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TMI Blog2014 (4) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... not a single plot having a minimum area of one acre. 2. Appellant craves leave 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 grossly 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 Development Authority the designated authority under U.P. Urban (Planning & Development) Act 1973; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available on page Nos. 113 to 141 of the paper book, he submitted that it is noted by the Tribunal in this order also that as per the Tribunal decision in assessee's 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 by 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 order for assessment year 2006-07, the other two Tribunal orders in assessee's 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 Corporation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 requires 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 complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions that the housing project should have been approved before 1st April 2004 and should have been completed before 31.3.2008. If any of the condition is not fulfilled, the assessee 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 1st 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 Rs. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for deduction under section 80IB(10) of the Act. 6.1 From the above paras of the Tribunal order in assessee's own case for assessment year 2006-07, we find that even after considering the earlier two Tribunal orders in assessee's 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 Tribunal has decided the issue against the assessee after examining the factual 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 against the assessee by this Tribunal order rendered in assessee's 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 First 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 certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgment 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 commercial 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 observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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