TMI Blog2019 (11) TMI 1745X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction to that extent; the Revenue failed to adhere to the principles of accounting and taxed the entire amount as a taxable income. In our view, the decision of both the Revenue as well as the assessee requires substantially modification considering the project completion method of accounting followed by the assessee and the said method stands undisturbed by the Revenue. As such, the expenditure is incurred in assessment year 2014-15 and we do not have the details of net profit on this CH project. Correctness of expenditure is not examined. Therefore, we are of the opinion, the matter should revisit to the file of the Assessing Officer with the following directions :- Directions : (a) The club house construction project has to be recognised as a continuation of the Midori Phase-1 the project as it has the genesis in the Midori Phase-I project originally. Per se, it is only a part of the housing project as the finances for the Club House is raised from the flat buyers only. The profits of the CH is a taxable ones as per the Affidavit. (b) The accounting methods followed by the assessee in respect of Midori Phase-I should be equal applicable to the club house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is much earlier to the introduction of the provisions of section 115JC - Solitary housing project ever undertaken by the assessee during its life time. With this fact, if assessee what to pay the AMT tax, the same remains refundable to the assessee at the end of the permitted period. With the absence enabling provisions for such refund of AMT credit, the deduction provisions of section 80IB(10) of the Act becomes inapplicable to the eligible project of the assessee. Without going to these arguments, we find it appropriate to grant relief to the assessee on legal ground i.e. prospective application of the provisions of section 115JC qua the date of approval for the first time of the project which is much earlier to the introduction of the provisions of section 115JC. - ITA Nos. 2795 & 2796/PUN/2016 - - - Dated:- 14-11-2019 - SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM For the Assessee : Shri Kishor Phadke For the Revenue : Shri Milind Chahure ORDER PER D. KARUNAKARA RAO, AM: There are two appeals under consideration filed by the assessee against the common orders of the CIT(A)-12, Pune dated 08.09.2016 for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-13 and assessment year 2013-14 and treated said collections as taxable income in both assessment years. Similarly, the Assessing Officer noted that there was additions in the earlier three assessment years i.e. A.Y. 2009-10, 2010-11 2011-12 u/s 68 of the Act. The total of the same works out to Rs.1,40,98,445/-. All these additions were considered for restricting the claim of deduction u/s 80IB(10) of the Act in the assessment year 2012-13. The CIT(A) restored the assessee s claim on the said Rs.1,40,98,445/- and confirmed the charges made by the Assessing Officer to the sums of Rs.63 lakhs for the assessment year 2012-13 as well as Rs.31,49,800/- in assessment year 2013-14. Assessee aggrieved with the above. We shall now detail the facts on the said club charges. 7. Facts relating to club charges : There was a search and seizure action u/s 132 of the Act on 08.09.2010 on Mr. Vikram Gaikwad, the partner of the assessee-firm. Mr. Gaikwar gave a declaration of additional income of Rs.21.08 crores during the said proceedings. The assessee filed an application before the Income Tax Settlement Commission (ITSC) for the assessment years 2005- 06 to 2012-13 and declared the undis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as advances , a balance sheet item , and should be excluded from the scope of income. However, rejecting the said argument of the assessee, and considering the assessee s original claim in the return of income, the Assessing Officer treated the CH Collections as taxable income, restricted the deduction and denied the deduction in respect of the club house receipts in all the three assessment years. In the process, the Assessing Officer conveniently adopted the assessee s own admission in the return of income that the said advances constitutes a taxable income but for the deduction provision of section 80IB(10) of the Act. 10. Matching Expenses: Alternatively, referring to the unfairness in denying the credit of expenses of Rs.73,48,445/- against the said CH Collections of Rs.99 lakhs, the assessee made a request for pre-poning of the expenses incurred on the club house construction in assessment year 2014-15 and tax only to the net income if the deduction on the said net income u/s 80IB(10) of the Act is