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2009 (8) TMI 953 - ITAT BANGALOREProportionate deduction u/s.80IB - built-up area of some of the flats were more than 1500 sft i.e., the maximum prescribed, to avail the benefit u/s.80IB(10)(c) for the Metros other than Delhi and Mumbai - HELD THAT:- The fact that the occupancy certificate was issued in the month of June, 2006 indicates that the assessee had adhered to the plan. A perusal of the occupancy certificate shows that it relates to 152 residential apartments of which 38 are duplex units. The total area of the duplex units may exceed 1500 sft. The total area of each of the duplex apartment may exceed 1500 sft but the area of such apartment when viewed within the meaning of the definition of "built- up area within the ambit of section 80IB(14)(A) do not exceed 1500 sft. Actually the DVO has not physically measured any of the apartment discussed in the assessment order. The DVO's conclusion that each of the unit exceeds 1500 sft is based on the assumption that they are pend houses and hence must have exceeded the prescribed area of 1500 sft. The only unit measured by the DVO in the Redwood project does not fit into the definition of built-up area as defined in the section. He argued that it is pertinent to note that the inspection was made only after the passing of the assessment order. The DVO has considered the total area of the duplex apartment and not at the floor level which is required to be considered for the purposes of section 80-IB(14)(a). We are of the view that the appeal by the assessee is to be allowed to the extent of the flats the ITA.1192/B/08 built-up area of the flat is not more than 1500 sft. We agree with the submission of the learned representative for the assessee that while considering the built up area of 1500 sft for the purpose of exemption u/s.80IB(10), the mezzanine floor and common areas are to be excluded. The AO is directed accordingly. We hold that in respect of the pent houses the built-up area of which is more than 1500 sft, they may be excluded for exemption. However, in the light of the decision of the Special Bench in the case of Brahma Associates [2009 (4) TMI 215 - ITAT PUNE], merely because some flats are larger than 1500 sft, the assessee will not lost the benefit in its entirety. Only with reference to the flats which has more than the prescribed, the assessee will lose the benefit. In the result, appeal by the assessee is allowed in part, as indicated above.
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