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1 Court No. - 3

AFR Reserved on 16.1.2017 Delivered on 07.4.2017

(4) Case :- INCOME TAX APPEAL No. - 73 of 2010 Appellant :- The Commissioner Of Income Tax-I, Lucknow Respondent :- M/S Fortuna Foundation Engineers & Consultants Pvt. Ltd. Counsel for Appellant :- D.D. Chopra Counsel for Respondent :- A P Singh,Amit Shukla,Surendra K. Garg (2) Case :- INCOME TAX APPEAL No. - 6 of 2012 Appellant :- Commissioner Of Income Tax -1 Aayakar Bhawan Respondent :- M/S Fortuna Foundation Engineers & Consultants Pvt. Ltd. Lko Counsel for Appellant :- D.D.Chopra Counsel for Respondent :- A.P.Singh,Alok Mathur (3) Case :- INCOME TAX APPEAL No. - 1 of 2013 Appellant :- Fortuna Foundation Engineers & Consultants Pvt.Ltd. Respondent :- Commissioner Of Income Tax -Ii Aaykar Bhawan Lko. Counsel for Appellant :- S.K.Garg,A.P. Singh,Ashish Bansal Counsel for Respondent :- D.D.Chopra,Alok Mathur

(4) Case :- INCOME TAX APPEAL No. - 29 of 2014 Appellant :- Fortuna Foundation Engineers & Consultants Pvt.Ltd. Respondent :- Commissioner Of Income -Tax-Ii Aaykar Bhawan Ashok Marg Lko. Counsel for Appellant :- Surendra Kumar Garg,Ashish Bansal,S.M.A.Zaidi Counsel for Respondent :- Manish Misra

Hon'ble Sudhir Agarwal,J. Hon'ble Attau Rahman Masoodi,J. ( Delivered by Hon'ble Sudhir Agarwal, J. )

1.

Appeal no. 73 of 2010 has been filed under Section

260-A of the Income Tax Act, 1961 (hereinafter referred to as Act, 1961) by Commissioner of Income Tax-I, Lucknow (hereinafter

referred

to

as

'CIT'),

being

aggrieved

by

judgment and order dated 8.4.2010 passed by Income Tax Appellate Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as 'Tribunal') in I.T.A. No. 67/LUC/09 relating to A.Y. (hereinafter referred to as 'A.Y.') 2005-06. It was

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admitted on two substantial questions of law which read as under: "(i) Whether Income Tax Appellate Tribunal was correct in law, under the facts and circumstances of the case in holding that the Assessee fulfilled the conditions laid down in section 80IB(1) of the Act without appreciating that at the time of commencement of the project the assessee had right, claim and interest in only 2657 Sq. Mtrs. of plot area of which is less than 1 Acre and thus it failed to fulfilled the stipulated condition for claiming the said deduction. (ii)Whether Income Tax Appellate Tribunal was correct in law, under the facts and circumstances of the case in holding that furnishing of the report in form No. 10CCB as per the requirement of Section 80IB (13) read with Section 80IA (7) is only directory and not mandatory and allowing the claim of the Assessee on the basis of report furnished in the course of assessment proceedings."

2.

Connected Appeal No. 6 of 2012 has arisen from

judgement and order dated 15.12.2011 passed by Tribunal in

I.T.A.

No.

72/LKW/2011

relating

to

A.Y.

2007-08.

Revenue has preferred this appeal and it was admitted on the following substantial question of law: "Whether learned Income Tax Appellate Tribunal erred in law while recording a finding that the Assessee fulfilled the condition laid down in Section 80IB(10)(b) regarding area of the plot of land being minimum one acre without appreciating that at the time of commencement of the project the Assessee had right, claim and interest in only 2657 sq.mts. of plot area which was less than 1 acre, while relying upon its order passed in the Assessee's own case for the Assessment Year 2005-06?

3.

Remaining two appeals have been filed by M/s

Fortuna

Foundation

Engineers

&

Consultants

(hereinafter referred to as the 'Assessee').

Pvt.

Ltd.

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4.

Third appeal i.e. Income Tax Appeal No. 1 of 2013,

has arisen from the judgement and order dated 22.8.2012 passed by Tribunal in I.T.A. No. 283/LKW/2012 relating to A.Y.

2006-08.

