TMI Blog2017 (4) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... n as mandatory” in case the same stands substantially complied with. We are of the opinion in this factual and legal backdrop that we have to necessarily follow hon’ble jurisdictional high court’s decision even if the Revenue finds strong support of any hon’ble non jurisdictional high court deciding the very issue against the assessee. We follow our detailed discussion on the issue of completion of assessee’s residential projects in all the remaining for assessment years involving Revenue’s as many appeals and assessee’s cross objections hereinabove. We thus find no reason to reverse ld. CIT(A)’s identical conclusion extracted in preceding paragraphs holding the assessee to have completed the residential projects before 31.03.2008 and 31.03.2009; as the case may be (supra). The Revenue’s appeal fail. - ITA No. 1787/Ahd/2011, IT(SS)A Nos. 122 to 124 & 127/Ahd/2013, C.O. Nos. 118 to 120 & 123/Ahd/2013 - - - Dated:- 31-3-2017 - Shri S. S. Godara, Judicial Member And Shri Amarjit Singh, Accountant Member By Assessee : Shri Sakar Sharma, A.R. By Revenue : Shri R. I. Patel, CIT. D.R. with Shri Deepak Sutaria, Sr. D.R. ORDER Per S. S. Godara, Judicial Member Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Officer on the ground that the assessee had not completed the residential projects in question before the stipulated dates envisaged in the amended statutory provision w.e.f. 01.04.2005 as prescribed in Section 80IB(10) (a)(ii) r.w. Explanation (ii). The assessee s as many cross objections CO Nos. 118 to 120 123/Ahd/2013 thereto on the other hand raise the following identical substantive grounds. 1. The Ld. CIT (A) erred on facts and in law in not appreciating that the no disallowance/ addition u/s 80IB (10) was called for as nothing incriminating against the assessee was found in the course of search u/s 132. 2. The Ld. CIT (A) erred on facts and in law in not appreciating that the Assessing Officer himself opted not to make assessment disallowance after issuing notices u/s 148 153C for the reason of not obtaining of project completion certificate by the assessee on or before 31.03.2008. 3. The Ld. CIT (A) erred on facts and in law in not appreciating that the projects were found completed in the course of survey conducted u/s 133A on 26/05/2008 to verify correctness of claim u/s 80IB (10) by Survey Officials who physically visited the respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act amounting to ₹ 2.79crores in question. The Assessing Officer disallowed the same in assessment order dated 31.12.2007 placing heavy reliance on his findings pertaining to the very issue in the preceding three assessment years. He concluded that the assessee s explanation of having succeeded in tribunal in the said assessment years could not be accepted since the Revenue had preferred appeal before the hon ble jurisdictional high court. The Assessing Officer thus reiterated his twin reasoning that the assessee was neither owner of the land nor did it develop the projects in question itself. 6. The CIT(A) affirms Assessing Officer s findings in his lower appellate order as under: 5.3 I have considered the fats of the case, assessment order and appellant s submission. Appellant claimed deduction under section 80IB(10) in respect of housing projects, however appellant is not eligible for this deduction in view of the following reasons- 1- The societies which are the owners of land were owning the housing project. Appellant was appointed as contractor to carry out construction work and other related activities. 2- Appellant was paid remuneration for the acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Shakti Corporation and others. The earlier decision in the case of Radhe developers is not applicable in the case of appellant in view of the facts discussed earlier. Accordingly the claim of deduction on all projects made by the appellant is not correct and therefore the disallowance made by the assessing officer is confirmed. 7. We have heard both the parties. It is evident that the assessee s deduction claim raised in the impugned assessment year pertaining to the above three projects is very much identical to that claimed in assessment years 2002-03 to 2004-05 (supra). Page 178 of the paper book contains learned CIT(A) s order for assessment year 2002-03 dated 25.07.2005 as followed in the said succeeding two assessment years deleting the very disallowance as made by the Assessing Officer by adopting the abovestated reasoning. The sole exception however is regarding reason no.6 that the assessee had not fulfilled the vital condition of having completed the projects in question before 31.03.2008 as noticed by the Assessing Officer in the course of survey. The Revenue then appears to have filed ITA Nos. 2281/Ahd/2005, ITA No.1448/Ahd/2006 ITA No.148/Ahd/2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amended provision already held to be having prospective effect in hon ble jurisdictional high court s decision in Manan Corporation s case vs. CIT 356 ITR 44 (Guj.), CIT vs. G R Developers 22 taxmann.com 265 (Karnataka), CIT vs. Veena Developers 277 CTR 297 (SC), CIT vs. CHD Developers Ltd. 362 ITR 177 (Delhi) and CIT vs. Jain Housing Construction Co. 256 CTR 408 (Madras), CIT vs. Happy Home Enterprise 372 ITR 1 (Bombay) as approved in hon ble apex court s decision in Sarkar Builders 375 ITR 392 as well as a tribunal s decision in Shri Venkatesh Developers ITA Nos. 857 to 860/PN/2012/2012 dated 15.01.2016 and the last decision of hon ble jurisdictional high court s decision in CIT vs. Tarnetar Corporation 362 ITR 174 (Guj). We then sought to know about completion state of the projects in question. Shri Sharma invited our attention to the CIT(A) s order in all these cases forming subject matter of Revenue s four appeals that the assessee has very much completed the projects in question before the said stipulated dates in view of its Auditor s reports in Form No.10CCB containing necessary certificates to this effect as forming part of the case file. He then informs us that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Gujarat High Court in the case of Radhe Developers reported in 341 ITR 403 (Guj). In that case also the appellant was a party before the High Court. The Department did not accept the decision of the Gujarat High Court and filed a Special Leave petition before The Supreme Court. The SLP of the Department before the Hon'ble Supreme Court has been dismissed by order dtd 07/12/2012 in SLP(Civil) CC No 21333 of 2012 in the case of the appellant. 6.2 It is also seen that the Assessing Officer had carried out survey u/s 133A on 26/05/2008 to verify correctness of claim u/s 80-ffi (10). On physical inspection during the survey, the project was found to be completed but it-was observed by the Survey Officials that the appellant had not obtained completion certificates in respect of Nisarg and Vibhusha housing Projects which as per the opinion of the Assessing Officer was required to be obtained on or before 31.03.2008. It is also seen that notices u/s 147 were issued only in respect Nisarg and Vibhusha Housing Projects and no adverse view was taken after survey in respect of India Colony Project. It is also seen that reopened proceedings for A.Y. 2002-03 were dropped and no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s report in Form No 10CCB certifying that the project was completed before 31.03.2008, In support of the fact that the project was completed before 31.03.2008, the appellant had also furnished copies of the sale deeds of the flats sold, tax assessment/electricity bills etc in the names of the purchasers. 6.7 In the present case since project was initiated before 1.4.2005, as discussed above, the law had not mandated that project completion certificates be obtained for the purpose of claiming deduction u/s 80IB (10) of the Act prior to the amendment with effect from 1.4.2005. Even if it is held that since the project was completed after the amended provisions came into force, still deduction cannot be denied to the appellant because authorities themselves were not issuing completion certificates as confirmed in inquiries u/s 133(6) of the Act. In such a situation, the appellant cannot be blamed for not complying with one of the condition specified in section 80-IB (10) of the Act. In such circumstances the law does not compel one to do that which one cannot I possibly perform. It means that where the law creates a duty but the party on whom the duty is cast is disabled from pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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