TaxTMI 
TaxTMI 
2021 (9) TMI 535
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....ion gap and that the delay(s) on the issue has been caused. Revenues case, on the other hand, relied on the twin correspondence(s) dated 27.2.2017 and 1.3.2017 regarding recovery of taxes and penalty proceedings as against the corresponding appeal(s) filed on 31.7.2018 and 1.11.2019 respectively. Learned CIT-DR's vehement contention before us is that the impugned delay has not been explained much less than of each and every day as per section 5 of the Indian Limitation Act. 3. We have given our thoughtful consideration to the rival contentions and see no reason to express our agreement with the Revenue's stand. The assessee's twin condonation petition(s)/affidavit(s) have already attributed the reason of the impugned delay(s) to its tax consultant's resignation and communication gap at various levels. Hon'ble Apex Court's landmark decision of Collector of Land Acquisition vs. Mst Katiji & Ors on 19 February, 1987, AIR 1353/1987 SCR (2) 387 and University of Delhi vs. Union of India Civil Appeal Nos.9488- 9489/2019 dated 17.12.2019 settle the law that all technical aspects must make way for the cause of substantive justice provided the assessee offers cogent explanation regar....
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....yderabad): below and leaves nothing to the imagination or speculation or interpretation to consider the benefit of the part of the project; 4. 11 Similar is the case with the condition that the housing project has 10 be completed within five years, i.e., before 31.03,20l3. In the instant case, housing project means the entire housing project as approved by the local authority and no/part or piece of the housing project. 4.12 When the statute is giving a benefit, it is for a purpose. The purpose the benefit of deduction uls.801B(1O) is to promote housing on-a large scale-a make po using available and affordable. But when the benefit is being given some conditions, it means that the statute demands some commitment from the assessee, that the stated purpose for which the benefit is given is realised at the earliest and this condition also acts as a protection 10 the flat purchasers as it ensures that the project on which benefit is being enjoyed by the assessee, is completed in time. 4.13 When there is no ambiguity in the provisions of statute it cannot be interpreted in a different manner to confer benefit on the assessee. For such proposition, reliance is ....
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....ven if it is held that the assesses is eligible for deduction u/s 80IB(10) even if the housing project is not completed before the specified time limit, the claim of the assessee that pro rata deduction may be allowed for flats having built up area less than 1500 sft; as allowed in various Tribunal Orders, is not tenable. "The object of the provisions of Section 80IB (10) is to augment affordable dwelling units. By having very significant number of flats exceeding 1500 sq ft, has the assesses succeeded to augment affordable dwelling units. The reply to this question has to be in the negative. Some limit has to be drawn lip to ensure that the basic character of the project continues to remain in harmony with the object of the tax Incentive i.e, augmenting affordable dwelling units. Further, it needs to be emphatically stated that pro rata deduction has to be ruled out because if that is permitted, some assesses may construct substantial number of flats exceeding 1500 sq ft. and may claim deduction without serving the purpose of the legislation. Likewise, the flats which exceed 1500 sqft. also have to be left of the purview of the deduction. In the present case, such deduction to be ....
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...., L (51.17% complete) and revenue was recognised in respect of 7 blocks G, H, I. J (4 blocks under Phase-l-A) and F, K. L (3 blocks in Phase-l-B). 06.1 For a claim to be considered for deduction u/s 80IB(10), the Housing Project that was given an approval on 04.02.2008 had to be completed by 31.03.2013. The date of completion would be taken to be [refer subclause (ii) of Explanation to Sec 80IB(10) the date on which the Completion Certificate in respect of such Housing Project is issued by the Local Authority. In this light, the certificate of completion obtained by the appellant with reference to the Housing Project was examined and if is seen that with respect to: (a) Block G, H, I, J, GHM.C had issued a partial occupancy certificate on 29,03.2012. Therefore. the construction of those blocks can be said to have been completed before the specified date. (b) Block F, K, L, the assessee submitted that the compliance was made as per requirements of GHMC and an application for occupancy certificate was made on 30.03.20/3 and partial occupancy certificate was issued on 07.10.2014. But the certificate dated 7.10.14 records that the building completion notice w....
