# Pr. Commissioner of Income Tax, Gorakhpur v. Sahara States Gorakhpur

- **Citation:** (2019) 1 ILRA 511
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** INCOME TAX APPEAL No.113 of 2016
- **Bench:** Bharati Sapru, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pr-commissioner-of-income-tax-gorakhpur-v-sahara-states-gorakhpur-44519
- **Pages:** 9

## Headnote

A. Income Tax Act, 1961: Sections 80 IB
(10), 142(1), 143(2), 147, 148, Section
512 INDIAN LAW REPORTS ALLAHABAD SERIES
80
IB(10)(d)
is
prospective-not
retrospective.
Exemption claimed u/s 80 IB (10) was allowed
after scrutiny. Reassessment proceedings initiated
on the ground of eligibility to claim exemption. CIT
confirmed the rejection of claim. Tribunal allowed
the
appeal,
set
aside
the
reassessment
proceedings and allowed the exemption u/s 80IB.
Dismissing the present appeals, the High Court.
Held:-Prior to its amendment on 01.04.2005, u/s
80IB there was no condition that the project
should be completed and a completion certificate
be obtained within 4 years. Section (IB)(10)(d) will
be
applicable
prospectively
and
not
retrospectively.
(Para 24, 29)

Precedent followed:-

## Text

1 All. Pr. Commisssioner of Income Tax, Gorakhpur Vs. Sahara States Gorakhpur
511
concealed the income so as to make him
liable for penalty under Section 271(1)(c)
of the Act.

24. In Khoday Eswarsa and Sons
(supra) as well as in Dilip N. Shroff (supra),
the Apex Court had examined in depth what
would constitute 'concealment of income'
and 'inaccurate particulars'. In penalty
proceedings the burden of proof varies from
that in assessment proceedings, and any
finding in assessment proceeding would not
automatically
be
adopted
in
penalty
proceedings, thus, in penalty proceedings the
taxing authorities have to independently
arrive at a finding regarding the 'concealment
of income' or of 'inaccurate particular'.

25. In the present case, the
Assessing Officer did not record any
finding as to incorrect, erroneous or false
return of income filed by the assessee
which could lead to the fact that assessee
has furnished inaccurate particulars of
income and make him liable for penalty
under Section 271(1)(c) of the Act. The
Assessing Officer had only doubted the
genuineness of the gifts on ground of
human probabilities and had also doubted
the creditworthiness of donors and
genuineness of transaction. The Tribunal
on the other hand had recorded finding
regarding the identity of creditors, their
creditworthiness and genuineness of the
transactions which were before the
Assessing Officer but he had not properly
appreciated the same and discarded and
doubted the genuineness of gifts on
ground of human probabilities, though
they were tax payers and the amounts
gifted had been disclosed in their tax
return for relevant year.

26. Instant case, is not a case of
either concealment of income or of
furnishing inaccurate particulars as neither
the assessing authority nor first appellate
authority recorded any finding to such effect
that details furnished by the assessee to be
incorrect, erroneous or false.

27. Considering the facts and
circumstances of the case, we are of the
considered opinion that the Tribunal had
recorded finding of fact that no penalty
can be imposed under Section 271(1)(c)
of the Act as Revenue has failed to
establish that assessee has concealed
income
or
furnished
inaccurate
particulars.

28. These appeals have no merit and
are hereby dismissed. The question of
law, therefore, is answered in favour of
the assessee and against the Revenue.
-------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE BHARATI SAPRU, J.
THE HON'BLE PIYUSH AGRAWAL, J.

INCOME TAX APPEAL No.113 of 2016
Connected with

INCOME TAX APPEAL No.114 of 2016

Pr.
Commissioner
of
Income
Tax,
Gorakhpur ...Appellant
Versus
Sahara States Gorakhpur. ...Respondent

Counsel for the Appellant:
Sri Manu Ghildyal, Sri Ashok Kumar.

