Income Tax Appellate Tribunal - Jaipur
Dcit, Jaipur vs Guru Pragya Infra (P) Ltd., Jaipur on 24 January, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 417/JP/2015
fu/kZkj.k o"kZ@Assessment Year : 2009-10
D.C.I.T, cuke M/s Guru Pragya Infra (P) Ltd.,
Circle-2, Vs. B-37, Nirman Nagar,
Jaipur. Ajmer Road, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCG 8882 H
vihykFkhZ@Appellant izR;FkhZ@Respondent
izR;k{[email protected]. No. 39/JP/2015
(Arising out of vk;dj vihy la-@ITA No. 417/JP/2015)
D.C.I.T, cuke M/s Guru Pragya Infra (P) Ltd.,
Circle-2, Vs. B-37, Nirman Nagar,
Jaipur. Ajmer Road, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCG 8882 H
izR;k{ksid@Objector izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 418/JP/2015
fu/kZkj.k o"kZ@Assessment Year : 2010-11
D.C.I.T, cuke M/s Guru Pragya Infra (P) Ltd.,
Circle-2, Vs. B-37, Nirman Nagar,
Jaipur. Ajmer Road, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCG 8882 H
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Smt. Roshanta Meena (JCIT)
fu/kZkfjrh dh vksj l@
s Assessee by : Shri P.C. Parwal (CA)
2 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
lquokbZ dh rkjh[k@ Date of Hearing : 27/10/2016
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 24/01/2017
vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M. These are two appeals filed by the Revenue against the order passed by the ld.CIT(A)-I, Jaipur for the A.Y. 2009-10 & 2010-11 dated 27/02/2015 and 24/02/2015 respectively wherein the similar grounds of appeal have been taken by the revenue in respect of claim of deduction under section u/s 80IB(10) of the Act. Further, the assessee has filed cross-objection in AY 2009-10 against the order of ld CIT(A) upholding the validity of assessment framed u/s 147. The respective grounds of appeal are as under:-
Ground of revenue's appeal in ITA No. 417/JP/2015.
"(i) Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in deleting the addition of Rs.1,16,92,294/-
u/s 80IB(10) of the Act."
Ground of assessee's C.O. No. 39/JP/2015.
"(1) The learned Commissioner of Income Tax (Appeals) has erred on facts and in law in upholding the validity of assessment framed u/s 147."
Grounds of revenue's appeal in ITA No. 418/JP/2015.
"1. Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in deleting the addition of Rs.91,68,150/- made on a/c of disallowance of deduction claimed u/s 80IB(10) of the Act."3 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
2. The facts relevant for issue under consideration are that the assessee company is engaged in the construction and development of housing project. It had undertaken construction and development of a housing project "Guru Shikhar" at village- Nanakpura Alis Hema Ki Nagal and Ajayrajpura, Tehsil Sanganer, Tonk Road, Jaipur. The housing project comprises of different blocks. In khasara no. 1 to 8 and 11 to 17, block A to G is constructed and at khasara no. 9, 10 & 18, block H & I is constructed. The assessee submitted the application for approval of MAP's of the two khasara no. comprising of different blocks as stated above on 25-03-2007 to Gram Panchayat and on 26-03-2014 to Jaipur Development Authority. The various dates relating to the filing of the application, approval of MAP and the dates relating to the completion of the different blocks of the housing project and the issue of completion certificate by the Local Authority is as under:-
S.No. Particulars Particulars of project
Khasra no. 1 to Khasra No.9,
8 & 11 to 17 10 & 18
(Block A to G) (Block H & I)
Dates relating to the approval of Housing Projects 1 Date of application for 25-03-2007 25-03-2007 approval of Map of the proposed residential 4 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur project to Gram Panchayat 2 Date of Approval of 10-04-2007 10-04-2007 Map by Sarpanch, Gram Panchayat and communication thereof 3 Date of application for 26-03-2007 26-03-2007 approval of Map of the proposed residential project to JDA 4 Date of Approval of 29-03-2007 29-03-2007 Map by JDA 5 Date of Communication 26-08-2008 01-10-2008 of the approved building Map by JDA to the assessee Dates relating to completion of the Housing Project 1 Date of application to 01-03-2012 01-03-2012 Gram Panchayat for issue of the completion certificate 2 Date of issue of the 27-03-2012 27-03-2012 completion certificate by Gram Panchayat 3 Date of Issue of 21-03-2012 05-03-2012 completion certificate by Architects Mishra Garg & Associates 4 Date of submission of 23-03-2012 23-03-2012 application to JDA for 5 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur issue of the completion certificate 5 Issue of no objection by 23-05-2012 30-03-2012 Chief Fire brigade Officer, Nagar Nigam, Jaipur 6 Date of issue of the 01-08-2012 completion certificate by JDA with reference to application dated 23-03- 2012 placed in 121st meeting dated 11-07- 2012 7 Letter of JDA noting that 8-05-2012 construction of Block A to D is complete and of block E to G is under progress.
8 Letter of JDA stating that 5-10-2012
in 122nd meeting dated
28-08-2012 approving the
project and requiring
assessee to comply
certain formalities.
9 Letter of JDA for 7-01-2013
producing environment
clearance certificate
10 Application dated 15-1- 15-1-2013
2013 to JDA submitting
revised Maps for issue of
Partial completion
certificate
6 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 11 Date of issue of the 21-03-2013 completion certificate by JDA with reference to application dated 23-03- 2012 placed in 122nd meeting dated 28-08- 2012 in respect of block no. A to E
3. During AY 2010-11, the assessee company filed its return of income declaring an income of Rs.16,43,530/- after claiming deduction u/s 80-IB at Rs.91,68,155/-. This deduction was revised in assessment proceeding to Rs.1,41,53,488/- but restricted to Rs.1,08,11,680/- i.e. to the extent of available profit.
4. The AO disallowed the claim of deduction for the reason that assessee has not fulfilled the following conditions prescribed u/s 80- IB(10):-
(i) As per section 80-IB(10)(a), the project must be completed within five years from the end of the financial year in which it is approved by the Local Authority. The period of five years expired on 31-03-2012. As per explanation (ii) to this section, date of completion of construction of the housing project is to 7 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur be taken to be the date on which the completion certificate is issued by the Local Authority. Such certificate is issued by JDA after 31-03-2012 and therefore this condition is violated. For drawing this inference, AO made following observations:-
(a) The assessee filed the copy of the completion certificate dated 01-08-2012 issued by the JDA in respect of Khasara No. 9, 10 & 18. No completion certificate was filed in respect of khasara no. 1to 8 & 11 to 17. Hence, date of completion of the portion of the project was 01-
08-2012. In any case, the project was not completed by 31-03-2012.
(b) The assessee was well aware of the fact that issue of completion certificate requires formalities like filing of the application, processing and inspection by JDA authorities.
Therefore, assessee should have started this process in time to get the completion certificate by 31-03-2012. The assessee company is shifting the responsibility on JDA by simply putting an application on 23-03-2012.
8 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
(c) The AO inspected the file of assessee company in JDA on 15-03-2013 and found that on 8-05-2012, JDA wrote a letter to the assessee company with reference to application of assessee company dated 23-03-2012 applying for issue of completion certificate. In the letter it is mentioned that out of total seven blocks, the work of block A to D is almost complete and the Civil work of block E, F & G is in progress. After completion of this work and site inspection it would be possible to take action for issue of completion certificate. This shows that the project on khasara no. 1 to 8 & 11 to 17 was not complete as on 31-03-2012.
(d) The assessee has produced the completion certificate issued by Gram Panchayat. It is interesting to note that as per assessee initially the Local Authority was JDA Jaipur but when completion certificate was not issued by JDA, it changed the Local Authority from JDA to Gram Panchayat.
Therefore, the changed stand has no substance. Further the Sarpanch in her statement recorded on 21-03-2013 sated that the certificate has been issued without site 9 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur verification and therefore the certificate from Sarpanch was obtained to deceive the department.
(e) The newspaper cuttings showing occupation by few residents do not prove that the whole project was complete on that date.