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....t when the language of a provision is clear and unambiguous then there is little scope to interpret int in a different manner". 07. The appellant had placed reliance on Instruction No. 4/2009 dared 30.06.2009 and has submitted that by virtue of the said Instruction, deduction of 100% on its profit is allowable on a year to year basis as profit has been shown on partial completion of the project every year. But the appellant has overlooked clause (b) of the said Instruction which has clearly stated that if it was found that the project was not completed within the specified time limit, then the deduction granted to the assessee in the earlier years should be withdrawn. As cited above, out of the 12 blocks, only 4 blocks have been held to be completed within the specified time period. Hence, the claim of the assessee that it should be allowed deduction on partial completion method would not hold glass to the fact that the project as on 31.03,2013 was incomplete and in keeping with the Instruction, the deduction already granted would anyway have to be disallowed. The deduction which was otherwise allowable on partial completion method is held to be not allowed in view of the ....
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....r approval of the Competent Planning Authority. Taking this background into consideration, it held each block to be an independent building and a Housing Project for purposes of considering the claim of deduction u/s 8OIB(10) of the Act. It also observed that in those blocks, the built up of some flats exceeded 1500sft. For that reason alone, the entire claim could not be rejected and the assessee was entitled for relief on a proportionate basis of flats that satisfied the condition of the nature stated under section 80IB(1 O)(,~ of the Aa: This, the Hon'ble High Court held that this was subject to the blocks satisfying the conditions u/s 80/B(10) of the Act. 07.3 In appellant's case, the facts of the case totally dissimilar. For all the 12 blocks in the Housing Project, a single approval and a single sanction was taken on 4.2.2008. It is not the appellant's case that each block in the project had its own specification and was given a separate approval. For a ratio of a decision to be applicable, the facts have to be identical. That not being so, the decision in the case of Madras High Court (supra) is not applicable and it is held that each block is not a "Hou....
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....ts within the stipulated due date i.e., 5 years from the end of the year in which the approval has been granted, it cannot be construed as completion of construction of Housing Project. As such, emphasis is on project completion as a whole but not completion of blocks consisting of the project. In this regard, the relevant portion of the Act are reproduced below for ready reference; "Deduction in respect of profits and gains from certain industrial undertakings other than infrastructure development undertakings. (10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March 2008 by a local authority shall he hundred per cent of the profits derived in the previous year relevant 10 any assessment year from such housing project if:- a) such undertaking has commenced or commences development and construction of the Housing Project on Or after the 1st day of October, 1998 and completes such construction,- (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 31st day of March, 2008; (ii) in a ....
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.... allotted to any of the following persons, namely:- (i) the individual or the spouse or the minor children of such individual, (ii) the Hindu undivided family in which such individual is the karta, (iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta. Explanation - For the removal of doubts, it is hereby declared that nothing contained in this sub-section shall apply to any undertaking which executes the housing project as a works contract awarded by any person (including the Central or State Government). (Emphasis supplied) As seen from the Explanation (ii) to clause (a) of sub-section (10) of 80IB of the Act, it is clearly stated that the date of completion of the construction of the Housing Project shall be the date on which completion certificate has been issued by the local authority. 7.3 In the instant case, it is all admitted fact that the assessee has not completed construction of all the 12 Blocks forming part of the Housing Project namely, Manjeera Diamond Tower within the due date prescribed. ....
