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Saturday, May 16, 2015

benefit of Section 80IB of the Income Tax Act ('Act' for short), namely, deduction in respect of profits and gains on the ground that their cases were covered by sub- section (10) of Section 80IB which provides for deduction of 100% of profits in the case of an undertaking developing and building housing projects when such profits are derived in the previous year relevant to any assessment year from such housing projects, provided the conditions contained in the said sub-section are satisfied.Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years. The right of carrying forward and set off accrued to the assesee under the Act of 1922. A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. This is the effect of Section 6 of the General Clauses Act, 1897. 15. In this case the 'savings' provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words, whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General Clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Income Tax Act of 1922 is not saved expressly by Section 297 of the Income Tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(2) saves accrued rights unless they are taken away by the repealing statute. We do not find any such taking away of the rights by Section 297 either expressly or by implication.” The aforesaid discussion persuades us to conclude that the judgments of the High Courts, which are impugned in these appeals, take correct view that the assesees were entitled to the benefit of Section 80IB(10). As a result, these appeals fail and are hereby dismissed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NO.     4476             OF 2015
                 (ARISING OUT OF SLP (C) NO. 24330 OF 2011)


|COMMISSIONER OF INCOME TAX-19                    |                       |
|MUMBAI                                           |.....APPELLANT(S)      |
|   VERSUS                                        |                       |
|M/S. SARKAR BUILDERS                             |.....RESPONDENT(S)     |

                                   W I T H
                 CIVIL APPEAL NO.     4477           OF 2015
                  (ARISING OUT OF SLP (C) NO. 9132 OF 2014)

                    CIVIL APPEAL NO.       4491   OF 2015
                 (ARISING OUT OF SLP (C) NO. 10290 OF 2014)

                    CIVIL APPEAL NO.       4485   OF 2015
                  (ARISING OUT OF SLP (C) NO. 9871 OF 2014)

                    CIVIL APPEAL NO.       4486   OF 2015
                  (ARISING OUT OF SLP (C) NO. 4652 OF 2015)

                    CIVIL APPEAL NO.       4479   OF 2015
                  (ARISING OUT OF SLP (C) NO. 4651 OF 2015)

                    CIVIL APPEAL NO.       4481   OF 2015
                  (ARISING OUT OF SLP (C) NO. 5769 OF 2015)

                    CIVIL APPEAL NO.       4487   OF 2015
                  (ARISING OUT OF SLP (C) NO. 7570 OF 2015)

                    CIVIL APPEAL NO.       4490   OF 2015
                  (ARISING OUT OF SLP (C) NO. 7575 OF 2015)


                    CIVIL APPEAL NO.       4483   OF 2015
                  (ARISING OUT OF SLP (C) NO. 7579 OF 2015)

                    CIVIL APPEAL NO.       4482   OF 2015
                  (ARISING OUT OF SLP (C) NO. 7578 OF 2015)

                    CIVIL APPEAL NO.       4489   OF 2015
                  (ARISING OUT OF SLP (C) NO. 8823 OF 2015)

                    CIVIL APPEAL NO.       4492   OF 2015
                  (ARISING OUT OF SLP (C) NO. 8390 OF 2015)

                    CIVIL APPEAL NO.       4478   OF 2015
                  (ARISING OUT OF SLP (C) NO. 8827 OF 2015)

                    CIVIL APPEAL NO.       4484   OF 2015
                  (ARISING OUT OF SLP (C) NO. 8828 OF 2015)

                    CIVIL APPEAL NO.       4493   OF 2015
                  (ARISING OUT OF SLP (C) NO. 8829 OF 2015)

                    CIVIL APPEAL NO.       4488   OF 2015
                 (ARISING OUT OF SLP (C) NO. 12063 OF 2015)

                    CIVIL APPEAL NO.       4480   OF 2015
                  (ARISING OUT OF SLP (C) NO. 8825 OF 2015)


                               J U D G M E N T


A.K. SIKRI, J.
                 Leave granted.