(ii) As per section 80-IB(10)(e)/(f), not more than one residential unit should be allotted to any person other than individual and in case of individual no other residential unit in the project is allotted to his spouse or minor child or HUF. This condition is effective from 01-04-2010. In five cases, assessee has violated this condition where more than one residential unit is allotted to individual and in one case this condition is violated where it is allotted to person other than individual.
5. Based on the findings given in AY 2010-11, the AO issued notice u/s 148 for AY 2009-10 on 07.08.2013 and disallowed claim of deduction u/s 80-IB of Rs.1,16,92,294/-.
10 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
6. The Ld. CIT(A) allowed the claim of deduction u/s 80-IB to the assessee in AY 2010-11 and following the same, it was allowed for AY 2009-10 also which has now being contested before us.
7. The relevant provisions of section 80-IB(10) which are under consideration are as under:
"The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March 2008 by a local authority shall be hundred 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 31st day of March, 2008;
(ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004 [but not later than the 31st day of March, 2005], within four years from the end of the 11 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur financial year in which the housing project is approved by the local authority;
(iii) in a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority.
Explanation.- For the purpose 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;
(b) the project is on the size of a plot of land which has a minimum area one acre:
12 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 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 cities of Delhi or Mumbai or within twenty-five kilometers from the municipal limits of these cities and one thousand and five hundred square feet at any other place;
(d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three per cent of the aggregate built-up area of the housing project or five thousand square feet, whichever is higher;
(e) not more than one residential unit in the housing project is allotted to any person not being an individual; and
(f) in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential 13 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur unit in such housing project is allotted to any of the following persons, namely:-
(i) the individual or the spouse or the minor children of such individual,
(ii) the Hindu undivided family in which such individual is the karta,
(iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta.]
8. There is no dispute as to the fact that assessee has complied with the conditions stated in sub clause (b), (c) & (d). The dispute remains only with reference to the conditions stated is sub clause (a), (e) & (f).
In present case, to decide the fulfillment of condition referred in clause
(a), (e) & (f), following issues needs to be considered:-
(i) Who is the Local Authority to approve the housing project and to issue the completion certificate of the housing project?
(ii) When the application for issue of the completion certificate is made within the prescribed time, any delay in issue of the completion certificate would relate back to the date of making of application or not?14 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
(iii) Whether each block of housing complex in the project is to be considered separately or all block of the housing complex in the project is to be considered together for ascertaining the date of completion of the construction of the housing project?
(iv) Whether where some of the flats in a block are not fulfilling the condition of allotment of the flat, entire deduction is to be disallowed or the claim is to be restricted proportionately?
9. Each of the issues stated above along with observations of the AO and the contentions of the assessee in relation to the same is dealt with as under:-
9.1 Who is the Local Authority to issue the completion certificate of the housing project?.
9.2 In this regard, the ld AR has submitted as under:
(a) The term Local Authority is not defined in section 80-IB(10).
However, section 10(20) of the Act defines the expression "Local Authority" to mean Panchayat as referred to in clause (d) of article 243 of the constitution. As per article 243(d) of the constitution, "Panchayat" means an institution (by whatever name called) of self Government constituted under article 243B for rural areas.
Therefore, the Gram Panchayat where the project of the assessee company is located is the Local Authority for granting the approval of the project and for issue of the completion certificate.
15 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
(b) The Jaipur Development Authority Act, 1982 (JDA) was enacted by the Rajasthan State Legislature with the main object to secure the integrated development of Jaipur Region. One of the object of JDA as specified in section 16 of this Act is to formulate and sanction the scheme for the development of Jaipur region or any part thereof.
Section 3(3) of this Act further provides that the Authority shall be deemed to be a Local Authority within the meaning of the term "Local Authority" as defined in Rajasthan General Clauses Act, 1955.
Thus, JDA is a deemed Local Authority under the JDA Act, 1982.
(c) In case of Sreevatsa Real Estate P. Limited 41 DTR 497 (Chennai)(Trib.) it was held that the village Administrative officer or Dy. Director of town planning are the Local Authority for the purpose of approval of the Housing Project/issue of completion certificate for the housing project.
(d) In case of DCIT Vs. Arihant Foundations & Housing Ltd. 18 ITR(Trib.) 588 (Chennai) it is held that local authority has not been defined in sec. 80-IB(10). However, sec. 10(20) explanation provides that local authority will definitely include a Municipal Committee, Panchayat and Cantonment Board. Thus local authority will include Corporation of Chennai. Chennai Corporation was issuing building permits to all the buildings including CMDA's special buildings, after 16 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur the planning permits were issued by CMDA. Hence, deduction u/s 80-IB(10) is allowed to the assessee as Corporation of Chennai has given completion certificate.
(e) From the above it can be noted that the Gram Panchayat is the competent authority for approval of the Housing Project and for issue of the completion certificate in respect of the housing project.
(f) In the present case, approval of the Housing project from Gram Panchayat was obtained on 10-04-2007. Thus, the period of five year from the end of the financial year in which the project is approved ends on 31-03-2013. The housing project was completed in Feb.
2012. Therefore, assessee moved an application for issue of the completion certificate to Gram Panchayat on 01-03-2012. The Sarpanch of the Gram Panchayat has issued the completion certificate on 27-03-2012. The AO has recorded the statement of the Sarpanch on 21-03-2013 where she stated that the certificate was issued in good faith without site verification. However, the statement of the Sarpanch was not confronted to the assessee. Therefore, such statement recorded at the back of the assessee has no evidentiary value. It is a settled law that a statement recorded at back of the assessee and not confronted to him can't be used against the 17 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur assessee as held by the Supreme Court in its decision dt. 02.09.2015 in case of Andaman Timber Industries Vs. CCE 127 DTR 0241 wherein it was held that denial of opportunity to the assessee to cross-examine the witnesses whose statements were made the sole basis of the assessment is a serious flaw rendering the order a nullity in as much as it amounted to violation of principles of natural justice.
(g) It is also submitted that the Gram Panchayat has not withdrawn the completion certificate issued by it and thus it remains in force even today. The observation of the AO that Gram Panchayat has no technical person to approve the building map, there is a change in the stand of the assessee, assessee has taken the plea of Gram Panchayat certificate only at the fag end of the assessment proceeding and therefore the certificate obtained from Sarpanch was to deceive the department are all irrelevant issues more particularly when the approval of maps from Gram Panchayat was obtained on 10-04-2007 which is not disputed by the AO. The fact that the housing project was completed before 31-03-2012 is further evident from following evidences:-
- Completion certificate dated 21-03-2012 issued by M/s Mishra Garg and Associates who are architects, planners, registered 18 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur valuer and the technical person. This certificate given to the AO is ignored by him.
- The newspaper cuttings dated 30-03-2012 to 05-04-2012 showing the actual site photographs and the news of completion of the construction of 576 flats in the housing project and the Grah Pravesh by around 100 families in these flats.
- NOC issued by Chief Fire Brigade Officer, Nagar Nigam Jaipur on 30.03.2012 & 23.05.2012 for meeting the fire safety standard.
(h) Without prejudice to above, even if the JDA is deemed to be Local Authority for approval and issue of completion certificate, it may be noted that the JDA communicated the approval of maps to the assessee in the month of August 2008 and Oct 2008 and therefore the period of five years from the end of the financial year from the communication of the approval ends on 31-03-2014. However, as the project was completed in the month of Feb 2012, the assessee also moved an application to JDA for issue of completion certificate on 23-03-2012. The JDA after completing its formalities issued the completion certificate on 01-08-2012/23-03-2013 but all these certificate would relate back to the date of the application dated 23- 03-2012 as discussed below.
19 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur From the above discussion it is evident that assessee has completed the housing project prior to 31-03-2012 and also obtained the completion certificate from Local Authority and therefore, the condition specified in clause (a)(iii) to section 80-IB(10) is fully satisfied. Therefore, the Ld. CIT(A) considering all these evidence has rightly held that the project was completed prior to 31.03.2012.
