PER R.K. PANDA, AM : ITA Nos.316 to 319/PN/2013 filed by the Revenue are directed against the common order dated 07-11-2012 of the CIT(A)-I, Pune relating to Assessment Years 2004-05 to 2007-08 respectively. ITA No.1830/PN/2013 filed by the assessee is directed against the order dated 30-08-2013 of the CIT(A)-I, Pune relating to Assessment Year 2008-09 and ITA No.272/PN/2014 filed by the assessee is directed against the order dated 13-12-2013 passed u/s.154 by the CIT(A)-I, Pune relating to Assessment Year 2008-09. Since common issues are involved in all these appeals, therefore, these were heard together and are being disposed of by this common order for the sake of convenience. ITA No.1830/PN/2013 (A.Y. 2008-09) :

2. Facts of the case, in brief, are that the assessee is an individual and is engaged in the business of Builders and Developers in the name of Subhash Builders as a proprietorship concern. He filed his return of income on 23-09-2008 declaring total income of Rs.2,63,40,213/-. During the course of assessment proceedings the AO noted that the assessee had undertaken development and construction of one project, i.e. Vardhaman Township. It was started on 20-05-2002 as per approval dated 23-03-2001. The project has been constructed on land admeasuring 40,050 sq.mtrs having residential units from 480 to 900 sq.ft. The project has also commercial establishment of about 750 sq.ft.

2.1 From the various details furnished by the assessee the AO observed that the assessee has claimed deduction/s.80IB(10) as under : Assessment Year Amount 2004-05 Rs.29,98,262/- 2005-06 Rs.60,00,309/- 2006-07 Rs.1,70,70,777/- 2007-08 Rs.2,51,91,854/- 2008-09 Rs.2,79,35,311/- The AO, therefore, asked the assessee to justify the said claim of deduction in the light of disallowance of the same in earlier assessment year, i.e. 2007-08. From the various details furnished by the assesse, the AO observed that the assessee does not satisfy the conditions prescribed u/s.80IB(10). He noted that in the present case the construction work commenced on 23-03-2001 and therefore the project should have been completed on or before 31-03-2008. However, during the course of survey in the premises of the assessee on 13-05-2008, it was seen that the project construction work was still going on thereby making the assessee not eligible for claim of deduction u/s.80IB(10). The statement of the assessee was also recorded during the survey proceedings wherein he had stated in reply to Question No.3 that almost 90% of the work is completed in March 2008. Further, in reply to Question No.6 he has stated that as a good gesture and to buy peace of mind he is surrendering deduction claimed u/s.80IB(10) for the said scheme. In view of the above the AO noted that the assessee is not eligible for claiming the deduction u/s.80IB(10) amounting to Rs.2,79,35,311/-. He accordingly disallowed the same.

2.2 It may be pertinent to mention here that in view of the survey undertaken u/s.133A on 13-05-2008 where the assessee surrendered the claim of deduction u/s.80IB(10) re-assessment proceedings were initiated u/s.147 and the AO in the orders passed us/.143(3) r.w.s. 147 disallowed the claim of deduction granted earlier amounting to Rs.29,98,262/- for A.Y. 2004-05, Rs.60,00,309/- for A.Y. 2005-06, Rs.1,70,70,777/- for A.Y. 2006-07 and Rs.2,51,91,854/- for A.Y. 2007-08.

2.3 The assessee went in appeal wherein the Ld.CIT(A) vide order dated 17-07-2012 for A.Yrs. 2004-05 to 2007-08 following the decision of the Coordinate Bench of the Tribunal in the case of M/s.Ramsukh Properties Vs. DCIT vide ITA No.84/PN/2011 order dated 25-07-2012 allowed proportionate claim of deduction u/s.80IB(10) by observving as under : 3.4 After considering the submissions made and the factual material that is available on record, it is felt that the crux of the issues that have a bearing on the appeal in question are three folds : a) Whether the statement made by the appellant before the Income tax authorities during survey on 13-05-2008, can be substituted by a legal claim made during subsequent proceedings, thereby tantamounting to a retraction b) Whether appellant is entitled to deduction u/s.80IB(10) despite the fact that all buildings in the housing project are not completed c) Whether appellant is entitled to pro-rata deduction on flats/housing units completed by 31-03-2008

3.5 The first issue is crucial, having as it were important ramifications. It is seen from the record that, almost immediately after survey and statement recorded on 13.5.2008, the appellant addressed a letter to the Assessing Officer on 28.5.2008, wherein he states that he is willing to pay tax on the incomplete part of the project, but requesting that deduction u/s 80IB(10) be allowed on the completed part of the project. On being informed by the Assessing Officer by letter dated 23.6.2008 that the appellants contention was incorrect and contrary to the provisions of sec. 80IB(10) and therefore, he must honour his commitment and pay the taxes, the appellant paid taxes of Rs.98,48,000 under protest and without prejudice to his claim for-deduction u/s 80IB(10) and informed Assessing Officer vide letter dated 14.7.2008. It is to be noted that the appellant did not, however, file revised returns in response to 148 notice for A.Ys. 2004- 05 and 2005-06 but furnished reply stating that original returns filed on

1.10.2004 and 31.10.2005 respectively for these years be treated as filed in response to 148 notice. Returns were also not revised for A.Ys. 2006-07 and 2007-08, for which years returns already stood filed. Thus, it can be seen that the voluntary statement made u/s 131 on 13.5.2008, was almost immediately withdrawn within a span of 15 days, by appellants letter dated 28.5.2008, addressed to Assessing Officer requesting for allowance of 80IB(10) deduction on completed part of the project. It has been submitted that a legal claim can be made any time and does not amount to retraction. Considering all the facts narrated above, one comes to the inescapable conclusion that the appellant had all along maintained, that he was paying taxes on the disputed amount, without prejudice to his contention that he was entitled to deduction u/s 80IB(10) on the completed part of the project. Any statement made by the appellant during the course of survey, it is felt, cannot stand in the way of a claim that the appellant is legally entitled to. Keeping in view the same it is held that any legal claim by an assessee has to be entertained at any stage of the proceedings, unless it is specifically prohibited by the laws of limitation, if any applicable. In this background, it becomes necessary to adjudicate on the second and main ground of appeal which relates to allowance of deduction u/s 8016(10), which is also intrinsically related to the additional ground raised in the appellate proceedings.

3.6 Coming to the main issue on which the appeals for the four impugned assessment year hinges i.e. Ground No. 1, it is seen from the record that the appellant received permission for construction of 9 buildings, namely A8, A9, B 8, B9, B10, C8, C9, C10, and D3 in its housing project called "Vardhman Township" located at Survey No. 44A, Sasane Nagar, Hadapsar, Pune. The first approval (commencement certificate) from PMC Building Control Department, was received on 20.5.2002 vide PMC Commencement Certificate No. 4434 permitting residential FSI of 40,050 sq.mt. As per the plan, the application proposed residential floor space construction of 8496.99 sq.m. Subsequently, the appellant submitted revised plans, and received commencement certificate in respect of 12 buildings (including previously approved buildings A8, A9, B8 to B10 and C8 to C10 and D3) and newly approved D, D1 and D2 vide reference No. 1256 dated 9.10.2002. As per this approval, in addition to already sanctioned residential floor space of 8496.99 sq.m., appellant further proposed construction of another 7074.22 sq.m., thereby making total of 15,571.21 sq.m. The annexure to this commencement certificate, containing 14 sheets of approved plan refer to commencement certificate No. 4434 dated 20.5.2002.

3.7 The second revised approval in respect of the plot was received from PMC vide commencement certificate No. 2897 dated 15.9.2003. As per this certificate, permissible FSI is 38,018.56 sq.m. and proposed residential floor space is 16033.80 sq.m. This plan makes minor changes in the FSI calculations for buildings D, D1,D2 and D3. This certificate also refers to CC No.4434 dated 20-5-2002. The final and third revision of plan was communicated vide CC No. 3402/06 dated 22.12.2006. The permissible FSI remained unchanged at 38018.56 sq.m. and proposed residential floor space was 18330 sq.m. This plan made provision for commercial space of 17.75 sq.m. in ground floor of D building and 156.62 sq.m. of commercial space in ground floor of D3 building. This plan gives reference to earlier CC No. 4434 dated 20.5.2002.

3.8 As is apparent from the preceding paragraphs, it can be seen that the appellants original housing project "Vardhaman Township" at Sasanenagar, Hadapsar, Pune comprising 9 residential blocks was originally approved vide PMCs commencement certificate vide Ref. No. 4434 on 20.5.2002. The second, third and fourth rounds of approval/ commencement certificates received from the municipal authorities related to amendments in the original plan received from PMC dated

20.5.2002. These related to construction of 3 new blocks (D, D1 and D2), changes in FSI calculation of the new blocks and additional commercial construction of 174.37 sq.m in D and D3 buildings. However, each one of these amended plans are with reference to original plan submitted and approved by PMC vide Ref. No. 4434 dated 20.5.2002. Therefore, the construction carried out by the appellant of housing project has to 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, namely 20.5.2002.

3.9 Section 80IB(10) as it relates to the facts of the impugned assessment years, reads as under: "80IB (10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2007 by 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 before the 1st day of April, 2004, on or before the 31 st 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 1st day of April, 2004, within four 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 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;"

3.10 From the plain reading of the section, it is clear that the appellant received its first approval for its housing project on 20.5.2002 and all subsequent approvals taken were for amendments to its initial plan to construct 9 residential blocks. Consequently, as per Explanation (i) to sec. 80IB(10)(a) the deemed date of approval of the housing project would be

20.5.2002. For the impugned assessments therefore, since the completion certificate in respect of the housing project was not received till 31.3.2008, the Assessing Officer was justified in rejecting the claim of the appellant u/s 80IB(10). Further, as is discussed in the subsequent paragraphs, the appellants reliance on Bombay High Court decision in Vandana Properties is not justified.