Counsel for the Respondent:
Archi Agarwal, Sri Abhinav Mehrotra, Sri
Archit Mehrotra.

A. Income Tax Act, 1961: Sections 80 IB
(10), 142(1), 143(2), 147, 148, Section
512 INDIAN LAW REPORTS ALLAHABAD SERIES
80
IB(10)(d)
is
prospective-not
retrospective.
Exemption claimed u/s 80 IB (10) was allowed
after scrutiny. Reassessment proceedings initiated
on the ground of eligibility to claim exemption. CIT
confirmed the rejection of claim. Tribunal allowed
the
appeal,
set
aside
the
reassessment
proceedings and allowed the exemption u/s 80IB.
Dismissing the present appeals, the High Court.
Held:-Prior to its amendment on 01.04.2005, u/s
80IB there was no condition that the project
should be completed and a completion certificate
be obtained within 4 years. Section (IB)(10)(d) will
be
applicable
prospectively
and
not
retrospectively.
(Para 24, 29)

Precedent followed:-
1. CIT Vs. Brahma Associates, 333 ITR 289
(Bombay) (Para 18, 26)
2. CIT Vs. Sarkar Builders, [2015] 375 ITR 392
(SC) (Para 19, 28)
Appeal against order dated 07.12.2015 by
ITAT, Allahabad for the AYs 2005-06 &
2006-07. (E-4)

(Delivered by Hon'ble Piyush Agrawal J.)

1. The present appeals have been
filed against the common order dated
7.12.2015 passed in ITA No. 04 &
C15/Alld 2012 for the Assessment Year
2005-06 & 2007-08 passed by the Income
Tax
Appellate
Tribunal,
Allahabad,
Bench Allahabad.

2. The aforesaid appeals on 3.5.2016
was firstly admitted on question No. B,
which reads as under:

"(B) Whether on the facts and
the circumstances of the case, the order of
the Income Tax Appellate Tribunal was
correct in Law holding that Section 80IB(10) which is substituted w.e.f. 1.4.2005
is not applicable to the project approve
before 01.04.2004. The provision of
Section
80(IB)(10)(a)(i)
is
as
such
applicable for the all projects which has
been accepted and admitted one more
question of law mentioned as 'C' in memo
of appeals, which reads as under:

"Whether on the facts and in the
circumstances of the case, the order of the
Income Tax Appellate Tribunal was
correct in law holding that there is
change of opinion by the Assessing
Officer. As such, there is no change of
opinion
as
information
regarding
completion of project has been collected
by the Assessing Officer is a new
information and Assessing Officer had
correctly applied the provision of Section
147/148 for reopening the assessment of
A.Y. 2007-08."

3. In both the appeals common facts
and question of law are involved, as well
as both the parties are agreed for disposal
of the appeals by a common order.

4. The facts of the case are that the
respondent-assessee (hereinafter referred to
as 'assessee') is engaged in the business of
development of land, construction of house
and its sales thereof. For the purpose of
factual background the facts of the
assessment year 2005-06 has been taken up.

5. The assessee filed its return
showing income of Rs. 59,37,200/- and
claimed the deduction under Section
80IB(10)
of
the
Income
Tax
Act
(hereinafter referred to as 'the Act').

6. The case of the assessee was
selected
under
the
scrutiny
and
subsequently on 24.12.2007, assessment
order was passed on the total income of
Rs. 61,91,134/-, then exemption as
claimed by the assessee under Section 80IB(10) of the Act was allowed.
1 All. Pr. Commisssioner of Income Tax, Gorakhpur Vs. Sahara States Gorakhpur
513

7. Thereafter, the reassessment
proceeding were initiated on the basis of
some information received during the
assessment proceeding for the year 200607 that the assessee has not obtained
completion certificate within four year
from Local Authority who have approved
the project and therefore, there was a
violation of the provision of Section 80IB(10)(a)(i) of the Act.