The

substantial

questions

of

law

are

substantially same but since differently worded, therefore, to make record straight, we are reproducing the same as under: "(i) Whether on a true and correct interpretation of the provisions contained in the Section 80I-B (10), the Tribunal was legally correct in holding that Assessee

had

requirement

failed

of

to

comply

submitting

the

with

the

completion

certificate before the stipulated date and on that ground in upholding the rejection of appellant's claim for exemption thereunder. (ii) Whether looking to the overall scheme of the 'relief giving provision' as contained in Section 80IB (10) and the regulatory provisions contained in the allied statutes it could be validly held that in the absence of completion certification having been filed before 31.03.2008, the Assessee's claim for exemption

under

Section

80I-B

(10)

stood

disqualified, even though the project had duly been executed and completed well in time. (iii)

Whether

information

there

which

existed

could

any

validly

material lead

to

/ an

observation that the project formulated by the Assessee (for which approval has been granted by LDA prior to 1st April, 2004) had not been completed by the stipulated dated i.e. 31.03.2008, so as to call for a deviation from the findings recorded by it in its earlier judgments and orders dated

08.04.2010

and

15.12.2011

in

the

Assessee's own case for the assessment year 2005-06 & 2007-08 respectively. (iv) Whether the view taken by the Tribunal is not vitiated in law, owning to non-consideration of

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4 material

and

information

on

record,

and

misinterpretation of the relevant provisions of law."

5.

Fourth appeal No. 29 of 2014 relates to assessment

year

2008-09

and

assails

judgement

and

order

dated

11.4.2014 passed by Tribunal in C.O. No. 18/LKW/2013 filed by Assessee, together with I.T.A. No. 319/LKW/2013. was admitted on followings question of law : "(i) Whether Section 80IB (10) as had been brought on the statute book by Finance (No.2) Act of 2004 w.e.f. 1.4.2005, in substitution of earlier provision, could be made applicable in the instant case where the project had been approved by the prescribed authority on 22.06.2003 i.e. prior to 1.4.2004. (ii) Whether on a true and correct interpretation of the provisions contained in the substituted Section 80IB (10) of the Act, the Tribunal was legally correct in holding that 'completion certificate' dated 21.10.2009 issued by LDA in response to the Assessee's application dated 14.3.2008 and dated 27.03.2008 did not meet the requirement of law so as to call for rejection of Assessee's claim for exemption thereunder. (iii) Whether looking to the overall scheme of the 'relief giving provision' as contained in Section 80IB (10) and the regulatory provisions contained in the allied statutes, it could be validly held that in the absence of completion certification having been filed before 31.03.2008, the Assessee's stood disqualified in

its claim

for

exemption under

Section 80IB (10), even though the project had duly been executed and completed well in time. (iv) Whether there existed any material before Tribunal to

deviate

from the

finding

of fact

recorded by a coordinate bench in Assessee's own case for earlier years i.e. assessment year 2005-06 and 2007-08 so as to hold that there was no

It

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5 evidence for completion of project by 31.03.2008 and to deny appellant's claim for exemption under Section 80IB (10)."

6.

Basically dispute relates to exemption under Section

80IB(10). Brief facts, relevant for appreciation of dispute, are as under. 7.

Assessee is engaged in the business of construction. It

is claimed to have undertaken promotion and development of residential housing project named as "Fortuna Apartment" on three contiguous plots of land, admeasuring 4550.07 sq. mts. Details of plots are as under: Sl. No.

Plot No. and address thereof Instrument through Area in which acquisition had Sq. Mtrs. been made

(i)

27A/1, Jopling Lucknow.

Road, Purchase deed 52.44 executed by the owner Sri Karuna Shankar Dubey

(ii)

27A/2, Jopling Lucknow.

Road, Builders' agreement dated 24.4.2001

2657.00

(iii)

27A/3, Jopling Lucknow.

Road, Builders' agreement

1840.63

Total 4550.07

8.

Plan

of

the

project

was

approved

by

Lucknow

Development Authority (hereinafter referred to as 'LDA') on 22.6.03. Assessee commenced construction and development activities on the aforesaid land in relation to the aforesaid project. partial

Assessee was recognising Revenue on the basis of completion

method

and

claimed

that

it

is

a

recognised method of accounting adopted by Developers of real estate. 9.