No doubt the assessees/respondents in all these appeals  are  different  and
even assessment years are different.  But  the  question  of  law  which  is
raised by the  Income  Tax  Authorities  (hereinafter  referred  to  as  the
'Revenue') is identical.  The assessees are subject to the  jurisdiction  of
the different High Courts, all of whom had claimed the  benefit  of  Section
80IB of the Income Tax Act ('Act' for short), namely, deduction  in  respect
of profits and gains on the ground that their cases  were  covered  by  sub-
section (10) of Section  80IB  which  provides  for  deduction  of  100%  of
profits in the case  of  an  undertaking  developing  and  building  housing
projects when such profits are derived in the previous year relevant to  any
assessment  year  from  such  housing  projects,  provided  the   conditions
contained in the said sub-section are satisfied.   High  Courts  have  taken
the same view  holding  that  these  assessees  would  be  entitled  to  the
deduction under Section 80IB(10) of the Act.  We may also point out at  this
stage itself that though Section 80IB has  been  on  the  statute  book  for
quite some time, a new Section 80IB had been introduced by the Finance  Act,
1999 w.e.f. 01.04.2000.  All these cases are covered by  the  said  Section,
as introduced.  However, insofar as  sub-section  (10)  is  concerned,  with
which we  are  directly  concerned,  there  have  been  amendments  in  that
provision from time to time. We are concerned  with  the  amendment  to  the
said sub-section carried out by Finance No.2 Act,  2004  w.e.f.  01.04.2005.
In all these cases, though the housing projects were sanctioned much  before
the said amendment but have been completed  after  01.04.2005  when  amended
provision has come into operation.  It is  also  not  in  dispute  that  the
amendment  is  prospective  in  nature.   Interestingly,  when  the  housing
project was approved by a local authority, which is  the  requirement  under
sub-section  (10)  of  Section  80IB,  as  on  that  date,  the   conditions
stipulated in the said sub-section were  met  by  the  assessees.   However,
condition in clause (d) which was laid  down  for  the  first  time  by  the
amendment  made  effective  from  01.04.2005  is  not  fulfilled.   In  this
scenario, the question is as to whether the new conditions mentioned in  the
amended provision have  also  to  be  fulfilled  only  because  the  housing
projects in question,  though  started  before  01.04.2005,  were  completed
after the said date.  The question of law, that arises for  discussion  that
needs to be answered is  thus  common  in  all  these  appeals  and  can  be
formulated as under:
      “Whether Section 80IB(10)(d) of the Income Tax Act, 1961 applies to  a
housing project  approved  before  31.03.2005  but  completed  on  or  after
01.04.2005?”


As pointed out above, sub-section (10) stipulates certain  conditions  which
are to be satisfied in order to avail the benefit  of  the  said  provision.
Further,  it  is  also  clear  that  the  benefit  is  available  to   those
undertakings which are developing and building 'housing  projects'  approved
by a local authority.  Thus,  this  Section  is  applicable  in  respect  of
housing projects and not commercial projects.  At  the  same  time,  we  are
conscious of the fact that even in the  housing  projects,  there  would  be
some  area  for  commercial  purposes  as  certain  shops   and   commercial
establishments are  needed  even  in  a  housing  projects.  That  has  been
judicially recognised while interpreting the provision that  existed  before
01.04.2005 and there was no limit fixed in Section  80IB(10)  regarding  the
built-up area to  be  used  for  commercial  purpose  in  the  said  housing
project. As would be noticed later,  the extent  to  which  such  commercial
area could be constructed was as  per  the  local  laws  under  which  local
authority gave the sanction to the housing  project.  However,  vide  clause
(d), which was inserted by the aforesaid amendment and made  effective  from
01.04.2005, it was stipulated that the built-up area of the shops and  other
commercial establishments in the housing projects would  not  exceed  5%  of
the aggregate built-up area  of  the  housing  project  or  2000  sq.  feet,
whichever is less (there is a further amendment whereby 5% is reduced to  3%
and  instead of the words “2000 sq. feet whichever is less” the words  “5000
sq. feet, whichever is higher” have been substituted.  However, we  are  not
concerned with this amendment).

      The question, thus, that arises for consideration is as to whether  in
respect of those housing projects which finished  on  or  after  01.04.2005,
though sanctioned  and  started  much  earlier,  the  aforesaid  stipulation
contained in clause (d) also has to be satisfied.  All the High Courts  have
held that since this amendment is prospective and has come into effect  from
01.04.2005, this condition would not apply to those housing  projects  which
had been  sanctioned  and  started  earlier  even  if  they  finished  after
01.04.2005.

As there is a commonality of issue and the judgments  of  the  various  High
Courts have spoken in one voice which are questioned  on  identical  grounds
by the appellant Revenue, all these appeals were heard  analogously  and  by
this judgment, we propose to answer the question  of  law  involved  and  as
formulated above in order to give quietus to this surging debate.