8. The assessing authority was of the
opinion that since the assessee has lost the
eligibility for claiming the deduction under
Section 80IB(10) of the Act. Therefore, the
claim cannot be legally permitted, the
proceeding for reassessment were initiated for
both assessment years.

9. The notice dated 5.6.2009 was issued
under Section 148 of the Act which was
served upon the assessee on 8.6.2009. The
assessee submitted his return under protest on
8.7.2007 and further made a request for
supply the copy of reasons recorded for
reopen the completed assessment. The
assessee has filed his objection on 27.10.2010
pointing
out
that
the
re-assessment
proceedings have been initiated on the basis of
change of opinion and the assumption of
jurisdiction has been made without any
tangible fresh material /information on record
which is permissible under the provision of
Section 147 of the Act.

10. Notice under Section 143(2) of
the Act was issued on 10.6.2010 and
thereafter notice under Section 142 (1)
along with questionnaire were issued on
18.6.2010 and the same was served upon
the assessee on 24.6.2010.

11. Assessing authority by its reassessment order dated 27.10.2010 has
rejected the claim of exemption under
Section 80IB(10) of the Act to the Tune
of Rs. 58,44,230/-.

12. Again the aforesaid order, the
assessee preferred an appeal before
Commissioner of Income Tax (appeals),
Lucknow who vide its order dated 23rd
September, 2011 partly allowed the
appeal but has confirmed the rejection of
claim under Section 80IB(10) of the Act.

13. Feeling aggrieved by the said
order the assessee preferred an appeal
before Income Tax appellate Tribunal
who by its impugned order has allowed
the appeal and has set aside the reassessment proceeding and directed the
assessing authority to allow the claim

14. Feeling aggrieved by the
impugned order the revenue has preferred
the present appeals.

15. Heard Mr. Manu Ghildyal,
learned counsel for the Revenue and Mr.
Archit Mehrotra, learned counsel for the
assessee.

16. It has been argued on behalf of
the Revenue that Section 80IB(10) of the
Act has been substituted by Finance Act,
2004 and a sub-section (d) in Section
80IB(10) of the Act has been inserted
which
operates
retrospectively
and
therefore
the
said
amendment
is
applicable in the case of the respondent
even though whose projects have been
approved before 1.4.2004 and therefore
the impugned order passed by the
Tribunal
are
not
justifiable
which
deserves to be set aside.

17. It was further argued that since
there is no change of opinion, Tribunal was
not justified in allowing the appeal of the
514 INDIAN LAW REPORTS ALLAHABAD SERIES
assessee and directing the assessing authority
to grant the benefit of Section 80IB(10)of the
Act to the assessee. The reassessment
proceeding was rightly initiated.

18. The counsel for the assessee has
vehemently opposed the contention of the
Revenue and has argued that the Tribunal
has rightly passed the impugned order and
has further submitted that the Tribunal
was justified in relying upon the judgment
of the Bombay High Court in the case of
CIT vs. Brahma Associates reported in
333 ITR 289 (Bombay) wherein the
Bombay High Court has specifically held
that the amendment made in Section
80IB(10)(d) of the Act is prospectively
and not retrospectively.

19. It was further argued that the
Apex Court in the case of CIT vs. Sarkar
Builders reported in [2015] 375 ITR
392(SC) has also approved the judgment
of the Bombay High Court.

20. We have perused the record of the
case and finds that the assessee projects
were
approved
by
the
respective
Development Authority on April 2003 for
construction of 7 types of residential units
comprising all 429 units out of which 120
units were sold against Income of Rs.
83,74,72028/- and net profit of Rs.
1,17,81,384/- has been declared after
debating expenditure of Rs. 82,56,90,664/-
on account of land and development,
construction & Development, personnel &
site running expenses and selling and
distribution expenses etc.

21. The assessee has claimed
deduction under Section 80-IB(10) of the
Act of Rs. 58,44,230/- on the net profit of
Rs. 1,17,81,384/-.

22.