Owing to aforesaid method, Assessee disclosed income

from the project, year, after year commencing from A.Y. 2004-05 (Financial Year 2003-04).

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10.

For A.Y. 2005-06, Asseessee filed return on 31.10.05

showing net income of Rs. 1934180/-. It also claimed deduction under Section 80IB (10) at Rs. 2365254/-. 11.

Assessing Officer (hereinafter referred to as 'AO')

disallowed deduction claimed by Assessee under Section 80IB (10) on the following grounds: "1. Audit report as per Rule 18BBB in form no. 10CCB had not been filed along with the return. 2. Such report dated 02.09.2005, filed on 19.11.2007 did not conform to facts and the report had not been furnished along with the return, has lost relevance. 3. The project had been executed on three plots having number 27 A/1, 27A/2 and 27A/3 and there was no single plot having the minimum area of 1 acre or more."

12.

Aggrieved by order of AO, Assessee preferred appeal

before Commissioner of Income Tax (Appeals) [hereinafter referred to as "CIT (A)"]. Vide order dated 18.11.08 appeal was allowed and CIT (A) held that Assessee is eligible for deduction. Revenue carried the matter in appeal before Tribunal, who, vide order dated 8.4.2010, upheld the view taken by CIT (A) that Assessee is entitled for exemption as claimed under Section 80IB (10). Appeal of Revenue on this ground was rejected. 13.

This has been challenged in Income Tax Appeal No.

73 of 2010, pointing out that first approval was granted by LDA to the building plan of housing project of Assessee on 24.11.01, when total area, as on spot, was only 2657 sq. mts. which was less than one acre. Hence mandatory condition of specification of one acre under Section 80IB (10) was not satisfied. 14.

In connected appeal, for A.Y. 2007-08, Assessee filed

return declaring total income at Rs. 1302910/- after claiming

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deduction of Rs. 5638525/- under Section 80IB (10) of Act 1961. AO after scrutiny, passed order dated 29.12.09, disallowing deduction on the ground that project is on three different plots, bearing different numbers, hence condition of area being more than one acre for claiming deduction under Section 80IB (10)(b) was not satisfied. Appeal preferred by Assessee before CIT (A) failed. CIT (A) upheld disallowance of deduction vide order dated 30.8.2010 on the following grounds: "(i) It was not an integrated project but two distinct projects undertaken by the appellant and accordingly the requirement of land area of at least one acre had not been fulfilled; (ii) Lucknow Development Authority from whom approval had been obtained for commencement of the project ceased to be local authority after section 10 (20) was amended w.e.f. assessment year 200304 whereby such authorities have been excluded from the definition of local authority; (iii) For the same reason as in (ii) above, completion certificate issued by LDA cannot be said to be the "certificate of completion issued by local authority" as is the requirement of law as per subclause (ii) of explanation below clause (a) of subsection (10) of section 80IB of the Income Tax Act, 1961; (iv) The assessee merely carried out 'works contract' as per the agreement with Shri Karuna Shanker Dubey and for such 'works contract' there is a specific prohibition for claiming deduction under section 80IB (10) as per 'explanation' inserted by the Finance (no. 2) Act, 2009 w.e.f. 1.4.2001."

15.

Tribunal,

however,

allowed

appeal

preferred

by

Assessee and held on this question that project has started on integrated plot of more than one acre, therefore, requirement under Section 80IB(10) was satisfied.

This

aspect has been questioned in Revenue's appeal no. 6 of 2012.

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16.

I.T.A. No. 1 of 2003 relates to Assessment Year 2006-

07. In this matter return was filed on 30.11.06 disclosing total income of Rs. 1791470/- after claiming deduction under Section 80IB (10) to the tune of Rs. 4348943/-. AO disallowed deduction and passed assessment order dated 25.11.08 computing total income at Rs. 6160410/-.

CIT (A)

dismissed appeal and confirmed assessment order vide order dated 30.11.2011. It

has

also

Assessee carried the matter to Tribunal.

dismissed

Assessee's

appeal

upholding

disallowance of deduction on the ground of non-availability of completion certificate. 17.

Now coming to Assessee's

appeals for A.Y. 2008-09,

income of Rs. 1216014/- was disclosed in the return filed on 30.9.08 after claiming deduction under Section 80IB (10). The said deduction was disallowed by AO vide order dated 28.12.2010. The reason included the size, being less than one acre, and that the condition of obtaining completion certificate by 31st March, 2008 was not complied with. 18.

