TaxTMI 
TaxTMI 
2025 (1) TMI 1127
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....ourt be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, calling for records pertaining to the impugned notification dated 05.01.2011 issued by the Respondent No. 2 (being Exhibit 'H' hereto) and after going into the validity and legality thereof to quash and aside the same. (b) that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, permit the petitioner to file appropriate claim under the Act for claim of deduction u/s 80IB(10) of the Act before the Respondent No. 3 and Respondent No. 4 and direct to grant of refund as per law arising due to eligibility of the claim without raising the issue of limitation or other technical issue." 5. Mr Naresh Jain submits that the impugned notification dated 5 January 2011, which is a purported "corrigendum" to the notification dated 3 August 2010, is plainly ultra vires Section 80IB (10) of the Income Tax Act, 1961 (IT Act). He submits that the impugned notification travels way beyond the principal section a....
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.... issued to correct this obvious error and ensure that the CBDT notification dated 3 August 2010 aligns with the proviso to Section 80IB (10) of the IT Act. He submitted that the impugned corrigendum is entirely intra vires and the CBDT has, in no manner, exceeded the powers vested in it. He submitted that the decisions relied upon by Mr Jain are mostly irrelevant and do not apply to the facts of the present case. 11. The rival contentions now fall for our determination. 12. To appreciate the challenge raised in these Petitions, we refer to the provisions of Section 80IB (10) as they presently obtain:- "[(10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, [2008] buy a local authority shall be hundred per cent of the profits derived in the previous year relevant to 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 be....
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....her 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, (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) 13. The above provision was substituted by the Finance (2) Act, 2004, with effect from 1 April 2005. Before its substitution, sub-section (10), as amended by the Finance Act, 2000, with effect from w.e.f. 1 April 2001 and Finance Act, 2003, w.e.f. 1 April 2002, read as follows: "(10) The amount of profits in case of an undertaking developing and building housing projects approved before the 31st day of March, 2005 by a local authority, shall b....
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....ntained in Regulation 33(10) of Development Control Regulation for Greater Mumbai 1991 read with the provisions of notification No. TPB-4391/4080(A)/UD- 11(RDP) dated 3rd June, 1992, as a scheme for the purposes of the said Section subject to the following conditions,- (i) slum development falling in Category VII mentioned in notification No. TPB-4391/ 4080(A)/UD-11(RDP) dated 3rd June, 1992 shall be excluded from the Scheme; (ii) slum development falling within clause 7.7 of the Appendix IV of regulation 33(10) which provides for joint development of slum and non-slum areas shall be excluded from the Scheme; and (iii) any amendment in the Scheme hereby notified shall be required to be re-notified by the Board. 2. This notification shall come into force with effect from the date of its publication. [F. No. 178/37/2006-ITA-I] PADAM SINGH, Under Secy. 17. The proviso to clauses (a) and (b) of sub-section (10) of Section 80IB of the IT Act entered force on 1 April 2005. The principal notification, however, had notified the scheme with which the Petitioners are concerned only with effect from 3 August 2010. Therefore, to align the principal ....
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....nd not provide additional qualifications or criteria for the inapplicability of Clauses (a) and (b). On this ground, he maintained that the impugned notification was ultra vires. 20. The circumstance that Section 80IB (10) (a) (i) refers to housing projects approved by the local authority before 1 April 2004 cannot lead to the inference that the benefit of the proviso, which was introduced only with effect from 1 April 2005, would apply to the slum redevelopment projects approved before 1 April 2004. If that were so, the legislature would have said so by giving the proviso a suitable retrospective effect. Since the legislature has not chosen to provide the proviso any retrospective effect, the CBDT, which, even according to Mr Jain, is only a delegate, was not competent to give the proviso any retrospective effect by issuing any notification 21. The effect of the principal notification dated 3 August 2010, as corrected by the impugned notification dated 5 January 2011, is only to align the CBDT's notification with the proviso to Section 80IB (10), which was brought into force by legislature prospectively, i.e. with effect from 1 April 2005. The provisions of 80IB (10), as the....
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....e and neither applicable retrospectively nor retroactively. Once this position is accepted, the impugned notification, which only ensures that the principal notification dated 03 August 2010 falls in line with the benefits granted by the Proviso to sub-clauses (a) and (b) in Section 80-IB (10) cannot be struck down as ultra-vires. 26. Therefore, if the proviso to sub-clause (a) and (b) of Section 80-IB (10) is prospective, such proviso cannot be given a retrospective effect based on a CBDT notification. However, the impugned notification restricts its scope to the period from which the proviso came into force. In other words, the impugned notification corrects the principal notification so that the principal notification, as corrected, aligns with the provisions of Section 80-IB (10), which came into force on 01 April 2005. The impugned notification accords with the letter and the spirit of the amended provisions of Section 80-IB (10). But for the impugned notification, an argument was possible that the principal notification was vulnerable. The unamended principal notification sought to extend the benefit of the amended provisions of Section 80-IB (10) only from 3 August 2010, ....