1 Court No. - 3 AFR Reserved on 16.1.2017 Delivered on 07.4.2017 (4) Case :- INCOME TAX APPEAL No. - 73 of 2010 Appellant :- Commissioner Of Income Tax-I, Lucknow Respondent :- M/S Fortuna Foundation Engineers & Consultants Pvt. Ltd. Counsel for Appellant :- D.D. Chopra Counsel for Respondent :- P Singh,Amit Shukla,Surendra K. Garg (2) Case :- INCOME TAX APPEAL No. - 6 of 2012 Appellant :- Commissioner Of Income Tax -1 Aayakar Bhawan Respondent :- M/S Fortuna Foundation Engineers & Consultants Pvt. Ltd. Lko Counsel for Appellant :- D.D.Chopra Counsel for Respondent :- A.P.Singh,Alok Mathur (3) Case :- INCOME TAX APPEAL No. - 1 of 2013 Appellant :- Fortuna Foundation Engineers & Consultants Pvt.Ltd. Respondent :- Commissioner Of Income Tax -Ii Aaykar Bhawan Lko. Counsel for Appellant :- S.K.Garg,A.P. Singh,Ashish Bansal Counsel for Respondent :- D.D.Chopra,Alok Mathur (4) Case :- INCOME TAX APPEAL No. - 29 of 2014 Appellant :- Fortuna Foundation Engineers & Consultants Pvt.Ltd. Respondent :- Commissioner Of Income -Tax-Ii Aaykar Bhawan Ashok Marg Lko. Counsel for Appellant :- Surendra Kumar Garg,Ashish Bansal,S.M.A.Zaidi Counsel for Respondent :- Manish Misra Hon'ble Sudhir Agarwal,J. Hon'ble Attau Rahman Masoodi,J. ( Delivered by Hon'ble Sudhir Agarwal, J. ) 1. Appeal no. 73 of 2010 has been filed under Section 260-A of Income Tax Act, 1961 (hereinafter referred to as Act, 1961) by Commissioner of Income Tax-I, Lucknow (hereinafter referred to as 'CIT'), being aggrieved by judgment and order dated 8.4.2010 passed by Income Tax Appellate Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as 'Tribunal') in I.T.A. No. 67/LUC/09 relating to A.Y. (hereinafter referred to as 'A.Y.') 2005-06. It was 2 admitted on two substantial questions of law which read as under: "(i) Whether Income Tax Appellate Tribunal was correct in law, under facts and circumstances of case in holding that Assessee fulfilled conditions laid down in section 80IB(1) of Act without appreciating that at time of commencement of project assessee had right, claim and interest in only 2657 Sq. Mtrs. of plot area of which is less than 1 Acre and thus it failed to fulfilled stipulated condition for claiming said deduction. (ii)Whether Income Tax Appellate Tribunal was correct in law, under facts and circumstances of case in holding that furnishing of report in form No. 10CCB as per requirement of Section 80IB (13) read with Section 80IA (7) is only directory and not mandatory and allowing claim of Assessee on basis of report furnished in course of assessment proceedings." 2. Connected Appeal No. 6 of 2012 has arisen from judgement and order dated 15.12.2011 passed by Tribunal in I.T.A. No. 72/LKW/2011 relating to A.Y. 2007-08. Revenue has preferred this appeal and it was admitted on following substantial question of law: "Whether learned Income Tax Appellate Tribunal erred in law while recording finding that Assessee fulfilled condition laid down in Section 80IB(10)(b) regarding area of plot of land being minimum one acre without appreciating that at time of commencement of project Assessee had right, claim and interest in only 2657 sq.mts. of plot area which was less than 1 acre, while relying upon its order passed in Assessee's own case for Assessment Year 2005-06? 3. Remaining two appeals have been filed by M/s Fortuna Foundation Engineers & Consultants Pvt. Ltd. (hereinafter referred to as 'Assessee'). 3 4. Third appeal i.e. Income Tax Appeal No. 1 of 2013, has arisen from judgement and order dated 22.8.2012 passed by Tribunal in I.T.A. No. 283/LKW/2012 relating to A.Y. 2006-08. substantial questions of law are substantially same but since differently worded, therefore, to make record straight, we are reproducing same as under: "(i) Whether on true and correct interpretation of provisions contained in Section 80I-B (10), Tribunal was legally correct in holding that Assessee had failed to comply with requirement of submitting completion certificate before stipulated date and on that ground in upholding rejection of appellant's claim for exemption thereunder. (ii) Whether looking to overall scheme of 'relief giving provision' as contained in Section 80I- B (10) and regulatory provisions contained in allied statutes it could be validly held that in absence of completion certification having been filed before 31.03.2008, Assessee's claim for exemption under Section 80I-B (10) stood disqualified, even though project had duly been executed and completed well in time. (iii) Whether there existed any material / information which could validly lead to observation that project formulated by Assessee (for which approval has been granted by LDA prior to 1st April, 2004) had not been completed by stipulated