9.3 We have heard the rival contentions and pursued the material available on record. The term "local authority" has not been defined u/s 80IB(10) of the Act. Therefore, the expression "local authority" has to be examined in the context of section 80IB(10) of the Act where it has been used. This section requires that the deduction shall be available to an undertaking developing and building the housing project which has been approved by the local authority and completes such construction within a period of five years from the end of the financial year in which the housing project is approved by the local authority. In this context, the local authority should be such an authority which has been authorized and empowered to approve the development and building of housing projects as well as issuing the completion certificate in respect of such housing project which falls within its jurisdiction. The Ld. AR has contended that the Gram Panchayat where the project of the assessee company is located is the local authority for granting the approval of the 20 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur project and for issuance of the completion certificate. Further, our reference was drawn to the Jaipur Development Authority Act, 1982 where JDA has been defined as a deemed local authority.
9.4 On perusal of the JDA Act, the preamble to the Act states that the Jaipur City and areas contiguous to it are being progressively developed and populated and the necessity is being increasingly felt for forming this area into Jaipur Region and for setting up an authority for the purpose of planning, coordinating and supervising the proper, orderly and rapid development of these areas in which several Govt. Agencies, local authorities and other organizations are at present engaged within their own jurisdictions, to provide also that such authority be enabled either itself or through other authority to formulate and execute plans, projects and schemes for the development of Jaipur Region so that housing, community facilities, civic communities and other infrastructure are properly created for the population of Jaipur Region in the perspective of 2001 AD or thereafter including the intermediate stages and to provide for matters connected with the aforesaid. Thereafter, Section 2(8) of JDA Act defines the Jaipur Region to mean the areas in the limit of the cities, towns and villages specified in Schedule-I. The term "Local authority" has been defined under Section 2(10) to mean a Municipality or a Panchayat. The term "municipality" has been defined 21 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur under Section 2(11) to mean a municipality established under the Rajasthan Municipalities Act, 1959 in Jaipur Region. The term "Panchayat" has been defined under Section 2(14) to mean a Panchayat established under the Rajasthan Panchayat Act, 1953 (Rajasthan Act 21 of 1953) in Jaipur Region; or a Panchayat Samiti or Zila Parishad constituted under the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Rajasthan Act 37 of 1959) in Jaipur Region. Section 3(1) talks about establishment of an authority to be called Jaipur Development Authority for the purposes of this Act as notified by the State Government. Section 3(3) states that the authority shall be deemed to be a local authority within the meaning of the term "Local Authority" as defined in the Rajasthan General Clauses Act, 1955.
Section 4 talks about composition of the Jaipur Development Authority which shall consist of the following members:-
(i) a Chairman, who shall be the Minister-in-charge of Urban Development of the State of Rajasthan or a nominee of the Governor during President's Rule;
(ii) a Vice-Chairman, who shall be State Minister of Urban Development of the State of Rajasthan, or a nominee of the Governor during President's Rules;
(iii) Secretary to the Government, Urban Development and Housing Department;22 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
(iv) Jaipur Development Commissioner (appointed under this Act);
(v) Chairman, Rajasthan Housing Board;
(vi) Chief Engineer, Public Health Engineering Department;
(vii) Chief Engineer, Public Works Department;
(viii) District Collector, Jaipur;
(ix) Chief Engineer, Rajasthan State Electricity Board;
(x) Chairman/Administrator, Municipal Council, Jaipur;
(xi) Zila Pramukh of Zila Parishad, Jaipur District;
(xii) Chief Town Planner Rajasthan; and
(xiii) Non-official members, not exceeding seven to be nominated by the State Government.
9.5 Section 16 defines the function of the JDA authority as under:-
"The main object of the Authority shall be to secure the integrated development of the Jaipur Region and for that purpose the functions of the Authority shall be:-
(a) urban planning including the preparation of Master Development Plan and Zonal Development Plans and carrying our surveys for the purpose and also making alterations therein as may be deemed necessary;
(b) formulation and sanction of the projects and schemes for the development of the Jaipur Region or any part thereof;
(c) execution of projects and schemes directly by itself or through a local authority or any other agency;23 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
(d) to make recommendations to the State Government on any matter or proposal requiring action by the State Government, Central government, any local authority or any other authority for overall development of the Jaipur Region;
(e) participation with any other authority for the development of the Jaipur Region;
(f) coordinating execution of projects or schemes for the development of the Jaipur Region;
(g) supervision or otherwise ensuring adequate supervision over the planning and execution of any project or scheme, the expenses of which, in whole or in part are to be met from the Jaipur Region Development Fund;
(h) preparing schemes and advising the concerned authorities departments and agencies in formulating and undertaking schemes for development of agriculture, horticulture, floriculture, forestry, dairy development, transport, communication, schooling, cultural activities, sports, medicare, tourism, entertainment and similar other activities;
(i) execution of projects and schemes on the directions of the State Government;
(j) undertaking housing activity in Jaipur Region, provided that the delineation of responsibility for housing between Rajasthan Housing Board and the Authority will be made by State Government effective from the date to be fixed by it;
24 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
(k) to acquire, hold, manage and dispose of property, movable or immovable, as it may deem necessary;
(l) to enter into contracts, agreements or arrangements with any person or organization as the Authority may deem necessary for performing its functions;
(m) to prepare Master Plan for traffic control and management, devise policy and programme of action for smooth flow of traffic and matters connected therewith;
(n) to perform functions designated by the State Government in the areas of urban renewal, environment and ecology, transport and communication, water energy resource management directly or through its Functional Boards or other departments/agencies as the State Government may specify;
(o) regulating the posting of bills, advertisement hoardings, signpost, and name boards in Jaipur Region or in any part thereof as specified by the Authority;
(p) regulating the erection or re-erection of buildings and projections, making material alterations therein and providing for open spaces in Jaipur Region or in any part thereof as specified by the Authority;
(q) removing obstructions and encroachments upon public streets, open spaces and properties vesting in the Government or the Authority;
(r) to do all such other acts and things which may be necessary for or incidental or conducive to, any matters which arise on account of its activity and which are necessary for 25 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur furtherance of the objects for which the Authority is established: and
(s) to perform any other functions that the State Government may designate in furtherance of the objectives of this Act;
9.6 Section 17 of the JDA Act provides that no other authority or person to undertake certain development without permission of the authority which is as under:-
(1) Notwithstanding anything contained in any law for the time being in force, except with the previous permission of the Authority, no authority or person shall undertake any development within the Jaipur Region of the type as the Authority may from time to time specify, by notification published in the official Gazette, and which is likely to adversely affect the overall development of the Jaipur Region. (2) Any authority or person desiring to undertake development referred to in sub-section (1) shall apply in writing to the authority for permission to undertake such development;
Provided that such person may apply for such permission through the concerned local authority and such local authority shall forward his application to the Authority with its recommendations, if any. (3) The Authority shall, after making such enquiry as it deems necessary and within sixty days from the receipt of an application under sub-section (2), grant such permission without any conditions or with such conditions as it may deem fit to impose or refuse to grant such permission. If such permission is not granted or refused within sixty days as aforesaid, the applicant may, by a written communication presented 26 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur in person or through his authorized representative to the Secretary of the Authority or any other officer nominated by him in this behalf, call the attention of the Authority to the omission or neglect in granting or refusing permission, and if such omission or neglect in granting or refusing permission, and if such omission or neglect continues for a further period of thirty days from the receipt of such communication, the Authority shall be deemed to have permitted the proposed development and such development may be proceeded within the manner specified in the application:
Provided that nothing herein contained shall be construed to authorize any person to act in contravention of any provision of this Act or the rules, regulations or order made thereunder, relating to any matters other than the requirement of obtaining permission of the Authority before undertaking or carrying out any improvement under this Act.
(4) Any authority or person aggrieved by the decision of the Authority under sub-section (3), may, within thirty days, appeal against such decision to the State Government whose decision shall be final:
Provided that, where the aggrieved authority submitting such appeal is under the administrative control of the Central Government, the appeal shall be decided by the State Government after consultation with the Central Government.