The
record
reveals
that
reassessment
proceedings
have
been
initiated on the basis of observation made
by the assessing officer during the
assessment proceeding for the assessment
year 2006-07 that the respondent has not
obtained completion certificate within
four years from the local authority and
has not fulfilling the condition as
stipulated under Section 80IB(10)(d) of
the Act and therefore the assessee has lost
eligibility of claim deduction under
Section 80-IB(10) of the Act in the
disputed assessment years.

23. The Section 80-IB(10) of the Act
for the relevant assessment year is quoted
below:

"Section 80-IB(10) prior to the
amendment of 1.4.2005:

"(10) amount of profits in case of
an undertaking developing and building
housing projects approved before the 3 I" day
of March, 2005, by a local authority, shall be
hundred percent, of the profits derived in any
previous year relevant to any assessment year
from such housing project if,-

(a)
such
undertaking
has
commenced or commences development
and construction of the housing project on
or after the 1" day of October, 1998;

(b) the project is on the size of a
plot of land which has minimum area of
one acre; and

(c) the residential unit has a
minimum built up area of one thousand
square feet where such residential unit is
situated within the cites of Delhi or
Mumbai or within twenty-five kilometers
from the municipal limits of these cities
and one thousand and five hundred
square feet at any other place."
1 All. Pr. Commisssioner of Income Tax, Gorakhpur Vs. Sahara States Gorakhpur
515

24. From perusal of the said section
which provides that only three conditions
for the eligibility of the deduction under
Section 80-IB(10) of the Act and in the
said provision there is no such condition
that the project in question should be
completed
and
obtained
completion
certificate with the period of four years.

25. In the impugned order the
Tribunal has recorded a finding of fact
that there was no such requirement under
the Act for completing the project before
a particular date and would have obtained
the completion certificate from the Local
Authority who have approved the project.

26. The Bombay High Court in the
case of CIT vs. Brahma Associates
(Supra) has observed (see page 399) as
under:

" Held that clause (d) inserted
to Section 80-IB(10) with effect from April
1,
2005,
is
prospective
and
not
retrospective and hence could not be
applied were on the profits derived from
the housing projects under Section 80IB(10) were on the profits derived from
the housing project approved by the local
authority as a whole, the Tribunal not
justified in restricting the Section 80-IB
(10) deduction only to a part of the
project. However, in the present case,
since, the assessee has accepted the
decision of the Tribunal in allowing 80-IB
(10) deduction to a part of the project, the
findings of the Tribunal in that behalf
could not be disturbed."

27. Subsequently, against the
judgement of the Bombay High Court the
revenue preferred the SLP before the
Hon'ble Supreme Court being SLP (C)-
No. 24330 of 2011 and others) the
Hon'ble Supreme Court by its judgement
and order dated 15th May, 2015 has
dismissed the appeal of the Revenue and
has confirmed the order and judgement
passed by the Bombay High Court.

28. Hon'ble Supreme Court in the
case of CIT vs. Sarkar Builders(supra)
while considering the bunch of cases has
observed as under (see page 399):

"We would also like to point out
that following this judgment of the
Bombay High Court, or independently,
other High Courts had also taken similar
view. Against the aforesaid judgments,
special leave petitions were filed by the
Revenue in this Court. All these SLPs
have been disposed of by this Court vide
order dated 29.04.2015, we would like to
reproduce the said order in entirety
hereunder:

"All these special leave petitions
are filed by the Revenue/ Department of
Income
tax
against
the
judgments
rendered by various High Courts deciding
identical issue which pertains to the
deduction under Section 80IB(10) of the
Income Tax Act, as applicable prior to
01.04.2005. We may mention at the outset
that
all
the
High
Courts
have
takenidentical view in all these cases
holding that the deduction under the
aforesaid provision would be admissible
to a "housing project".