3.11 The Mumbai High Court in Vandana Properties case has, (206 Taxman 584) in relation to Explanation to sec. 80IB(10)(a) held as under: "22. Reliance placed by the Revenue on the Explanation to Section 80IB (10) (a) which was introduced with effect from 1st April 2005 is also misplaced. What the said Explanation contemplates is that where the approval in respect of a housing project is granted more than once, then, that housing 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. For example. in respect of a the construction and the same may be approved. In such a case, the explanation provides that for the purposes of Section 80IB (10) the housing project shall be deemed to have been approved on the date on which the first approval was granted by the local authority. Thus, the Explanation to Section 80IB (10)(a) refers to the approval granted to the same housing project more than once and the said Explanation would not apply where (he approval is granted to different housing projects. In the present case, as noted earlier, construction of E building constitutes an independent housing project and, therefore, the date on which the earlier housing project had commenced construction could not be applied to the housing project consisting of E building merely because the conditions set out while granting approval to the earlier housing project have also been made applicable to the housing project in question. "

3.12. A careful analysis of the Bombay High Court decision cited above would show that in the case decided by the High Court the assessee had already constructed buildings A, B, C and D during the period 1993 to 1996 i.e. prior to 1.10.1998 when sec. 80IB(10) was not on the statute. In the year 2001 the land was converted from surplus vacant land into land within ceiling limit by the State Govt, thereby giving the appellant extra FSI. Accordingly, approval for construction of additional building E was submitted and approved by the local authority on 11.10.2002. It is in view of these peculiar facts, that in this case, the High Court held that building E could not be considered as an extension of the earlier housing project nor had the municipal corporation granted approval to building E as extension of the existing / earlier housing project, but could be said to be a separate housing project. Consequently, it was held that Explanation (i) to sec. 80IB(10) did not apply. The High Court also went into the issue as to whether a builder must have a vacant plot of land with a minimum area of one acre so as to be eligible for deduction u/s 80IB(10) but since it is not relevant to the facts of the present case, this aspect may be ignored for the present.

3.13. From the facts narrated above, it can be seen that the facts in the present case are completely distinguishable from the facts and circumstances adjudicated by Mumbai High Court in Vandana Properties. It is clear from the preceding paragraphs that the appellant sought revision of its original housing project that was earlier approved by PMC bearing Reference No. 4434, and such approval was received on 20.5.2002. The appellant sought certain modifications to its housing project which was approved by PMC on 9.10.2002. A second revision was sought by the appellant and received on 15.9.2003. Again, for the third time the appellant sought revision of its original plan for the housing project from PMC which was received on 22.12.2006. This is therefore, a case, as the Honble Mumbai High Court held vide para 22 of its judgement reproduced at para 5.1 supra, where amendment of the building plan at several stages of construction was sought and approved. In such a situation, the High Court held that Explanation to sec. 80IB(10)(a) would be clearly attracted. In other words, for the purposes of sec. 80IB(10), a housing project shall be deemed to have been approved on the date on which first approval was granted by the local authority. It was only in the light of the peculiar facts and circumstances of the case before it, the High Court found that construction of E building constitutes an independent housing project and therefore, the date on which the earlier housing project have commenced construction could not be applied to the housing project consisting of E building merely because the conditions set out while granting approval to the earlier housing project have also been made applicable to the housing project in question. In the present case, it is seen that the PMC has granted approval in respect of the housing project named Vardhman Township more than once due to modifications proposed by the appellant and therefore, the housing project could be deemed to have been approved as on the original date of approval viz. 20.5.2002. Since the appellant has failed to complete the construction of the entire housing project on or before 31.3.2008 as per the existing provisions of law, it is held that the appellant is not entitled to claim deduction u/s 80IB(10). Therefore, the first ground of appeal relating to sec. 80IB(10) fails and is accordingly, dismissed for all the impugned assessment years.

4. The third issue detailed at para 3.4 (c) supra, relates to claim of the appellant for proportionate deduction u/s 8016(10), which has been raised by wav of additional ground of appeal and which was already raised before the Assessing Officer vide letter dated 28.5.2008 and subsequent letter dated 14.7.2008 The appellant has submitted, (in connection with the additional ground filed on 12.11.2009 for grant of pro-rata deduction) that assuming all 12 buildings are together considered as a single project, proportionate deduction should be granted with reference to 8 buildings which are already completed. The dates of completion are 5.10.2004 (D building), 16.9.2005 (D 3 building), 4.2.2006 (C9 and C10 buildings),

12.12.2006 (D2 building) and 6.8.2007 (D1 building) Reliance has been placed on following decisions in support of this proposition : i. 108 TTJ 71 (Chennai) Aruna Excello ii. 33 SOT 277 (Mum) ACIT vs Sheth Developers iii. 25 DTR 278 (Nag) ITO vs AIR Developers iv. 119 TTJ 269 (Bang) Brigade Enterprises v. 22 DTR 1 (Pune) (SB) Brahma Associates vi. 39 DBCAJ 546 (Cal) Bengal Ambuja Hsg. Developers vii. 35 SOT 135 (Murn) Arpana Development Corporation viii. Ekta Housing Pvt. Ltd. (Mumbai ITAT) ITA No. 3649/Mum/2009 dated 20.5.2011

4.1 All the above case laws relied upon by the appellant are perused. It is seen that all of them are on the issue of pro-rata deduction u/s 80IB(10) in respect of eligible residential units as prescribed u/s 80IB(10)(c) and are not relevant to the facts of the instant case, save and except Brahma Associates, which revolved around the issue of commercial user in housing project approved prior to 1.04.2005, In that case, the honourable Mumbai High Court implicitly disapproved of concept of proportionate deduction u/s 80IB(10). The High court held that sec. 80IB(10) allows deduction to the entire project approved by the local authority and not to a part of the project. When all the conditions prescribed by the statute as satisfied, there is no question of allowing part deduction and assessee is entitled to sec. 80IB(10) on the entire project. Following is the operative portion of the High Courts decision in Brahma Associates : "28. In the present case, though the commercial user is more than 10 per cent of the plot area, the Tribunal has allowed section 80-IB(10) deduction in respect of 15 residential buildings on the ground that the profits from these exclusively residential buildings could be determined on stand alone basis. In our opinion that would not be proper, because, section 80-IB(10) allows deduction to the entire project approved, by the local authority and not to a part of the project. If the conditions set out in section 80-IB(10) are satisfied, then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to a part of the project. In the present case, the commercial user is allowed in accordance with the DC Rules and hence the assessee was entitled to section 80-IB(10) deduction on the entire project approved by the local authority. However, the assessee has not challenged the decision of the Tribunal in restricting the deduction to a part of the project. Therefore, while holding that in law, the assessee was entitled to section 80-IB(10) deduction on the profits of the entire project, in the facts of the present case, since the assessee has not challenged the decision of the Tribunal, we are not inclined to disturb the decision of the Tribunal in restricting the section 80-IB(10) deduction only in respect of the profits derived from 15 residential buildings."

4.2. Thus, applying the logic of the Mumbai High Courts decision in Brahma Associates case, it appears that in case the conditions of section 80IB(10) are not satisfied, deduction under that section cannot be allowed on part of the project. A plain reading of the Section shows that it speaks only about "completion" and there are no adjectives that are used with the words completion. By choosing not to qualify the word "approved" or "completed" in Section 80IB(10)(a), the Legislative intent in bringing in specified dates for completion within a specified period of approval is very clear. The legislation was brought in to fill up the lacunae relating to completion of housing projects and thereby, achieve the objective of providing affordable housing: accommodation to public at large. Further as has been held in the preceding paragraphs, unlike Vandana Properties case, where an individual building was held to be a housing project, primarily because there was held to be no linkage between the old buildings completed prior to 1/10/1998, in the appellants case the housing project has been amended and the deemed date of first approval within the meaning of section 8018(10) read with explanation(i) has to be taken as 31-10-2005.

4.3 On the issue of prorata deduction, there are two decisions of High Courts namely Kolkata High Courts decision in Bengal Ambuja Housing Devt and Mumbai High Courts decision in Brahma Associates. Neither of these two decisions are squarely on the issue of deemed date of approval of housing project and date of completion thereof. However, during the course of hearing on 29.10,2012, the learned AR of the appellant has submitted that on the identical facts, the Pune bench of ITAT has allowed prorata deduction u/s 80 IB(10) in the case of Ramsukh Properties vs DCIT, Circle 2 Pune in ITA No 84/PN/2011 vide their order dated

5.07.2012. I have perused the said order and find that the ITAT, Pune bench, while agreeing with the Revenues view that plain reading of Section 80IB(10) suggests only about completion and strict interpretation should be given to completion dates in normal circumstances, in the facts and circumstances of the assessees case, have allowed deduction u/s 80IB(10) on completed part of the project. The ITAT noted that the suggested modifications in the appellants housing project could not be approved by the Pune Municipal Corporation as their files were taken over by CID for investigation of ULC scam by Maharashtra Government and hence since modification was delayed, the assessee could complete the total project only on 6.3.2010. It was thus, held that the project could not be completed due to no fault of the assessee. The ITAT held that taxing statute granting incentives for promotion for growth and development should be construed liberally.