(5) In case any person or authority does anything contrary to the decision given under this section, the Authority shall have power to pull down, demolish or remove any development undertaken contrary to such decision and recover the cost of such pulling down, demolition or removal from the person or authority concerned."27 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 9.7 In light of above, it is clear that the authority which has been authorized and mandated to approve the development and construction of housing projects in the Jaipur region is the Jaipur Development Authority. Further, in terms of Section 3(1) read with section 3(3) of the JDA Act, the Jaipur Development Authority is deemed to be a local authority for the purposes of this Act which includes the development and construction of housing projects in the Jaipur region. The other local authorities such as Municipality or Gram Panchayat shall work in their respective jurisdictions and at the same time when it comes to the development and construction of housing projects, the applicant can seek the permission through the concerned local authority and such authorities shall foreward the application with their recommendations, if any to Jaipur Development Authority. The authority to approve the development and construction of housing projects lies with Jaipur Development Authority and it is up to Jaipur Development Authority whether to approve the housing project or not. In absence of approval from the Jaipur Development Authority, the assessee's building plans and construction thereof would be in violation of the JDA Act and cannot be said to be approved. Further, on perusal of the application filed by the assessee for approval of maps as well as for issuance of completion certificates to the Gram Panchayat as well as to the JDA, it is again clear that it is JDA which is the final approving authority, the reason for the same is that had the Gram Panchayat being the ultimate authority, there was no necessity for the assessee to approach JDA for approval of its proposed building, plan as well as for issuance of the completion certificate. Given that the assessee has itself reached out to the JDA 28 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur which establishes beyond any doubt that the project area falls within the jurisdiction and the authority of JDA and it is JDA which is to approve the building plan and issuance of the completion certificate. In light of above, we are of the considered view that housing project falls with the Jaipur region and the JDA is the approving authority for development and construction of the housing projects and it shall be the local authority for the purposes of claim of deduction under Section 80IB(10) of the Act.
10. Where the housing project is completed and the application for issue of the completion certificate is made within the prescribed time, whether any delay in issue of the completion certificate would relate back to the date of making of application or not?
10.1 In this regard, the ld AR has submitted as under:
(a) In case JDA is considered to be local authority for approval in issue of completion certificate, it can be noted that the assessee has also moved an application for approval of the map of the housing project to JDA on 26.03.2007 (PB 2 & 15) but the approval was conveyed on 26.08.2008 (17 months delay) for Block A to G (PB 2-3) and on 01.10.2008 (18 months delay) for Block H & I (PB 15-16). From the date of conveying the approval, the period of 5 years ends on 31.03.2014. However, as the project was completed in February, 2012, assessee moved application on 23-03-2012 to JDA for issuing the completion certificate. The completion certificate is issued by JDA for Block H & I on 01-08-
2012 (PB 21), for Block A to E on 21-03-2013 (PB 13) but the completion certificate for Block F & G was not issued for want of environment clearance certificate. However, the fact remains is 29 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur that the flats in these blocks are occupied and used for residence by its owners.
(b) The AO at Pg 7 of the order has stated that he has inspected the file of the assessee with JDA on 15-03-2013 and found that on 08- 05-2012 (PB 10), JDA wrote a letter to the assessee in response to its application dated 23-03-2012 for issue of completion certificate and in that matter it is stated that out of seven blocks, work of block A, B, C & D is almost complete but the civil construction at Block E, F & G is in progress. The AO has further observed that assessee has also filed an application on 15-01-2013 submitting revised maps for issue of partial completion certificate in respect of Block A to E which shows that the project was incomplete as on 31-03-2012.
(c) It may be noted that that the letter dated 08-05-2012 issued by JDA was never received by the assessee. This letter was issued with reference to Block A to G. The letter is silent in respect of Block H & I. The issue of completion certificate in respect of Block H & I was considered in Building Map Committee on 11-07-2012 and completion certificate issued on 01-08-2012 (PB 21). Further, the Chief Fire Brigade officer has issued no objection certificate in respect of block H & I on 30-03-2012 (PB 20). This shows that the construction of block H & I were complete before 31-03-2012. Any delay in issue of the completion certificate by JDA would, therefore, relate back to the date of application. For this reliance is placed on the following cases:-
CIT Vs. Tarnetar Corporation 362 ITR 174 (Guj) (PB 30-31):
In this case AO did not allow the assessee deduction under section 80-IB(10) of the Income-tax Act, 1961, on development of a housing project on the grounds that the assessee did not complete the housing project within the statutory time frame. The Tribunal noted that the construction was completed in 2006. Application for 30 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur building use permission to the Municipal Authorities was filed on February 15, 2006, but was rejected on July 1, 2006.Thereafter upon revised efforts from the assessee granted the same by order dated March 19, 2009. Several residential units were occupied without necessary permission. The assessee paid a penalty and got such occupation regularised.
On appeal the Court held that under sub-clause (i) of clause (a) of section 80-IB(10), since the assessee had got approval for the housing project from the local authority before April 1, 2004, it was required to complete the construction latest by March 31, 2008. The assessee had not only completed the construction two years before the final date but had applied for the building use permission. Such permission was not rejected on the ground that construction was not completed but on some other technical ground. Thus, granting the benefit of deduction could not be held to be illegal.
CIT v. Radomir Dzelatovic 206 ITR 320 (Bom.):
The assessee, a foreign technician, filed an application before the Central Government claiming exemption from payment of tax under section 10(6)(viia)(I)(B) of the Income-tax Act, 1961. The Central Government granted the approval on May 26, 1972, for a period of two years. On March 25, 1974, the assessee applied for extension of the exemption which was granted on October 4, 1975, i.e., beyond October 1, 1975, resulting in a delay of three days on the part of the Central Government. The Tribunal held that the assessee could not be denied the benefit of exemption for the assessment year 1975-76 for the delay on the part of the Central Government, that the approval, once accorded, related back to the date of the application and that hence the assessee was entitled to the exemption for the assessment year 1975-76. On a reference the court affirming the order of the Tribunal, held that the assessee was entitled to exemption under section 31 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 10(6)(viia)(1)(B) of the Income-tax Act, 1961, for the assessment year 1975-76.
CIT Vs Akshay Eminence Developers (P.) Ltd. 206 Taxman 99 (Kar.) In this case assessee company under took a project with regard to construction of a residential flats in Bangalore. It applied for approval of the said project before the Bangalore Development Authority (BDA) on 8-10-2004, the BDA granted the approval on 28-03-2005 but communicated the said approval to the assessee on 4-04-2005. The BDA also clarified that assessee's project was approved for construction w.e.f. 4-04-2005 and the said approval would be in force till 3-04-2007. The AO, accordingly, denied the benefit of section 80-IB(10) for A.Y. 2005-06 to 2007-08 as project was not approved before 31-03-2005.
In appeal the CIT(A)/ITAT allowed the deduction to the assessee by holding that once approval is granted it should relate back to the date of application and therefore approval would relate back to 8-10-2004.
On further appeal the Hon'ble High Court held that it is not in dispute that the approval is granted on 28-03-2005. It is communicated on 4-04-2005. Because it was communicated to the assessee on 4-04-2005 and in law the assessee should have two year time to complete the construction, the said communication and the sanctioned letter made it clear the time for completing the construction start from 04-04-2005 and it ends on 3-04-2007. That is not the date of approval. The date of approval is 28-03- 2005. As per the judgment of the Bombay High Court, once approval is granted it relate back to the date of application. Even that exercise is not to be done in the instance case, as the date of approval is 28-03-2005, the assessee is entitled to the benefit u/s 80-IB(10) from the A.Y. 2005-06.32 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur CIT Vs. Hindustan Samuh Awas Ltd. (2015) 377 ITR 150 (Bom.) In this case where application for issue of completion certificate was made prior to 31.03.2008 but the same was issued by the municipal corporation on 10.10.2008, the deduction u/s 80-IB(10) was held allowable by giving following findings in para 11 & 12 of the order:-
"11. The question we raise here is whether the explanation introduced an element of harshness to such an extent that it rendered the main provision nugatory? In our view, the explanation is introduced recently to put an end to a controversy, which might arise before the Assessing Officer about the date of completion. The intention of the legislature in providing explanation to fix the date of completion of a project is quite helpful when this provision is utilized in practice. In our view the explanation has introduced an unnecessarily strictness in the provision which is in the nature of exemption and not in the nature of charging. Sub-section (10) mentions that a housing project should be complete before 31.03.2008 so as to get the exemption. Completion of housing project is a physical act. It can be demonstrated on the spot and also through a certificate issued by an architect who is appointed for supervising the construction work. He is a professional who would declare that the project is complete. Unfortunately, Sub-section (10) and the explanation do not give any importance to the issuance of such Completion Certificate by the concerned architect. It gives importance only to the certificate of Municipal authority. It is common knowledge that an application for Completion Certificate submitted to the Municipal Authorities is accompanied by a Completion Certificate issued by the concerned architect. No doubt, the Municipal authorities then cause inspection of the site and verify the claim. Thereafter, they issue Completion Certificate. But, if a project is really complete before 31.03.2008 and an application is moved quite in time, for seeking Completion Certificate from the Municipal 33 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur authorities, and if they do not take steps urgently and delay the issuance of Completion Certificate from their side, can it be said that such certificate would alone decide the date of completion of the project? The answer is in negative.