Before we come to the grip of the aforesaid central issue, it  would  be  of
some relevance to mention certain other disputes which  had  arisen  between
the Revenue and the assessees/developers of the housing projects  concerning
interpretation of sub-section (10) of Section 80IB.  That dispute  primarily
related to the meaning that is to be assigned to  'housing  projects'  prior
to 01.04.2005 because of the reason that there was  no  clause  (d)  earlier
and there is no express provision  in  this  sub-section  dealing  with  the
consequence of having a commercial establishment within a  housing  project.
One of the requirements contained in sub-section (10) is that  in  order  to
be entitled to have the deduction under this provision, housing  project  is
to be approved by a local authority.  It is a  matter  of  common  knowledge
that  there  are  Municipal  Acts  of  specific  Local  Acts  governing  the
construction of buildings, commercial  as  well  as  residential,  in  every
State.  For undertaking any such construction authority, it is necessary  to
have the building plans sanctioned from the local authorities in  accordance
with the provisions of such local acts.  There are local  laws  relating  to
the   development   and   building   of   “housing    projects”    by    the
developers/builders which also need a sanction from  the  local  authorities
as per the law prevailing in that particular area where the housing  project
is developed.  Such local laws,  while  sanctioning  the  housing  projects,
also permit use of certain area in  the  housing  projects  in  a  specified
manner for shopping and commercial purposes as well.  The question that  had
arisen was – whether deduction under Section 80IB(10)  would  be  admissible
when commercial establishment is constructed in  a  housing  project?   That
is, whether it would still retain the character of  housing  project  within
the meaning of this provision.  The Bombay High Court in the case of  C.I.T.
v. Brahma Associates[1] held that since the expression 'housing project'  is
not defined under the Act, the intention of Parliament was that whatever  is
approved by the local authority under the extent rules as a housing  project
would be treated as 'housing project'  for  the  purpose  of  this  Section,
inasmuch as sub-section (10) itself mandates that housing project is  to  be
approved by a local authority as such an approval is a  necessary  condition
for claiming the deduction under this provision. When  the  local  authority
has approved a housing project, whether 'residential'  or  'residential  cum
commercial' the assessee is entitled to a deduction  on  the  entire  profit
including the commercial establishments portion.   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 taken identical 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  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)  In such a case, where the commercial user permitted  by  the
local authority  is  within  the  limits  prescribed  under  the  DC  Rules/
Regulation, the deduction under Section 80IB(10)  upto  31/3/2005  would  be
allowable irrespective of the fact that the project is approved as  'housing
project' or 'residential plus commercial'.


            c)  In the absence of any provisions under the Income  Tax  Act,
the Tribunal was not justified in  holding  that  upto  31/3/2005  deduction
under Section 80IB(10) would be allowable to the projects  approved  by  the
local authority having residential building with commercial  user  upto  10%
of the total built-up area of the plot.

            d)  Since deductions under Section 80IB(10) is  on  the  profits
derived from the housing projects approved  by  the  local  authority  as  a
whole, the Tribunal  was  not  justified  in  restricting  Section  80IB(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
Section 80IB(10) deduction to a part of the project, we do not  disturb  the
findings of the Tribunal in that behalf.

            e)  Clause (d) inserted to Section  80IB(10)  with  effect  from
1/4/2005 is prospective and not retrospective and hence  cannot  be  applied
for the period prior to ¼/2005.”

            We are in agreement with the  aforesaid  answers  given  by  the
High Court to the various issues.  We  may  only  clarify  that  insofar  as
answer at para (a) is concerned, it would  mean  those  projects  which  are
approved by the  local  authorities  as  housing  projects  with  commercial
element therein.

            There was much debate on the answer given  in  para  (b)  above.
It was argued by Mr. Gurukrishna  Kumar,  learned  senior  counsel,  that  a
project which is cleared as “residential plus commercial” project cannot  be
treated as housing project and therefore, this direction is contrary to  the
provisions of  Section  80(I)(B)(10)  of  the  Act.   However,  reading  the
direction in its entirety and particularly the first  sentence  thereof,  we
find that commercial user which is permitted is  in  the  residential  units
and that too, as per DCR.  Examples given before us by the  learned  counsel
for the assessee was that such commercial user to some extent  is  permitted
to the professionals like Doctors, Chartered Accountants,  Advocates,  etc.,
in the DCRs itself.  Therefore, we clarify that direction (b) is to be  read
in that context  where  the  project  is  predominantly  housing/residential
project but the commercial activity in the residential units  is  permitted.
With the aforesaid clarification, we dispose  of  all  these  special  leave
petitions.”