4.4. The learned Authorised Representative has argued that the facts of this decision are applicable squarely to the facts of his own case. It has been stated that even during the survey proceedings on 13.5.2008, the appellant had mentioned that deduction u/s 80IB(10) had been claimed in anticipation of completion by March,2008, but due to unforeseen circumstances beyond his control, the same could not be completed. It is stated that there was an accident on site leading to unfortunate death of 3 labourers in May 2007, leading to police complaint and criminal proceedings. Further, there was labour unrest due to agitation against non-Maharashtrian labour in January, 2008 due to which majority of labour left Maharashtra, causing delay in work. This was also brought to the notice of the Assessing Officer vide appellants letter dated 28.5.2008, referred to in para 3.5 supra. :

4.5. I have considered the submissions made vis-a-vis the facts of the case and the law applicable. To my mind, section 80IB(10(a) read with Explanation (i) and (ii) very clearly specifies the completion dates vis-a-vis the date on which the housing project was first approved by the local authority. As discussed in the para 4.1 and 4.2 supra, the legislative intent read with the clear provisions of the requisite sections, do not permit any proportionate deduction u/s 80IB(10). However, in view ,of the jurisdictional ITAT decision in Ramsukh Properties, I am constrained to accept the dictates of judicial discipline and follow the ratio laid down in the order of ITAT referred to supra. Consequently, it is held that the appellant is allowed deduction u/s.80IB(10) on proportionate basis in respect of projects completed during the impugned assessment years. The additional ground of appeal is thus allowed.

3. However, for the A.Y. 2008-09 the Ld.CIT(A) deviated from the order of his predecessor and upheld the order of the AO in denying the benefit of deduction u/s.80IB(10) by following the decision of the Hyderabad Bench of the Tribunal in the case of Sainath Estate Pvt. Ltd. reported in 142 ITD 370, the decision of the Mumbai Bench of the Tribunal in the case of Everest Home Construction India Pvt. Ltd. and the decision of the Mumbai High Court in the case of Brahma Associates reported in 333 ITR 289 .

3.1 Against the order of the CIT(A) for A.Y. 2008-09 the assessee filed a petition u/s.154 of the I.T. Act which was dismissed by the CIT(A) vide order dated 13-12-2012. The assessee has filed an appeal against the said order. As against the order of the CIT(A) allowing pro-rata deduction for A.Yrs. 2004-05 to 2007-08 the Revenue is in appeal before us. For the A.Y. 2008-09 the assessee is in appeal before the Tribunal against the order of the CIT(A) rejecting the claim of deduction u/s.80IB(10) for A.Y. 2008-09. The assessee is also in the appeal against the order of the CIT(A) dismissing the rectification application u/s.154 of the Income Tax Act for A.Y. 2008-09.

4. Aggrieved with such order of the CIT(A) the assessee is in appeal before us with the following grounds for A.Y. 2008-09 :

1. The learned CIT(A) erred in law and on facts in not granting a proper opportunity of hearing.

2. The learned CIT (A) further erred on facts and in law in confirming a disallowance of the claim u/s 80IB(10) of Rs. 2,79,35,311/- for the reason that the entire project as approved by the Municipal Authorities was not completed before the stipulated time i.e. 31.03.2008.

3. Without prejudice to the above, the learned CIT (A) has erred on facts and in law in not allowing a pro-rata claim u/s 80IB(10) with reference to the eligible units of the housing project.

4. The appellant craves leave to alter, amend or delete any of the grounds of appeal or add to the same, if deemed necessary.

5. The Ld. Counsel for the assessee at the outset submitted that the Pune Bench of the Tribunal in the case of Siddhivinayak Shree Vs. ACIT vide ITA No.883/PN/2010 for A.Y. 2006-07 order dated 30-07-2013 and Siddhivinayak Shree Vs. ITO, Ward-2(2), Pune vide ITA No.179/PN/2011 and ITA No.913/PN/2011 order dated 30-07-2013 for A.Y. 2005-06 and 2007-08 after considering the decision of the Mumbai Bench of the Tribunal in the case of Everest Home Construction India Pvt. Ltd. (Supra) and Sainath Estate Pvt. Ltd. (Supra) has allowed the claim of pro-rata deduction u/s.80IB(10). Further, the Pune Bench of the Tribunal in the case of M/s. Raviraj Kothari Punjabi Associates Vs. ACIT vide ITA No.223/PN/2011 order dated 22-03-2013 for A.Y. 2007-08 after considering the decision of Mumbai Bench of the Tribunal in the case of Everest Home Construction India Pvt. Ltd. (Supra) has allowed the claim of pro-rate deduction.

5.1 So far as the reliance on the Mumbai High Courts decision by the CIT(A) in the case of Brahma Associates reported in 333 ITR 289 for negating the proportionate deduction the Ld. Counsel for the assessee submitted that the Pune Bench of the Tribunal in the case of D.S. Kulkarni Developers Ltd. Vs. ACIT vide ITA Nos. 1428 and 1429/PN/2008 order dated 08-08-2012 for A.Yrs. 2004-05 and 2005-06 after considering the decision of the Honble Mumbai High Court in the case of Brahma Associates (Supra) has allowed the claim of proportionate deduction. He accordingly submitted that this being a covered matter the claim of deduction u/s.80IB(10) for all the years should be allowed.

6. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A) for A.Y. 2008-09 and submitted that since the assessee has not fulfilled the conditions laid down u/s.80IB(10), therefore, he cannot be allowed proportionate deduction u/s.80IB(10).

7. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. There is no dispute to the fact that during the course of survey carried out u/s.133A on the business premises of the assessee on 13-05-2008 it was found that the project had not been completed as required under the provisions of section 80IB(10) as it stood prior to 31-03-2008. There is also no dispute to the fact that the assessee in his statement recorded u/s.131 on 13-05-2008, in response to Question No.6 had admitted that out of the total revised approval for 180000 sq.ft. received in 2003 he had obtained the completion certificate from PMC for 152000 sq.ft. only The area of one Acre and the size of units being less than 1500 sq.ft. is not in dispute. The only dispute before us is regarding the allowability of proportionate deduction u/s.80IB(10) when the entire project is not completed before the stipulated date. We find the Ld.CIT(A) allowed the claim of proportionate deduction u/s.80IB(10) for A.Yrs. 2004-05 to 2007-08 by relying on various decisions. However, for the A.Y. 2008-09 the Ld.CIT(A) denied the claim of benefit of deduction u/s.80IB(10) by relying on the decision of the Hyderabad Bench of the Tribunal in the case of Sainath Estate Pvt. Ltd.(Supra), the decision of the Mumbai Bench of the Tribunal in the case of Everest Home Construction India Pvt. Ltd. (Supra) and the decision of the Mumbai High Court in the case of Brahma Associates (Supra).

7.1 We find the Pune Bench of the Tribunal in the case of Siddhivinayak Shree (Supra) after considering the decision in the case of Sainath Estate Pvt. Ltd.(Supra), the decision of the Mumbai Bench of the Tribunal in the case of Everest Home Construction India Pvt. Ltd. (Supra) has allowed the claim of proportionate deduction u/s.80IB(10) of the I.T. Act, 1961. The relevant observation of the Tribunal from Para 13 onwards read as under : 13. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the AO in the instant case denied the claim of deduction u/s.80IB(10) on the ground that (a) the assessee has not obtained the completion certificate on or before 31-03-2008 (b) that the project includes shops and other commercial areas in excess of the prescribed limit and (c) that the assessee has claimed deduction u/s.80IB(10) since A.Y. 2001-02 and the assessee is showing the entire project as a single project. We find the Ld.CIT(A), on the basis of the additional evidences filed before him and the remand report obtained from the AO, held that the projects (A) and (B) undertaken by the assessee are two different projects. The relevant observations of the Ld.CIT(A) are already reproduced at para 4.1 of the impugned order. The revenue is not in appeal before us on this issue. Therefore, this issue on which the AO has denied the deduction is not relevant.

14. However, the Ld.CIT(A) upheld the action of the AO in denying the claim of deduction on the other reasons stated by the AO, i.e. (a) the completion certificate has not been obtained on or before 31-03-2008 (b) that the assessee did not explain anything about Project B and (c) that the project includes shops and commercial area in excess of the prescribed limit.

14.1 From the details furnished by the assessee in the Paper Book we find the details of completion certificate No and date and the reference to the date of application are as under : Project A -Plot No 3 Completion Certificate No Date Completion With reference to date Building No of flats SHOPS BCO/03/262 28/06/2000 27/03/2000 F 48 0 640 30/03/2010 04/04/2006 D-1 24 7 640 30/03/2010 04/04/2006 D-2 24 8 640 30/03/2010 04/04/2006 E-2 24 9 640 30/03/2010 04/04/2006 E-3 24 7 640 30/03/2010 04/04/2006 E-4 24 8 TOTAL 168 39 Project B -Plot No 4 Completion Date Completion With Building No of SHOPS Certificate No reference to date flats BCO/03/146 05/10/2005 05/10/2005 G 101 0 (Gold) BCO/03/146 05/10/2005 05/10/2005 H 68 0 (Crown) TOTAL 169 0 The completion certificate in respect of building I+K in respect of 80 flats is not granted so far by PMC although the assessee has duly applied for the same on 04-04-2006 as per application for occupancy certificate received by PMC on 04-04-2006, a copy of which is placed at Paper Book Page No.12.

14.2 It is the submission of the Ld. Counsel for the assessee that the project A and building I & K of Project B are complete before May 2006 since the assessee has applied for completion on 04-04-2006. Similarly the assessee has applied on 05-10-2005 for Project B (G & H building) which was received by the assessee. The permission was not rejected but was withheld for technical reasons, i.e. non allotment of built up area in terms of section 20 of the Urban Land and Ceiling (Regulation) Act, 1976 and non-payment of compounding fees of Rs.2,41,805/-. The assessee had enclosed the completion certificate, no objection certificates/clearance such as drainage, water, fire NOC, Lift NOC, Health NOC, Road NOC and structural stability certificate etc for the entire project A and building I & K of Project B (Page No.12 of Paper Book). Completion certificate for Building G and H of Project B are already availed and there is no dispute. Further, the PMC issued completion certificate on 31-03-2010 with reference to application dated 04-04-2006 in respect of building D1, building D2, building E2, building E3 and building E4. Therefore, the completion certificate in respect of Building D1, D2, E2, E3 & E4 of building A relates back to the application dated 04-04-2006.