12. In the facts of this case, admittedly, the Architect of the project had given a certificate prior to 31.03.2008. The respondent submitted application to the Municipal authority along with such certificate well in time on 25.03.2008. It seems that the Municipal authorities directed the respondent to deposit certain amount for issuance of Completion Certificate on 27.03.2008 and the amount was accordingly deposited on 31.03.2008. Thereafter, the certificate was issued in October, 2008. This delay cannot be attributed to the respondent assessee."
Gera Developments Pvt. Ltd. Vs. JCIT (2015) 116 DTR 290 (Pune) (Trib.) Clause (ii) of Explanation to section 80-IB(10)(a) states that 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. In the present case, assessee having completed the construction of the housing project much before the stipulated date of completion specified in section 80-IB(10)(a) and applied to the local authority i.e. PMC for obtaining occupancy certificate based on the architect's certificate and other NOCs required for the said purpose, claim for deduction u/s 80-IB(10) could not be denied on the ground that the PMC has not issued the completion certificate before the stipulated date.
Sanghvi & Doshi Enterprise Vs. ITO (2011) 60 DTR 306/131 ITD 151(Chennai) (Trib.) (TM) 34 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur Assessee can make an application for completion certificate only when the project is completed. Thus, grant of a completion certificate after verification by the competent authority on a subsequent date would relate back to the date on which the application is made.
Thus, there cannot be two views that construction of Block H & I was completed before 31-03-2012.
(d) In respect of Block A to G, the letter dated 8-05-2012 (PB 10) written by JDA to the assessee mentions that the work of block A to D is almost complete and the civil work of block E, to G is in progress. The letter does not specify the nature of civil work which is in progress. This letter was never received by the assessee. As against this, the Chief Fire Brigade Officer vide its letter dated 23- 05-2012 (PB 8-9) have stated that block A to G has been constructed for which no objection certificate is issued. How the fire fighting department could have issued no objection certificate on 23-05-2012 if the construction of block A to G were incomplete on 8-05-2012. This shows that the letter dated 08-05-2012 of JDA is vague and can't be relied upon.
(e) The JDA vide letter dated 05-10-2012 (PB 11) has communicated that the issue of the completion certificate was put in the Building Map Committee on 08-08-2012 where it is stated that assessee has constructed more than 20,000 sq. mt. than the approved construction for which environment clearance is to be produced and it is to give an undertaking that the space below the water tank would not be used for residential or any other use. If the civil construction was in progress on 08-05-2012, in respect of block E to G, how in the meeting dated 08-08-2012, the maps already submitted on 23-03-2012 is put for approval. Again vide letter dated 07-01-2013 (PB 12), it is intimated to produce environment clearance certificate so that further action can be taken for issue of completion certificate. However, because of certain issues with 35 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur reference to the environment clearance, the assessee filed letter dated 15-01-2013 for issue of completion certificate in respect of block A to D. This was issued by JDA on 21-03-2013 (PB 13) with reference to the meeting of Building Committee held on 28-08- 2012. All these fact shows that the JDA has not disputed that the construction of the blocks A to D was not complete before 31-03- 2012. It is only because the environment clearance certificate could not be obtained, there is a delay in issue of the completion certificate. However, once the environment clearance is obtained and the completion certificate is issued, it would relate back to the date of application as stated supra.
(f) So far as block E, F & G are concerned, it is stated in letter dated 08-05-2012 (PB 10) that the civil work is under progress. No detail of such work in progress is given. This letter is also not received by the assessee. If the civil work was in progress, how the matter of issue of completion certificate was placed in Building Map committee meeting on 28-08-2012. This shows that the block E, F & G were complete before 31-03-2012 as is evident from the certificate issued by architects, completion certificate issued by Gram Panchayat and the paper cuttings. The completion certificate for block E was also issued on 21-03-2013. This shows that even the block F & G were complete before 31-03-2012 but because there is delay in getting the environment clearance certificate, the completion certificate in respect of these blocks were not issued by JDA. This would not mean that the construction of block F & G was not complete before 31-03-2012.
In view of the above, it is proved beyond doubt that the construction of all the blocks of the housing project was complete before 31-03-2012. If there is delay on part of the JDA for issuing completion certificate or because of some technical reason such certificate is not issued by JDA but issued by Gram Panchayat, the condition of issue of completion certificate by Local Authority stands satisfied and therefore even if JDA is considered to be 36 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur Local Authority u/s 80-IB(10), the condition referred in clause
(a)(iii) of section 8IB(10) stands satisfied. In these facts and circumstances, the Ld. CIT(A) has rightly held that condition referred to in section 80-IB(10)(a)(iii) is fulfilled.
10.2 We have heard the rival contention and perused the material available on record. In this regard what is relevant to examine is firstly, when the housing project was approved by the JDA and secondly when the housing project was completed and completion certificate issued by the JDA.
10.3 Here it would be relevant to look at the provisions of section 80IB(10)(a)(iii) which provides that the amount of deduction in the case of an undertaking developing and building housing projects approved before 31.03.2008 by a local authority shall be 100% of the profits derived in the previous year relevant to any assessment year from such housing project where such undertaking commences development and construction of housing project on or after the 1st day of October, 1998 and completes such construction within 5 years from the end of the financial year in which the housing project is approved by the local authority. Further, explanation (i) to clause (iii) provides that 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. And explanation (ii) further provides that the date of completion of construction of the housing project shall be taken to be date on which the completion certificate in respect of such housing project is issued by the local authority.
37 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 10.4 In the instant case, in respect of khasra No. 1 to 8 & 11 to 17 to 217 located at village Ajayrajpura, Tehsil Sanganer, Jaipur, the member secretary of building MAP committee of JDA has issued a letter dated 26.08.2008 wherein in context of the assessee's application dated 26.03.2007 for seeking approval of the building plan, it has been stated that the approval of the building plan committee has been given on 29.03.2007 and the approved building plan as well as the conditions to be fulfilled for the construction of building were stated therein. Similarly, in the context of Khasra no. 9,10,18 at village Nanakpura Alias HemaKi Nagal, Tonk Road Jaipur, in respect of the assessee's application dated 26.03.2007, the member secretary of building MAP committee of JDA vide its letter dated 01.10.21008 has stated that the building plan has been approved by the building plan committee on 29.03.2007. In light of above, it is clear that respect of khasra No. 1 to 8 and 11 to 17 (block A to G) and Khasra no. 9,10,18 (Blocks H &I ),the building plan committee of JDA has approved the building plans on 29.03.2007. However, the first approval has been issued on 26.08.2008 and the second approval has been issued on 01.10.2008. On perusal of both these approvals and other material available on record, there is nothing to suggest what caused the undue delay on the part of JDA to convey the approval to the assessee after a gap of so many months. In any case, given that the building maps have been approved on 29.03.2007 even though the same has been conveyed at a later point in time to the assessee, it is clear that the building plans have been approved before the 31st day of March, 2008. Therefore, the first condition, requiring 38 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur developing and building housing projects approved before 31.03.2008 by a local authority, is satisfied in the instant case.
10.5 Now coming to the issue of completion certificate issued by JDA, the ld. AR has submitted that the assessee has moved an application for approval of the map of the housing project to JDA on 26.03.2007 in respect of blocks A to G and Block H& I respectively. The JDA conveyed the approval on 26.08.2008 for the blocks A to G and on 01.10.2008 for the block H &I and from such date of conveying the approval, the period of 5 years for completion of the housing project ends on 31.03.2014. However, as the project was completed in February, 2012, the assessee moved application on 23.03.2012 to JDA for issuing the completion certificate in respect of blocks A to G as well as blocks H & I. Thereafter the completion certificate for blocks A to G was issued on 21.03.2013 and for blocks H & I on 01.08.2012. In respect of blocks F & G the completion certificate was not issued by JDA for want of environmental clearance certificate however, the facts remains that the flats in these blocks were occupied and used for residence by owners.
