TMI Blog2011 (3) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... uilt-up area includes portico and balcony also and in this case it exceeds 1500 sq. ft. per residential unit. Accordingly the assessee is disentitled for the benefit under section 80-IB - Decided against the assessee - IT APPEAL NO. 1541 (HYD.) OF 2010 - - - Dated:- 31-3-2011 - G.C. GUPTA, CHANDRA POOJARI, JJ. C.P. Ramaswami for the Appellant. K.V.N. Charya for the Respondent. ORDER Chandra Poojari, Accountant Member. This appeal of the assessee is directed against the order of the CIT(A)-V, Hyderabad dated 21-10-2010 for the assessment year 2007-08. 2. The grievance of the assessee in this appeal is with regard to denial of deduction under section 80-IB in respect of Sunshine project and Greenwoods project. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the municipal limits of these cities. 6. According to the Assessing Officer the area of each flat of the projects Sunshine and Greenwoods exceeded 1500 sq. ft. Accordingly deduction under section 80-IB in respect of these projects was disallowed. The assessee made a contention before the lower authorities that portico and open terrace attached to each flat are to be excluded from built-up area. The argument of the assessee was not accepted by the lower authorities. Aggrieved, the assessee is in appeal before us. 7. The learned counsel for the assessee submitted before us that built-up area in a house is absolute and not subject to interpretation by anyone. According to him built-up area is an area covered by the building above the pli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale deed executed for the sale of the building wherein the built-up area is mentioned including portico and terrace which is less than 1500 sq. ft. and the area which was not sold as built-up area cannot be considered as built-up area for the purposes of income-tax. He submitted that "residential unit" has not been defined under the Income-tax Act. It is, therefore, to be understood in a sense, which is common understood. He drew our attention to the meaning of built-up area in the Webster Dictionary. 9. He submitted that the definition of built-up area under section 80-IB(14)(a) does not provide that land or flat area is also to be included in the measurement of built-up area. In a multi-storeyed apartment flat is sold along with a prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrace. 10. The learned DR relied on the order of the CIT(A). 11. We have heard both the parties and also perused the material available on record. The main contention herein is with regard to inclusion of portico and balcony for the purpose of determining the built-up area as per clause (a) of sub-section (14) of section 80-IB of the Income-tax Act, 1961. As per this clause the definition of built-up area is as follows : "80-IB(14)(a) "built-up area" means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units;" 12. The above definition was introduced by Finance ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncreased by the thickness of walls and does not include common area shared with others. This definition gives the enlarged meaning of built-up area which includes balcony and projection. After inclusion of balcony and projection if the total area of built-up area exceeds 1500 sq, ft. in this case the assessee is not entitled for deduction under section 80-IB of the Act. The learned counsel for the assessee placed reliance on the judgment of Supreme Court in the case of Bajaj Tempo Ltd. v. CIT [1992] 196 ITR 188/62 Taxman 480 wherein it was held that a provision in a taxing statute granting incentives for promoting growth and development should be construed liberally; and since a provision for promoting economic growth has to be interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain the intention of the Legislature as expressed in the statute, considering it as a whole and in its context. That intention, and, therefore, the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand. 13. Being so, we cannot adopt meaning as contended by the learned counsel for the assessee. In our opinion, built-up area includes portico and balcony also and in this case it exceeds 1500 sq. ft. per residential unit. Accordingly the assessee is disentitled for the benefit under section 80-IB of the Act. The order of the CIT(A) is upheld on this issue. 14. In the result, the appeal of the assessee is dismissed. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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