not allowable for any reason. The Assessing Officer rejected this argument also merely relying on the assessee s claim of deduction on entire Rs.99 lakhs as made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the addition made by the Assessing Officer in toto. On the arguments of the assessee relating to (a) the capital nature of the advances and (b) need for netting of the expenses against the said advances etc by preponing, the CIT(A) held that the return of income made therein are sacrosanct. The CIT(A) refused the alternate claim of the assessee i.e. in favour of taxing only the net income either in the assessment years 2012-13, 2013-14 2014-15 proportionately or only in assessment year 2014-15 on completion basis. 14. With regard to the denial of deduction on the additions of Rs.1,40,98,445/-, the CIT(A) granted relief and restored the claim of deduction u/s 80IB(10) of the Act. In this regard, the CIT(A) relied on the Jurisdictional High Court s judgement in the case of CIT vs. Sheth Developers (P) Ltd., 25 taxmann.com 173 (Bom.-HC). Thus, the CIT(A) partly allowed the assessee s appeals. Revenue is not in appeals before us. 15. Thus, the Revenue accepted the relief granted by the CIT(A) on the issue relating to cash credit addition and grant of deduction on Rs.1,40,98,445/-. There are no appeals by the Revenue in the assessment years 2009-10 till assessment year 2012-13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he net income is proper assessment year after granting set-off of matching expenses. Ground 2 and 3 are argumentative. Before the Tribunal 17. Ld. AR s Submissions : The ld. Counsel for the assessee narrated the above facts of the case and filed a summary chart of the subscription from flat buyers for Club House and the expenditure details in the assessment year 2014-15, the year of construction/completion of Club House. The same is extracted as under :- Summary of Club House Receipt and Expenses Particulars A.Y. 2012-13 A.Y. 2013-14 A.Y. 2014-15 As per Appellant A. Club House Receipts (Rs.99 lakhs) B. Club House Expenses claimed by Appellant C. Profit from Club House Receipts (AB) D. Deduction claimed u/s 80-IB(10) w.r.t. Club House E. Income offered to tax w.r.t. Club House 63,00,000 31,49,800 4,50,200 - - 78,10,182 63,00,000 31,49,800 -73,59,982 63,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se receipts. Details of the same are as under: a) A.Y. 2012-13 - Rs.63,00,000/- b) A.Y. 2013-14 - Rs.31,49,800/- 5. The said deduction u/s 80-IB(10) of the ITA, 1961 was claimed on the basis that club-house was sanctioned in initial layout plan and commitment was made to customers through Sales Brochure and Registered Agreements. However, in the year 2010, a new storm-water map was prepared by Science Technology Park (STP), which was approved by JNNURM and was implemented by PCMC. 6. As per the said new storm-water plan, the housing project land, where the club-house was proposed, was falling in the said map of storm water drain . As such, the club-house was shifted to other land and there was delay in construction of club-house. 7. Now, our firm has decided not to press Ground No.1 to 3, in both the appeals of A.Y. 2012-13 and A.Y. 2013-14, having ITA No.2795- 2796/PUN/2016. 8. Further our firm confirms that the said Ground No.1 to 3 will not be contested at any higher forum also. I solemnly state on oath that the contents of this Affidavit are true to the best of my knowledge and belief and that it conceals nothing and that no part of it is false. 20. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2.3 Ground No. 4 - Grant of expenses against club-house receipts: If appellant succeeds at Ground No. 5, than Ground No. 4 becomes academic. If however, Ground No. 5 is decided against appellant requests the Honourable Bench to kindly decide Ground No. 4. Vide Ground No. 4, appellant is contending that if at all club-house receipts are taxed in AY 2012-13 and AY 2013-14, relevant expenses should also be granted. Appellant is contending the same on following analogy: a) Matching principle: It is a basic principle that revenue and expenditure goes hand in hand and in any case the entire gross receipts cannot be taxed. As such it is submitted that deduction or relevant expenses should also be granted if receipt is ought to be taxed. b) Income (or profit) to be taxed and not gross receipt: It is submitted that it is a settled principle that no income can be earned without incurring any expenses. If no deduction for related expenses is granted, then, entire sales consideration will get taxed. Such gross taxation is against first principles of tax-law. Appellant relies on the following decisions in this regard: i. Calcutta Co. Ltd. Vs. CIT - 37 ITR 1 (SC) ii. Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records that the club house (CH) is completed in the assessment year 2014-15. By this time, the assessee incurred the expenditure on the club house construction amounting to Rs.78,10,182/-. In principle, the project completion method of accounting is followed by the assessee in respect of Midori Project and the same is accepted by the Revenue. Following the same, the relevant income of the Club House is taxable in the year of completion i.e. 2014-15 only. In this regard, both the assessee and the Revenue have erred in dealing with the issue of year of taxation of profits of this club house project in accordance with general law in force. While the assessee erred in including the subscription as a part of the eligible income for the purpose of section 80IB(10) of the Act in the return of income and thereby inflating the claim of deduction to that extent; the Revenue failed to adhere to the principles of accounting (supra) and taxed the entire amount as a taxable income. In the process, the claim in the return of income was partly accepted to the extent of taxing the entire amount of Rs.63,00,000/- without netting with expenditure and partly, not accepted i.e. the allowability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee in deciding the issue. The Assessing Officer is required to pass a speaking order on this issue considering the relevant law in course. Thus, the relevant alternative grounds 4 5 raised by the assessee on this issue are allowed as above. 27. In the result, the appeal of the assessee in ITA No.2795/PUN/2016 for the assessment year 2012-13 is partly allowed for statistical purposes. ITA No.2796/PUN/2016 A.Y. 2013-14 28. The grounds raised by the assessee are as under:- 1. The learned CIT(A)-12, Pune erred in law and on facts in confirming the disallowance of deduction amounting to Rs. 31,49,800/- u/s 80-IB(10) of the ITA, 1961 made by the learned DCIT, Central Circle-2(1), Pune (hereinafter referred to as the learned AO). 2. The learned CIT(A)-12 and the learned AO erred in law and on facts in disallowing deduction u/s 80-IB(10) of the ITA, 1961 for receipts / revenue related to club-house facility amounting to Rs. 31,49,800/- on the reason that the said club-house facility was not mentioned in the last approved plan of the MIDORI housing project. The learned IT- Authorities ought to have appreciated that club-house was initially approved by the PMC and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 29/03/2012, which is prior to introduction of AMT provisions u/s 115-JC of the ITA, 1961 for Partnership Firms by Finance Act, 2012. 30. The basic facts were already narrated above while dealing with the appeal for the assessment year 2012-13. From the grounds extracted above, it is evident that the issues relating to the addition of deduction u/s 80IB(10) of the Act amounting to Rs.31,49,800/-. 31. Addition of Rs.31,49,800/-: Grounds no.1 to 3 are dismissed as they are not pressed as conceded by the assessee vide the common affidavit (supra) filed by the assessee for both the years. 32. Expenses set off: Grounds no.4 and 5 relating to taxation of Club House profits and raised alternatively are common to the grounds no.4 and 5 for the assessment year 2012-13 in the appeal vide ITA No.2795/PUN/2016. They were already adjudicated by us and decided in favour of the assessee in principle. These grounds are remanded with certain directions. Thus, our decision in grounds no.4 and 5 of appeal in ITA No.2795/PUN/2016 shall apply mutatis-mutandis to these grounds no.4 and 5 also. Thus, the grounds no.4 and 5 are allowed for statistical purposes. 33. Applicability of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ori Phase-I is never taxable etc. Further, it is the case of the assessee that there is no change of AMT on the assessee as the AMT as an alternate mechanism to normal tax. Further, referring to the project on hand, ld. Counsel for the assessee argued that the provision of section 115JC of the Act to this non-corporate assessee was not an existence and the project was anyway approved by the local authorities. Even during the time of provisions of the plans, the provisions were not existence. The provisions introduced by the Finance Act, 2012 w.e.f. 1.4.2013 and the same are not applicable retrospectively to the project which took place in the year 2007. The assessee also put forward many arguments stating that the alternate mechanism is next stand of the MAT and the same is only on alternate mechanism of collection of taxes and the same is not separate charge on the total income of the assessee. The assessee relied on various decisions in support of the same. Further, mentioning that the assessee has developed only a single housing project called Midori Phase-I whose income is exempt u/s 80IB(10) of the Act if the AMT is applied. There is no discussion about the assessee claimed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Additional Ground No. 9, appellant is objecting the applicability of provisions of section 115JC of the ITA, 1961 in the present case due to peculiar and piquant situation. Appellant is contending the same on following analogy: a) Single Project Venture: Appellant was firm was formed to develop only a single housing project called as MIDORI by Mr. Vikram Gaikwad and Mr. Vinayak Nimhan. It is submitted that there is no other project other than MIDORI project, and no any other project envisaged by appellant. Appellant has claimed deduction u/s 80-IB(10) of the ITA, 1961 on the profits / income from the said project. This is also evident from the Partnership Deed submitted at submitted at Page No. 57 to 64 of Paper Book - I. Appellant is also submitting herewith English Translation of the key clauses of the Partnership Deed which is attached herewith as Annexure-4. b) No change in partners: It is submitted that there is no change in the partners of the appellant firm. There is only change in profit sharing ratio between the partners. The detail of the change in profit sharing ratio between the partners is as follows: Date Profit Shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - - 4 1997-2000 MAT u/s 115JA (only companies covered) 5 2001-2012 MAT u/s 115JB (only companies covered) 115JAA MAT credit entitlement period extended from time to time - i.e. 5 years - to 10 years - to 15 years.... 5 2012-2013 MAT u/s 115JB (for companies) AMT u/s 115JC (for LLPs) (companies + LLP) 7 2013-onwards MAT u/s 115JB (for companies) AMT u/s 115JC (for all other non-company assesses) 115JAA (for all types of assesses paying either MAT or AMT) f) Clarification of various High Courts about alternate mechanism of MAT: As submitted earlier, AMT is extended arm of MAT. In the MAT regime, various High Courts have held that MAT is only an alternate mechanism for collection of tax: Ester India Ltd Vs. Union of India - 260 CTR 225 (Delhi) 29. The non obstante clause indicates that the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority i.e. PCMC on 30/03/2007 and was granted completion certificate on 29/03/2012. Whereas, the provisions of section 115-JC of the ITA, 1961 was made applicable to appellant firm from 01/04/2012. As such, when appellant envisaged the MIDORI project which was eligible for deduction u/s 80-IB(10) if the ITA, 1961; there was no any tax which appellant was liable to pay. Considering the doctrine of promissory estoppel, it is submitted that provisions of section 115-JC of the ITA, 1961 is not applicable to appellant. Appellant in this regard is placing reliance on the decision of Honourable Mumbai ITAT in the case of S. K. Venture Vs. ITO - ITA No. 1248/MUM/2018. Copy of the same has already been submitted before the Honourable Bench. In the said decision the Honourable ITAT has considered various judgements of the Honourable Apex Court. Further, appellant has also culled out the similarity between the facts of appellant case with that of S. K. Venture. Comparison of the same is attached herewith as Annexure-7. i) Prayer: Considering the above facts and legal pronouncements, it is submitted that provisions of section 115-JC of the ITA, 1961 is not applicable to appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has been approved prior to the date of introduction of the provision of section 115JC of the Act. 6. Briefly stated facts are that in this case the assessee AOP filed the original return of income by way of e-filing vide dated 30.9.2013 and subsequently the return was revised by e-filing on 31.3.2015. This return has been processed under section 143(1) of the Act and subsequently, the assessment was completed under section.143(3) of the Act vide order dated 30.3.2016 by accepting the returned income except making of disallowance of non payment of MVAT and service tax under section.43B of the Act. The deduction claimed under Chapter VIA under section 80IB(10) in respect of housing project namely; KIrishna Regency at Kalyan was accepted amounting to ₹6,54,91,914/- but the Assessing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial units in the State with a view to enabling them to come on firm footing in developing stage. This news item was based upon a statement made by Shri M. P. Chatterjee the then Secretary in the Industries Department of the Government. The appellant, on the basis of this announcement, addressed a letter dated 11th October, 1968 to the Director of Industries stating that in view