dated i.e. 31.03.2008, so as to call for deviation from findings recorded by it in its earlier judgments and orders dated 08.04.2010 and 15.12.2011 in Assessee's own case for assessment year 2005-06 & 2007-08 respectively. (iv) Whether view taken by Tribunal is not vitiated in law, owning to non-consideration of 4 material and information on record, and misinterpretation of relevant provisions of law." 5. Fourth appeal No. 29 of 2014 relates to assessment year 2008-09 and assails judgement and order dated 11.4.2014 passed by Tribunal in C.O. No. 18/LKW/2013 filed by Assessee, together with I.T.A. No. 319/LKW/2013. It was admitted on followings question of law : "(i) Whether Section 80IB (10) as had been brought on statute book by Finance (No.2) Act of 2004 w.e.f. 1.4.2005, in substitution of earlier provision, could be made applicable in instant case where project had been approved by prescribed authority on 22.06.2003 i.e. prior to 1.4.2004. (ii) Whether on true and correct interpretation of provisions contained in substituted Section 80IB (10) of Act, Tribunal was legally correct in holding that 'completion certificate' dated 21.10.2009 issued by LDA in response to Assessee's application dated 14.3.2008 and dated 27.03.2008 did not meet requirement of law so as to call for rejection of Assessee's claim for exemption thereunder. (iii) Whether looking to overall scheme of 'relief giving provision' as contained in Section 80IB (10) and regulatory provisions contained in allied statutes, it could be validly held that in absence of completion certification having been filed before 31.03.2008, Assessee's stood disqualified in its claim for exemption under Section 80IB (10), even though project had duly been executed and completed well in time. (iv) Whether there existed any material before Tribunal to deviate from finding of fact recorded by coordinate bench in Assessee's own case for earlier years i.e. assessment year 2005-06 and 2007-08 so as to hold that there was no 5 evidence for completion of project by 31.03.2008 and to deny appellant's claim for exemption under Section 80IB (10)." 6. Basically dispute relates to exemption under Section 80IB(10). Brief facts, relevant for appreciation of dispute, are as under. 7. Assessee is engaged in business of construction. It is claimed to have undertaken promotion and development of residential housing project named as "Fortuna Apartment" on three contiguous plots of land, admeasuring 4550.07 sq. mts. Details of plots are as under: Sl. Plot No. and address thereof Instrument through Area in No. which acquisition had Sq. Mtrs. been made (i) 27A/1, Jopling Road, Purchase deed 52.44 Lucknow. executed by owner Sri Karuna Shankar Dubey (ii) 27A/2, Jopling Road, Builders' agreement 2657.00 Lucknow. dated 24.4.2001 (iii) 27A/3, Jopling Road, Builders' agreement 1840.63 Lucknow. Total 4550.07 8. Plan of project was approved by Lucknow Development Authority (hereinafter referred to as 'LDA') on 22.6.03. Assessee commenced construction and development activities on aforesaid land in relation to aforesaid project. Assessee was recognising Revenue on basis of partial completion method and claimed that it is recognised method of accounting adopted by Developers of real estate. 9. Owing to aforesaid method, Assessee disclosed income from project, year, after year commencing from A.Y. 2004-05 (Financial Year 2003-04). 6 10. For A.Y. 2005-06, Asseessee filed return on 31.10.05 showing net income of Rs. 1934180/-. It also claimed deduction under Section 80IB (10) at Rs. 2365254/-. 11. Assessing Officer (hereinafter referred to as 'AO') disallowed deduction claimed by Assessee under Section 80IB (10) on following grounds: "1. Audit report as per Rule 18BBB in form no. 10CCB had not been filed along with return. 2. Such report dated 02.09.2005, filed on 19.11.2007 did not conform to facts and report had not been furnished along with return, has lost relevance. 3. project had been executed on three plots having number 27 A/1, 27A/2 and 27A/3 and there was no single plot having minimum area of 1 acre or more." 12. Aggrieved by order of AO, Assessee preferred appeal before Commissioner of Income Tax (Appeals) [hereinafter referred to as "CIT (A)"]. Vide order dated 18.11.08 appeal was allowed and CIT (A) held that Assessee is eligible for deduction. Revenue carried matter in appeal before Tribunal, who, vide order dated 8.4.2010, upheld view taken by CIT (A) that Assessee is entitled for exemption as claimed under Section 80IB (10). Appeal of Revenue on this ground was rejected. 