The reason  for  recapitulating  the  aforesaid  events  pertaining  to  the
earlier litigation is that before 01.04.2005, the legal  position  was  that
once the project is sanctioned by the local authority as 'housing  project',
the extent of area sanctioned for shops  and  commercial  establishments  in
the  said  housing  project  was  immaterial  and  had  no  bearing.   Thus,
irrespective of the said of area where shops and  commercial  establishments
were permitted by the local authority in a housing  project,  it  was  still
treated as housing project and further that while granting 100%  deductions,
the  area  covered  by  shops  and  commercial   establishments   was   also
includible.  This position has changed with the insertion of clause  (d)  to
sub-section (10).  As per the amendment carried out and made effective  from
01.04.2005, even if the local  authority  had  sanctioned  larger  area  for
shops and commercial establishment, the benefit of  Section  80IB(10)  would
not be admissible to these assessees/developers in case  the  area  utilised
for shops and commercial establishment exceeded 5% of the  aggregate  built-
up area of the housing project or 2000 sq. feet, whichever is less.

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  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.  Notwithstanding  this  position,  the  argument  of  Mr.  S.
Gurukrishna Kumar, learned senior counsel appearing for the Revenue is  that
amendment w.e.f. 01.04.2005 is retroactive even if  not  retrospective.   He
has, thus, endeavoured to draw a fine distinction  between  the  retroactive
nature of amendment in contrast with retrospectivity  of  a  provision.   He
argued that once the  project  is  financed  after  01.04.2005  and  on  the
completion of the said project, a particular assessee has earned the  income
which is shown by the assessee in a particular assessment year, it  is  that
assessment year  which  would  be  the  determinative  factor  and  the  law
prevailing on the date relevant to the  assessment  year  will  have  to  be
applied.  On that basis, it was argued that since the assessment  years  are
post 01.04.2005, clause (d) of sub-section (10) of Section 80IB of  the  Act
gets attracted.  In support of this plea, he referred  to  the  judgment  of
this Court in Commissioner of Income Tax I, Ahmedabad v.  Gold  Coin  Health
Food Private Limited[2]  and,  particularly,  the  discussion  contained  in
paras 9 and 16 which are reproduced hereunder:
“9.  In Reliance Jute and Industries Ltd. v. CIT, (1980) 1 SCC 139,  it  was
observed by this Court that the law to be applied in income tax  assessments
is the law in  force  in  the  assessment  year  unless  otherwise  provided
expressly or by necessary implication.

                          xx          xx         xx

16.  The law is well settled that the applicable provision would be the  law
as it existed on the date of the filing of the return.  It is  of  relevance
to note  that  when  any  loss  is  returned  in  any  return  it  need  not
necessarily be the loss  of  the  previous  year  concerned.   It  may  also
include carried-forward loss which is required to be set up  against  future
income under Section 72 of the Act.  Therefore, the applicable  law  on  the
date of filing of the return cannot be confined only to the  losses  of  the
previous accouting years.”

He also referred to the decision in the case of The Karimtharuvi Tea  Estate
Ltd. v. The State of Kerala[3] which is to the same effect.

Mr. J.D. Mistry, learned senior  counsel  who  appeared  on  behalf  of  the
assessees in some of these  appeals  emphatically  countered  the  aforesaid
arguments.  In the first instance, he pointed  out  that  this  argument  of
retroactivity was not even raised by the  Revenue  in  the  High  Courts  or
before the lower forum or even in the special leave petitions filed in  this
Court.  He further submitted that it was necessary to keep the objective  of
the amendment in mind which would clearly  evince  that  the  conditions  in
clause (d) could not be applied in respect of those projects which had  been
sanctioned and commenced  prior  to  01.04.2005.   He  further  argued  that
vested rights had accrued in favour of  such  persons  which  could  not  be
taken away by the amendment.  He also advanced various reasons, as would  be
noted later, necessitating the approach as to why the principle of  tax  law
that the law in force in the Assessment Year is  to  be  applied,  insisting
that it was a case where departure  was  needed  and  such  a  departure  is
recognised in certain circumstances, by the  courts.   He  relied  upon  the
judgments of this Court in Commissioner of Income  Tax  v.  Shah  Sadiq  and
Sons[4] and Commissioner of Income Tax  (Central)-I,  New  Delhi  v.  Vatika
Township  Private  Limited[5].   Senior  counsel  who  appeared  for   other
assessees argued on the same lines  drawing our  attention  to  the  reasons
which are given by the High Courts in the impugned judgments and  supporting
those reasons.

We have given our due consideration to the respective submissions.

As pointed out above, the judgment pronounced by the Bombay  High  Court  in
Brahma Associates case  has  already  been  upheld  by  this  Court  on  the
interpretation given to the expression 'housing project' occurring  in  sub-
section (10) of Section 80IB of the Act.  Interestingly,  in  the  batch  of
appeals decided by the High Court in that  very  judgment,  the  issue  with
which we are concerned was also taken  up.   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 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.