of the Sales Tax Holiday announced by the Government, the appellant intended to set up a Hydro-generation Plant for manufacture of Vanaspati and sought for confirmation that this industrial unit, which they proposed to set up, would be entitled to Sales Tax Holiday for a period of three years from the date it commences production. The Director of Industries replied by his letter dated 14th Oct., 1968 confirming that there 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 propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries Ltd. was concerned with income tax only. (b) The position of law and the rights accrued prior to enactment of Finance Act, 2004 have to be taken into account, particularly when the position becomes irreversible. (c) The provisions of Section 80IB(10) mention not only a particular date before which such a housing project is to be approved by the local authority, even a date by which the housing project is to completed, is fixed. These dates have a specific purpose which gives time to the developers to arrange their affairs in such a manner that the housing project is started and finished within those stipulated dates. This planning, in the context of facts in these appeals, had to be much before 01.04.2005. (d) The basic objective behind Section 80IB(10) is to encourage developers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 201 and 308 of 2012, where this very aspect is answered in the following manner: 36. There is yet another reason for coming to the aforesaid conclusion. Take a scenario where an Assessee, following the project completion method of accounting, has completed the housing project approved by the local authority complying with all the conditions as set out in section 80-IB(10) as it stood prior to 1st April, 2005. If we were to accept the argument of the Revenue, then in that event, despite having completed the entire construction prior to 1st April, 2005 and complying with all the conditions of section 80-IB(10) as it stood then, the Assessee would be disentitled to the entire deduction claimed in respect of such housing project merely because he offered his profits to tax in the A.Y. 2005-06. 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 determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the profits of said housing project are brought to tax after the said provision was brought into force. 22) At this juncture, we would like to quote the following passage from Commissioner of Income Tax, U.P. v. M/s. Shah Sadiq and Sons (supra) : 14. Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years. The right of carrying forward and set off accrued to the assesee under the Act of 1922. A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, assessee claimed deduction under section 80IB of the Act of 100% of the profit from the housing project. We noted that Chapter XII BA i.e. special provisions relating to certain persons other than a company was introduced by the Finance Act 2011 w.e.f. 1.4.2012 and made applicable for and from A.Y. 2012-13 in respect of limited liability partnerships. Further, this provision was made applicable to other categories of persons other than a company with effect from 1.4.2013 by the Finance Act, 2012. Accordingly, the provisions of section 115JC of the Act was made applicable to profit from housing projects deductible under section.80IB(10) of the Act only in respect of housing projects approved by the competent authority on 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.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed up to the said date 31.03.2012. For supporting the above point of view and in favour of prospective application of amended provisions, ld. Counsel for the assessee relied on the binding judgements in the case of (i) CIT vs. Sarkar Builders, 375 ITR 392 (SC); (ii) CIT vs. Vatika Township (P.) Ltd., 367 ITR 466 (SC); (iii) CIT vs. Brahma Associates, 333 ITR 289 (Bom-HC); and, (iv) Anil Kumar Gopikishan Agrawal vs. ACIT, 106 taxmann.com 137 (Guj-HC). These decisions were pronounced in the context of section 80IB(10) of the Act and the amendment to section 113 and section 153B etc of the Act. 42. Thus, the date year of approval of the project become relevant to not only to the projects of section 80IB(10) of the Act but also to such projects cum the AMT case covered u/s 115JC of the Act. The doctrine of impossibility becomes relevant here too. If the assessee is aware of the obligations of the Statute for paying AMT in the assessment year 2013-14, the assessee would not have taken of this project at all in the year 2007. Alternatively, the assessee would have followed a project completion method thereby he would be have planned to the taxation as per