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....ccupancy Certificates issued by GHMC, as stated above. On the other hand, as per the provisions of the Act; the requirement is certificate issued by the competent authority and the date on which the certificate is issued by the competent authority will be construed.as-the date of completion of construction. 7.6 Be that as it may, at this juncture, it is important to note that two blocks consisting of the project .i.e, B and C have not been completed within the due date i.e, 31.03.2013 as per-the-assessee's own admission. Though the assessee is not entitled to claim exemption u/s 80IB(1O) of the Act in respect of income derived from sale of houses falling under those blocks in as much as the built up area has exceeded the threshold limit of 1500 Sq. Ft., but at the same time, those two blocks are also forming part of the same Housing Project i.e, Manjeera Diamond Towers. As such, it is an undisputed fact that two of the blocks consisting of the project i.e, B and C have not been completed within the stipulated due date i.e. 31.03.2013. Accordingly, even after considering for argument's sake that F, K, L, A, D and E Blocks have been completed, since Block Band C have....
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....t has been constructed in accordance with the sanctioned approval. If the furnishing of the completion certificate to prove the completion of the project is not to be insisted upon then the purpose for bringing such a provision to the statute becomes redundant. If the furnishing of completion certificate from the local authority is to be considered as not mandatory then in every case the assessee will come up with one plea or the other for not furnishing the completion certificate while claiming deduction under section 80-IB(10). In that event, the intent and purpose of enacting such a provision will not be fulfilled. Similarly the municipal assessment of the individual flat owners or sale of flats cannot be substitute for the completion certificate issued by the local authority. These facts does not conclusively prove that the entire project was complete in all respects. These documents certainly cannot be considered to be in compliance with the statutory provision [Para 13] Therefore, the assessee was not entitled to deduction under section 80- IB(10) as the completion certificate issued by the local authority certifying the completion of the project ha....
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....(if) thereunder. The completion certificate granted by the Local Authority must bear the date of having been issued before the cut off dote. [Para 26] The impugned judgment of (he Tribunal is set aside; and in the facts of the present case, the decision of the Assessing Officer to disallow deduction under section 80-IB(10)(a) is upheld. [Para 28]" As seen from the above, it is sine quo non to obtain the Completion Certificate/Occupancy Certificate from the competent authority on or before the stipulated due date in order to claim deduction u/s. 80IB(10) of the Act. In the instant case, it is an admitted fact that the assessee could obtain the Partial Completion Certificate-only in respect of G, H, J & J On or before the stipulated due date) but failed to obtain Completion Certificate/Occupancy Certificate in respect of all other blocks of the Project within the stipulated due date, Accordingly, the assessee is not eligible to claim deduction u/s. 80IB (10) of the Act as the basic requirement of completion of the entire project within the stipulate due date has not been fulfilled in this case. 7.8 . Even after considering partial completion would also enti....
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....hat the instant sec 80IB(10) deduction disallowance issue is no more res integra so far as all these processing projects are considered since this Tribunals coordinate bench's order in its own cases for assessment years 2010-11 to 2012-13 involving ITA Nos 1704/Hyd/2014, 1230/Hyd/2015 and 1082/H/2016 already accepted these very claim vide following detailed discussions: "2. In this appeal, the assessee has raised the following grounds of appeal: "1. The learned CIT(A) erred in fact and in law in denying exemption u/s.80(IB)(10) of the IT Act amounting to Rs. 16,99,10,673/- as claimed by the appellant. 2. The learned CIT(A) ought to have appreciated the spirit of the circular No.4/2009 dated 30.6.2009 issued by CBDT permitting allowance of deduction on a year to year basis on the profits from partial completion of the project. As the appellant followed percentage of completion method about which there is no dispute, the deduction should have been allowed since the appellant had produced necessary certificate for completion. 3. The learned CIT(A) ought to have appreciated that the provisions u/s.801B(10) being incentive provisions, a liberal interp....
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....he assessee has undertaken the housing project on a plot area of 11.05 acres and the project was approved by the local authority on 4.2.2008 and that the housing project approved as a single project consisting of 11 buildings. He observed that out of the 11 buildings, the assessee has claimed to have completed the construction of 7 buildings and that the construction of the balance 4 buildings is still in skeleton stage or has not yet started. Even, in support of the completion of the 7 buildings, the assessee filed the partial occupancy certificate dated 29.03.2012 issued by GHMC for 4 blocks, i.e. G, H, I & J only and no certificate was furnished regarding the remaining 3 blocks. 5. In order to verify the allowability of assessee's claim during the relevant A.Y, AO made a reference to the District Valuation Officer of the Department to inspect the housing project and verify its eligibility for deduction u/s 80IB(10) of the Act. The DVO, after inspection of the housing project, vide valuation report dated 22.03.2013, submitted a detailed report. As per the said report, the measurements of only 241 flats constructed at Manjeera Diamond Towers, Phase-I, were given by th....