10.6 In this regard, firstly, as we have stated above, the housing project was approved on 29.03.2007, therefore the period of five years from the end of the financial year in which the housing project is approved by the local authority ends on 31.03.2012. Here, we are unable to accede to the contention of the ld AR that the period of five years should be counted from the date of issuance and communication of approval (26.08.2008/1.10.2008). Infact, this is the ratio decidendi of the decision of Hon'ble Karnataka High Court in case of Akshay 39 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur Eminence Developers (supra). The reason for the same is that once a date of approval has been accepted for satisfaction of the one of the conditions of grant of approval, the same date forms the basis and starting point for the satisfaction of the second condition which talks about the completion of housing project within five years of end of the financial year in which the project has been approved. Both these conditions are inter-connected. In any case, enough leeway has been given by the statue itself where the period of five years is counted from the end of the financial year and not from the date of approval. Extending that period further, in our view, would not be reasonable. The assessee need to be consistent in its approach and cannot expect to take two different approaches/criteria for defining the date of approval and date of completion of the housing project. In light of above, the assessee needs to satisfy the condition that the housing project was completed on or before 31.03.12 and the completion certificate is issued by JDA.
10.7 Now coming to khasra No. 9, 10, 18 (block H&I), the assessee has moved an application to JDA on 23.03.2012 and thereafter in 121st meeting of JDA held on 11.07.2012, a decision was taken to approve the amended building plan and to issue the completion certificate and thereafter, on 1.08.2012, a letter was issued to the assessee conveying the decision taken in the meeting held on 11.07.2012. There is nothing on record to suggest that the blocks H & I were either not complete or there were certain deficiencies on the part of the assessee between the date of filing of the application and its approval thereof in the meeting held on 11.07.2012. The blocks H & I are therefore held to be complete 40 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur as on the date of moving the application on 23.03.2012 even though the approval has been granted on 11.07.2012 and completion certificate issued on 1.08.2012.
10.8 In respect of khasra no. 1 to 8 and 11 to 17 (Blocks A to G), the JDA vide its letter dated 05.10.2012 has stated that the matter relating to the application filed by the assessee was taken up in the 122nd meeting of building plan committee held on 28.08.2012 wherein the assessee was asked to take certain actions steps. Firstly, it was stated that solar energy equipments have been installed in four towers, however, in respect of remaining 3 towers, solar energy equipment needs to be installed before the completion certificate is issued by JDA. Secondly, it was stated that the built up area is more than 20,000 sq. meters and therefore, environmental clearance from the environmental department needs to be produced. Thirdly, it was stated that in all the blocks, 2.90 ft. columns have been build on the terrace for water tank which were not approved earlier. In this regard, an undertaking was sought from the assessee that the area under the said columns on the terrace will not be used for housing or any other purposes. Thereafter, another letter was issued by JDA on 07.01.2013 wherein the assessee was again reminded about obtaining the environmental clearance which was still not been obtained and submitted to JDA and thereafter, finally on 21.03.2013, the JDA issued a letter stating that pursuant to decision taken in the 122nd meeting held on 28.08.2012, the amended building plan and completion certificate for block A to E is being issued. On perusal of these documents what is emerging that in the meeting held on 28.8.2012, the matter relating to assessee's application dated 41 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 23.03.2012 pertaining to all the 7 blocks (blocks A to G) were taken up and thereafter three issues as noted above were raised by JDA whereby the assessee was asked to take the necessary corrective steps and these were towards installation of solar energy equipments on three towers, obtaining the environmental clearance and furnishing an undertaking in respect of non-usage of area below the water tank columns constructed on the terrace on these Blocks. In other words, except for these three requirements, the construction in these Blocks were complete in all respect and thereafter on assesse taking the necessary corrective steps, the completion certificate was finally issued on 21.03.2013 in respect of Blocks A to E. However, as far as the blocks F and G were concerned, the completion certificate has not been issued by JDA for want of the environmental clearance.
10.9 The next question that arises for consideration is when it can be said that the construction of these blocks A to G were complete. Whether the construction got completed on the date of application i.e, 23.03.2012 or on/before the meeting of JDA held on 28.08.2012 or when the completion certificate was issued by JDA on 21.03.2013 (in respect of Block A to E). In this regard, the assessee has submitted that at the time of moving the application for issuance of the complete certificate as evidence by the architect report as well as issuance of the no objection certificate by the Chief Fire Brigade Officer, Nagar Nigam, Jaipur all blocks were completed in March, 2012 itself. However, the JDA has issued a letter dated 08.05.2012 wherein it is stated that on physical inspection, work in respect of block A to D is almost complete except some fitting/finishing and in respect of block E, F and G, the civil 42 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur construction work is in progress. The assessee has challenged this letter of JDA dated 08.05.2012 stating that it doesn't specify the nature of civil work which is in progress and secondly, this letter was never received by the assessee. In our view, there are not enough material on record for us to take a view in the matter. In the interest of justice and fair play, the matter require to be set-aside to the file of AO for fresh examination so that all relevant facts and documents are brought on record to determine the actual date of completion of blocks A to G. 10.10 In light of above, it is clear that in respect of bock H & I, the construction has been completed as on 31.03.2012 even though the approval has been granted on 11.07.2012 and completion certificate issued by JDA on 1.08.2012. The delay in issuance of completion certificate cannot be attributed to the assessee and the assessee cannot be penalized by way of denial of tax deduction which it is otherwise eligible to and solely on the ground of delay in issuance of completion certificate. As held by Hon'ble Bombay High Court in case of Hindustan Samuh Awas ltd (supra), the explanation has introduced an element of unnecessary strictness in the provision which is in the nature of exemption and not in the nature of charging and the completion of the housing project is a physical act which can be demonstrated on the spot. We are accordingly of the view that in respect of Block H & I, the assessee satisfies the condition of completion of construction before 31.03.2012.
11. Whether each block of housing complex in the project is to be considered separately or all block of the housing complex in the project 43 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur is to be considered together for ascertaining the date of completion of the construction of the housing project?
11.1 In this regard, the ld AR has submitted that the housing project of the assessee comprises of 9 blocks i.e. block A to I. The Gram Panchayat has issued completion certificate in respect of all the blocks. However, the JDA has issued completion certificate in respect of seven blocks. The completion certificate in respect of block F & G is not issued by JDA for want of environment clearance certificate by the State Pollution Control Board. Therefore, the issue arises that in the absence of completion certificate from JDA for block F & G, the entire claim of deduction u/s 80-IB(10) is to be disallowed or only the proportionate disallowance is to be made in case the completion certificate issued by Gram Panchayat is not accepted. The fact that each block of the housing project is a project in itself is also evident from the fact that the JDA itself has issued the completion certificate in respect of each block of the housing project and not to the complete project itself. Therefore, the assessee is entitled for deduction in respect of that block of the housing project in respect of which completion certificate has been issued. For this reliance is placed in case of Viswas Promoters Private Limited V. ACIT 81 DTR 68 (Mad.) (PB 37-38). In this case it was held that within a composite housing project, where there are eligible and ineligible units, the assessee can claim deduction in respect of eligible units in the project and even within the block, the assessee is entitled to claim proportionate relief in the units satisfying the extent of the built up area. In this case the assessee completed four housing projects in the city of Madurai. Out of these, in two of the projects, the assessee constructed flats exceeding 1500 sq. ft. and also flats of less than 1500 sq.ft in area. The assessee claimed deduction under section 80-IB(10) of the Income-tax Act, 1961, in respect of flats which had area measuring less than 1500 sq. ft. The Assessing Officer denied the deduction because the housing project comprised residential units exceeding 1500 sq. ft. The Commissioner (Appeals) allowed the deductions under section 80-IB(10) in respect of the residential units with an area of less than 1500 sq. ft. On appeal by the Department, the Tribunal allowed the appeal by holding that the 44 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur eligibility conditions under section 80-IB are that the built-up area should not exceed 1500 sq. ft. in the context of cities other than Delhi and Mumbai and the profits must be derived in the previous year from the housing project. This restriction is applicable for the entire project. If some of the residential units of the project comprised area exceeding the prescribed limit, the benefit could not be extended to the project. On further appeal, Hon'ble Court held that within a composite housing project where there are eligible and ineligible units, the assessee can claim deduction in respect of eligible units in the project and even within the block, the assessee is entitled to claim proportionate relief in the units satisfying the extent of the built up area. Further, Gujarat High Court in case of ITO Vs. Saket Corporation (2015) 234 Taxman 435 where assessee claimed deduction u/s 80-IB with respect to housing project consisting of 43 units which was disallowed on ground that Building Use (BU) permission and completion certificate was granted only with respect to 20 units within a period of four years from date of approval of project by local authority and not with respect to entire housing project consisting of 43 units, it was held that since assessee had completed construction of all 43 units and had applied for BU permission/completion certificate within prescribed time limit, it was entitled to deduction u/s 80-IB(10) notwithstanding fact that BU permission was granted with respect to 20 units only.