13. This has been challenged in Income Tax Appeal No. 73 of 2010, pointing out that first approval was granted by LDA to building plan of housing project of Assessee on 24.11.01, when total area, as on spot, was only 2657 sq. mts. which was less than one acre. Hence mandatory condition of specification of one acre under Section 80IB (10) was not satisfied. 14. In connected appeal, for A.Y. 2007-08, Assessee filed return declaring total income at Rs. 1302910/- after claiming 7 deduction of Rs. 5638525/- under Section 80IB (10) of Act 1961. AO after scrutiny, passed order dated 29.12.09, disallowing deduction on ground that project is on three different plots, bearing different numbers, hence condition of area being more than one acre for claiming deduction under Section 80IB (10)(b) was not satisfied. Appeal preferred by Assessee before CIT (A) failed. CIT (A) upheld disallowance of deduction vide order dated 30.8.2010 on following grounds: "(i) It was not integrated project but two distinct projects undertaken by appellant and accordingly requirement of land area of at least one acre had not been fulfilled; (ii) Lucknow Development Authority from whom approval had been obtained for commencement of project ceased to be local authority after section 10 (20) was amended w.e.f. assessment year 2003- 04 whereby such authorities have been excluded from definition of local authority; (iii) For same reason as in (ii) above, completion certificate issued by LDA cannot be said to be "certificate of completion issued by local authority" as is requirement of law as per sub- clause (ii) of explanation below clause (a) of sub- section (10) of section 80IB of Income Tax Act, 1961; (iv) assessee merely carried out 'works contract' as per agreement with Shri Karuna Shanker Dubey and for such 'works contract' there is specific prohibition for claiming deduction under section 80IB (10) as per 'explanation' inserted by Finance (no. 2) Act, 2009 w.e.f. 1.4.2001." 15. Tribunal, however, allowed appeal preferred by Assessee and held on this question that project has started on integrated plot of more than one acre, therefore, requirement under Section 80IB(10) was satisfied. This aspect has been questioned in Revenue's appeal no. 6 of 2012. 8 16. I.T.A. No. 1 of 2003 relates to Assessment Year 2006- 07. In this matter return was filed on 30.11.06 disclosing total income of Rs. 1791470/- after claiming deduction under Section 80IB (10) to tune of Rs. 4348943/-. AO disallowed deduction and passed assessment order dated 25.11.08 computing total income at Rs. 6160410/-. CIT (A) dismissed appeal and confirmed assessment order vide order dated 30.11.2011. Assessee carried matter to Tribunal. It has also dismissed Assessee's appeal upholding disallowance of deduction on ground of non-availability of completion certificate. 17. Now coming to Assessee's appeals for A.Y. 2008-09, income of Rs. 1216014/- was disclosed in return filed on 30.9.08 after claiming deduction under Section 80IB (10). said deduction was disallowed by AO vide order dated 28.12.2010. reason included size, being less than one acre, and that condition of obtaining completion certificate by 31st March, 2008 was not complied with. 18. Section 80IB (10) as it existed before 1.4.05 reads as under: "80IB (10) amount of profits in case of undertaking developing and building housing projects approved before 31st day of March, 2005 by local authority, shall be hundred per cent of 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 housing project on or after 1st day of October, 1998; 9 (b) project is on size of plot of land which has minimum area of one acre; and (c) residential unit has maximum built-up area of one thousand square feet where such residential unit is situated within cities of Delhi or Mumbai or within twenty-five kilometres from municipal limits of these cities and one thousand and five hundred square feet at any other place." (emphasis added) 19. Assessee claimed that w.e.f. 1.4.2005 (A.Y. 2006-07 and Financial Year 2005-06) (hereinafter referred to as "F.Y."), Section 80IB (10) was amended by substitution by Finance Act 2 of 2004 and substituted provision reads as under: "80 IB (10) amount of deduction in case of undertaking developing and building housing projects approved before 31st day of March, 2008 by local authority shall be hundred percent of profits derived in previous year relevant to any assessment year from such housing project if,- (a) such undertaking has commenced or commences development and construction of housing project on or after Ist day of October, 1998 and completes such construction- (i) in case where housing project has been approved by local authority before Ist day of April, 2004, on or before 31st day of March, 2008; (ii) in case where housing project has been, or, is approved by local authority on or after Ist day of April, 2004 