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....was required to complete the project within five years from the end of the relevant financial year 2007-08, i.e. before 31.03.2013, the entire project could not be completed by such date. He submitted that the assessee has completed the blocks G, H, I & J before 29.03.2012 as is evident from the occupancy certificate dated 29.03.2012 and the blocks F, K & L were also completed as is evident from the Architect Certificate enclosed along with the application for issuance of occupancy certificate from GHMC as well as the Fire & Emergency Services Department on 30.03.2013. He submitted that when each of the block contains multiple residential flats, each block has to be considered as a housing project and since the assessee has completed seven blocks out of the whole project, the assessee is eligible for claiming deduction u/s 80IB(10) of the Act on the profits of these blocks on percentage completion method. He placed reliance upon the CBDT Instruction No.04/2009 dated 30.06.2009 wherein the Board has clarified that (a) the deduction can be claimed on a year to year basis, where the assessee is showing profit from partial completion of the project in every year; (b) in case i....
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.... in reply thereto the Chief City Planner, vide letter dated 13.06.2013, had pointed out only the following defects: i) Civil works in the cellar and sub-cellar flats are not completed ii) Not constructed the compound wall in the north-west corner of the block iii) Not constructed the rain water harvesting structures. 9. He submitted that these defects are not substantial for considering whether or not the blocks are completed in all respects and that these minor defects also have been complied with by the assessee subsequently and ultimately the completion certificate was issued on 16.12.2014. Therefore, according to him, the assessee has completed the blocks F, K & L in all respects before the due date i.e. 31.03.2013 and therefore, the assessee is eligible for deduction u/s 80IB(10) of the Act on the income from these buildings too. In support of this contention, he placed reliance upon the following decisions: a) CIT vs. Hindustan Samuh Awas Ltd (2015) 377 ITR 150 (Bom.) b) M/s. Sriram Constructions, Hyderabad vs. DCIT, Hyderabad in ITA No.1300/2001 & Others dated 29.4.2016. c) CIT vs. M/s. Ittina Properties (P) Ltd ....
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.... (2017) 80 Taxmann.com 374 d) Dy.CIT CO-Circle (VI)(1) vs. Marco Marwell Projects Ltd (2013) 29 Taxmann.com 249 (Chennai Trib.). 14. On the issue of interest income from margin money not being eligible for deduction u/s 80IB(10) of the Act, the learned DR placed reliance upon the decision of the Hon'ble Supreme Court in the case of Liberty India vs. CIT (2009) 317 ITR 218 (S.C). 15. Having regard to the rival contentions and the material on record, we find that the assessee's project has been approved on 4.2.2008 and there is no dispute that the assessee has to complete the project on or before 31.03.2013. The project contains eleven blocks in an area of 11.05 acres and the assessee has completed 4 blocks in totality and has also obtained partial completion certificate in respect of these blocks. In respect of 3 blocks, it is the claim of the assessee that they were also completed in all respects and the application for issuance of completion certificate along with necessary enclosures such as Architect's Certificate etc., was filed on 30.03.2013. 16. From the facts and circumstances of the case before us, the question before us is wh....
