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2013 (9) TMI 366 - ITAT BANGALORECondonation of Delay - Held that:- There had been no willful neglect on the part of the Assessee - In such matters the advice of the professional would be the point of time at which the Assessee would begin to explore the option of exhausting all legal remedies - The advice was given by the counsel who appeared on behalf of the Assessee before the Hon’ble High Court - The decision of the Hon’ble High Court was rendered on 28.2.2012 - Following the Principles of Collector, Land Acquisition v. Mst. Katiji & Ors. [1987 (2) TMI 61 - SUPREME Court] - substantial justice should prevail over technical considerations - a litigant does not stand to benefit by lodging the appeal late - every day’s delay must be explained does not mean that a pedantic approach should be taken. The doctrine must be applied in a rational common sense and pragmatic manner - The appeal had been filed by the Assessee before the Tribunal on 26.3.2012 - by condonation of delay there was no loss to the revenue as legitimate taxes payable in accordance with law alone would be collected - the reason given for condonation of delay in filing the appeal was accepted - The delay in filing the appeal is accordingly condoned. Deduction u/s 80-IB(10) - To be eligible for exclusion from the built up area, whether the common areas have to be shared with all the residents, who have occupied the residential units, or even if it was shared with one, the assessee would be entitled to the said benefits - Held that:- The Assessee should get the benefit of the provisions of Sec.80IB(10) which were exemption provisions - the Assessee would be entitled to deduction u/s.80-IB(10) of the Act on the profits of the 16 flats which were excluded by the CIT(A) in the order - The fact that it was not common area for all the flats in the building cannot be the basis to apportion the area of covered balcony in measuring the area of the two adjoining flats to which the covered balcony was common. The definition of the built up area in the provisions of sec.80-IB(1) does not speak of common area for all flats in a housing project. The balcony areas, which were added as forming part of the built of area of the 16 flats which were considered as exceeding the built up area of 1500 sq.ft., were common areas and had to be excluded while measuring the built up area - There was covered balcony area in the 16 flats and such covered balcony could be used by two adjoining flats and was common between them - The DVO in measuring the area of these flats divided the covered balcony area and apportioned them between the two flats - The definition of built up area for the purpose of Sec.80-IB(10) of the Act excluded area which are meant for common use – Decided in favour of Assessee.
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