All
the
assessees
had
undertaken construction projects which
were
approved
by
the
municipal
authorities/local authorities as housing
projects. On that basis, they claimed
deduction under Section 80IB(10) of the
Act. This provision as it stood at that time,
i.e., prior to 01.04.2005 reads as under: -

Section 80IB(10) [as it stood
prior to 01.04.2005] "(10) The amount of
516 INDIAN LAW REPORTS ALLAHABAD SERIES
profits in case of an undertaking
developing and building housing projects
approved before the 31st day of March,
2005 by a local authority, shall be
hundred per cent of the profits derived in
any previous year relevant to any
assessment year from such housing
project if,

(a)
such
undertaking
has
commenced or commences development
and construction of the housing project on
or after the 1st day of October, 1998;

(b) the project is on the size of a
plot of land which has a minimum area of
one crore; and

(c) the residential unit has a
maximum built-up area of one thousand
square feet where such residential unit is
situated within the cities of Delhi or
Mumbai or within twenty-five kilometres
from the municipal limits of these cities
and one thousand and five hundred
square feet at any other place." However,
the income tax authorities rejected the
claim of deduction on the ground that the
projects were not "housing project"
inasmuch as some commercial activity
was also undertaken in those projects.
This contention of the Revenue is not
accepted by the income tax Appellate
Tribunal as well as the High Court in the
impugned judgment. The High Court
interpreted
the
expression
"housing
project" by giving grammatical meaning
thereto as housing project is not defined
under the Income Tax Act insofar as the
aforesaid provision is concerned. Since
sub-section (10) of Section 80IB very
categorically mentioned that such a
project which is undertaken as housing
project is approved by a local authority,
once the project is approved by the local
authority it is to be treated as the housing
project. We may also point out that the
High Court had made observations in the
context
of
Development
Control
Regulations (hereinafter referred to as
'DCRs' in short) under which the local
authority sanctions the housing projects
and noted that in these DCRs itself, an
element
of
commercial
activity
is
provided but the total project is still
treated as housing project. On the basis of
this discussion, after modifying some of
the directions given by the ITAT, the
conclusions which are arrived at by the
High Court are as follows: -

"30. In the result, the questions
raised in the appeal are answered thus:-

a) Upto 31/3/2005 (subject to
fulfilling other conditions), deduction
under Section 80IB(10) is allowable to
housing projects approved by the local
authority having residential units with
commercial user to the extent permitted
under DC Rules/Regulations framed by
the respective local authority

b) ......

c) .....

d) ......

(See page 401)

e) Clasue (d) inserted to section
80-IB(10) with effect from April 1, 2005,
is prospective and not retrospective and,
hence, cannot be applied for the period
prior to 2005.

We are in agreement with the
aforesaid answer given by the High Court
to the various issues."

(See page 402)

"...................In the aforesaid
scenario, we revert back to the question
that is to be answered. We have already
pointed out that the parties are ad idem
that the amendment is prospective in
nature and, therefore, it operates from
01.04.2005. We have also mentioned that
in the instant appeals, all these assessees
had got the housing projects sanctioned
prior to 01.04.2005 and the construction
1 All. Pr. Commisssioner of Income Tax, Gorakhpur Vs. Sahara States Gorakhpur
517
of the said housing project also started
before 01.04.2005. All other conditions
mentioned namely the date by which
approval was to be given and the dates by
which the projects were to be completed
as on the date when the project was
sanctioned,
are
also
met
by
the
assessees......."

(See page 404)