                          xx          xx         xx

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.”


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.  Their projects were  sanctioned  much  before  01.04.2005.
As per the permissible commercial user on which the project was  sanctioned,
they started the projects and the date of commencing such projects  is  also
before 01.04.2005.  All these assessees were made known of the provision  by
which these projects are to be completed as those dates have been  specified
from time to time by successive Finance Acts in the same  provision  Section
80IB. In these cases, completion dates  were  after  01.04.2005.  Once  they
arrange their affairs in this manner, the Revenue cannot  deny  the  benefit
of this section applying  the  principle  of  retroactivity  even  when  the
provision has no retrospectivity.  Take for example, a case where under  the
extant DC Rules, for shops and commercial  activity  construction  permitted
was, say, 10% and the project was  also  sanctioned  allowing  a  particular
assessee to construct 10% of the area  for  commercial  purposes.  The  said
developer started with  its  project  much  prior  to  01.04.2005  with  the
aforesaid permissible use and the construction was at a very advanced  stage
as on 01.04.2005. Can it be argued by that Revenue that he  is  to  demolish
the extra coverage meant for commercial purpose and bring  the  same  within
the limits prescribed by the  new  provision  if  he  wanted  to  avail  the
benefit of deduction under Section 80IB(10) of the Act, only because of  the
reason that the project was not complete as on  01.04.2005?  As  in  such  a
case he filed  his return for an assessment year after  01.04.2005  and  for
the purpose of assessment of the said return,  law  prevailing  as  on  that
date would be applicable? Answer has to be in the negative on the  principle
that with the  aforesaid  planning  as  per  the  law  prevailing  prior  to
01.04.2005, these assessees acted and acquired vested  right  thereby  which
cannot be  taken  away.   It  is  ludicrous  on  the  part  of  the  Revenue
authorities to  expect  the  assessees  to  do  something  which  is  almost
impossible

In  M/s.  Reliance  Jute  and  Industries  Ltd.  v.  C.I.T.,  West   Bengal,
Calcutta[6], this Court had, no doubt, pointed out  the  cardinal  principle
of tax law that the law to be applied has to be the  law  in  force  in  the
assessment year.  However, this is qualified by the  exception  when  it  is
provided otherwise expressly or by necessary implication, as is  clear  from
the following observations:
“6.  The assessee claims a vested right  under  Section  24(2)(iii),  as  it
stood before its amendment in 1957, to have the unabsorbed loss  of  1950-51
carried forward from year to year until the  loss  is  completely  absorbed.
The claim is based on a misconception of the  fundamental  basis  underlying
every income tax assessment.  It is a cardinal  principle  of  the  tax  law
that the law to be applied is that in force in the  assessment  year  unless
otherwise provided expressly or by necessary implication...”

In the same paragraph, the Court also remarked that 'a right claimed  by  an
assessee under  the  law  in  force  in  a  particular  assessment  year  is
ordinarily available only in relation to a  proceeding  pertaining  to  that
year'.  Thus, it clearly follows that though normally the law  which  is  in
force in the assessment year would prevail, but  this  is  not  an  absolute
principle as the Court itself carved out exceptions  thereto  by  making  it
clear that such exception can be either  express  or  implied  by  necessary
implication. Even the principle which is mentioned  is  qualified  with  the
words 'ordinarily available'.

On examining the scheme of sub-section (1) of Section 80IB of the  Act,  its
historical turn around by amendments from time to time and keeping  in  view
of the real purpose behind such a provision, we are of the view that in  the
peculiar scenario as projected in this  provision,  the  aforesaid  cardinal
principle of tax law is not to be  applied  as,  by  necessary  implication,
application thereof stands excluded.  We have already narrated  the  essence
of this provision.  For the purpose of discussing this particular issue,  it
is required to be noted that with effect from 01.04.2001,  Section  80IB(10)
stipulated that any housing project approved by the local  authority  before
31.03.2001 was entitled to a deduction  of  100  per  cent  of  the  profits
derived in any previous year relevant  to  any  assessment  year  from  such
housing project, provided - (i) the  construction/development  of  the  said
housing project commenced on or after 1.10.1998  and  was  completed  before
31.03.2003; (ii) the housing project was on a size of a plot of  land  which
had a minimum area of one acre; and (iii) each individual  residential  unit
had a maximum built-up area of 1000 sq.ft., where such housing  project  was
situated within the cities of Delhi or Mumbai or within  25  kms.  from  the
municipal limits of these cities,  and  a  maximum  built-up  area  of  1500
sq.ft. at any other place.  Therefore, for the  first  time,  a  stipulation
was added with reference to the date of approval, namely, that approval  had
to be accorded  to  the  housing  project  by  the  local  authority  before
31.03.2001.  Before this amendment there was  no  date  prescribed  for  the
approval being granted by  the  local  authority  to  the  housing  project.
Prior to this amendment, as long as the  development/construction  commenced
on or after 1.10.1998 and was completed before 31.03.2001, the assessee  was
entitled to the deduction.  Also by this amendment, the date  of  completion
was  changed  from  31.03.2001  to  31.03.2003.   Everything  else  remained
untouched.  Thereafter, by Finance Act, 2003, further amendments  were  made
to Section 80IB(10), which read as under:
“(10) The amount of profits  in  case  of  an  undertaking  developing  and,
building housing projects approved before the 31st day of March  2005  by  a
local authority, shall be hundred per cent of the  profits  derived  in  any
previous year relevant to any assessment year from such housing  project  if
-