14.3 We find merit in the above submission of the Ld. Counsel for the assessee. It has not been disputed by the Revenue that the assessee has not applied to the Municipal Corporation for issue of completion certificate on 04-04-2006 for Project A and building I & K of Project B. It is also not in dispute that the completion certificate issued by the PMC dated 31-03-2010 for Buildings of Project A is not with reference to application dated 04-04-2006. Therefore, in our opinion, the completion certificate issued on 31-03-2010 with reference to the application dated 04-04-2006 for Project A relates back to the date of application, i.e. 04-04-2006.

14.4 The second issue on which the Ld.CIT(A) completed the denial of deduction u/s.80IB(10) is that nothing was explained about Project B. As already mentioned earlier completion certificate for Building G & H of Project B has already been granted on 05-10-2005 which is not disputed by the Revenue since a copy of the same was filed before the AO & CIT(A) as certified in the Paper Book and not disputed by the Revenue. So far as the building I + K of Project B is concerned we find although the assessee has applied for the same on 04-04-2006, however, the same is pending before PMC for technical reasons.

14.5 We find the Pune Bench of ITAT in the case of Hindustan Samuha Awas Ltd. has observed as under :

9. From the above, one this is clear that the date that appear on the Architects Completion Certificate filed before the local authority is a relevant one. In the instant case, the said date is 25-03-2008 and the assessee filed requisite form before the local authorities intimating the completion of the project. The said certificate/intimation was accepted by the local authority without any amendments or objections. 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 assessee and obtaining the said certificate before 31-03-2008 is beyond the control of the assessee. Assessees job includes the completion of the building in accordance with the approved 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 assessee has done his job scrupulously in this case. However, the local authority has neither objected to the said application of the assessee and the Architect by raising any objections 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 assessee. Therefore, in our opinion, the assessee is not defaulter on this account and thus, the AO has erred in denying the deduction u/s.80IA(10) of the Act. Accordingly, the order of the CIT(A) has to be reversed. Thus, the grounds raised in the appeal are allowed

.

14.6 Further, in the instant case as has been pointed out before the AO and CIT(A) as well as before us that the assessee is all along claiming that the project was complete in the year 2006, the purchasers have been given possession of the flats, they have undertaken for the maintenance charges and have started paying electricity charges etc. Further, the PMC has not issued any rejection letter within 21 days from the date of submission of the completion certificate which was submitted on 04-04-

2006. The Revenue has not disputed the above facts.

14.7 We find the Honble Gujarat High Court in the case of CIT Vs. Tarnetar Corporation (Supra) has held as under :

5. We have perused the detailed discussion of the CIT (Appeals) as well as the Tribunal on the issue. In particular, the Tribunal noted that the construction was completed in 2006. Application for BU permission to the Municipal authorities was filed on 15.2.2006 which was rejected on 1.7.06. Several residential units were occupied since the same was done without necessary permission. The assessee had also paid penalty and got such occupation regularized. Several tenements were sold long before the last date.

6. In the present case, therefore, the fact that the assessee had completed the construction well before 31st March, 2008 is not in doubt. It is, of course, true that formally BU permission was not granted by the Municipal Authority by such date. It is equally true that explanation to clause (a) to section 80-IB(10) links the completion of the construction to the BU permission being granted by the local authority. However, not every condition of the statute can be seen as mandatory. If substantial compliance thereof is established on record, in a given case, the court may take the view that minor deviation thereof would not vitiate the very purpose for which deduction was being made available.

7. In the present case, the facts are peculiar. The assessee had not only completed the construction two years before the final date and had applied for BU permission. Such BU permission was not rejected on the ground that construction was not completed, but the some other technical ground. In that view of the matter, granting benefit of deduction cannot be held to be illegal

8. In the result, the Tax Appeal is dismissed.

14.8 From the details furnished by the Ld. Counsel for the assessee we find the assessee has allotted the built up area of 944.10 sq.mtrs against 942 sq. mtrs as per condition of sanction before 27-02-2008. Therefore, we find merit in the submission of the Ld. Counsel for the assessee that the assessee has complied with the condition of allotment on 27-02-2008 which is before 31-03-2008. We find merit in the submission of the Ld. Counsel for the assessee that since the ULC Act was repealed in the year 2009, therefore, PMC/ULC department and Secretariat to Mantralaya are not responding, therefore, the assessee cannot be held responsible.

14.9 We find the Pune Bench of the Tribunal in the case of M/s. Ramsukh Properties Vs. DCIT vide ITA No.84/PN/2011 has held as under :

6. After going through rival submissions and material on record, we find that the assessee is a firm engaged in business of builder and promoter. The issue before us is regarding allowability of deduction u/s.80IB(10) of the Act on partially complete project. The Assessing Officer has denied the deduction on the ground that project was not complete within the stipulated time. There is no dispute with regard to other conditions laid u/s.80IB(10) of the Act, i.e., commencement of project, area of land of project, etc. Assessees housing project was approved vide commencement certificate No.3837/04 dated

13.01.2005 out of which completion certificate was obtained and furnished before the Assessing Officer for 173 out of 205 flats. Same was rejected by the Assessing Officer and confirmed by the CIT(A). The request for granting whole deduction in respect of whole project has rightly been rejected because deduction u/s.80IB(10) could not be granted to assessee on incomplete construction at relevant point of time. Regarding proportionate deduction in respect of 173 of 205 flats of project completed as recognized by local authority, i.e., PMC in its completion certificate No.BCO/03/01333 dated 31.03.2008, the Ld. Authorised Representative heavily relied on decision of Bengal Ambuja Housing Development Ltd. (supra), Brigade Enterprises P. Ltd. (supra), AIR Developer (supra), Sheth Developers (supra) and also G.V.Corporation (supra), wherein deduction u/s.80IB(10) was denied as size of some of the residential units exceeded prescribed limit as laid down u/s.80IB(10) of the Act. Above mentioned decisions are applicable in their own sphere, i.e. on point of excess area of some of the flats which hold good in its own sphere. However, in case before us, deduction u/s.80IB(10) of the Act has been rejected on the ground that condition of completion of project before the due date i.e., 31.03.2008 as laid down u/s.80IB(10)(c) of the Act, has not been complied by assessee which is basic condition for allowability of deduction u/s.80IB(10) of the Act. We find that in case of Johar Hassan Zojwalla (supra), wherein condition of completion as laid down in section 80IB(10)(a) could not be complied with because of a stay being granted by MRTP Court. Thus fault of incompletion of construction was not attributable to assessee. In case such a contingency emerges which makes the compliance with provision impossible, then benefit bestowed on an assessee cannot be completely denied. Such liberal interpretation should be used in favour of assessee when he is incapacitated in completing project in time for the reasons beyond his control. In case before us, as stated on behalf of assessee, that assessee submitted certain modifications/rectifications for top floors of building. The said modification/rectification could not be completed as local authority could not approve the modification as their files have been taken over by concern intelligence department for investigation of violation of urban land ceiling Act applicable to land in question at relevant point of time. This fact has not been disputed on behalf of revenue. Thus, assessee was prevented by sufficient reasonable cause which compelled the impossibility on part of the assessee to have completion certificate in time. It is settled legal position that the law always give remedy and the law does wrong to no one. We agree to proposition put forward by Ld. Departmental Representative that plain reading of section 80IB(10) of the Act suggests about only completion of construction and no adjective should be used alongwith the word completion. This strict interpretation should be given in normal circumstances. However, in case before us, assessee was prevented by reasonable cause to complete construction in time due to intervention of CID action on account of violation of provisions of Urban Land Ceiling Act applicable to land in question. Assessee was incapacitated to complete the same in time due to reasons beyond his control. Assessee should not suffer for same. The revision of plan is vested right of assessee which cannot be taken away by strict provisions of statute. The taxing statute granting incentives for promotion of growth and development should be construed liberally and that provision for promoting economic growth has to be interpreted liberally. At the same time, restriction thereon too has to be construed strictly so as to advance the object of provision and not to frustrate the same. The provisions of taxing statute should be construed harmoniously with the object of statue to effectuate the legislative intention. In view of above facts and circumstances, we hold that assessee is entitled for benefit u/s.80IB(10) of the Act in respect of 173 flats completed before prescribed limit. The Assessing Officer is directed accordingly.

14.10 We find the Pune Bench of the Tribunal in the case of Runwal Multihousing Pvt. Ltd. (Supra) has observed as under : 18. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find in the instant case the assessee obtained the permission for construction of buildings A, B, C, D, E, F and 17 row houses on 12-12-2001. The assessee constructed building Nos. A,C, D and E and the 17 row houses and dropped the idea of construction of Building Nos. B and F being uneconomical and had not submitted any revised plan to PMC. Although the assessee applied for completion certificate on 22-01-2004, the same was not received by the assessee before 31-03-2008. It is the case of the revenue that deduction u/s.80IB(10) cannot be availed of by the assessee since it has not constructed all the six buildings and 17 row houses for which permission was granted and completion certificate was not obtained before 31-03-2008. It is the submission of the learned counsel for the assessee that it has constructed Building Nos. A, C, D and E and 17 row houses and Building Nos. B & F being not feasible was not constructed and the assessee has dropped the idea of construction of the same. It is also the submission of the learned counsel for the assessee that it has applied for completion certificate on 22-01-2004 and since the PMC has a legal problem, which is subjudice, the PMC is not able to grant the completion certificate. It is also the submission of the learned counsel for the assessee that Corporation has started levying municipal taxes, the flat owners have started paying electricity bills and the project on which Building Nos. A, C, D and E and 17 row houses are constructed are on a plot of area of more than 1 acre. Therefore, the assessee is entitled to deduction u/s.80IB(10) on the 4 buildings and 17 row houses which it has completed.

19. We find the Managing Director Shri Pradeep Amrutlal Runwal in his statement recorded during the course of survey u/s.133A has replied to Question Nos. 7, 8, 9, 10 & 12 as under : Q.7. Have you received the Completion Certificate from PMC for Runwal Paradise Project Ans. The Completion Certificate for Row Houses 7 to 18 was received. However for other buildings on Runwal Paradise Project we have not received the Completion Certificate as on today though we have applied for the same. Q.8. Whether the construction is completed in respect of all the buildings as per revised plan dated 10-01-2003, Commencement Certificate No.1372 Ans. Construction is completed before 31 st March 2008 in the entire scheme Runwal Paradise to the extent that we want to build and enjoy the FSI of the project and the area used so is above 1 acre. Q.9. If the construction is completed before 31 st March 2008, why you have not received Completion Certificate from PMC for all buildings in Runwal Paradise Project as on today Ans. The Completion Certificate are deemed received since we have applied for the same, but since the matter is subjudice the PMC is not able to grant the Completion Certificate. The very local authority which is responsible for granting the Completion Certificate has a legal problem which is subjudice. Q.10. As stated answering the Question No.9, please state when you have applied for Completion Certificate in respect of Runwal Paradise Project and also submit the relevant applications Ans. We have applied for Completion Certificate for the entire project. We are submitting herewith the application for Completion Certificate dated 22- 01-2004vide Commencement Certificate No.1372 dated 10-01-2002 as per Annexure C. The copies of any further application, if any, we will submit the same on 2 nd June 2008. Q.12. As per revised building layout sanctioned on 10-01-2003, you got approval for construction of buildings A to F and row houses 1 to 18 in Runwal paradise Project. However as seen from the list of Flat Holders submitted by you as Annexure D and also the inspection carried out at the site of Runwal Paradise located at S.No.981, at Paud Road, Kothrud, Pune, the construction of buildings B and F is yet to be completed. Please give your comment Ans. Yes, I agree that the construction of buildings B and F have not been carried out with a perfect understanding in the mind that we wanted to give up these two wings. In case these wings would have been constructed they would have been very shabby and been place for non-hygiene in the entire project. Looking at the merits and demerits these wings were not constructed. Further, building just one floor was economically unviable.

20. So far as the first objection of the revenue that completion certificate from PMC has not been obtained by the assessee before 31-03-2008 we find the assessee through his architect vide application dated 22-01-2004 has applied to PMC for occupancy certificate. (Page 119 of the Paper Book). The submission of the learned counsel for the assessee that the PMC has not yet rejected the said application till date could not be controverted by the Revenue. The further submission of the learned counsel for the assessee that all the flat owners/row house owners have been given possession between 26-10-2002 to 15-01-2007, i.e.prior to 31-03-2008 could not be controverted by the learned DR (Page 55 to 63 of the Paper Book). The learned DR also could not controvert the submission of the learned counsel for the assessee that PMC has started levying municipal taxes and the Electricity Meters are in the name of the flat owners who have started paying electricity bills.

20.1 We find the Pune Bench of the Tribunal in the case of City Development Corporation Vs. ACIT ITA No. 57 and 1287/PN/2010 order dated 27-09-2012 has held as under :

12. We have carefully considered the rival submissions. Quite clearly, the dispute is with regard to the completion certificate of building E having been issued by the local authority i.e. Pune Municipal corporation, on 5-5-2008. Sub-clause (i) of clause (a) to section 80-IB(10) requires that the construction of the project in question is to be completed on or before 31-3-2008. Clause (ii) of Explanation below section 80-IB(10)(a) prescribes that the date of completion of construction of 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. In the present case, it has been issued on 5-5-2008 and hence the case set up by the Revenue that the completion is beyond the mandated date of 31-3-2008. In this background, we find that there is no dispute that the assessee applied for obtaining the completion certificate in respect of building E on 12-3-2008. From the discussion made by the Assessing Officer in the assessment order, wherein the factual assertions of the assessee have been reproduced, it is quite evident that the assessee asserted that before 31-3-2008, the construction of building was complete in all respects; that electrical connection was provided to each flat owner; road was complete; water and drainage connection was available; sewerage system was operating; club house was functional; etc. The assessee also pointed out that the local authority had also initiated property tax assessments for each of the flats and the same demonstrated that all the flats in the building were complete. In fact, in para 6.9 of the assessment order, the Assessing Officer noticed that "the facts that the flats were completed and possession given will not come to the rescue of the assessee". The aforesaid finding of the Assessing Officer supports the assertion made by the assessee that factually speaking construction of flats in building E was also complete and possession handed over to the actual user/customers prior to 31-3-2008. Pertinently, on the basis of the architects certificate confirming completion of construction of building, the assessee applied for the completion certificate to the Pune Municipal Corporation on 12-3-2008. It has been pointed out before us that the local authority i.e. Pune Municipal Corporation did not raise any objection with regard to assessees application and the certificate for building E was thereafter issued on 5-5-2008. The moot question is as to whether in such a situation can it be said that the assessees project did not comply with the condition prescribed in sub-clause (i) of clause (a) to section 80-IB(10) of the Act whereby the construction was to be completed on or before 31-3-2008. Somewhat similar situation was considered by our co-ordinate Bench in the case of Hindustan Samutha Awas Ltd. (supra) wherein also on the strength of architects certificate, an application for obtaining completion certificate was moved to the local authority on 25-2-2008 but in actuality the completion certificate was issued by the local authority on 10-10-2008. The Tribunal noticed that the delay in issuing completion certificate was not attributable to the assessee as no objections were raised by the local authority. The Tribunal after considering its earlier decisions in the case of M/s. Satish Bohra & Associates Vs. ACIT in ITA No. 713 and 714/PN/2010 for A.Y. 2004-05 and 2005-06 dated 7-1-2011; M/s. D.K. Constructions Vs. ITO ITA No. 243/PN/2010 for A.Y. 2006-07; dated 6-12-2010 and Sanghvi and Doshi Enterprises Vs. ITO and others ITA No. 259 to 263/MDS/2010 dated 19-5- 2011 for A.Y. 2005-06 and 2006-07 (TM) has concluded as follows: "From the above, once this is clear that the date that appears on the Architects Completion certificate filed before the local authority is relevant one. In the instant case, the said date is 25- 3-2008 and the assessee filed requisite form before the local authorities intimating the completion of the project. The said certificate/intimation was accepted by the local authority without any amendments or objections. 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 assessee and obtaining the said certificate before 31-3-2008 is beyond the control of the assessee. Assessees job includes the completion of the building in accordance with the approved 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 assessee has done his job scrupulously in this case. However, the local authority has neither objected to the said application of the assessee and the Architect by raising any objections for 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 assessee. Therefore, in our opinion, the assessee is not defaulter on this account and thus, the AO has erred in denying the deduction u/s 80-IB(10) of the Act. Accordingly, the order of the CIT(A) has to be reversed. Thus, the grounds raised in the appeal are allowed"

13. The aforesaid decision of the Tribunal is clearly applicable to the facts of the present case also. In the present case, the completion certificate was applied for before 31-3-2008 i.e. on 12-3-2008. It is undisputable that the application of the assessee has been approved by the local authority without raising any amendment or objection, as has been asserted by the assessee all along and the delayed issuance of the completion certificate by the local authority on 5-5-2008, albeit after the mandated date of 31-3-2008 cannot be attributed to the assessee. In this background of the matter, we therefore, find ample force in the plea of the assessee that denial of deduction u/s 80-IB(10) on such score is uncalled for. In conclusion therefore, in the instant factual background, we hold that the assessee has complied with the condition of completing the construction of the project within the mandated date of 31-3- 2008 even with regard to building E, following the parity of the reasoning lid down in the case of Hindustan Samutha Awas Ltd. (supra). .

14. Sub-clause (i) of clause (a) to section 80-IB(10) of the Act requires that the undertaking, developing and building a housing project "completes such construction" or before 31-3-2008. In the present case, assessee has factually asserted right from the stage of assessment proceedings, that the construction of building E was complete in all respects as per sanctioned plan and all the flats were handed over to the actual users/customers prior to 31-3-2008. In the background of the aforesaid factual position which has remained uncontroverted, in our view, on a plain reading of sub-clause (i) of clause (a) to section 80-IB(10) the condition prescribed therein is fulfilled., inasmuch as the construction of building E was complete before 31-3-2008. However, on the reading of clause (ii) of the Explanation below sec. 80-IB(10)(a) of the Act, it emerges that the completion of construction of a housing project is to be taken to be the date on which completion certificate is issued by the local authority, which in the present case is issued on 5-5-2008 i.e. beyond the stipulated date of 31-3-2008. The moot question is in case the condition of completion construction contained in the substantive section 80-0IB(10)(a)(i) is factually found to be complied with, can the contents of the Explanation clause (ii) thereof, alter the situation Can an Explanation appended to a section, enlarge the scope of the main section so as to make it more onerous for a tax- payer Be that as it may, we do not dwell on this aspect any further, as the assessee has been found to be eligible for necessary relief because the condition prescribed in section 80-IB(10)(a)(i) of the Act has been complied with in view of the stated precedents. We therefore, set aside the order of the CIT(A) on this aspect and hold that the assessee cannot be denied the claim of deduction u/s 80-IB(10) on the strength of non-issuance of the completion certificate for building E by the Pune Municipal Corporation before 31-3- 2008, having regard to the facts and circumstances of the case.