"...... The Revenue had argued
that clause (d) inserted with effect from
01.04.2005
should
be
applied
retrospectively, which argument was
repelled by the High Court. Therefore, for
better understanding, we would like to
begin our discussion with the meaning
given to 'housing project' along with the
issue of retrospectivity of clause (d), as
raised by the Revenue, which was dealt
with by the High Court and repelled. That
portion of the discussion contained in the
High Court judgment, which has some
bearing on the issue at hand, runs as
under: "21. Thus, on the date on which
the
legislature
introduced
100%
deduction under the Income Tax Act,
1961 on the profits derived from housing
projects approved by a local authority, it
was known that the local authorities could
approve the projects as houding projects
with commercial user to the extent
permitted under the DC Rules framed by
the respective local authority. In other
words, it was known that the local
authorities could approve a housing
project without or with commercial user
to the extent permitted under the
Development
Control
Rules.
If
the
legislature intended to restrict the benefit
of deduction only to the projects approved
exclusively for residential purposes, then
it would have stated so. However, the
legislature has provided that Section
80IB(10) deduction is available to all the
housing projects approved by a local
authority. Since the local authorities
could approve a project to be a housing
project with or without the commercial
user, it is evident that the legislature
intended to allow Section 80IB(10)
deduction to all the housing projects
approved by a local authority without or
with commercial user to the extent
permitted under the DC Rules.

22. It is not in dispute that
where a project is approved as a housing
project without or with commercial user
to the extent permitted under the
Rules/Regulations, then, deduction under
Section 80IB(10) would be allowable. In
other words, if a project could be
approved as a housing project having
residential
units
with
permissible
commercial user, then it is not open to the
income tax authorities to contend that the
expression 'housing project' in Section
80IB(10) is applicable to projects having
only residential units.

23. Once it is held that the local
authorities could approve a project to be
housing project without or with the
commercial user to the extent permitted
under the DC Rules, then the project
approved
with
the
permissible
commercial user would be eligible for
Section 80IB(10) deduction irrespective of
the fact that the project is approved as
'housing
project'
or
approved
as
'residential plus commercial'. In other
words, where a project fulfills the criteria
for being approved as a housing project,
then deduction cannot be denied under
Section 80IB(10) merely because the
project is approved as 'residential plus
commercial'.

24. The fact that the deduction
under Section 80IB(10) prior to 1.4.2005
was allowable on the profits derived from
the housing projects constructed during
the specified period, on a specified size of
the plot with residential units of the
518 INDIAN LAW REPORTS ALLAHABAD SERIES
specified size, it cannot be inferred that
the deduction under Section 80IB(10) was
allowable to housing projects having
residential units only, because, restriction
on the size of the residential unit is with a
view to make available large number of
affordable houses to the common man and
not with a view to deny commercial user
in residential buildings. In other words,
the restriction under Section 80IB(10)
regarding the size of the residential unit
would in no way curtail the powers of the
local authority to approve a project with
commercial user to the extent permitted
under
the
DC
Rules/Regulations.
Therefore, the argument of the Revenue
that the restriction on the size of the
residential unit in Section 80IB(10) as it
stood prior to 1.4.2005 is suggestive of
the fact that the deduction is restricted to
housing projects approved for residential
units only cannot be accepted.

25. The above conclusion is
further fortified by Clause (d) to Section
80IB(10)
inserted
with
effect
from
1.4.2005. Clause (d) to Section 80IB(10)
inserted w.e.f. 1.4.2005 provides that even
though
shops
and
commercial
establishments
are
included
in
the
housing project, deduction under Section
80IB(10) with effect from 1.4.2005 would
be available where such commercial user
does not exceed five per cent of the
aggregate built- up area of the housing
project or two thousand square feet
whichever is lower. By Finance Act, 2010,
clause (d) is amended to the effect that the
commercial user should not exceed three
percent of the aggregate built-up area of
the housing project or five thousand
square feet whichever is higher. The
expression 'included' in clause (d) makes
it amply clear that commercial user is an
integral part of housing project. Thus, by
inserting clause (d) to Section 80IB(10)
the legislature has made it clear that
though the housing projects approved by
the local authorities with commercial user
to the extent permissible under the DC
Rules/Regulation were entitled to Section
80IB(10) deduction, with effect from
1.4.2005 such deduction would be subject
to the restriction set out in clause (d) of
Section
80IB(10).
Therefore,
the
argument of the revenue that with effect
from 1.4.2005 the legislature for the first
time allowed Section 80IB(10) deduction
to housing projects having commercial
user cannot be accepted.