Section 80IB (10) as it existed before 1.4.05 reads as

under: "80IB (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 be hundred per cent of the profits derived in any 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;

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9 (b) the project is on the size of a plot of land which has a minimum area of one acre; and (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place." (emphasis added)

19.

Assessee claimed that w.e.f. 1.4.2005 (A.Y. 2006-07

and Financial Year 2005-06) (hereinafter referred to as "F.Y."), Section 80IB (10) was amended by substitution by Finance Act 2 of 2004 and the substituted provision reads as under: "80 IB (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 be hundred percent 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 Ist 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 Ist day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the Ist day of April, 2004 but not later than the 31 st day of March, 2005, within four years from the end of the financial year in which the housing project is approved by the local authority.

(iii) in a case where a housing project has been approved by the local authority on or after the Ist day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation- For the purposes of this clause,(I) in a case where the approval in respect of the housing project is obtained more than once, such housing

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10 project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is modified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometers from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three percent of the aggregate built-up area of the housing project of five thousand square feet, whichever is higher.”

20.

By Finance Act 2 of 2009 clause (e) and (f) were also

inserted in sub-section (10) of Section 80IB w.e.f. 1.4.2010 and an explanation was inserted which was given effect from 1.4.2001. 21.

Aforesaid clause (e), (f) and explanation by Finance

Act 2 of 2009 are also reproduced as under: "(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,

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11 (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 directed 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)."

22.

In the appeal preferred before CIT (A) by Assessee,

the ground relating to size was decided in his favour but on the ground of lack of approval certificate, disallowance of deduction under Section 80IB (10) was upheld vide order dated 6.2.2013. 23.

Revenue preferred appeal against order dated 6.2.2013

insofar as the ground relating to size was answered in favour of Assessee and Assessee also filed cross-objections with regard to denial of deduction for want of completion certificate. Tribunal vide judgement dated 11.4.2014 has dismissed

Revenue's

appeal

upholding

Assessee's

cross-

objection hence Assessee has brought the I.T.A. No. 29 of 2014 in which the questions raised have already been quoted above. 24.

First

of

all,

we

propose

to

consider

substantial

question of law raised in Revenue's appeal regarding area of plot under Section 80IB (10)(b), as to whether it will be a single plot or contiguous joint plots. This will cover question no. 1 in ITA No. 73 of 2010 and sole question in ITA No. 6 of 2012.

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25. It is not in dispute that Assessee got first approval on 24.11.01 in respect of the plot admeasuring 2657 sq. mts. Subsequently, revised plan was approved by LDA on 22.6.03 to the total aggregate land i.e. 4550.07 sq. mts. 26.

One of the essential conditions to attract deduction

under Section 80IB (10) is that the housing project approved by local authority must be on the size of a plot of land which has a minimum area of one acre. The word 'plot' itself has not been clarified or explained anywhere that it may include contiguous plots, more than one, so as to satisfy requirement of minimum area of one acre. 27.

CIT (A) called for a remand report from AO during

course of appellate proceedings, as to whether housing project had actually been developed on an integrated plot of land admeasuring 4550.07 sq. mt. or otherwise. Remand report submitted by AO has been reproduced by CIT (A) in its order dated 18.11.08. This report and other material has been

discussed

in

para

8.2

to

8.11

of

order

dated

18.11.2008. This is part of record in I.T.A. No. 73 of 2010. 28. Basic facts are not disputed in this regard. In fact, they are relied in written arguments submitted by Assessee. 29.

Plot No. 27-A/1, Jopling Road, Lucknow, area 52.44

sq. mts. was purchased by Assessee vide sale deed dated 15.4.2002 executed in its favour by Karuna Shankar Dubey. 30.

Total area of plot no. 27-A was 50902 sq. ft. where

against sub-division was allowed by competent authority on 18.7.2000 separating 6002.50 sq. ft. in favour of Yogda Satsang Society.

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31.

So far as Assessee is concerned, it got another part of

plot no. 27-A/2 on 24.4.2001 under a builder's agreement executed between Assessee and Karuna Shankar Dubey which related to 2657 sq. mts. of land. 32.

