TMI Blog2010 (2) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ., Pune Municipal Corporation, and without that segregation the project could not be sanctioned then that portion being mandatory for amenity purposes has to be taken as a part and parcel of the land available for the project. - Decided in favor of assessee. - ITA No. 1808/Pune/2005 - - - Dated:- 16-2-2010 - Mukul Shrawat, R.K. Panda, JJ. Sunil Ganoo for the Appellant Mukulesh Dube for the Respondent ORDER Mukul Shrawat, Judicial Member:- 1. This is an appeal at the behest of the assessee which has emanated from the order of CIT(A)-II, Pune, dt. 17th Nov., 2005. Initially the grounds raised were not in accordance with the ITAT r. 8 since issues set forth therein were not in concised form rather appeared to be argumentative as also narrative in nature. The appellant was directed to follow the said prescribed rule. Accordingly the grounds were concised and this appeal is hereby decided as per the concised grounds of appeal as reproduced below:- "(1) It may please be held that the entire income of Rs. 1,03,92,788 earned by the appellant during the relevant previous year from the housing project namely, Laxmi Township II Scheme at S. No. 123/1 Kalas, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the land in question was purchased admeasuring 4,600 sq. mtrs. It was further observed that the land in question was demarcated into 3 plots and the layout was sanctioned by PMC on 27th March, 2000. The AO has also observed that at the demarcated portion mentioned as plot No. 1 an area admeasuring 690.70 sq. mtrs. was reserved as an amenity space which was to be handed over to the PMC. It was also observed by the AO that the said reserved portion of land was 15 per cent of the plot area. According to AO the net area available for the project had become 3,909 sq. mtrs. only. According to AO the plot available for the project was thus less than 1 acre. On account of the said observation a show-cause notice was issued to explain as to why the deduction as claimed under s. 80-IB(10) be not denied. 2.1 In reply the assessee has submitted that though the area as per 7/12 extract was 4,600 sq. mtrs. but the area as per the demarcation was 5,048.48 sq. mtrs. In support he has furnished layout plan and the approved plan to demonstrate that the assessee was under full control of the said demarcated area therefore the total area was in his exclusive use. On the basis of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred certain evidences which were as under : "7.1.2 A number of statements submitted by the appellant also show that net area available for building is much less than one acre. In this regard mention may be made of the following:- (1) As per location plan which is contained at page No. 29 of the paper book submitted by the appellant in this office on 11th Oct., 2005 copy of which was given to the AO for comments at the instance of that office, the net area available for building is 3,344.24 sq. mtrs. (2) At page No. 32 of the paper book submitted by the appellant in this office on 11th Oct., 2005 copy of which was given to the AO for comments at the instance of this office, is the copy of the plan approved by Pune Municipal Corporation vide commencement certificate No. DPO/8433/H/17, dt. 27th March, 2000 which shows at survey No. 10 that the net area available for building is 3,344.21 sq. mtrs. (3) At p. 39 of the paper book submitted by the appellant in this office on 11th Oct., 2005 copy of which was given to the AO for comments at the instance of this office is the detailed construction plan of the project which is signed by Building Inspection and Assistant En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorised Representative has placed an another decision in the case of Chewag Dorjee Lama vs. Lerap Dorjee Bhutia AIR 2006 Sikkim 37 and also decision of Temple of Maruti vs. Balkrishna Suryaji S. Kakodkar 1998 (3) Bom CR 540. The emphasis was that all these decisions are regularly being applied for the proposition that the boundaries must prevail as against the measurements. In case of a discrepancy between dimensions and boundaries, the area specified within the boundaries will prevail whether it be less or more than the quantity specified. Before us he has placed a map to establish that a demarcation certificate was issued by the concerned authority and that demarcation being done by an authority has to be given due importance to determine the total area of plot of land under consideration. He has emphasized that the actual area available for the project was 5,048.48 sq. mtrs. Therefore the granting of FSI on the basis of the 7/12 extract area had no consequence. He has also referred the Maharashtra Land Revenue (Boundaries and Boundary Marks) Rules, 1969 and drawn out attention on r. 13 for the argument that the boundaries are demarcated by the independent Government authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion certificate placed before us. There is no denial of the fact that there was excessive land which was more than the area of land documented in the deed of transfer. However, the basic question which is to be answered by us is whether the adjacent portion of land which was not the subject-matter of the development agreement and that which was not considered by the land development authority for the purpose of working out the amenity space as well as for granting the FSI then in such a situation whether that excessive land could be taken into consideration to determine the 1 acre area as prescribed under the relevant provisions of the Act. Undisputedly the appellant had to take permission from the Pune Municipal Corporation for the development of the desired project. The appellant has placed in the compilation several such correspondence and the steps which were submitted for the said purpose. In all such correspondence the area of land as per demarcation was mentioned as 5,048.48 sq. mtrs. But immediately thereafter the authorities have duly referred the area of land as per 7/12 extract admeasuring 4,600 sq. mtrs. Adopting the base figure of 4,600 sq. mtrs. the calculation for g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 acre. If we accept the argument of learned Authorised Representative and also the wide proposition argued then it may result into an anomaly. There shall be thus an anomalous situation that a large chunk of land, above 1 acre would be purchased but project be made in one corner having area of less than 1 acre. The answer is simple that if the project is not to be made on the prescribed area of 1 acre then entitlement of benefit has to be denied. One has to demonstrate the existence of project vis-a-vis the size of plot. May be in this case the appellant had got possession of some excessive land but that land was never been proposed as a part of the project and all the proposals were rather confined to the area of 4,600 sq. mtrs. 7.3 The context under which the Hon'ble Courts have held that the boundaries must prevail as against the measurements was all together different. Those decisions pertained to the controversy between the dimensions and the boundaries and to resolve such disputes the Hon'ble Courts have pronounced that the description by boundaries is to be preferred. Naturally those controversies are civil disputes in nature and in such civil cases the question of eas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d layout plans were placed. On careful examination of the figures, we have noticed that the start point for calculation of open space, amenity space etc. was the area as per 7/12 extract i.e., 4,600 sq. mtrs. and 15 per cent of the same was computed as 690.70 sq. mtrs. After reducing open space and amenity space the net area available for building was measured as 3,344.24 sq. mtrs. For reference the said calculation is as below:- "Area of land as per demarcation 5,048.48 sq. mtrs. Area of land as per 7/12 extract 4,600.00 sq. mtrs. (1) Minimum area consider for lay out (As per 7/12 extract) 4,600.00 sq. mtrs. (2) Road widening area 105.00 sq. mtrs. (3) Net area (1-2) 4,495.00 sq. mtrs. (4) Open space (Min. 10% = 460.00) 460.09 sq. mtrs. (5) Amenity space (Min. 15% = 690.00) 690.70 sq. mtrs. (6) Area under internal road 431.15 sq. mtrs. (7) Transformer 25.00 sq. mtrs. (8) Net area 3 - (4 + 5 + 6 + 7) 2,923.25 sq. mtrs. (9) Floor space available in lieu of area under internal road and transformer 431.15 sq. mtrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnised and compensated by granting additional FSI for the said project. If we accept the proposition of the Revenue Department that the area which was directly under the building construction should only be held as the project for construction, then a builder has to acquire a land more than 1 acre of land. Then only after the set-apart of the amenity space he could be left with the balance 1 acre for project development. But such a proposition was not intended in the legislature. The language of the section did not prescribe such hypothetication. Therefore an another reasoning of our rejection of such a proposition of the Revenue Department is that it would be illogical to expect from a builder to have excess land area than 1 acre, at least 15 per cent excessive area applicable for Pune Corporation, so that after setting apart 15 per cent area the balance should remain 1 acre for the purpose of construction. This suggestion or approach of interpretation of a statute is not idealistic because we cannot read beyond the scope of the statute. Normal rule of interpretation of statues is that the general words must receive a general construction unless there is something otherwise expres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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