TMI Blog2015 (4) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 - ITAT PUNE] in The extract of Rule 15.4.2, has been placed in the Paper Book at page 36, and it reflects that a multi storied stilt flooring space constructed under a building is allowed to be used as a parking subject to height restrictions. In terms thereof, it is sought to be made out that the area of car parking is specifically excludible while calculating ' builtup area' as per the Development Control Rules and therefore, the Assessing Officer was wrong in considering such area for the purpose of computing 'built- up area' of the residential units. A bare perusal of the Development Control Rules, in our view, supports the assertions put forth by the assesses and therefore, the area of car parking is not to be includible for the purposes of computing 'built- up area' of residential units in the facts and circumstances of the present case. Decided in favour of assessee Inclusion of common terrace identified in the built-up area of the respective flats - Held that:- CIT(A) has given a factual finding that the agreements with flat owners do not indicate that the common terrace was a part of the flat agreement. It is also observed by the CIT(A) that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the report of the Govt. Approved Valuer. 3. In the appeal of the Revenue, the only issue raised is with regard to the action of the CIT(A) in allowing the deduction under section 80IB(10) of the Act, which had been disallowed by the Assessing Officer. 4. In brief, the relevant facts are that, assessee is a partnership firm engaged in the business of builders and promoters. For the assessment year 2009-10, it filed a return of income declaring total income of ₹ 1,71,390/-, which inter-alia, included a claim of deduction under section 80IB(10) of the Act of ₹ 4,35,03,664/- in respect of the profits derived from development and building of a housing project named Vanshaj Prestige . The Assessing Officer carried out a verification exercise with respect to the claim of deduction under section 80IB(10) of the Act. In the course of the verification exercise, Assessing Officer issued Commissions under section 131(1)(d) of the Act to a Government Registered Valuer calling for a Report with respect to the project of the assessee. The Government Registered Valuer furnished a Report after inspecting the project of the assessee, in terms of which with respect to four f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstood having regard to the Development Control Rules of the local authority i.e. Pune Municipal Corporation. With regard to the inclusion of the common terrace, assessee pointed out that such area was not sold exclusively to any of the flat owners and therefore, the respective flat holders are not enjoying the exclusive use of such attached common terrace, and on this count also such area could not be included to calculate the built-up area of the four flats in question. In sum and substance, the claim of the assessee was that the built-up area of the aforesaid four flats was liable to the considered by excluding the attached terrace projections or the attached common terrace; and, if it was so done, the built-up area was within the prescribed limit. The Assessing Officer rejected the plea of the assessee and observed that on account of four flats violating the condition prescribed in clause (c) of section 80IB(10) of the Act, the entire claim for deduction amounting to ₹ 4,35,03,664/- was denied. 7. In appeal before the CIT(A), assessee reiterated that the definition of built-up area introduced by Finance (No.2) Act, 2004 would not be applicable in the instant proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, irrespective of the date of approval of the project. 9. On the other hand, the learned Representative for assessee has relied upon the order of CIT(A) in support of the case of the assessee. It has also been submitted by the learned Representative for assessee that the decisions of Pune Bench of the Tribunal relied upon by the CIT(A) continue to hold the field and that even in the later decisions of the Tribunal, same position has been upheld. In this context, he relied upon decision of Pune Bench of the Tribunal in Shri Naresh T. Wadhwani Vs. DCIT, vide ITA Nos.18, 19 20/PN/2013 Others, dated 28.10.2014. Reliance has also been placed on the judgment of the Hon ble Madras High Court in the cases of CIT Vs. Sanghvi and Doshi Enterprises reported in (2013) 214 taxman 463 (Madras) and CIT Vs. Mahalakshmi Housing in Tax Case (Appeal) Nos.585 of 2011 and 318 of 2012, vide order dated 02.11.2012. Reliance has also been placed on the judgment of Hon ble Bombay High Court in Common Wealth Developers Vs. ACIT reported in (2014) 102 DTR (Bom) 89. 10. We have carefully considered the rival submissions. The controversy in the present case relates to the condition prescribed in cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition, the built up area inter alia, includes the area of projections and balconies. The moot point is as to whether the such definition is applicable in respect of the project in question before us. Admittedly, it is emerging from the orders of the authorities below that the project DSK Frangipani commenced on 12.12.2003 i.e. prior to the 01.4.2005. Therefore, Revenue authorities are not justified in including the balconies/open terraces in the calculation of 'built-up area' and the definition of 'built-up area' in terms of Sec. 80IB(14)(a) of the Act cannot be applied to projects commenced prior to 1.4.2005. The aforesaid proposition is in line with the decision of the Mumbai Bench of the Tribunal in the case of Haware Constructions (Supra) as also the decision of the Pune Bench of the Tribunal in the case of Prime Properties (Supra). Now coming to the issue of inclusion of area of car parking, the Assessing Officer has included the same in the calculation of ' built-up area' and such area has been considered by him at 300 sq.ft. for each of the residential units. As noted by us earlier, the definition of 'built- up area' contained in Sec. 80 IB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a is exclusively used by the four flat owners referred above. Having regard to the aforesaid, in the absence of any controversion from the side of the Revenue, we find no reasons to approve the action of Assessing Officer in including the area styled as additional common terrace as a part of the built-up area of the four residential units in question. The stand of the CIT(A) on this aspect is upheld. 14. At the time of hearing, the learned Representative for the assessee also relied upon the decision of Pune Bench of the Tribunal in the case of Shri Naresh T. Wadhwani Vs. DCIT (supra), wherein after following the decision of the Hon ble Madras High Court in the case of M/s. Ceebros Hotels Private Limited Vs. DCIT, vide Tax Case (Appeal) No.581 of 2008 order dated 19.10.2012, it was held that even after taking into consideration the definition of built-up area contained in section 80IB(14)(a) of the Act, the area covered by a open terrace would not fall within the meaning of expression built-up area. Incidentally, the Hon ble Madras High Court in the case of M/s. Ceebros Hotels Private Limited Vs. DCIT (supra) was considering a project approved prior to 01.04.2005, but it a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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