Assessee claimed to have possession of another plot of

land i.e. 27-A/3 area 1840.63 through builder's agreement dated

14.10.2003

executed

by

Captain

Samir

Dubey

(Executor of will, Karuna Shankar Dubey, died on 3.2.2003). 33.

Before 15.4.2002 Assessee had no legally enforceable

right in respect of land in dispute and in this regard no material has been placed either before this Court or before the Revenue authorities in assessment proceedings and subsequent appeals. 34. Assessee further claimed that on 10.10.2010 it had deposited a sum of Rs. 836640/- as free-hold charge for the entire land bearing number 27-A. It shows that plot no., 27A was a nazul land owned by State of U.P. and up to 10.10.2000 ownership of State continued. 35.

The aforesaid facts show; (i) the first land i.e. plot no.

27-A/2 area 2657 sq. mtrs. came to be possessed by Assessee pursuant to builder's agreement dated 24.4.2001 executed between Assessee and Karuna Shankar Dubey; (ii) housing project was approved by LDA on 24.11.2001. Thus, on the date when housing project was approved, the only land available with the Assessee in any capacity had a total area of only 2657 sq. mtrs; (iii) Second part of land i.e. plot no. 27-A/1 area 52.44 sq. mtrs. was purchased by Assessee from Karuna Shankar Dubey vide sale deed dated 15.4.2002; and (iv) third part of land i.e. plot no. 27-A/3 area 1840.63

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sq. mtrs. came to be possessed by Assessee pursuant to builder's agreement dated 14.10.2003. 36.

There is no condition in Section 89 and 80IB (10) that

developer must hold the plot it proposed to develop by constructing a housing project, still area of land for which housing project was approved by LDA on 24.11.2001 was only 2657 sq. mtrs. Rest of land became available to Assessee on and after 15.4.2002 and 14.10.2003, therefore, approval granted by LDA on 24.11.2001 cannot be deemed to be applicable to those plots which became available to Assessee much subsequently. 37. Revised plan was approved by LDA on 22.6.2003. On this date also Assessee had in possession only two plots i.e. 27-A/2 ( are 2657 sq. mtrs.) and 27-A/1 (area 52.44. sq. mtrs). Third plot i.e. plot no. 27-A/3 (area 1840.63 sq. mtrs.) came to be possessed by Assessee on 14.10.2003 i.e. much after second approval granted by LDA on 22.6.2003. Therefore, second approval cannot be said to include area of land which was not even available with Assessee in any capacity. 38.

Sub-section (10) of Section 80IB was broadly amended

by Finance Act of 2004 w.e.f. 1.4.2005. With regard to clause (d) of sub-section (10), in

Commissioner of Income

Tax-19, Mumbai Vs. Sarkar Builders (2015) 375 ITR 392(SC),

Court has already held that it is prospective and shall not apply to the projects which were approved before 1.4.2005. Same is the position in respect of clause (c) of Section 80IB (10).

However,

with

respect

to

clause

(a)

and

its

explanation, we find that it was not a new condition with regard to completion of project and only it was reintroduced

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after a short gap by Finance Act of 2004. On this aspect, we have already discussed the matter at length and our judgement dated 7.4.2017 in ITA No. 9 of 2014 and other connected appeals: Commissioner of Income Tax v. M/s Arif Industries Ltd. and it has been held that clause (a) shall be applicable to the projects which were approved before 1.4.2005 and it has to be observed and complied by Assessee irrespective of the fact whether housing project was approved before 31.3.2005 or subsequently. 39.

Further, in our view, explanation (i) is clarificatory in

nature and, therefore, subsequent approvals obtained by Assessee in view of addition of land to its credit, will not make any difference. In view thereof, question no. 1 in ITA 73 of 2010 and sole question in ITA No. 6 of 2012 are answered in favour of Revenue and against Assessee and we hold that Assessee did not satisfy the requirement of area of plot of land being minimum one acre. Since the project approved for the first time on 24.11.01 was in respect of land which measured only 2657 sq. mtrs. and even second approval when granted on 22.6.2003, total area of 2 plots was only 2657 sq. mtrs. and 52.44 sq. mtrs. which was again less than one acre. 40.