20.2 We find the Honble Gujarat High court in the case of CIT Vs. Tarnetar Corporation (Supra) has held as under :

With respect to the second contention, we may record that the contention of the Revenue is that the assessee did not complete the housing project within the statutory time frame. Under sub-clause (i) of clause (a) of section 80IB(10), the assessee since had got approval for the housing projects from the local authority before Ist April 2004 was required to complete the construction latest by 31 st March 2008. Relying on explanation (ii) to clause (i), Revenue contends that since BU permission was granted after March 2008, the construction must be deemed to have been completed after such date. Explanation (ii) reads as under : (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. CIT (Appeals) as well as the Tribunal after detailed discussion came to the conclusion that such requirement was not mandatory in nature. In the present case, the assessee had completed the construction well before the last date, namely 31 st March 2008 and had also sold several units which was completed and actually occupied, and it also applied for BU permission to the local authority. The local authority, however, for technical reasons, at one stage rejected such application in the year 2006 and thereafter upon revised efforts from the assessee granted the same by order dated 19 th March 2009. We have perused the detailed discussion of the CIT(Appeals) as well as the Tribunal on the issue. IN particular, the Tribunal noted that the construction was completed in 2006. Application for BU permission to the Municipal authorities was filed on 15-02-2006 which was rejected on 1-07-06. Several residential units were occupied since the same was done without necessary permission. The assessee had done without necessary permission. The assessee had also paid penalty and got such occupation regularised. Several tenements were sold long before the last date. In the present case, therefore, the fact that the assessee had completed the construction well before 31 st March 2008 is not in doubt. It is, of course, true that formally BU permission was not granted by the Municipal Authority by such date. It is equally true that explanation to clause (a) to section 80IB(10) links the completion of the construction to the BU permission being granted by the local authority. However, not every condition of the statute can be seen as mandatory. If substantial compliance thereof is established on record, in a given case, the court may take the view that minor deviation thereof would not vitiate the very purpose for which deduction was being made available. In the present case, the facts are peculiar. The assessee had not only completed the construction two years before the final date and had applied for BU permission. Such BU permission was not rejected on the ground that construction was not completed, but the some other technical ground. In that view of the matter, granting benefit of deduction cannot be held to be illegal. In the result, the Tax Appeal is dismissed

.

20.3. We find the Pune Bench of the Tribunal in the case of Hindustan Samuha Awas Ltd. Vs. ITO vide ITA Nos 945 to 950/PN/2010 order dated 30- 08-2011 has held as under : 7. We have considered the above view points of the parties in disputed. We find that it is a fact that the assessee through its architect had filed application with the AMC for issuance of occupancy certificate on 25-3-2008. Requisite fee was also paid by the assessee in this regard. AMC did not raise any objection to the said completion certificate of the Architect. The occupancy certificate dt.10-10-2008 has been issued by the AMC only on the basis of the said application dt.25-3-2008. It is also an undisputed fact that issuance of occupancy certificate is the prerogative of the local authority i.e. AMC and in this regard, the assessee has no control and it is beyond the power of the assessee to make the AMC issue the said Completion/Occupancy certificate before 31.3.2008. What was under the power and control of the assessee was only to move the AMC for completion certificate fulfilling all the requirements with the AMC for issuance of occupancy certificate, which the assessee has done in the present case. Thus, the delay in issuing the occupancy certificate cannot be attributed on the part of the assessee to deny the claimed deduction u/s 80IB(10) of the act on the basis that the project was not completed by 31-3- 2008, especially when there is no objection raised by the AMC regarding deviation in the construction of the project approved by the AMC.

8. We have gone through the orders cited by the assessees representative and find relevant paragraphs are required to be extracted for completion of the order. They are as follows. A. Extract from the decision of the Tribunal in the case of M/s. Satish Bora & Associates vide ITA Nos. 713 & 714/pn/2010

19. .

1. In the case of PMC, the completion certificate in prescribed form issued by the licensed architect etc. who has supervised the construction is furnished with four sets of completion plan under Rule

7.6 of the DC Rules of the PMC. Thereafter PMC is required to return one of the sets duly certified as Completion Plan to the owner along with the issue of full Occupancy Certificate after inspection of the work under Rule 7.7 of the DC Rules. Since Explation (ii) to Section 80IB(10)(a) of the I.T. Act requires Completion Certificate issued by the local authority to be taken as the date of Completion of the Construction, a general understanding in our view is that a Completion Certificate which is issued by the local authority after conducting inspections of construction by it. In case of PMC, it is only Occupancy Certificate which is issued alongwith certified completion plan after inspection of the construction by it, we have treated the date of issuance of such Occupancy Certificate alongwith Certified Completion plan as the date of Completion Certificate of the construction for the requirement of Explanation (ii) to Section 80IB(10)(a) of the I.T. Act.

2. Since infact PMC do not issue Occupancy Certificate generally in time and with this understanding the Legislature have also introduced a deeming provision of 21 days to put constraint upon PMC, we after detailed deliberation in precedign paragraphs have come to a conclusion that in case of small objections of PMC raised after expiry of deeming period of 21 days under Rule 7.7 of DC Rules under PMC, the date when the applicant acquired deeming sanction will be treated as the date of Completion (occupancy) Certificate to meet out the requirement of Explanation (ii) to Section 80IB (10)(a) of the Act. We have already discussed hereinabove what would be the small objections. In brief those objections which do not affect the main project and are generally temporary constructions.

20. We thus while setting aside orders of the authorities below direct the A.O to allow the claimed deduction u/s. 80IB(10) of the I.T. Act 1961 in the assessment years under consideration treating the required date of completion of construction of the housing project as the date when above discussed deeming provision period of 21 days expired i.e. 20.11.20.

B. Extract from the decision of the Tribunal in the case of Sanghvi & Doshi Enterprise vide ITA NO. 259 TO 263/Mds/2010 24. Next objection of the Assessing Officer is that the project had to be completed on or before 31.03.2008 and since the assessee did not furnish the completion certificate, the assessee is not eligible for deduction. The objection is to the effect that the completion certificate from CMDA is dated 13.6.2008, i.e. three months after the due date for completing the project. In this connection, it has to be noted that the completion certificate is to be issued by the local authority. The question is, whether CMDA can be considered to be a local authority or not. This issue had come up before the Chennai Bench of the Tribunal in the case of Jain Housing & Constructions Ltd. in ITA No.1369/Mds/2009 dated 5.2.2010. In that case, assessee was denied deduction in the absence of completion certificate by the CMDA but completion certificate issued by the Corporation of Chennai was placed on record. The Tribunal in paragraph 3.5 of its order stated that the project layout plan may be required to be approved by the CMDA but as far as the construction of the building is concerned, the local authority, i.e. the Corporation of Chennai is the appropriate authority to regulate the construction as per the building bye-laws and sanction plans. When it is not disputed that the Corporation is the local authority, certificate issued by it cannot be disregarded. The assessee has placed on record the completion certificate issued by the Corporation by way of additional evidence. Since the allowability of the entire deduction depends on all the conditions being fulfilled deduction depends on all the conditions being fulfilled, we admit this additional evidence. The certificate clearly mentions that the building was inspected on 23.11.2007 and that it is found to be satisfied the building permit conditions. We may also mentions that the role of CMDA is quite distinct from that of the Corporation. CMDA looks at the plans from the perspective of the development and urbanisation of the city as a whole. On the other hand, the role of the Corporation while issuing completion certificate is to see that the unit is habitable in all respects like civic amenities and so on. Even for the sake of argument if the CMDA certificate is to be considered, then in that case, the assessee did apply for the completion certificate to CMDA certificate on 13.3.2006. It is a different matter that CMDA raised certain objections and the matter went upto the Honble High Court also. However, the fact remains that the project was completed much before the due date, may be with certain defects. Also, it has to be noted that the CMDA certificate is dated 13.6.2008, i.e. only two months and thirteen days beyond the due date. It is inconceivable that the type of defects which were pointed out by the CMDA could have been rectified in such a short period. Be that as it may, the Honble High Court also ratified the deviations and directed the CMDA to consider the explanation of the assessee. All these facts go to point that the project was indeed completed before the 31.3.2008. Thus, this ground also has no force to deny the assessee the impugned deduction. C Extract from the decision of the Tribunal in the case of M/s. D.K.Construction vide ITA 243/Ind/2010 7. We have considered the rival contentions, carefully gone through the orders of the authorities below and relevant material placed on record towards which our attention was invited during the course of hearing by the ld. Authorized Representative and the ld. Senior D.R. Provisions of Section 80IB allows claim for deduction in respect of housing project, which has been approved prior to 1.4.2004 and also completed before 31.3.2008. During the course of assessment with regard to assessees claim of deduction u/s 80IB in respect of its D.K.Honey Homes Project, the AO has asked the assessee to furnish the certificate of completion of this project M/s. D.K.Honey Homes. The AO also directly called information from the local authorities by issuing summons u/s.133(6) and a letter was issued by the competent authority dated 11 th November, 2008, confirming that no completion certificate has been issued by this office. Accordingly, the assessees claim for deduction u/s 80-IB was declined. Section 80IB clearly defines the date of completion as

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 Authorities

, it means Local Authorities is competent to certify the date of completion of Housing Project. The date of issue of such letter by the Local authorities is not so crucial but it should have clearly mentioned the date of completion of project. When the Project is completed on 31.3.2008 and the assessee has informed regarding such completion, the Local Authorities may take its own time for issue of certificate, which may be even after 6-7 months, but the letter so issued by the Local Authorities should clearly mention the date of completion of such project. Merely because such certificate is issued after gap of 8-9 months or even one year, will not adversely affect the assessee if it has mentioned clearly the date of completion of project prior to 31.3.2008. Once the letter for completion of project is given by the assessee to the Local Authority, it is the duty of the Local Authority to verify physically the Projects stated to be completed from its own parameters. This process may take time and, therefore, the date of issue of letter is not so crucial to determine the assessees eligibility for claim of deduction as per Explanation (ii) of Section 80IB(10)(a) of the Income-tax Act, 1961. What is crucial is date mentioned in the letter so issued certifying completion of the Project. Thus, the date of issue of letter is not important, but the date mentioned in the letter certifying completion of project is important. We, therefore, do not find may merit in the observation of the lower authorities to the effect that the date of completion shall be taken the date on which certificate is physically issued by the Local Authorities.