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

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

(c) the residential unit has a maximum built-up area of one thousand  square
feet where such residential unit is situated within the cities of  Delhi  or
Mumbai or within twenty-five kilometres from the municipal limits  of  these
cities and one thousand and five hundred square feet at any other place.”

As can be seen from the aforesaid provision, now the only changes that  were
brought about were that with effect from 1.4.2002: (i) the  housing  project
had to be approved before 31.03.2005; and  (ii)  there  was  no  time  limit
prescribed for completion of the said project.  Though  these  changes  were
brought about by the Finance Act, 2003, the Legislature thought it fit  that
these changes be deemed to have been  brought  into  effect  from  1.4.2002.
All the remaining provisions of Section 80IB(10) remained unchanged.

Thereafter, significant amendment, with which  we  are  directly  concerned,
was carried out by Finance (No.2)  Act,  2004  with  effect  from  1.4.2005.
This  amendment  has  already  been  noted  above.   The  Legislature   made
substantial changes  in  sub-section  (10).   Several  new  conditions  were
incorporated for the  first  time,  including  the  condition  mentioned  in
clause (d).  This condition/restriction was not on the statute book  earlier
when all these projects were sanctioned.  Another  important  amendment  was
made by this Act to sub-section  (14)  of  Section  80IB  with  effect  from
1.4.2005 and for the first time under clause (a) thereof the  words  'built-
up area' were defined.  Section 80IB(14)(a) reads as under:
“(14) For the purposes of this section -

(a) “built-up area” means the inner measurements of the residential unit  at
the floor level, including the projections and balconies,  as  increased  by
the thickness of the walls but does not  include  the  common  areas  shared
with other residential units;”


Prior to insertion  of  Section  80IB(14)(a),  in  many  of  the  rules  and
regulations of the local authority approving the housing  project  “built-up
area” did not include projections and balconies. Probably, taking  advantage
of this fact, builders provided large balconies and projections  making  the
residential units far bigger than as stipulated  in  Section  80IB(10),  and
yet claimed the deduction under the said provision.  To  plug  this  lacuna,
clause (a) was inserted in Section 80IB(14)  defining  the  words  “built-up
area” to mean the inner measurements of the residential unit  at  the  floor
level,  including  the  projections  and  balconies,  as  increased  by  the
thickness of the walls, but did not include the  common  areas  shared  with
other residential units.

Can it be said that in order to avail the benefit in  the  assessment  years
after 1.4.2005, balconies should be  removed  though  these  were  permitted
earlier?  Holding so would lead to absurd results as one  cannot  expect  an
assessee to comply with a condition that was not a part of the statute  when
the housing project was approved.  We, thus,  find  that  the  only  way  to
resolve the issue would be to hold that clause  (d)  is  to  be  treated  as
inextricably linked with  the  approval  and  construction  of  the  housing
project and an assessee cannot be  called  upon  to  comply  with  the  said
condition when it was not in contemplation either of the  assessee  or  even
the Legislature, when the housing  project  was  accorded  approval  by  the
local authorities.

