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2022 (7) TMI 1286 - AT - Income TaxDeduction u/s 80IB(10) - AO denying section 80IB(10) deduction holding that the corresponding residential units had built up “BUA” area exceeding 1500 sq.ft. - HELD THAT:- We first of all note that the CIT(A)’s common order herein as followed his conclusion drawn in A.Y. 2009-10’s which has been reproduced in the preceding paragraphs. The same appears to have attained finality as there is no material on record to suggest the contrary. This is coupled with the fact that the corresponding site plan of these four units O1-1, O1-2, O2-1 and O2-2 in issue is on record (page 10) wherein it is clearly indicates that this garden area is meant for the concerned allottees’ exclusive use and ownership and falls within the walls only than any common area not covered u/s 80IB(14)(a) of the Act. We further wish to reiterate here that legislature has not only defined “inner measurements” of the residential unit “at the floor level” in section 80IB(14)(a) but also the same has to be increased by the thickness of the walls.” It is in this backdrop that this tribunal’s order in Kumar Builders Consortium [2013 (11) TMI 465 - ITAT PUNE] has already decided the issue in Revenue’s favour. We therefore, adopt judicial consistency to affirm both the lower authorities’ action disallowing the assessee’s 80IB(10) deduction claim to this effect. Assessee had allotted more than one flat to one person i.e. Smt. Sandhya Rakesh Sharma and therefore, the same violates section 80IB(10)(f) - The fact remains that Mr. Jain has neither placed on record the corresponding joint sale deed that Ms.Syamlee only owned or possessed the entire share in Flat I-1 independently. This is in addition to the fact that the Commission’s report in assessee’s paper book dated 22.01.2015 at pages number 1 to 9 held that it had allotted “more than one flat “to Smt.Sandhya Rakesh Sharma and therefore, we find no merit in the taxpayer’s stand. The Revenue succeeds in all of its corresponding substantive ground(s) to this effect. Assessee’s scheduled date of completion of its residential project “Flora City” was 31.03.2012 whereas the last completion certificate stood issued only on 02.09.2011 which disentitles’ it for the impugned deduction - HELD THAT:- We note that the instant issue is hardly res-integra as this tribunal co-ordinate bench in A.Y. 2009-10 involving Revenue and assessee’s cross appeals [2014 (7) TMI 1366 - ITAT PUNE] rejects the former’s very stand - Revenue is fair enough in not pin-pointing any distinction on facts as well as in law. We thus adopt the judicial consistency to affirm the CIT(A)’s foregoing findings under challenge. This second substantive issue is decided in assessee’s favour. Assessee’s residential unit(s) sold in the impugned assessment year had not exceeded the prescribed area 1500 sq.ft thereby excluding “terrace” part - HELD THAT:- As it has come on record that the foregoing judicial precedents have already held that such that a “terrace” in a residential unit does not satisfy the section 80IB(14)(a) basic benchmark of “inner measurement” since open to sky. We, thus, adopt the very reasoning mutatis-mutandis to uphold the CIT(A) action deleting the impugned disallowance qua this “terrace” inclusion issue. This third substantial ground canvassed at the Revenue behest stands declined. Treating the assessee’s alleged “on money’ receipts as eligible for sec 80IB(10) deduction - HELD THAT:- As the assessee is eligible for sec 80IB(10) deduction on proportionate basis only as it has already failed on the foregoing “garden area” and “multiple allotment” issues in preceding paras. We make it clear that it has not filed any evidence on record that the impugned ‘on-money’ pertains to sec 80IB(10)’s eligible units only. Or that the remaining allottees except Smt.Sharma or those having garden area only had paid the entire sum. Faced with this situation, we restore the impugned disallowance on account of the assessee’s failure to prove all the foregoing clinching factual aspects. The Revenue succeeds in all of its corresponding substantive grounds to this effect. Whether CIT(A) has further erred in granting the assessee’s proportionate sec 80IB(10) deduction regarding the eligible housing units only? - HELD THAT:- Revenue could not pin-point any judicial precedent to the contrary. We accordingly uphold the CIT(A) foregoing directions granting proportionate section 80IB(10) deduction to the assessee. Ordered accordingly.
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