With regard to question no. 2 in ITA No. 73 of 2010,

we are of the view that it is not mandatory. This question is regarding filing of audit report in form 10CCB. If it is not filed alongwith return but filed before assessment, will it amount to non-compliance of Section 80IB (13) read with Section 80IA (7).

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41.

In

CIT Vs. Ace Multitaxes System (P) Ltd. [2009] 317 ITR

207 (Karnataka),

it was held that when a relief is sought for

under Section 80-IB of Act, 1961, there is no obligation on the part of Assessee to file return accompanied by audit report, thereby, holding that same is not mandatory. 42.

Same view was taken by Delhi High Court in

Contimeters Electrical (P) Ltd. [2009] 317 ITR 249 ;

High Court in 43.

CIT Vs.

by Madras

CIT Vs. Jayant Patel [2001] 248 ITR 199.

Supreme Court in

Commissioner of Income Tax Vs. G.M.

Knitting Industries (P) Ltd. [2015] 376 ITR 456

dismissed

appeal of Revenue and confirmed the view taken by Madras High Court holding that filing of audit report and form 10CCB along with return is not mandatory. 44.

In view of above, we answer question no. 2 in ITA

No. 73 of 2010 in favour of Assessee and against Revenue, holding that it is not mandatory and only directory and Assessee cannot be made to suffer if it filed audit report in form 10CCB in the course of assessment proceedings and not alongwith return. 45. Question No. 1 in ITA No. 29 of 2014 has to be answered partly in favour of Assessee and partly in favour of Revenue. 46.

Clause (d) of Section 80IB (10) came to be inserted for

the first time, is prospective and shall not apply to housing projects approved before 1.4.2004 but the same effect is not applicable to other parts of Section 80IB (10) and in particular clause (a) with which Assessee in the present appeals is concerned. The aforesaid clause has to be observed by Assessee even if its project stands approved

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before 1.4.2004 and in this regard a detailed judgement has already been given on 7.4.2015 in

ITA No. 9 of 2014 and other

connected appeals (Commissioner of Income Tax v. M/s Arif Industries Ltd.).

and for the reasons stated therein in respect

of Section 80IB(10)(a), as amended w.e.f. 1.4.2005, we answer that it will apply to the projects approved before 1.4.2004 also and it is only clause (d), came to be inserted w.e.f. l.4.2005, which is prospective. 47.

Questions no. 2, 3 and 4 in ITA No. 29 of 2014 and

questions no. 1 to 4 in ITA No. 1 of 2013 are connected with completion of project and submission of completion certificate before stipulated date. All these questions, in our view, have to be answered against Assessee, as we have already said that requirement of completion of project within stipulated period was applicable to Assessee's housing project and in this regard, we follow our judgement in ITA

No. 9 of 2014 and other connected appeals, decided on 7.4.2017, referred to above. 48.

Now with regard to alleged completion certificate

some startling facts evident from record may also be noted. 49.

Application was submitted by Assessee on 27.3.2008 in

the name of 'Karuna Shankar Dubey' requesting LDA to grant completion certificate. We are already informed that Karuna Shankar Dubey died on 3.2.2003 and hence builder's agreement dated 14.10.2003 was executed by Capt. Samir Dubey. If that be so, it is inconceivable that a dead person could have filed application for completion certificate. Not only this, even an application prior to 27.3.2008 in the name of Karuna Shankar Dubey was filed requesting for compounding. Both these applications are non est in law. It

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cannot be treated to be an admissible evidence or even a valid document for any purpose, what to say, about factum of completion of the project by Assessee by 31.3.2008. 50.

It is also evident from order of CIT (A) and Tribunal

that lastly completion certificate was filed on 21.10.2009. No evidence has been brought on record to show that project was completed on or before 31.3.2008 or that officials of LDA made inspection of construction and verified completion of project. 51.

In view of above, appeals preferred by Revenue i.e.

Income Tax Appeal No. 73 of 2010 and 6 of 2012 are hereby allowed and Assessee's appeals i.e. Income Tax Appeal No. 1 of 2013 and 29 of 2014 are hereby dismissed. 52.

Judgements of Tribunal in respect of questions which

we have answered otherwise than the view taken by Tribunal, assailed in Revenue's Appeals No. 73 of 2010 and 6 of 2012, are set aside to that extent. 53.

Consequences shall follow.

Dated: April 07, 2017 Fahim/-