Ref: Commr. of Customs v. Top Ten Promotions, (1969) 3 All ER 39, p. 90 (HL).) The above passage stating the principle of strict construction of taxing statutes was quoted with approval in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... golden and straight metwand of the law'. (Ref: IRC v. Duke of Westminster, supra, referred to in Pott's Executors v. IRC, supra, p. 80 (LORD NORMAND); CIT, Gujarat v. B.M. Kharwar, AIR 1969 SC 812 : (1969) 1 SCR 651; J.K. Steel Ltd. v. Union of India, supra, p. 1192; CIT, Calcutta v. G. Arbuthnot Co., AIR 1973 SC 989, p. 995 : (1973) 5 SCC Tax 359 : (1973) 3 SCC 845; Commrs. of Customs v. Top Ten Promotions, (1969) 3 All ER 39, p. 90 (HL); Ransom (Inspector of Taxes) v. Higgs, (1974) 3 All ER 949, p. 970 (HL). See further Hansraj and Sons v. State of Jammu Kashmir, AIR 2002 SC 2692, pp. 2698, 2699 : (2002) 6 SCC 227; Commissioner of Central Excise Pondicherry v. ACER India Ltd., (2004) 8 SCC 173, p. 184 : (2004) 8 JT 53). In the same case LORD WRlGHT pointed out that the true nature of the legal obligation arising out of a genuine transaction and nothing else is the substance . (Ref: IRC v. Duke of Westminster, supra) . The above principle which is known as Duke of Westminster principle is subject to the new approach of the courts towards tax evasion schemes consisting of a series of transactions or a composite transaction. In interpreting a section in a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taxed unless the words of the taxing statute unambiguously impose the tax on him. (Ref: Russel v. Scott, (1948) 2 All ER 1, p. 5 (HL), (LORD SIMONDS); Mathuram Agrawal v. State of Madhya Pradesh, JT 1999 (8) SC 505, p. 512: AIR 2000 SC 109, pp. 113, 114: (1999) 8 SCC 667 .) The proper course in construing revenue Acts is to give a fair and reasonable construction to their language without leaning to one side or the other but keeping in mind that no tax can be imposed without words clearly showing an intention to lay the burden and that equitable construction of the words is not permissible. (Ref: Ormond Investment Co. v. Betts, (1928) AC 143 : (1928) All ER Rep 709, p. 719 (HL) (LORD ATKINSON).) Considerations of hardship, injustice or anomalies do not play any useful role in construing taxing statutes unless there be some real ambiguity. (Ref: Mapp v. Oram, (1969) 3 All ER 215, pp. 222, 223 (HL); State Bank of Travancore v. Commissioner of Income-tax, (1986) 2 SCC 11, p. 68: AIR 1986 SC 757.) It has also been said that if taxing provision is so wanting in clarity that no meaning is reasonably clear, the courts will be unable to regard it as of any effect. .(Ref: I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt, the appellant claimed these deductions in its income tax returns and it was even allowed these deductions by the Income Tax Authorities. Further, no doubt, on this premise, it shared the profits with the Government as well. However, this conduct of the appellant or even the respondents, was outside the scope of the contract and that by itself may not give any right to the appellant to claim a relief in the nature of Mandamus to direct the Government to incorporate such a clause in the contract, in the face of the specific provisions in the contract to the contrary as noted above, particularly, Article 32 thereof. It was purely a contractual matter with no element of public law involved thereunder. 72. Having considered the matter in the aforesaid prospective, we come to the irresistible conclusion that the appellant is not entitled to the relief claimed. Though it may be somewhat harsh on the appellant when it availed the benefit of Section 42 for few years and acted on the understanding that such a benefit would be given to it, but we have no option but to hold that PSCs did not provide for this benefit to be given to the appellant and the contract can be amended only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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