29. Lastly, the argument of the
revenue that Section 80IB(10) as amended
by inserting clause (d) with effect from
1.4.2005 should be applied retrospectively is
also without any merit, because, firstly,
clause (d) specifically inserted with effect
from 1.4.2005, and therefore, that clause
cannot be applied for the period prior to
1.4.2005. Secondly, clause (d) seeks to deny
Section 80IB(10) deduction to projects
having commercial user beyond the limit
prescribed under clause (d), even though
such commercial user is approved by the
local authority. Therefore, the restriction
imposed under the Act for the first time with
effect from 1.4.2005 cannot be applied
retrospectively. Thirdly, it is not open to the
revenue to contend on the one hand that
Section 80IB(10) as stood prior to 1.4.2005
did not permit commercial user in housing
projects and on the other hand contend that
the
restriction
on
commercial
user
introduced with effect from 1.4.2005 should
be applied retrospectively. The argument of
the revenue is mutually contradictory and
hence liable to be rejected. Thus, in our
opinion, the Tribunal was justified in holding
that clause (d) inserted to Section 80IB(10)
with effect from 1.4.2005 is prospective
and not retrospective and hence cannot be
applied to the period prior to 1.4.2005."
1 All. Shriram Jaiswal Vs. State of U.P. & Ors.
519

The issues dealt with from paras
21 to 25 by the High Court already stands
approved by this Court. In para 29, the
High Court has held that clause. (d) has
prospective operation, viz., with effect
from 01.04.2005, and this legal position is
not disputed by the Revenue before us.
What follows from the above is that prior
to 01.04.2005, these developers/assessees
who had got their projects sanctioned
from the local authorities as 'housing
projects', even with commercial user,
though limited to the extent permitted
under the DC Rules, were convinced that
they would be getting the benefit of 100%
deduction of their income from such
projects under Section 80IB of the Act..."

29. In view of the observation of the
Hon'ble Apex Court, we are of the
opinion that the projects which were
approved
prior
to
1.4.2005
the
applicability of Section 80IB(10)(d), of
the Act is not permitted. In other words,
Section 80(IB)(10)(d) of the Act will be
applicable
prospectively
and
not
retrospectively.

30. Once it has come on record by
fact finding Authority also that there is no
such
condition
to
have
completion
certificate within four years from the local
authority granting approval of the projects
in question, the reassessment proceedings
taken against the assessee are bad and
against the settled principle of law.

31. Therefore, the Tribunal has
rightly
set
aside
the
re-assessment
proceeding and directed the assessing
authority to grant benefit of Section
80IB(10) of the Act to the assessee.

32. In view of the above facts and
circumstances of the case the question of
law are answered in favour of assessee
and against the Revenue.

33. The appeals are, accordingly,
answered. Both the appeals fail and are
therefore dismissed.

34. Copy of this order be placed in
the connected Income Tax Appeal No.
114 of 2016.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2019

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Civil Misc. Writ Petition No. 142 of 2019

Shriram Jaiswal ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Sharma, Sri Neeraj Sharma.

Counsel for the Respondents:
Shri. Avinash Chandra Tripathi, S.C..

A. United Provinces Excise Act, 1910:
Sections
34,
72(c),
U.P.
Excise
(Settlement of Licenses for Retail Sale of
Country Liquor) Rules, 2002: Rule 21,
S.34(3)-
'security
amount'
is
also
'deposit made'. Latter phrase cannot be
confined to the words 'fee paid'. It
includes 'security amount' money also.

The license of the petitioner to vend country
liquor was cancelled, stocks, license fee and
advance security deposit were also confiscated
by
the
District
Magistrate.
Appeal
was
dismissed and revision was rejected. Present
writ petition challenges the confiscation of
stocks, license fee and advance security
deposit etc., though not the cancellation of the
vending
license.
Partly
allowing
present
petition, the High Court. Held: - Under Section