In view of the above, the disallowance of claim of deduction u/s 80-IB by the AO on this ground is incorrect. In any case, the Ld. CIT(A) after considering the entire evidence has concluded that all the blocks of the housing project were completed before 31.03.2012 and therefore, he has rightly allowed the entire claim of deduction u/s 80-IB.
11.2 We have heard the rival contentions and pursued the material available on record. The Madras High Court in case of Viswas Promoters Private Limited (supra) in the context of condition relating to built-up area not exceeding 1500 sq. ft has held that within a composite housing project where there are eligible and ineligible units, the assessee can 45 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur claim deduction in respect of eligible units in the project and even within the block, the assessee is entitled to claim proportionate relief in the units satisfying the extent of the built up area. No contrary authority has been brought to the notice of the Bench. In our view, similar analogy can be drawn in respect of housing project consisting of number of blocks where the construction has been completed and completion certificate issued in respect of some of the blocks. As we have noted above, the construction has been completed and completion certificate has been issued by JDA in respect of Block H & I. Accordingly, the assessee shall be eligible to claim proportionate deduction u/s 80-IB(10) in respect of Block H & I.
12. Whether where some of the flats in a block are not fulfilling the condition of allotment of the flat, entire deduction is to be disallowed or the claim is to be restricted proportionately?
12.1 In this regard, the ld AR has submitted that:
(a) The AO has observed that assessee has allotted more than one flat to the persons covered under provisions of sec. 80-IB(10)(e) & (f).
In the show cause notice, he has given reference to six instances. The assessee explained that out of these six cases except in case of M/s Rajasthan Patrika Pvt. Ltd., allotments were made prior to insertion of clause (e) & (f). It was further stated that even in these five cases, ultimately not more than one flat is allotted or two units were combined to make one unit, area of which does not exceeds 1500 sq. ft. The AO however, has not accepted the explanation given by the assessee. The AO further observed that certain flats were allotted to husband and wife and therefore condition of section 80-IB(10)(f) is violated. He therefore held that deduction of sec. 80-IB(10) is not available and therefore denied the claim of deduction.
(b) It may be noted that in all, AO has referred to 8 instances which according to him violates the condition of section 80-IB(10)(f). The 46 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur explanation of the assessee in respect of these 8 instances is as under:-
S.N Flat Name of the Explanation
. No. customer
1 C-801 R. P. Saini The flat was blocked
tentatively for his
C-802
prospective customer,
which was cancelled. No
flat has been allotted to
this party.
2 F-902 Lata Sharma The flat no. 902 was
blocked by Lata Sharma
F-903
but later on cancelled.
Thus, only one flat was
allotted to her.
3 B-801 Prakash Devi The flat was blocked
tentatively for his
C-403
prospective customer,
B-805 which was cancelled. No
flat has been allotted to
B-808 this party. Further these
flats were booked prior to
insertion of the clause (f)
of section 80-IB(10).
4 H-507 S.S. Sharma Both the units have been
sold as one unit on the
H-506 Sadhna Sharma
request of the party. The
total of both the units
does not exceed 1500 sq.
ft. Further, the flats was
allotted prior to insertion
of clause (f) of section 80-
47 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur IB(10).
5 D-410 H.L. Mittal D-410 (receipt no.1551) is
allotted to Kapil Mittal who
D-401 Usha Mittal
is major son of Usha Mittal
and therefore requirement
of section 80-IB(10)(f) is
not defeated.
6 F-702 Rashmi Jain Both the flats were allotted
prior to insertion of clause
D-508 Amit Kumar Jain
(f) of section 80-IB(10).
7 C-303 Anuradha Goyal Both the flats were allotted
prior to insertion of clause
C-302 J.P. Goyal
(f) of section 80-IB(10).
8 C-301 Vinod Kumar C-301 is purchased by
Chomal Vinod Kr. Chomal & D-302
D-302
is purchased by Nand
Manju Sharma
Kishore Sharma and not
by Mrs. Manju Sharma.
(c) From the above table it can be noted that in none of the above cases, more than one flat (exceeding 1500 sq. ft.) has been allotted to the same person or to the spouse or minor child of such person. Further, except in case of S.S Sharma and H.L Mittal, the flats were allotted prior to insertion of clause (f) w.e.f. 01.04.2010. It may be noted that the emphasis of clause (f) is that two flats should not be allotted to the same individual or to the spouse or minor children of such individual. Therefore, even if the booking amount is received from such person in respect of two or more flats but ultimately not more than one flat is allotted to such person, the condition of clause (f) would not be violated. Further, this clause inserted from 01.04.2010 has prospective effect. Therefore, where the flats are allotted in respect of booking which is made prior to 01.04.2009, 48 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur clause (f) would not apply. Gujarat High Court in case of Mannan Corporation Vs. ACIT (2013) 214 Taxman 373 and Bombay High Court in case of CIT Vs. Jogani Constructions Ltd. 217 Taxman 95 (Mag.) with reference to amendment made to section 80-IB(10)(d) w.e.f. 01.04.2005 held the same to be prospective in nature for the purpose of claim of deduction by assessee u/s 80-IB(10). On the same analogy, insertion of clause (e) and (f) w.e.f. 01.04.2010 are prospective in nature and therefore if more than one flat is booked in the name of same individual or in the name of spouse or minor children prior to 01.04.2009, the condition of clause(e)/(f) cannot be applied on the same.
(d) Otherwise also, if there is any violation of the conditions specified in clause (e) & (f) of section 80-IB(10), the deduction can't be disallowed in entirety but should be restricted only with reference to those flats where there is a violation of the condition. For this, reliance is placed on the following cases:-
SJR Builders Vs. Ass. CIT 3 ITR 569 (Trib.) (Bang.) In this case the assessee was engaged in real estate and construction business. For the assessment year 2005-06, it claimed deduction under section 80-IB(10) amounting to Rs. 2,02,08,690 being 100 percent of the profit in respect of a project. The deduction was claimed by the assessee on the ground that each dwelling unit/flat constructed in the project was less than 1500 sq. ft. per unit. There was a survey action under section 133A on February 8, 2007 which covered the project sites as well. It was found that some of the residential units measured more than 1500 sq. ft. The Assessing Officer held that the assessee was not entitled to deduction under section 80-IB(10). This was confirmed by the Commissioner (Appeals). On appeal to the Tribunal it was held that merely because some flats were larger than 1500 sq. ft., the assessee would not lose the benefit in its entirety. Only with 49 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur reference to the flats which had more than the prescribed area, the assessee would lose the benefit.
Sreevatsa Real Estate Pvt. Limited 41 DTR 497 (Chennai.) (Trib.) The fact of the case is that assessee was engaged in the business of property development. It obtained approval from Dy. Director Town Planning for construction on the plots. The built up area of all the houses was not less than 1500 sq. ft. and therefore assessee claimed deduction u/s 80-IB(10) on pro rata basis. The AO denied the claim by giving the reason that project was not exclusively for units with built up area less than 1500 sq. ft. and certificate from Village Administrative officer (VAO) could not be accepted since VAO was not the authority to issue approval for housing project. CIT(A) confirmed the action of the AO.