9. From the above, one this is clear that the date that appear on the Architects Completion certificate filed before the local authority is a relevant one. In the instant case, the said date is 25-3-2008 and the assessee filed requisite form before the local authorities intimating the completion of the project. The said certificate/ intimation was accepted by the local authority without any amendments or objections. 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 assessee and obtaining the said certificate before 31.3.2008 is beyond the control of the assessee. Assessees job includes the completion of the building in accordance with the approved 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 assessee has done his job scrupulously in this case. However, the local authority has neither objected to the said application of the assessee and the Architect by raising any objections 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 assessee. Therefore, in our opinion, the assessee is not defaulter on this account and thus, the AO has erred in denying the deduction u/s 80IA(10) of the Act. Accordingly, the order of the CIT(A) has to be reversed. Thus, the grounds raised in the appeal are allowed.

20.4. In view of the above decisions we are of the considered opinion that since the assessee has done whatever possible on his part, i.e. duly applied to PMC for issue of completion certificate, handed over possession of the flats/row houses to the respective buyers, PMC has started levying municipal taxes and electricity bills paid by respective owners, therefore, deduction u/s.80IB(10) under the facts and circumstances of the case cannot be denied to the assessee for non-receipt of completion certificate from PMC before 31-03- 2008 which was beyond the control of the assessee. This view of ours is fortified by our decision in the case of M/s. Ramsukh Properties Vs. DCIT vide ITA No.84/PN/2011 order dated 25-07-2012 for A.Y. 2007-08 (wherein both of us are parties) wherein it has been held as under:

6. After going through rival submissions and material on record, we find that the assessee is a firm engaged in business of builder and promoter. The issue before us is regarding allowability of deduction u/s.80IB(10) of the Act on partially complete project. The Assessing Officer has denied the deduction on the ground that project was not complete within the stipulated time. There is no dispute with regard to other conditions laid u/s.80IB(10) of the Act, i.e., commencement of project, area of land of project, etc. Assessees housing project was approved vide commencement certificate No.3837/04 dated 13.01.2005 out of which completion certificate was obtained and furnished before the Assessing Officer for 173 out of 205 flats. Same was rejected by the Assessing Officer and confirmed by the CIT(A). The request for granting whole deduction in respect of whole project has rightly been rejected because deduction u/s.80IB(10) could not be granted to assessee on incomplete construction at relevant point of time. Regarding proportionate deduction in respect of 173 of 205 flats of project completed as recognized by local authority, i.e., PMC in its completion certificate No.BCO/03/01333 dated 31.03.2008, the Ld. Authorised Representative heavily relied on decision of Bengal Ambuja Housing Development Ltd. (supra), Brigade Enterprises P. Ltd. (supra), AIR Developer (supra), Sheth Developers (supra) and also G.V.Corporation (supra), wherein deduction u/s.80IB(10) was denied as size of some of the residential units exceeded prescribed limit as laid down u/s.80IB(10) of the Act. Above mentioned decisions are applicable in their own sphere, i.e. on point of excess area of some of the flats which hold good in its own sphere. However, in case before us, deduction u/s.80IB(10) of the Act has been rejected on the ground that condition of completion of project before the due date i.e.,

31.03.2008 as laid down u/s.80IB(10)(c) of the Act, has not been complied by assessee which is basic condition for allowability of deduction u/s.80IB(10) of the Act. We find that in case of Johar Hassan Zojwalla (supra), wherein condition of completion as laid down in section 80IB(10)(a) could not be complied with because of a stay being granted by MRTP Court. Thus fault of incompletion of construction was not attributable to assessee. In case such a contingency emerges which makes the compliance with provision impossible, then benefit bestowed on an assessee cannot be completely denied. Such liberal interpretation should be used in favour of assessee when he is incapacitated in completing project in time for the reasons beyond his control. In case before us, as stated on behalf of assessee, that assessee submitted certain modifications/rectifications for top floors of building. The said modification/rectification could not be completed as local authority could not approve the modification as their files have been taken over by concern intelligence department for investigation of violation of urban land ceiling Act applicable to land in question at relevant point of time. This fact has not been disputed on behalf of revenue. Thus, assessee was prevented by sufficient reasonable cause which compelled the impossibility on part of the assessee to have completion certificate in time. It is settled legal position that the law always give remedy and the law does wrong to no one. We agree to proposition put forward by Ld. Departmental Representative that plain reading of section 80IB(10) of the Act suggests about only completion of construction and no adjective should be used alongwith the word completion. This strict interpretation should be given in normal circumstances. However, in case before us, assessee was prevented by reasonable cause to complete construction in time due to intervention of CID action on account of violation of provisions of Urban Land Ceiling Act applicable to land in question. Assessee was incapacitated to complete the same in time due to reasons beyond his control. Assessee should not suffer for same. The revision of plan is vested right of assessee which cannot be taken away by strict provisions of statute. The taxing statute granting incentives for promotion of growth and development should be construed liberally and that provision for promoting economic growth has to be interpreted liberally. At the same time, restriction thereon too has to be construed strictly so as to advance the object of provision and not to frustrate the same. The provisions of taxing statute should be construed harmoniously with the object of statue to effectuate the legislative intention. In view of above facts and circumstances, we hold that assessee is entitled for benefit u/s.80IB(10) of the Act in respect of 173 flats completed before prescribed limit. The Assessing Officer is directed accordingly.

7. As a result, the appeal of the assessee is disposed off as indicated above.

In the light of the above discussion the order of the CIT(A) denying benefit of deduction u/s.80IB(10) for non-receipt of completion certificate is set-aside and the grounds raised by the assessee on this issue are allowed.

14.11 In view of the above decisions the first issue on which the Ld.CIT(A) denied the deduction u/s.80IB(10) i.e., the project is not complete before 31-03-2008 is not correct since the assessee in the instant case has applied for the completion of the project vide letter dt. 04-04-2006 and the PMC has issued certificate on 31-03-2010 with reference to the application dt. 04-04-2006, therefore, the completion certificate by PMC relates back to the date of application, i.e. 04-04-2006 and, therefore, in our considered opinion the assessee has completed the project before 31- 03-2008. So far as the second issue is concerned the assessee has duly applied for issue of completion of buildings I+K of Project B on 04-04- 2006 and has handed over the flats to the customers, that they have undertaken for maintenance charges and have started paying electricity charges. The assessee has done everything possible on its part for issuance of completion certificate. Therefore, the assessee cannot be held responsible for non-issuance of completion certificate by PMC since the delay is not attributable to the assessee.

15. The third issue on which the Ld.CIT(A) upheld the disallowance u/s.80IB(10) is that the assessee had constructed shops admeasuring about 9472 sq.ft. out of the aggregate built up area of 1,16,433 sq.ft. and therefore the commercial area is 8.37% of the aggregate built up area and therefore is in excess of the prescribed limit u/s.80IB(10). We find, there is no dispute to the fact that the project, in the instant case, is approved on 11-01-1999 vide commencement certificate No.2117 for Plot No.3. Similarly, the PMC approved the first building plan in respect of Plot No.4 vide commencement certificate No.4410 dated 06-03-2000. Thus, the housing project has been approved before 31-03-2005. It has been held by the Honble Bombay High Court in the case of CIT Vs. Brahma Associates reported in 333 ITR 289 that the housing project approved before 31-03-2005 can include commercial area. It is the case of the Revenue that the ratio of Brahma Associates will not be applicable for A.Y. 2005-06 and subsequent years since in the case of Brahma Associates the assessment year involved was2003-04 and the position would be different w.e.f. A.Y. 2005-06.

15.1 We find the Honble Gujarat High Court in the case of Manan Corporation after considering the decision of Honble Bombay High Court in the case of Brahma Associates has held as under:

As mentioned hereinabove criterias to hold this amendment retrospective are absent there is no as explicit and specific wording expressing retrospectivity and even if it is assumed for the sake of arguments that the same is to be read by implication the same does not appear to be reasonable but, in fact emerges to be harsh and unreasonable when y comes to implementation.

31. Again, as held in case of CIT vs. J.H. Gotia(supra) by the Apex Court such strict construction of the statute if leads to absurd interpretation the same may not subserve the intent and object of legislation.

32. Again, as held in the case of Mysore Minerals Ltd. vs. Commission of Income-Tax reported in 239 ITR 775 , Apex Court with two possibilities of interpretation of a taxing statute, one which is favourable to the assessee should be always preferred.

33. As also laid down in the case of Bajaj Tempo Ltd. vs. Commissioner of Income-Tax reported in 196 ITR 188 (SC), taxing statute granting incentives for promoting economic growth and development should be liberally construed to facilitate and advance the objectives of the provision.

34. Above discussion cumulatively when examined with the objectives and intent it sought to achieve in bringing about the said provision of Section 80IB(10), this amended taxing statute requires to be interpreted in favour of the assessee rather than insisting upon strict compliance leading to absurdity.

35. It can be also held that this being a substantive amendment and not a clarificatory amendment, the amendment of this nature cannot have retrospective effect.