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....e of beneficial interpretation has no application where the words of statute are plain, precise and unambiguous. 20. In the case of Petron Engineering Constructions Pvt. Ltd & Anr (Cited Supra), the Hon'ble Apex Court held that though it is true that an exemption provision should be construed liberally, such a construction should not be made doing violence to the plain meaning of such exemption provision and Liberal Construction will be made whenever it is possible to be made without impairing the Legislature requirement and the spirit of the provision. 21. From the above judgments relied upon by the learned DR, it emerges that a beneficial provision should be liberally construed, but without doing violence to the plain meaning of the provision and keeping in mind the legislature requirement and the spirit of the provision. These decisions are on the principle of interpretation of the statute and not directly on the provisions of section 80IB(10) of the act. 22. The provisions of section 80IB(10) as applicable to the relevant A.Y reads as under: "[80IB(10) The amount of deduction in the case of an undertaking developing and building housing p....
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....quare feet at any other place; (d) the built-up area85 of the shops and other commercial establishments included in the housing project does not exceed [three] per cent of the aggregate built-up area of the housing project or [five thousand square feet, whichever is higher] (e) not more than one residential unit in the housing project is allotted to any person not being an individual; and (f) in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely:-- (i) the individual or the spouse or the minor children of such individual, (iii) the Hindu undivided family in which such individual is the karta, (iv) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta.] Explanation.--For the removal of doubts, it is hereby declared that nothing contained in this sub-section shall apply to any undertaking which executes the housing project as a works contract awarded by any person (including th....
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.... B, C & D buildings, the project must be held to have commenced prior to October 1, 1998, and hence is not eligible for deduction u/s 80IB(10) of the Act. The AO also held that the buildings were constructed in a plot of land admeasuring 2.36 acres of the land and if it was proportionately divided between all the buildings, then the land pertaining to E building would be less than one acre and hence, deduction u/s 80IB(10) could not be allowed. The Hon'ble Bombay High Court held that the building E was approved by the local authority on October 11, 2002 by a separate approval and therefore, it constituted an independent housing project and that section 80IB(10) while specifying the size of the plot of land, does not specify the size or the number of housing projects that are required to be undertaken on a plot having a minimum area of one acre. Thus, the Hon'ble High Court has held that if the assessee has constructed a building on minimum of one acre, as per the sanctioned plan and obtained the completion certificate, the assessee is entitled to deduction u/s 80IB(10). 26. The Hon'ble Madras High Court in the case of CIT vs. Voora Property Developers (P) Ltd r....
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....dras High Court has observed that there is no definition of the expression "Housing Project" u/s 80IB of the Act and that said expression is defined under Explanation to section 80HHBA of the Act. The Hon'ble High Court, after considering the said definition, has held as under: "13. Section 80IA of the Act is a specific provision which deals with deduction in respect of profits and gains from industrial undertakings or enterprises engaged in the development of infrastructural facilities such as roads, bridges and other structure as regards the grant of deduction in respect of development and construction of a housing project. Section 80IB is a specific provision in respect of profits and gains from undertakings engaged in developing and constructing housing projects other than infrastructure development undertakings. Thus, housing projects considered herein under Section 80IB refers to any building other than road, bridge or other structure. Thus, going by the definition of "housing project" to mean the construction of "any building" and the deduction under Section 80IB of the Act is hundred per cent of the profits derived in the previous year relevant to the assessmen....
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....s). Thus applying the decision of this Court in T.C.Nos.1348 and 1349 of 2007 dated 10.10.2012, we hold that the assessee is entitled to succeed both on the principle of proportionality as well as by reason of the construction on the meaning of the expression "housing project" as referring to construction of any building and the wordings in Section 80IB(10) of the Act. In the circumstances, we hold that the mere fact that one of the blocks have units exceeding built-up area of 1500 sq.ft, per se, would not result in nullifying the claim of the assessee for the entire projects. Consequently, in respect of each of the blocks, the assessee is entitled to have the benefit of deduction in respect of residential units satisfying the requirement under Section 80IB(10)(c) of the Act. In so holding, we also agree with the decision of the Bombay High Court reported in [2012] 206 TAXMAN 584 (CIT v. Vandana Properties), which was decided by the Bombay High Court on similar lines as in the assessee's case before us". In the case before us, the assessee had admittedly completed four buildings i.e. G, H, I & K and has also furnished the occupancy certificate dated 29.3.2012. Therefor....