but not later than 31 st day of March, 2005, within four years from end of financial year in which housing project is approved by local authority. (iii) in case where housing project has been approved by local authority on or after Ist day of April, 2005, within five years from end of financial year in which housing project is approved by local authority. Explanation- For purposes of this clause,- (I) in case where approval in respect of housing project is obtained more than once, such housing 10 project shall be deemed to have been approved on date on which building plan of such housing project is first approved by local authority; (ii) date of completion of construction of housing project shall be taken to be date on which completion certificate in respect of such housing project is issued by local authority; (b) project is on size of plot of land which has minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to housing project carried out in accordance with scheme framed by Central Government or State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for time being in force and such scheme is modified by Board in this behalf; (c) residential unit has maximum built-up area of one thousand square feet where such residential unit is situated within cities of Delhi or Mumbai or within twenty-five kilometers from municipal limits of these cities and one thousand and five hundred square feet at any other place; (d) built-up area of shops and other commercial establishments included in housing project does not exceed three percent of aggregate built-up area of housing project of five thousand square feet, whichever is higher. 20. By Finance Act 2 of 2009 clause (e) and (f) were also inserted in sub-section (10) of Section 80IB w.e.f. 1.4.2010 and explanation was inserted which was given effect from 1.4.2001. 21. Aforesaid clause (e), (f) and explanation by Finance Act 2 of 2009 are also reproduced as under: "(e) not more than one residential unit in housing project is allotted to any person not being individual; and (f) in case where residential unit in housing project is allotted to person being individual, no other residential unit in such housing project is allotted to any of following persons, namely: (i) individual or spouse or minor children of such individual, 11 (ii) Hindu undivided family in which such individual is karta, (iii) any person representing such individual, spouse or minor children of such individual or Hindu undivided family in which such individual is karta. Explanation.-- For removal of doubts, it is hereby directed that nothing contained in this sub-section shall apply to any undertaking which executes housing project as works contract awarded by any person (including Central or State Government)." 22. In appeal preferred before CIT (A) by Assessee, ground relating to size was decided in his favour but on ground of lack of approval certificate, disallowance of deduction under Section 80IB (10) was upheld vide order dated 6.2.2013. 23. Revenue preferred appeal against order dated 6.2.2013 insofar as ground relating to size was answered in favour of Assessee and Assessee also filed cross-objections with regard to denial of deduction for want of completion certificate. Tribunal vide judgement dated 11.4.2014 has dismissed Revenue's appeal upholding Assessee's cross- objection hence Assessee has brought I.T.A. No. 29 of 2014 in which questions raised have already been quoted above. 24. First of all, we propose to consider substantial question of law raised in Revenue's appeal regarding area of plot under Section 80IB (10)(b), as to whether it will be single plot or contiguous joint plots. This will cover question no. 1 in ITA No. 73 of 2010 and sole question in ITA No. 6 of 2012. 12 25. It is not in dispute that Assessee got first approval on 24.11.01 in respect of plot admeasuring 2657 sq. mts. Subsequently, revised plan was approved by LDA on 22.6.03 to total aggregate land i.e. 4550.07 sq. mts. 26. One of essential conditions to attract deduction under Section 80IB (10) is that housing project approved by local authority must be on size of plot of land which has minimum area of one acre. word 'plot' itself has not been clarified or explained anywhere that it may include contiguous plots, more than one, so as to satisfy requirement of minimum area of one acre. 27. CIT (A) called for remand report from AO during course of appellate proceedings, as to whether housing project had actually been developed on integrated plot of land admeasuring 4550.07 sq. mt. or otherwise. Remand report submitted by AO has been reproduced by CIT (A) in its order dated 18.11.08. This report and other material has been discussed in para 8.2 to 8.11 of order dated 18.11.2008. This is part of record in I.T.A. No. 73 of 2010. 