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2016 (2) TMI 1045 - AT - Income TaxDeduction u/s. 80IB(10) - only reason for rejecting the claim of the assessee given in the assessment order is that two dwelling units i.e. RH/D-6 and RH-3 are having built up area in excess of 1500 sq. ft. - Held that:- The Tribunal in various decisions has held that the assessee is eligible to claim deduction u/s. 80IB(10) on the eligible dwelling units. The view of the Tribunal has been upheld by various Hon'ble High Courts. The Co-ordinate Bench of the Tribunal in the case of M/s. Rohan Homes Vs. Asstt. Commissioner of Income Tax (2013 (10) TMI 758 - ITAT PUNE ) in similar case where deduction u/s. 80IB(10) was claimed and some of the residential units were having built up area in excess of specified limit, the Tribunal granted proportionate deduction to the eligible units. While holding so, the Tribunal referred to various decisions of the Tribunal, wherein proportionate deduction u/s. 80IB(10) was granted to the housing projects. Deduction u/s 80- IB(10) of the Act was to be allowed on proportionate basis with reference to qualifying residential units and that the assessee would not be denied claim for deduction u/s 80-IB(10) of the Act in entirety if some of its residential units were of a built-up area exceeding the limit prescribed in clause (c) to sec. 80-IB(10) of the Act. Excluding residential units RH/D-6 and RH-3 of project ‘Akshay Park’ from the purview of deduction u/s. 80IB(10) on the ground that the ‘built up area’ of said units are in excess of 1500 sq. ft. - Held that:- The issue whether the definition of ‘built up area’ as defined u/s. 80IB(10) is to be applied in case of projects approved prior to 01- 04-2005 is no more res-integra. In view of the decisions of Co-ordinate Bench on the issue, we hold that prior to the insertion of definition of ‘built up area’ by the Finance (No. 2) Act, 2004 w.e.f. 01-04-2005, projections, balconies and open terrace cannot be considered as part of the ‘built up area’ of the residential unit. The newly inserted definition of ‘built up area’ would be applicable only on the projects which are approved/sanctioned after 01-04-2005. In view of the facts of the case and various decisions discussed above, we allow the cross objections by the assessee.
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