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TMI Blog2014 (2) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... by them in case of one assessment year would be applicable to the other year also. He therefore submitted that both the appeals can be heard together. We therefore proceed to hear both the appeals together and pass a consolidated order for the sake of convenience. We thus proceed with the facts in ITA no. 2679/AHD/2010 for A.Y. 06-07. 3. The relevant facts as culled out from the material on record are as under. 4. Assessee is a firm engaged in the profession of developers and builders. It filed its return of income for AY 2006-07 on 18.12.2006 declaring total income of Rs 19,71,040/-. The case was selected for scrutiny and thereafter the assessment was framed u/s 143(3) vide order dated 29.12.2008 and the total income was assessed at Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant had not co-operated with him, without considering and/or dealing with all the appellant's written submissions before her (by way of illustration, Xerox copies of the appellant's written submissions dated 21.4.2010 and 3.5.2010 before her are attached at Annexures 'A' & 'respectively) as well as before the learned DVO. She ought also to have appreciated, interalia,: (a) that the only requirement of clause (b) of Section 80-16(10) being that the project should be on a plot of land with a minimum area of one acre (which was admittedly fulfilled by the appellant, the size of the plot in question being 4,050 sq. tints.), her accepting the learned DVO's version that the appellant did not fulfill that co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction agreement with individual members. He accordingly concluded that Assessee had not fulfilled the condition laid down for deduction u/s 801B(10) of the Act and therefore the claim of deduction u/s 801B(10) was denied to the Assessee. Aggrieved by the order of AO, Assessee carried the matter before CIT(A). CIT(A) upheld the order of AO. Aggrieved by the order of CIT(A), the Assessee is now in appeal before us. 7. Before us, the Ld. A.R. submitted that the AO disallowed the Assessee the deduction u/s 801B(10) for the reason that the Assessee was not the owner of land and since the Assessee was not a Developer of land but had acted as a Contractor. CIT(A) on the other hand, though denied the deduction u/s 801B(10) but for the reason tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced at page 469 to page 473 of the paper book wherein the measurements of the areas of the flats is calculated and is below the 1500 sq ft. He further pointed that the aforesaid submission was made before DVO and also before CIT(A). He further submitted that the DVO had taken the measurements from terrace and had found it to be less than 1500 sq. Ft and for which he pointed to the copy of the notings of the DVO which were placed at page 442 of the paper book. He further submitted that the definition of "built up area" which was inserted by Finance No 2 of 2004 which came into effect from 1.4.2005 was prospective in nature and had no application to the housing project of the Assessee as the project of Assessee was approved on 17.1.2005 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the type of assets, it is not possible for a person to have undertaken the construction of the project and to be called a developer of the project. He further pointed to the observations made by CIT(A) that the Assessee did not arrange for the verification by the DVO of the measurements from inside of the flats. He further submitted that the decision of Karnataka High Court in the case of Anriya Project (supra) relied by the A.R. is distinguishable on facts as the same was in respect of exclusion of balcony and not with respect to the exclusion of walls for the purpose of calculation of the size of the flat. The Ld.D.R. further submitted that for the purpose of calculation of the area of a flat the external wall will form part of the are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which could not be arranged today. Terrace measured. Unit 142 = 1385 sq. Ft, Unit 3 = 1365 sq.ft" unquote. Before us, it was pointed out by ld. D.R. that Assessee did not arrange for physical verification of the flats and therefore DVO could not physically verify the individual flat. Under the provisions of the Act, DVO has the powers conferred u/s 131 of the Act interalia to discover, inspect and to enforce the attendance of any person, examine him on oath, compel the production of books of account and other documents and issue commissions. Before us, nothing has been brought on record by the Revenue to demonstrate that the aforesaid powers were exercised by the DVO to take the measurement of the flats when the same was denied by Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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