28. Basic facts are not disputed in this regard. In fact, they are relied in written arguments submitted by Assessee. 29. Plot No. 27-A/1, Jopling Road, Lucknow, area 52.44 sq. mts. was purchased by Assessee vide sale deed dated 15.4.2002 executed in its favour by Karuna Shankar Dubey. 30. Total area of plot no. 27-A was 50902 sq. ft. where against sub-division was allowed by competent authority on 18.7.2000 separating 6002.50 sq. ft. in favour of Yogda Satsang Society. 13 31. So far as Assessee is concerned, it got another part of plot no. 27-A/2 on 24.4.2001 under builder's agreement executed between Assessee and Karuna Shankar Dubey which related to 2657 sq. mts. of land. 32. Assessee claimed to have possession of another plot of land i.e. 27-A/3 area 1840.63 through builder's agreement dated 14.10.2003 executed by Captain Samir Dubey (Executor of will, Karuna Shankar Dubey, died on 3.2.2003). 33. Before 15.4.2002 Assessee had no legally enforceable right in respect of land in dispute and in this regard no material has been placed either before this Court or before Revenue authorities in assessment proceedings and subsequent appeals. 34. Assessee further claimed that on 10.10.2010 it had deposited sum of Rs. 836640/- as free-hold charge for entire land bearing number 27-A. It shows that plot no., 27- was nazul land owned by State of U.P. and up to 10.10.2000 ownership of State continued. 35. aforesaid facts show; (i) first land i.e. plot no. 27-A/2 area 2657 sq. mtrs. came to be possessed by Assessee pursuant to builder's agreement dated 24.4.2001 executed between Assessee and Karuna Shankar Dubey; (ii) housing project was approved by LDA on 24.11.2001. Thus, on date when housing project was approved, only land available with Assessee in any capacity had total area of only 2657 sq. mtrs; (iii) Second part of land i.e. plot no. 27-A/1 area 52.44 sq. mtrs. was purchased by Assessee from Karuna Shankar Dubey vide sale deed dated 15.4.2002; and (iv) third part of land i.e. plot no. 27-A/3 area 1840.63 14 sq. mtrs. came to be possessed by Assessee pursuant to builder's agreement dated 14.10.2003. 36. There is no condition in Section 89 and 80IB (10) that developer must hold plot it proposed to develop by constructing housing project, still area of land for which housing project was approved by LDA on 24.11.2001 was only 2657 sq. mtrs. Rest of land became available to Assessee on and after 15.4.2002 and 14.10.2003, therefore, approval granted by LDA on 24.11.2001 cannot be deemed to be applicable to those plots which became available to Assessee much subsequently. 37. Revised plan was approved by LDA on 22.6.2003. On this date also Assessee had in possession only two plots i.e. 27-A/2 ( are 2657 sq. mtrs.) and 27-A/1 (area 52.44. sq. mtrs). Third plot i.e. plot no. 27-A/3 (area 1840.63 sq. mtrs.) came to be possessed by Assessee on 14.10.2003 i.e. much after second approval granted by LDA on 22.6.2003. Therefore, second approval cannot be said to include area of land which was not even available with Assessee in any capacity. 38. Sub-section (10) of Section 80IB was broadly amended by Finance Act of 2004 w.e.f. 1.4.2005. With regard to clause (d) of sub-section (10), in Commissioner of Income Tax-19, Mumbai Vs. Sarkar Builders (2015) 375 ITR 392(SC), Court has already held that it is prospective and shall not apply to projects which were approved before 1.4.2005. Same is position in respect of clause (c) of Section 80IB (10). However, with respect to clause (a) and its explanation, we find that it was not new condition with regard to completion of project and only it was reintroduced 15 after short gap by Finance Act of 2004. On this aspect, we have already discussed matter at length and our judgement dated 7.4.2017 in ITA No. 9 of 2014 and other connected appeals: Commissioner of Income Tax v. M/s Arif Industries Ltd. and it has been held that clause (a) shall be applicable to projects which were approved before 1.4.2005 and it has to be observed and complied by Assessee irrespective of fact whether housing project was approved before 31.3.2005 or subsequently. 39. Further, in our view, explanation (i) is clarificatory in nature and, therefore, subsequent approvals obtained by Assessee in view of addition of land to its credit, will not make any difference. In view thereof, question no. 1 in ITA 73 of 2010 and sole question in ITA No. 6 of 2012 are answered in favour of Revenue and against Assessee and we hold that Assessee did not satisfy requirement of area of plot of land being minimum one acre. Since project approved for first time on 24.11.01 was in respect of land which measured only 2657 sq. mtrs. and even second approval when granted on 22.6.2003, total area of 2 plots was only 2657 sq. mtrs. and 52.44 sq. mtrs. which was again less than one acre. 40. With regard to question no. 2 in ITA No. 73 of 2010, we are of view that it is not mandatory. This question is regarding filing of audit report in form 10CCB. If it is not filed alongwith return but filed before assessment, will it amount to non-compliance of Section 80IB (13) read with Section 80IA (7). 