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2015 (4) TMI 41 - AT - Income TaxDeduction u/s.80IB(10) - whether the project 'Vanshaj Prestige' had commenced construction much before the amendment to section 80IB(14)(a) and therefore it is not possible for the assessee to comply with the definition of built up area? - whether CIT(Appeals) erred in holding that the assessee is eligible for deduction u/s.80IB(10) without appreciating that as per provisions of section 80IB(14)(a) built up area is to be calculated taking into account all the projections and balconies and as such the flats on the first floor of building B exceeded the built up area of 1500 sq.ft. making the assessee ineligible for deduction ? Held that:- Firstly, it is contented that the definition of the ‘built-up’ area contained in section 80IB(14)(a) of the Act was inserted by the Finance (No.2) Act, 2004 w.e.f. 01.04.2005 and it is not applicable in the present case as assessee’s project was approved and commenced prior to 01.04.2005. We are in complete agreement with the aforesaid plea, which has also been accepted by the CIT(A). As decided D.S. Kulkarni Developers Ltd. Vs. ACIT [2015 (4) TMI 6 - ITAT PUNE] in The extract of Rule 15.4.2, has been placed in the Paper Book at page 36, and it reflects that a multi storied stilt flooring space constructed under a building is allowed to be used as a parking subject to height restrictions. In terms thereof, it is sought to be made out that the area of car parking is specifically excludible while calculating ' builtup area' as per the Development Control Rules and therefore, the Assessing Officer was wrong in considering such area for the purpose of computing 'built- up area' of the residential units. A bare perusal of the Development Control Rules, in our view, supports the assertions put forth by the assesses and therefore, the area of car parking is not to be includible for the purposes of computing 'built- up area' of residential units in the facts and circumstances of the present case. Decided in favour of assessee Inclusion of common terrace identified in the built-up area of the respective flats - Held that:- CIT(A) has given a factual finding that the agreements with flat owners do not indicate that the common terrace was a part of the flat agreement. It is also observed by the CIT(A) that the respective flat owners were not the owners of so called common terrace and the assessee also pointed out before him that even the Government Registered Valuer in his report nowhere stated that the common terrace area is exclusively used by the four flat owners referred above. Having regard to the aforesaid, in the absence of any controversion from the side of the Revenue, we find no reasons to approve the action of Assessing Officer in including the area styled as ‘additional common terrace’ as a part of the built-up area of the four residential units in question. - Decided in favour of assessee
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