Having regard to the above, let us take note of the special  features  which
appear in these cases:
(a)  In the present case, the approval of the housing  project,  its  scope,
definition and conditions, all are decided and dependent by  the  provisions
of the relevant DC Rules.  In contrast, the judgment in M/s.  Reliance  Jute
and Industries Ltd. was concerned with income tax only.
(b)  The position of law and  the  rights  accrued  prior  to  enactment  of
Finance Act, 2004 have to be  taken  into  account,  particularly  when  the
position becomes irreversible.
(c)  The provisions of Section 80IB(10) mention not only a  particular  date
before which such  a  housing  project  is  to  be  approved  by  the  local
authority, even a date by which the housing project is to be  completed,  is
fixed.  These dates  have  a  specific  purpose  which  gives  time  to  the
developers to arrange their affairs  in  such  a  manner  that  the  housing
project is  started  and  finished  within  those  stipulated  dates.   This
planning, in the context of facts in these appeals, had to  be  much  before
01.04.2005.
(d)  The basic objective behind Section 80IB(10) is to encourage  developers
to undertake housing projects for weaker section of  the  society,  inasmuch
as to qualify for  deduction  under  this  provision,  it  is  an  essential
condition that the residential unit be constructed on  a  maximum  built  up
area of 1000 sq.ft. where such  residential  unit  is  situated  within  the
cities of Delhi and Mumbai or within 25 kms. from the  municipal  limits  of
these cities and 1500 sq.ft. at any other place.
(e)  It is the cardinal principle  of  interpretation  that  a  construction
resulting in unreasonably harsh and absurd results must be avoided.
(f)   Clause (d) makes it clear that a housing project  includes  shops  and
commercial establishments also.  But from the day  the  said  provision  was
inserted,  they  wanted  to  limit  the  built  up   area   of   shops   and
establishments to 5%  of  the  aggregate  built  up  area  or  2000  sq.ft.,
whichever is less.  However, the Legislature  itself  felt  that  this  much
commercial  space  would  not  meet  the  requirements  of  the   residents.
Therefore, in the year  2010,  the   Parliament  has  further  amended  this
provision by providing that it should not exceed 3% of the  aggregate  built
up area of the housing project or 5000 sq.ft., whichever  is  higher.   This
is a significant modification making complete  departure  from  the  earlier
yardstick.  On the one hand, the permissible built up area of the shops  and
other commercial shops is increased from 2000 sq.ft. to 5000 sq.ft.  On  the
other  hand,  though  the  aggregate  built  up  area  for  such  shops  and
establishment is reduced from 5% to 3%,  what  is  significant  is  that  it
permits the builders to have 5000 sq.ft. or 3% of  the  aggregate  built  up
area, 'whichever is higher'.  In contrast, the provision earlier was  5%  or
2000 sq.ft., 'whichever is less'.
(g)   From this provision, therefor, it is clear that  the  housing  project
contemplated under sub-section (10)  of  Section  80IB  includes  commercial
establishments or shops also.  Now, by way of an amendment in  the  form  of
Clause (d), an attempt is made to  restrict  the  size  of  the  said  shops
and/or commercial establishments.  Therefore, by necessary implication,  the
said provision has to be read prospectively and not retrospectively.  As  is
clear from the amendment, this provision came into effect only from the  day
the provision was substituted.  Therefore, it cannot  be  applied  to  those
projects which  were  sanctioned  and  commenced  prior  to  01.04.2005  and
completed by the stipulated date,  though  such  stipulated  date  is  after
01.04.2005.