On further appeal the tribunal allowed the claim of assessee by holding that section 80-IB(10) requires approval by a local authority. Such local authority is not defined anywhere. It can't be said that VAO or Dy. Director of town planning is not a local authority. Therefore, assessee having obtained approval from Dy. Director town planning for construction is the approval of local authority. Further, assessee is entitled for deduction u/s 80-IB(10) pro rata for housing units having built up area less than 1500 sq. ft.
Sanghvi and Doshi Enterprise v. Income-tax Officer Sri Mahalakshmi Housing v. Income-tax Officer Sri Mahalakshmi Builders v. ITO 18 ITR 608 (Trib.)(Chennai) In these cases, by following the decision of Calcutta High Court in case of CIT Vs. Bengal Ambuja Housing Development Limited in I.T.A.No.458 of 2006 dated 5 January 2007, it was held that a pro rata deduction is permissible u/s 80-IB where some residential units exceeds 1500 sq. ft.50 ITA No.417&418/JP/2015
D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur Sreevatsa Real Estate P. Limited 41 DTR 497 (Chennai)(Trib.) In this case it was held that where the built up area of some of the housing units are more than 1500 sq. ft., assessee is entitled for deduction u/s 80-IB(10) on pro rata for housing units having built up area less than 1500 sq. ft.
(e) The Ld. CIT(A) after considering these evidences at Pg 34 of the order has rightly held that assessee has not violated requirement of sec. 80-IB(10)(f).
12.2 We have heard the rival contentions and pursued the material available on record. Firstly, regarding the contention of the ld AR that the clauses (e) and (f) inserted by the Finance Act, 2009 w.e.f 1.04.2010 is prospective in nature, we refer to notes to clauses and Memorandum explaining the Finance Bill, 2009. The notes to clauses provides that "The proposed amendment seeks to insert two new conditions by way of two new clauses namely clause (e) which proposes to provide that not more than one residential unit is allotted to any person not being an individual and clause (f) which proposes to provide that in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons :--
(i) the spouse or minor children of such individual,
(ii) the Hindu undivided family in which such individual is the karta, 51 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur
(iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta.
This amendment will take effect from 1st April, 2010 and will, accordingly, apply in relation to the assessment year 2010-11 and subsequent years."
12.3 The Memorandum explaining the Finance Bill 2009 provides that "Further, the objective of the tax benefit for housing projects is to build housing stock for low and middle income households. This has been ensured by limiting the size of the residential unit. However, this is being circumvented by the developer by entering into agreement to sell multiple adjacent units to a single buyer. Accordingly, it is proposed to insert new clauses in the said sub-section to provide that the undertaking which develops and builds the housing project shall not be allowed to allot more than one residential unit in the housing project to the same person, not being an individual, and where the person is an individual, no other residential unit in such housing project is allotted to any of the following person :--
(i) Spouse or minor children of such individual;
(ii) the Hindu undivided family in which such individual is the karta;
(iii) any person representing such individual, the spouse or minor children of such individual or the Hindu undivided family in which such individual is the karta.
This amendment will take effect from the 1st day of April, 2010 and shall accordingly, apply in relation to assessment year 2010-11 and subsequent years."
52 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 12.4 In light of above, clauses (e) and (f) are additional and new conditions which have been brought on the statue by the Finance Act, 2009 to aid and supplement the existing condition of limiting the size of the residential unit (less than 1500 sq. Ft) with an ultimate objective of ensuring tax benefit for housing projects for low and middle income households. Here we refer to the decision of the Hon'ble Gujarat High Court in case of Manan Corpn. vs. Assistant Commissioner of Income-
tax, Circle-5 [2013] 29 taxmann.com 15 (Guj.) where in the context of amendment by way of insertion of clause (d) to section 80IB(10), the Hon'ble High Court has held that the criteria to hold the amendment in question retrospective are absent as there is no 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 it comes to implementation. Drawing an analogy in the instant case, where the allotment of the flats has already been done prior to 1.04.2009, it would be unreasonable to expect the builder to cancel such allotment and refund the amount or forfeit the tax benefit 53 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur for the non-fulfillment of such conditions which either of the parties were not aware at the time of allotment of the flats. Though the objective of these conditions are to aid and supplement the existing conditions, at the same time, the same cannot be read to apply retrospectively in absence of any explicit and specific wording expressing retrospectivity and also on ground of reasonableness. Therefore, the clauses (e) and
(f) shall apply in respect of allotment made on or after 1.04.2009.
12.5 Regarding the second contention of the ld AR that where there is still any violation of the conditions specified in clause (e) & (f) of section 80-IB(10), the deduction can't be disallowed in entirety but should be restricted only with reference to those flats where there is a violation of the condition. The decision of Hon'ble Madras High Court in case of Vishwas Promoters Private Limited and various other decisions of the Coordinate Benches referred supra support the contentions of the ld AR.
We agree with the contentions of the ld AR and are of the view that where there is any violation of the conditions specified in clause (e) & (f) of section 80-IB(10), the deduction can't be disallowed in entirety but should be restricted only with reference to those flats where there is a violation of the said conditions.
54 ITA No.417&418/JP/2015D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 12.6 In light of above discussions, where the allotment of flats has been made prior to 1.4.2009, the assessee shall be eligible to claim the tax deduction in respect of such flats even if there is violation of clause (e) & (f) of section 80IB(10) of the Act. However, where the allotments of flats have been made after 1.4.2009, the assessee will necessarily be required to demonstrate the satisfaction of clauses (e) and (f) of section 80IB(10) of the Act. On perusal of assessment order, it is noted that complete details of allotees were not furnished before the AO and the AO based on limited information provided by the assessee, has identified certain cases where violation of above said conditions have been noted. The assessee has responded to these limited cases and even ld CIT(A) has upheld the contention of the assessee that the allotment has either not being made or booking of flats has happened prior to insertion of clause (f) of section 80IB(10) of the Act in these limited cases. In our view, the legislature has used the expression "allotment" and not the expression "booking" of the residential unit which precede the allotment of residential unit as generally understood in the housing sector. Unless, in a given case, where the booking and allotment are same as demonstrated through the contractual understanding between the builder and the allottee of the residential unit, it would not be correct to use these terms inter-changeably. In light of above directions, we accordingly set-aside the matter to the file of the AO to examine the allotment of flats made by the assessee in entirety and examine 55 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur the satisfaction of conditions under clause (e) and clause (f) of section 80IB(10) of the Act.
12.7 In light of above discussions and taking into consideration the entirety of facts and circumstances of the cases including the arguments and legal authorities quoted before us, the Revenue's appeal for both the years is partly allowed with above directions for statistical purposes.
Assessee's C.O. No. 39/JP/2015.
13. In assessee's cross objection for AY 2009-10, the assessee has challenged the actions of the ld CIT (Appeals) in upholding the validity of assessment framed u/s 147 of the Act and has relied upon the written submissions made before the ld CIT(A). On perusal of records, it is noted that the assessment was reopened within the period of 4 years basis the completion of assessment for AY 2010-11 where the assessee's claim under section 80IB(10) was disallowed. The assessee was provided copy of reasons recorded for reopening and after disposing off the assessee's objections, the impunged reassessment order has been passed by the AO. The ld CIT(A) has upheld that the AO has sufficient material evidence/information prior to issuance of notice under section 56 ITA No.417&418/JP/2015 D.C.I.T Vs. M/s Guru Pragya Infra (P) Ltd., Jaipur 148 and relying upon the decision of the Hon'ble Supreme Court decision in case of Raymond Woollen Mills, has upheld the action of AO in reopening of assessment u/s 147 of the Act. We see no reason to interfere with the order of ld CIT(A) and hence, the cross-objection filed by the assessee is rejected.
Order pronounced in the open court on 24/01/2017.
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(Kul Bharat) (Vikram Singh Yadav)
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fnukad@Dated:- 24 /01/2017.
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- The D.C.IT, Circle-2, Jaipur.
2. izR;FkhZ@ The Respondent- M/s Guru Pragya Infra(P) Ltd., Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File {ITA No. 417&418/JP/2015} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar