TaxTMI 
TaxTMI 
2015 (8) TMI 1505
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.... dated 27.2.2012. Since these appeals emanate from the common order of the learned CIT(A), we dispose them off by this consolidated order for the sake of convenience. 4. The assessee is a developer who purchased the agricultural landat village Dhamkhera. The assessee applied for change of use of land and obtained permission for non-agricultural use of the land from the Collector, Bhopal. The assessee also got registered as colonizer for development of the land into a colony. The assessee has developed Abhinav Kirti Homes Colony. There was search and seizure operation u/s 132 of the Act at the premises of the assessee group. The Assessing Officer issued notices u/s 153A read with section 153C of the Act for the assessment years 2002-03 to 2007-08. 5. In ITA Nos. 238, 239 and 240/Ind/2012 there is a common ground i.e. ground no. 1 in which the assessee has challenged the confirmation of action of the Assessing Officer in issuing notices u/s 153C of the Act for the reason that it has been issued without adopting proper basis and satisfactory reasons and the copy of satisfactory note, if any, was not provided to the assessee. 6. We have heard both the sides. The assessee's claim tha....
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....s issue to the file of the Assessing Officer for verification and then decide the issue. 9. In ITA Nos.239, 240 & 241/Ind/2012 there is a common issue with regard to not allowing the deduction u/s 80IB(10) of the Act. This issue has been raised in ground no. 2 in ITA No. 239 and 240/Ind/2012 and in ground no. 1 in ITA No. 241/Ind/2012. The grounds of appeal raised are the same except the difference in the figures. The common grounds are as under :- (i) That on the facts and in the circumstances of the case, the learned CIT(Appeals) erred in confirming the action of the A.O. for issuing the notice u/s 153C without appreciating facts properly as the same was issued without adopting proper basis and satisfactory reasons and the copy of satisfaction note if any was not provided to the assessee at the time of assessment proceedings nor at the time of appellate proceedings. (ii) That on the facts and in the circumstances of the case, the learned CIT(Appeals) erred in sustaining the addition of Rs. 15,74,406/- being disallowance of deduction claimed u/s 80IB(10) without considering the explanation offered by the assessee and without appreciating the facts properly and particularly ho....
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.... assessee has constructed and developed the project and completed well within time provided u/s 80IB(10) of the Act. Considering this factual position and also the following case laws, we allow the claim of the assessee in all these years :- Hon'ble Supreme Court in the case of CIT vs. Sarkar Builders dated 15.5.2015 wherein Hon'ble Supreme Court held as under :- "(g) From this provision, therefore, it is clear that the housing project contemplated under subsection (10) of section 80IB includes commercial establishments or shops also. Now, by way of an amendment in the form of Clause (d), an attempt is made to restrict the size of the said shops and/or commercial establishments. herefore, by necessary implication, the said provision has to be read prospectively and not retrospectively. As is clear from the amendment, this provision came into effect only from the day the provision was substituted. Therefore, it cannot be applied to those projects which were sanctioned and commenced prior to 01.04.2005 and completed by the stipulated date, though such stipulated date is after 01.04.2005. 21. These aspects are dealt with by various High Courts elaborately and convincingl....
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.... to be revisited and/or looked at and complied with in the assessment eyar in which thye profits are offered to tax by the assessee. When the assessee claims a deduction under section 80IB(10) the assessee is required to comply with such a condition only if it is on the statute book on the date of the approval of the housing project and it has nothing to do with the year in which the profits are brought to tax by the assessee. We have come to this conclusion only because we find that clause (d) of section 80IB(10) is inextricably linked to the date of the approval of the housing project and the subsequent development/ construction of the same and has nothing to do with the profits derived therefrom. We may hasten to add that if a particular condition is not inseparably linked to the date of approval of the housing project, different considerations would arise. However, we are not called upon to decide any such condition and hence we are not laying down any general proposition of law save and except that clause (d)of section 80IB(10) being a condition linked to the date of the approval of the housing project, would not apply to any housing project that was approved prior to 31st Mar....
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....n Hon'ble Delhi High Court has held as under :- "The assessee is expected to complete the project as per the approved plan at a particular point of time and the assessee is not expected to do or to fulfill the conditions which are not in existence at the relevant point of time or made compulsory after making some amendment in the Act from the future date. Since the assessee was to complete the project on or before and 31.03.2009 and request was duly made with the Competent Authority on 05.11.2009 mentioning that the project has been completed and completion certificate may be issued and if the same is not issued by the Competent Authority the assessee should not be penalized for the same unless and until some contrary facts are brought on record evidencing that the assessee contravened the conditions contained in the approval granted by such Competent Authority. As per sub-section (10) of section 80IB(10), the benefit will be hundred percent subject to fulfillment of certain conditions. However, this condition was substituted by the Finance (No. 2) Act of 2009 with effect from 01.04.2009 which has been further explained by sub-clause (ii) to the Explanation regarding completi....
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.... The said certificate/intimation was accepted by the local authority without any amendments or objects. Local authority has not raised any queries on the quality construction of the building or the completion of the same as per the plans approved by such authority. In such circumstances, in our opinion, the delay in obtaining the completion certificate on 10.10.2008 is certainly not attributable to the appellant and obtaining the said certificate before 31.03.2008 is beyond the control of the appellant. The appellant's job includes the completion of the building in accordance with the approval plans and intimation of the same to the local authority by way of filing the requisite forms together with the completion certificate given by the Architect, the specialist in the matter and the appellant has done his job scrupulously in this case. However, the local authority has neither objected to the said application of the appellant and the Architect by raising any objection nor accepted by issue of said completion certificate till 10.10.2008. Therefore, the delay in grant of the said certificate is certainly not attributable to the appellant. Therefore, in our opinion, the appellant is ....