16 41. In CIT Vs. Ace Multitaxes System (P) Ltd. [2009] 317 ITR 207 (Karnataka), it was held that when relief is sought for under Section 80-IB of Act, 1961, there is no obligation on part of Assessee to file return accompanied by audit report, thereby, holding that same is not mandatory. 42. Same view was taken by Delhi High Court in CIT Vs. Contimeters Electrical (P) Ltd. [2009] 317 ITR 249 ; by Madras High Court in CIT Vs. Jayant Patel [2001] 248 ITR 199. 43. Supreme Court in Commissioner of Income Tax Vs. G.M. Knitting Industries (P) Ltd. [2015] 376 ITR 456 dismissed appeal of Revenue and confirmed view taken by Madras High Court holding that filing of audit report and form 10CCB along with return is not mandatory. 44. In view of above, we answer question no. 2 in ITA No. 73 of 2010 in favour of Assessee and against Revenue, holding that it is not mandatory and only directory and Assessee cannot be made to suffer if it filed audit report in form 10CCB in course of assessment proceedings and not alongwith return. 45. Question No. 1 in ITA No. 29 of 2014 has to be answered partly in favour of Assessee and partly in favour of Revenue. 46. Clause (d) of Section 80IB (10) came to be inserted for first time, is prospective and shall not apply to housing projects approved before 1.4.2004 but same effect is not applicable to other parts of Section 80IB (10) and in particular clause (a) with which Assessee in present appeals is concerned. aforesaid clause has to be observed by Assessee even if its project stands approved 17 before 1.4.2004 and in this regard detailed judgement has already been given on 7.4.2015 in ITA No. 9 of 2014 and other connected appeals (Commissioner of Income Tax v. M/s Arif Industries Ltd.). and for reasons stated therein in respect of Section 80IB(10)(a), as amended w.e.f. 1.4.2005, we answer that it will apply to projects approved before 1.4.2004 also and it is only clause (d), came to be inserted w.e.f. l.4.2005, which is prospective. 47. Questions no. 2, 3 and 4 in ITA No. 29 of 2014 and questions no. 1 to 4 in ITA No. 1 of 2013 are connected with completion of project and submission of completion certificate before stipulated date. All these questions, in our view, have to be answered against Assessee, as we have already said that requirement of completion of project within stipulated period was applicable to Assessee's housing project and in this regard, we follow our judgement in ITA No. 9 of 2014 and other connected appeals, decided on 7.4.2017, referred to above. 48. Now with regard to alleged completion certificate some startling facts evident from record may also be noted. 49. Application was submitted by Assessee on 27.3.2008 in name of 'Karuna Shankar Dubey' requesting LDA to grant completion certificate. We are already informed that Karuna Shankar Dubey died on 3.2.2003 and hence builder's agreement dated 14.10.2003 was executed by Capt. Samir Dubey. If that be so, it is inconceivable that dead person could have filed application for completion certificate. Not only this, even application prior to 27.3.2008 in name of Karuna Shankar Dubey was filed requesting for compounding. Both these applications are non est in law. It 18 cannot be treated to be admissible evidence or even valid document for any purpose, what to say, about factum of completion of project by Assessee by 31.3.2008. 50. It is also evident from order of CIT (A) and Tribunal that lastly completion certificate was filed on 21.10.2009. No evidence has been brought on record to show that project was completed on or before 31.3.2008 or that officials of LDA made inspection of construction and verified completion of project. 51. In view of above, appeals preferred by Revenue i.e. Income Tax Appeal No. 73 of 2010 and 6 of 2012 are hereby allowed and Assessee's appeals i.e. Income Tax Appeal No. 1 of 2013 and 29 of 2014 are hereby dismissed. 52. Judgements of Tribunal in respect of questions which we have answered otherwise than view taken by Tribunal, assailed in Revenue's Appeals No. 73 of 2010 and 6 of 2012, are set aside to that extent. 53. Consequences shall follow. Dated: April 07, 2017 Fahim/- Commissioner of Income-tax-I, Lucknow v. Fortuna Foundation Engineers & Consultants Pvt. Ltd