TMI Blog2019 (3) TMI 1990X X X X Extracts X X X X X X X X Extracts X X X X ..... n or after 1.4.2013. Similar case was dealt with by co-ordinate bench of this Tribunal in the case of Neha Home Builders Pvt Ltd. [ 2018 (4) TMI 860 - ITAT MUMBAI ], wherein, it is held that the assessee was entitled to claim of deduction under section,80IB(10) of the Act while computing book profit u/s.115JB of the Act in respect to the profit of the housing project. As gone through the case law of Hon ble Supreme Court in the case of Sarkar Builders [ 2015 (5) TMI 555 - SUPREME COURT ] wherein, Hon ble Supreme court has considered the provisions of section 6 of General clauses Act 1897 and also considered the saving provisions in the repealing statute which is not exhaustive of the rights and which are saved or which survive the repeal of the statute under which such right had accrued. Hon ble Supreme Court has considered whatever rights are expressly saved by the saving provisions stand saved but that does not mean rights which are not saved by the saving provisions are extinguished or stand ipso facto terminated by the mere fact that a new statue repealing the old statute is enacted. Even Hon ble Supreme Court in the case of Vatika Township P Ltd [ 2014 (9) TMI 576 - SUPR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are being carried in co-ordination with the regular C.A. Shri Hitesh Gala and Advocate Shri Prakash C Ahuja. The assessee contended that the assessment proceedings for assessment year 2015-16 were completed by the Assessing Officer under section.143(3) vide order dated 27.12.2017, which was received before 31.12.2017 and during this process, the assessee came to know that no appeal was filed against the appellate order of the CIT(A) for assessment year 2013-14. After this, the CA Shri Devendra H Jain was consulted for appeal proceedings and he advised to file the appeal immediately before the ITAT for assessment year 2013-14 alongwith filing of appeal before the CIT(A) for assessment year 2015-16. It was contended that the assessee has not received proper professional guidance at that stage and they were under impression that ITAT proceedings were jointly handled by CA Hitesh Gala and Advocate Prakash Ahuja and they may have filed appeal before the ITAT. Due to the wrong advice or wrong professional guidance, the assessee could not file appeal within the statutory time limit of 60 days against the order of the CIT(A) before the Tribunal and hence there was delay of 334 days. Ld Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer invoked the provisions of section 115 JC of the Act and adjusted total income and charged alternate minimum tax in accordance with this provisions, which was confirmed in first appeal. 7. Ld Counsel for the assessee now before us stated that the assessee is challenging only limited issue i.e applicability of provisions of section 115 JC of the Act to the assessee for the relevant assessment year 2013-14. Ld Counsel for the assessee explained that the provisions of section 115 JC of the Act was made applicable to certain persons other than a company by the Finance Act (No.2) with effect from 1.4.2013. Ld Counsel explained that in the project i.e. Krishna Regency, the assessee has claimed deduction 80IB(10), as the same was started in April, 2007 and was completed in March, 2012. Ld Counsel for the assessee referred to pages 19 to 21 of assessee s paper book, wherein, completion certificate of the project is enclosed at pages 19 to 21 of PB and English translation at pages 20-21. Ld Counsel for the assessee drew our attention to pages 20 21 of PB, wherein, building completion certificate issued by Kalyan Dombivli Muncipal Corporation Town Planning Department is enclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here will be no sales tax for three years on the finished product of your proposed Vanaspati factory from the date it gets power connection for commencing production. The appellant later addressed a letter dated 22nd January, 1969 to the respondent who was the Chief Secretary to the Government. The respondent stated categorically in his letter in reply dated 23rd January, 1969 that the proposed Vanaspati factory of the appellant will be entitled to exemption from U. P. Sales Tax for a period of three years from the date of going into production and that this will apply to all Vanaspati sold during that period hi Uttar Pradesh it self and expressed his surprise that a letter from the Chief Secretary to tis State Government stating this fact i clear and unambiguous words should not carry conviction with the financial institutions; Held it was clear from the letter of the respondent dated 23rd January, 1969 that a categorical representation was made by the respondent on behalf of the Government that the proposed! vanaspati factory of the appellant would be entitled to exemption from sales tax in respect of sales of vanaspati effected in Uttar Pradesh for a period of three years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to undertake housing projects for weaker section of the society, inasmuch as to qualify for deduction under this provision, it is an essential condition that the residential unit be constructed on a maximum built up area of 1000 sq.ft. where such residential unit is situated within the cities of Delhi and Mumbai or within 25 kms. from the municipal limits of these cities and 1500 sq.ft. at any other place. (e) It is the cardinal principle of interpretation that a construction resulting in unreasonably harsh and absurd results must be avoided. (f) Clause (d) makes it clear that a housing project includes shops and commercial establishments also. But from the day the said provision was inserted, they wanted to limit the built up area of shops and establishments to 5% of the aggregate built up area or 2000 sq.ft., whichever is less. However, the Legislature itself felt that this much commercial space would not meet requirements of the residents. Therefore, in the year 2010, the Parliament has further amended this provision by providing that it should not exceed 3% of the aggregate built up area of the housing project or 5000 sq.ft., whichever is higher. This is a significant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05-06. In contrast, if the same Assessee had followed the work-in-progress method of accounting, he would have been entitled to the deduction under section 80-IB(10) upto the A.Y. 2004-05, and denied the same from A.Y. 2005-06 and thereafter. It could never have been the intention of the Legislature that the deduction under section 80-IB(10) available to a particular Assessee would be determined on the basis of the accounting method followed. This, to our mind and as rightly submitted by Mr. Mistry, would lead to startling results. We therefore have no hesitation in holding that section 80-IB(10) is prospective in nature and can have no application to a housing project that is approved before 31st March, 2005. As the deduction sought to be claimed under section 80IB(10) is inseparably linked with the date of approval of the housing project, it would make no difference if the construction of the said project was completed on or after 1st April, 2005 or that the profits were offered to tax after 1st April, 2005 i.e. in A.Y. 2005-06 or thereafter. We therefore find no substance in the argument of the Revenue that notwithstanding the fact that the housing project was approved prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is the effect of Section 6 of the General Clauses Act, 1897. 15. In this case the 'savings' provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words, whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General Clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Income Tax Act of 1922 is not saved expressly by Section 297 of the Income Tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(2) saves accrued rights unless they are taken away by the repealing statute. We do not find any such taking away of the rights by Section 297 either expressly or by implicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Tribunal in the case of Neha Home Builders Pvt Ltd.vs CIT,(2018) 92 taxmann.com 102 (Mum), wherein, it is held that the assessee was entitled to claim of deduction under section,80IB(10) of the Act while computing book profit u/s.115JB of the Act in respect to the profit of the housing project. 12. We have also gone through the case law of Hon ble Supreme Court in the case of Sarkar Builders (supra), wherein, Hon ble Supreme court has considered the provisions of section 6 of General clauses Act 1897 and also considered the saving provisions in the repealing statute which is not exhaustive of the rights and which are saved or which survive the repeal of the statute under which such right had accrued. Hon ble Supreme Court has considered whatever rights are expressly saved by the saving provisions stand saved but that does not mean rights which are not saved by the saving provisions are extinguished or stand ipso facto terminated by the mere fact that a new statue repealing the old statute is enacted. Even Hon ble Supreme Court in the case of Vatika Township P Ltd (supra) has considered the various rules guiding how a legislation has to be interpreted, one established ..... X X X X Extracts X X X X X X X X Extracts X X X X
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