These aspects  are  dealt  with  by  various  High  Courts  elaborately  and
convincingly in their judgments.   It  is  not  necessary  to  go  into  the
detailed reasoning given by these High Courts.  However, we  would  like  to
extract the following discussion from the judgment dated 25.07.2014  of  the
Bombay High Court in ITA Nos. 201 and 308 of 2012, where  this  very  aspect
is answered in the following manner:
“36. There is yet another reason for coming  to  the  aforesaid  conclusion.
Take a scenario where an Assessee, following the project  completion  method
of accounting, has completed the  housing  project  approved  by  the  local
authority complying with all the conditions as set out in section  80-IB(10)
as it stood prior to 1st April, 2005.  If we were to accept the argument  of
the Revenue, then  in  that  event,  despite  having  completed  the  entire
construction prior to 1st April, 2005 and complying with all the  conditions
of section 80-IB(10) as it stood then, the Assessee would be disentitled  to
the entire deduction claimed in  respect  of  such  housing  project  merely
because he offered his profits to tax in the A.Y. 2005-06.  In contrast,  if
the same Assessee had followed the work-in-progress  method  of  accounting,
he would have been entitled to the deduction under  section  80-IB(10)  upto
the A.Y. 2004-05, and denied the same from A.Y. 2005-06 and thereafter.   It
could never have been the intention of the Legislature  that  the  deduction
under  section  80-IB(10)  available  to  a  particular  Assessee  would  be
determined on the basis of the accounting method  followed.   This,  to  our
mind and as rightly  submitted  by  Mr.  Mistry,  would  lead  to  startling
results.  We therefore have no hesitation in holding that section  80-IB(10)
is prospective in nature and can have no application to  a  housing  project
that is approved before 31st March, 2005.  As the  deduction  sought  to  be
claimed under section 80-IB(10) is  inseparably  linked  with  the  date  of
approval of the  housing  project,  it  would  make  no  difference  if  the
construction of the said project was completed on or after 1st  April,  2005
or that the profits were offered to tax after 1st Apri, 2005  i.e.  in  A.Y.
2005-06 or thereafter.  We therefore find no substance in  the  argument  of
the Revenue that notwithstanding the  fact  that  the  housing  project  was
approved prior to 31st March 2005, if the construction was completed  on  or
after 1st April, 2005 or if the profits are brought to tax in the A.Y. 2005-
06 or thereafter, the said housing project would have  to  comply  with  the
provisions of clause (d of section 80-IB(10).  To our mind, we do not  think
that the condition/restriction laid down in clause (d) of section  80-IB(10)
has to be revisited and/or looked at and complied  with  in  the  assessment
year in which the profits are offered to tax  by  the  Assessee.   When  the
Assessee claims  a  deduction  under  section  80-IB(10),  the  Assessee  is
required to comply with such a condition only if it is on  the  statute-book
on the date of the approval of the housing project and it has nothing to  do
with the year in which the profits are brought to tax by the  Assessee.   We
have come to this conclusion  only  because  we  find  that  clause  (d)  of
section 80-IB(10) is inextricably linked to the date of the approval of  the
housing project and the subsequent  development/construction  of  the  same,
and has nothing to do with the profits derived therefrom.  We may hasten  to
add that if a particular condition is not inseparably linked to the date  of
approval of the  housing  project,  different  considerations  would  arise.
However, we are not called upon to decide any such condition  and  hence  we
are not laying down any general proposition of law,  save  and  except  that
clause (d) of section 80-IB(10), being a condition linked  to  the  date  of
the approval of the housing project, would not apply to any housing  project
that was approved prior to 31st March, 2005 irrespective of  the  fact  that
the profits of the said housing project are brought to tax  after  the  said
provision was brought into force.”


At this juncture,  we  would  like  to  quote  the  following  passage  from
Commissioner of Income Tax, U.P. v. M/s. Shah Sadiq and Sons[7]:
“14.  Under the Income Tax Act of 1922, the assessee was entitled  to  carry
forward the losses of the speculation  business  and  set  off  such  losses
against profits made from that business  in  future  years.   The  right  of
carrying forward and set off accrued to the assesee under the Act  of  1922.
A right which had accrued and had become vested continued to be  capable  of
being enforced notwithstanding the repeal of the statute  under  which  that
right accrued unless the repealing statute took away  such  right  expressly
or by necessary implication.  This  is  the  effect  of  Section  6  of  the
General Clauses Act, 1897.

15.  In this case the 'savings' provision in the repealing  statute  is  not
exhaustive of the rights which are saved or which survive the repeal of  the
statute under which such rights  had  accrued.   In  other  words,  whatever
rights are expressly saved by the 'savings'  provision  stand  saved.   But,
that does not mean  that  rights  which  are  not  saved  by  the  'savings'
provision are extinguished or stand ipso facto terminated by the  mere  fact
that a new statute repealing the old statute is enacted.  Rights which  have
accrued are saved unless  they  are  taken  away  expressly.   This  is  the
principle behind Section 6(c) of the General Clauses Act, 1897.   The  right
to carry forward losses which had accrued under the repealed Income Tax  Act
of 1922 is not saved expressly by Section 297 of the Income Tax  Act,  1961.
But, it is not necessary to save a right  expressly  in  order  to  keep  it
alive after the repeal of the old Act of 1922.  Section 6(2)  saves  accrued
rights unless they are taken away by the repealing statute.  We do not  find
any such taking away of the rights by Section 297  either  expressly  or  by
implication.”

The aforesaid discussion persuades us to conclude that the judgments of  the
High Courts, which are impugned in these appeals,  take  correct  view  that
the assesees were entitled  to  the  benefit  of  Section  80IB(10).   As  a
result, these appeals fail and are hereby dismissed.

                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)

NEW DELHI;
MAY 15, 2015.
-----------------------
[1]   333 ITR 289
[2]   (2008) 9 SCC 622
[3]   AIR 1966 SC 1385 :: 60 ITR 262
[4]   (1987) 166 ITR 102 (SC)
[5]   (2015) 1 SCC 1
[6]   (1980) 1 SCC 139
[7]   (1987) 3 SCC 516

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