15.2 Similar view has been taken by the Mumbai Bench of the Tribunal in the case of Hiranandani Akruti JV Vs. DCIT reported in 39 SOT 498 where it has been held that law as it existed in the A.Y. 2004-05 when the assessee submitted its proposal for slum rehabilitation and the permission for carrying out the development was accorded on 17-11-2003 and when the assessee commenced the development is to be applied and accordingly it was held that the assessee was entitled to deduction u/s.80IB(10) for A.Y. 2006-07

15.3 The Pune Bench of the Tribunal in the case of Opel Shelters Vs. ACIT vide ITA No.219/PN/2009 and D.S. Kulkarni and Associates vide ITA Nio.17/PN/2009 following the decision of the Mumbai Bench of the Tribunal in the case Hiranandani Akruti JV (Supra) has held that in those approved projects where construction has been started much earlier than 01-04-2005, the assessees are required to complete the plan as it has been approved.

15.4 In view of the decision of Honble Gujarat High Court in the case of Manan Corporation(Supra) it has to be held that the law as existed in the year when the assessee submitted its proposal and the permission is granted by the local authority and the assessee commences development is to be applied in determining its eligibility of the deduction claimed u/s.80IB(10). The assessee in the instant case cannot be denied the benefit of deduction for construction of commercial area which is more than 2000 sq.ft. or 5% of the built up area of the housing project whichever is less. It has been held by various judicial decisions including the decision of Honble Gujarat High Court in the case of Manan Corporation (Supra) that such amendment to provisions of section 80IB(10) is prospective in nature and not retrospective. We, therefore, hold that the assessee cannot be denied the benefit of deduction u/s.80IB(10) on this issue also.

15.5 So far as the 2 decisions relied on by the Ld. Departmental Representative we find both these decisions are distinguishable and not applicable to the facts of the present case. So far as the decision of the Tribunal in the case of Sainath Estates Pvt. Ltd. (Supra) relied on by the Ld. Departmental Representative is concerned we find the same is not applicable to the facts of the present case. The assessee could not explain the reason for non issuance of completion certificate by the local authority in the case of Sainath Estates Pvt. Ltd. (Supra). However, in the instant case the completion certificate has been issued on 30-03-2010 with respect to the occupancy certificate issued by the architect on 04-04-2006. Further, the delay in issue of completion certificate was not for completing the project but on technical grounds, i.e. non payment of the compounding fees of Rs.2,41,865/- for unauthorized constructions which the assessee has denied all along and non allotment of certain built up area to the economically weaker section of the society which the assessee has complied before 31-03-2008. So far as the decision in the case of Everest Home Construction (India) Pvt. Ltd. (Supra) to the proposition that the amendment brought in by the Finance Act, 2004 is applicable to A.Y. 2005-06 and onwards, even if the project is approved before 31-03- 2005 we find the same is not applicable in view of the decision of Honble Gujarat High Court in the case of Manan Corporation (Supra) which has already been reproduced. Further, the decision of a High Court would prevail upon the decision of the Tribunal which is a lower forum than the High Court.

15.6 Therefore, in view of the above discussions we hold that the assessee in the instant case is entitled to the benefit of deduction u/s.80IB(10) on its housing projects. Accordingly, the first ground of the assessee is allowed. Since the assessee succeeds on the first ground the alternate contention for proportionate deduction become academic in nature and therefore is not required to be adjudicated.

7.2 Similarly, the Pune Bench of the Tribunal in the case of M/s. Raviraj Kothari Punjabi Associates (Supra) after considering the decision of Honble Mumbai High Court in the case of Brahma Associates (Supra) and the decision of the Mumbai Bench of the ITAT in the case of Everest Home Construction (India) Pvt. Ltd. (Supra) has allowed the claim of proportionate deduction by observing as under : 6. So, however, at the time of hearing the Ld.CIT DR appearing for the Revenue contended that the Tribunal held that the restrictions on permissible commercial area as per section 80IB(10)(d) of the Act was inserted by the Finance (No.2) Act 2004 w.e.f.01-04-2005 and that such amendment was prospective in nature and would not apply to the project in question. The Ld. CIT DR submitted that in this context the Mumbai Bench of the Tribunal in the case of ITO Vs. Everest Home Construction (India) (P) Ltd. vide ITA No.7021/Mum/2008 order dated 12-09-2012 has taken a contrary view to hold that the commercial area limit introduced by the Finance (No.2) Act 2004 w.e.f.01-04-2005 by insertion of Clause (d) section 80IB(10) shall be applicable to evaluate the deductions claimed by the assessee from the A.Y. 2005-06 onwards.

7. We have carefully considered the argument set up by the Ld. Departmental Representative and find that there is no reason to depart from the position decided by the Tribunal in the assessees own case for the Assessment Years 2003-04 to 2006-07 vide its order dated 23-11- 2012 (Supra). The Tribunal had concluded that the amendment made by the Finance (No.2) Act 2004 w.e.f. 01-04-2005 by insertion of Clause (d) of section 80IB(10) would not operate retrospectively and that it would be prospective in nature. According to the Tribunal, the assessee had commenced its project in question prior to 01-04-2005 in terms of the approval granted by a local authority and the said project also stands completed on 20-03-2004 and thus the amendment made by the Finance (No.2) Act 2004 cannot be invoked to dis-entitle assessees claim of deduction u/s.80IB(10) for the Assessment Years 2005-06 and 2006-07 as well. The aforesaid conclusion of the Tribunal was also based on certain precedents which are as under :

1. Open Shelters Pvt. Ltd. Vs. ACIT (ITA No.219/PN/2010 for A.Y. 2005- 06 order dated 31-05-2010

2. G.K. builders in ITA No.1077 and 1078/PN/2010 for A.Y. 2005-06 and 2006-07 order dated 30-07-2012

3. Hiranandani Akruti JV Vs. Dy. CIT reported in 39 SOT 498 (Mumbai) The Tribunal also considered the judgments of the Honble Bombay High Court in the case of Brahma Associates (2011) 333 ITR 289 (Bom.) to hold that amendments in question are to be seen as prospective in nature.

8. Apart from the aforesaid we may also notice the judgment of the Honble Gujarat High Court in the case of Manan Corporation Vs. ACIT dated 03-09-2012 wherein the bone of contention was the applicability of the requirements contained in Clause (d) of section 80IB(10) of the Act. The Revenue had canvassed that the provision of section 80IB(10)(d) of the Act was applicable from 01-04-2005 and was to be considered for A.Y. 2006-07 as well, regardless of the date of approval of the project in question. The Honble Gujarat High Court, by referring to the judgment of the Honble Bombay High Court in the case of Brahma Associates (Supra) and also the judgment of the Honble Karnataka High Court in the case of CIT Vs. M/s. Anriya Project Management vide ITA No.138 of 2010 dated 29-02-2012 held that such an amendment would not apply to a project which is approved prior to 01-04-2005 and that in this light the prospective nature of the amendment, as held by the Honble Bombay High Court, is to be viewed.

9. Pertinently in the case before Honble Gujarat High Court the claim of the assessee was denied by the Tribunal relying on the judgement of the Honble Bombay High Court in the case of Brahma Associates (Supra) holding that the restriction set out in Clause(d) of section 80IB(10) inserted by Finance (No.2) Act 2004 w.e.f.01-04-2005 was to be applied in A.Y. 2006-07, regardless of the date of approval of the project in question. The aforesaid position canvassed by the Tribunal in the case of Manan Corporation (Supra) was negated by the Honble Gujarat High Court on the basis of the judgment of the Honble Bombay High Court in the case of Brahma Associates (Supra). Therefore, in this manner, the reliance now sought to be placed by the Ld. CIT DR in the case of Everest Home Construction (India) Pvt. Ltd. (Supra) therefore is not of any help to the Revenue. Thus, following the parity of reasoning laid down in the order of the Tribunal dated 23-11-2012 (Supra), in assessees own case, and which is in consonance with the judgment of the Honble Gujarat High Court in the of Manan Corporation (Supra), which has referred to and relied upon the judgment of the Honble Bombay High Court in the case of Brahma Associates (Supra), we therefore find it expedient to uphold the assessees claim for deduction u/s.80IB(10) in relation to the Citadel project. In this manner, the claim of the assessee is allowed. Respectfully following the above decisions, we hold that the assessee is entitled to proportionate deduction u/s.80IB(10) of the I.T. Act. We, therefore, uphold the order of the CIT(A) for A.Yrs. 2004-05 to 2007-08 and set-aside the order of the CIT(A) for A.Y. 2008-09.

7.3 In view of the decisions cited above, we are of the considered opinion that the assessee is eligible for pro-rata claim of deduction u/s.80IB(10) with respect to the eligible units of the housing project. We, therefore, uphold the order of Ld.CIT(A) for A.Yrs. 2003-04 to 2007-08. The order of Ld.CIT(A) for A.Y. 2008-09 is set-aside and the AO is directed to allow proportionate deduction for the eligible units.

7.4 Since the assessee succeeds in appeal for A.Y. 2008-09, therefore, the appeal filed by the assessee challenging the order of the CIT(A) passed u/s.154 of the I.T. Act becomes infructuous and the same is dismissed.

8. In the result, ITA Nos. 316 to 319/PN/2013 filed by the Revenue and ITA No.272/PN/2014 filed the assessee are dismissed and ITA No.1830/PN/2013 filed by the assessee is allowed. Pronounced in the open court on 26-06-2014. Sd/- Sd/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER Pune Dated: 26 th June, 2014 Satish Copy of the order forwarded to :

1. Assessee

2. Department

3. The CIT(A)-I, Pune

4. The CIT-I, Pune

5. The D.R, B Pune Bench

6. Guard File By order // True Copy // Senior Private Secretary ITAT, Pune Benches, Pune