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....clear that the assessee's claim has not been denied and hence has to be deemed to have been issued. It is another fact that the assessee itself made a fresh application again for issuance of completion certificate on 28.05.2013, in reply to which, the Municipal Corporation vide letter dated 13.06.2013 pointed out certain defects, which, in our opinion are not substantial and essential for considering the blocks to be incomplete. They are only peripheral works, which may be part of the housing project but are not essential. Therefore, in our opinion, the assessee is entitled to the deduction u/s 80IB(10) even for the Blocks of F, K and L. Thus, assessee's grounds of appeal Nos. 1 to 5 are allowed. 31. The other ground of the Revenue for denying the claim of deduction u/s 80IB is that the area in some of the flats exceeded 1500 sft. As held by the Hon'ble Madras High Court in the case of Viswas Promoters (Supra), the assessee is entitled to deduction in respect of the flats which do not exceed the area of 1500 sft on pro-rata basis. The AO is accordingly directed to allow the deduction. 32. As regards the claim of interest income, as a deduction u/s 80IB....
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....ing blocks than these blocks to be treated as independent project(s) themselves. Mr. Sai further sought to draw our attention to the CBDT's circular/instruction No.4/1999 regarding eligibility of sec 80IB(10) deduction. And that the assessee not having completed all these project(s). He argued that we ought to adopt strict interpretation while dealing with the deduction provision in the instant taxing statute as per the hon'ble apex court's recent landmark decision CCE (Import) vs M/S. Dilip Kumar And Company (2018) 9 SCC 1 (S.C)(FB) 9. We have given our thoughtful consideration to the foregoing rival pleadings. We are of the opinion that neither party's submissions regarding the impugned issue of sec 80IB(10) deduction claim(s) therein, as the case may be, deserve to be accepted in entirety. So far as the Revenue's objection(s) are concerned that none of the assessee's residential projects is eligible for the impugned deduction, there is hardly any dispute that the learned coordinate bench has already declined the same regarding blocks "G, H, I, K, F, L" in the foregoing detailed discussion in preceding paragraphs. Meaning thereby that all these Revenue's objections are presume....
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.... cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view on the question of law for the reason that certainty and uniformity in the administration of justice are of paramount importance. But, if the earlier judgment is erroneous or adherence to the rule of precedents results in manifest injustice, differing from the earlier judgment will be permissible. When a Division Bench differs from the judgment of another Division Bench, it has to refer the case to a Full Bench. A single judge cannot differ from a decision of a Division Bench except when that decision or a judgment relied upon in that decision is overruled by a Full Bench or the Supreme Court, or when the law laid down by a Full Bench or the Supreme Court is inconsistent with the decision. 38. It may be noticed that precedent ceases to be a binding precedent - (i) if it is reversed or overruled by a higher court, (ii) when it is affirmed or reversed on a different ground, (iii) when it is inconsistent with the earlier decisions of the same rank, (iv) when it is sub silentio, and (v) when it is rendered per incuriam. ....
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....curiam. The change in the provisions of the Act was present in the mind of the court which decided Ch. Atchaiah's case . Merely because the conclusion arrived at on construing the provisions of the charging section under the old Act as well as under the new Act did not have the concurrence of the latter Bench, the earlier judgment cannot be called per incuriam. 44. Though a judgment rendered per incuriam can be ignored even by a lower court, yet it appears that such a course of action was not approved by the House of Lords in Cassell and Co. Ltd. v. Broome [1972] 1 All ER 801, wherein the House of Lords disapproved the judgment of the Court of Appeal treating an earlier judgment of the House of Lords as per incuriam. Lord Hailsham observed (at page 809) : "It is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way." 11. Mr. Devdas once again sought to reiterate the point that the assessee's Architect had duly applied for completion of the impugned project as per the foregoing Hyderabad Municipal Corporation Act (Supra) on 30.3.2013. And that the delay in issue was at the ....