the then existing provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4.2005 and for the first time under clause (a) thereof the words 'built-up area' were defined. Section 80IB(14)(a) reads as under: (14) For the purposes of this section - (a) built-up area means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units; 18) Prior to insertion of Section 80IB(14)(a), in many of the rules and regulations of the local authority approving the housing project built-up area did not include projections and balconies. Probably, taking advantage of this fact, builders provided large balconies and projections making the residential units far bigger than as stipulated in Section 80IB(10), and yet claimed the deduction under the said provision. To plug this lacuna, clause (a) was inserted in Section 80IB(14) defining the words built-up area to mean the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls, but did not include the common areas shared with other residential units. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As a result of the aforesaid discussion, the appeals filed by the Income Tax Department are hereby dismissed. Appeals of the assessees are allowed deleting the surcharge levied by the assessing officer for this block assessment pertaining to the period prior to 1st June, 2002. 3. Brahma Associates Vs. JCIT 119 ITD 255 (SB) (Pune) 86 .. .. The amendment brought about by the insertion of cl. (d) in s.80-IB(10), in our tuhned elersgtiasnladitnugr,e i sh aa ss usbos stapnetciivfei caamlleyn dpmroevnitd aendd i .iet. i1s applicable from the date st April, 2005. 4. CIT V. Brahma Associates 333 ITR 289 (Bombay) 29. Lastly, the argument of the Revenue that s. 80-IB(10) as amended by inserting cl. (d) w.e.f. 1st April, 2005 should be applied retrospectively is also without any merit, because, firstly, cl. (d) is specifically inserted w.e.f. 1st April, 2005 and, therefore, that clause cannot be applied for the period prior to 1st April, 2005. Secondly, cl. (d) seeks to deny s. 80-IB(10) deduction to projects having commercial user beyond the limit prescribed under cl. (d), even though such commercial user is approved by the local authority. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 132A of the Act after 31st May, 2015. Consequently, in relation to searches carried out till 31st May 2015, it was not permissible for the Assessing Officer to assume jurisdiction under section 153C of the Act as amended with effect from 1st June, 2015. 46. We have also considered the submissions of the assessee relating to doctrine of impossibility qua the adopting the other options available to the assessee in the matter of recognition of income of the project. The assessee now cannot alter the income recognition methods. Assessee had the option to invoke the Percentage Completion Method permitted by the Circular of the CBDT dated 30.06.2009 (Instruction No.4/2009). In this regard, the ld. Counsel for the assessee furnished the following written submission in support the case of the assessee :- Ground relating to objection to levy of Alternate Minimum Tax (AMT u/s 115JC) (In continuation of arguments and Synopsis, Appellant is making further short submission). Doctrine of impossibility - As per facts, assessee was formed as a single joint venture for development of the MIDORI project. As per facts, project was approved in year 2007 and completed in Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find it is settled legal issue on the matter at the level of the Tribunal and the provision of section 115JC of the Act need to be applied prospectively only and not to the projects approved in 2007 as in the present case. No other contrary case is brought to our notice by the Revenue for taking any contrary view by us. Accordingly, the additional ground and other related grounds are allowed. 48. Regarding the ground nos.6 and 7, we find the same are basically argumentative in nature. Before us, referring to the said grounds, ld. AR submitted that these grounds revolved around the solitary housing project ever undertaken by the assessee during its life time. With this fact, if assessee what to pay the AMT tax, the same remains refundable to the assessee at the end of the permitted period. With the absence enabling provisions for such refund of AMT credit, the deduction provisions of section 80IB(10) of the Act becomes inapplicable to the eligible project of the assessee. Without going to these arguments, we find it appropriate to grant relief to the assessee on legal ground i.e. prospective application of the provisions of section 115JC qua the date of approval for the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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