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TMI Blog2016 (1) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, the A.O. received information from ITO (CIB) stating as under: " As per the direction given by the DIT (C1B)Mumbai by her letter dated 1.9.08(copy enclosed), the verification was made in this case from local authorities regarding commencement and occupation certificate issued by them. On verification it appears that the occupation certificate was not issued by the local authorities in this case." 4. In view of rile above information, the A.O. reopened the assessment u/s 148 on the ground that local authorities did not issue the occupation certificate before 31-3-08. In response to notices u/s.148 dated 25-3-09, the assessee filed letters dated 28-4-09, stating that returns already filed for both the assessment years might be treated as sufficient compliance. 5. In the re-assessment proceedings, the AO noticed that the assessee commenced the project on 28-10-02 and, therefore, the assessee ought to have completed the housing project and obtained occupation certificate on or before 31-3-08. When confronted, the assessee submitted that necessary application for granting occupation certificate was filed before Mira Bhayander Municipal Corporation but the assessee did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, gone through the orders of the authorities below and deliberated on the judicial pronouncements referred by lower authorities in their orders as well as cited by ld. AR and DR during the course of hearing before us. From the record we found that the impugned project of the assessee was approved prior to 1st April, 2005 and as per the provisions applicable for the projects approved prior to 1-4-2005, there was no condition for furnishing completion certificate for claiming deduction u/s.80IB(10) of the Act. 11. The relevant provisions of law as prevailing prior to amendment by Finance (No.2) Act, 2004, effective from 1-4-2005, reads as under :- 'Section 80-IB(10) prior to the amendment of 1.4.2005 : Sub s. by Finance (No.2) Act, 2004 ( 23 of 2004), Section 18(d), for sub-Section (10) w.e.f. 1.4.2005). Earlier sub-Section (10) was amended by the Finance Act, 2000 (10 of 2001), Section 39(e)(i) and (ii) ( w.e.f. 1.4.2001), by Finance Act, 2003 ( 32 of 2003), Section (c) (i) and (ii) (w.e.f. 1.4.2002). Sub-Section (10), before substitution by Finance (No.2) Act, 2004, stood as under :- "(10) The amount of profits in case of an undertaking developing and building housing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect 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; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed prior to 1-4-2005. Precise observation was as under :- "The provisions of section 80-IB(10) were substantially amended by way of the Finance (No. 2) Act, 2004 with effect from 1-4-2005. As can be noted from the amended provisions, there were several conditions that were imposed in the newly substituted section 80-IB(10) that were absent in the said section prior to its amendment. One such condition inserted with effect from 1-4-2005 was clause (d) that put a restriction on the quantum of commercial area that could be included in a housing project in order to entitle the assessee to claim the deduction as set out in the said section. It is pertinent to note that in the appeals, it is an admitted fact that the housing projects were approved prior to 31-3-2005. It cannot be thought that the Legislature intended to give any retrospectivity to clause (d) of section 80-IB(10). This more so because it is clearly a condition that relates to and/or is linked with the approval and construction of the housing project. It would be highly unfair to require an assessee to comply with section 80-IB(10)(d) who has got his housing project approved by the local authority, before 31-3-2005 and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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