TMI Blog2014 (4) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... n raised by the Revenue. Since the issue involved in the Revenue’s appeal is covered against the Revenue, we, decline to interfere in the order of learned CIT(A) on this aspect. In the result, the appeal of the Revenue is dismissed. - ITA No. 319/LKW/2013, C.O. No. 18/Lkw/2013 (in ITA No. 319/LKW/2013) - - - Dated:- 11-4-2014 - Sunil Kumar Yadav (Judicial Member) And A. K. Garodia (Accountant Member) For the Revenue : Alok Mitra, D.R. For the Assessee : S. K. Garg (Advocate), P. K. Kapoor, C.A. ORDER A. K. Garodia (Accountant Member) 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 80IB(10)(b) regarding area of the plot of land being minimum one acre without appreciating the fact that the assessee as a builder had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.08.2012 as passed by the Hon'ble Income Tax Appellate Tribunal in the 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 upholding ''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 applicable in the present case and not the amended provisions. Regarding the I.T.A.T. de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 absence 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 specific 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 authority 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 certificate 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction,- (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 housing 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.] 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the project was 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 relevant 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 certificate 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 project 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (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 construction, 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 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 80IB(10). Hence, both these judgments 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 establish 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 construction 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 following the earlier Tribunal decision in assessee s own case for assessment year 2006- 07. In the result, the Cross Objection of the assessee is dismissed. 7. Regarding the Revenue s appeal in respect of the area of the land being one acre or not, we find that 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 sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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