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2016 (4) TMI 872 - ITAT PUNE

2016 (4) TMI 872 - ITAT PUNE - TMI - Claim of deduction under section 80IB(10) - connotation of meaning of one acre i.e. the size of plot of land on which the housing project has to be developed in order to avail the deduction under section 80IB(10) of the Act - Held that:- Where 1 acre is equal to 4840 sq. yds. and one sq.yd. is equal to 0.83612736 sq. mtrs., so, one acre is equal to 4046.8564224 square meters. In the entirety of the above said facts and circumstances and information available .....

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s mentioned 2500 + 1500 P.C and in Devnagari one acre is also written. In other words, the area of 4000 sq. mtrs. is equivalent to one acre. In the first instance, PCNTDA has communicated that it had leased out 4000 sq. mtrs. of land to the Lessee of plot which was developed by the assessee. The layout plan which is annexed to the Lease Deed, perusal of the same reflects the plots were demarcated into bulk lands of various measurements and one portion of the land in the middle of the layout plan .....

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had been marked for the development of side road out of original demarcation for one acre, but after allocation of 4000 sq. mtrs. and demarcation of land for roads, total plot was not one acre. Where the unit measurement for land is to be recognized as square meter and the assessee has developed its housing project on a plot of land measuring 4000 sq. mtrs., we find no merit in the claim of the assessee that it had fulfilled the conditions laid down in section 80IB(10) of the Act. Since the req .....

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1 - Dated:- 29-2-2016 - MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM For The Appellant : Shri V.L. Jain For The Respondent : Shri Sanjay Punglia ORDER PER SUSHMA CHOWLA, JM: This appeal filed by the assessee is against the order of CIT(A)-V, Pune, dated 28.03.2011 relating to assessment year 2006-07 against order passed under section 143(3) of the Income-tax Act, 1961 (in short the Act ). 2. The assessee has filed modified grounds of appeal, which read as under: 1. The learned CIT(A) ha .....

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f the grounds of appeal or add to the same, if deemed necessary. 3. The first issue raised by way of modified grounds of appeal is in relation to the claim of deduction under section 80IB(10) of the Act which has two aspects. The first aspect is whether where the area of plot is 4000 sq. mtrs. and therefore, less than one acre, the assessee is entitled to the claim of deduction under section 80IB(10) of the Act. The second aspect of the issue is that one of the residential units has built up are .....

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essee was picked up for scrutiny. The assessee for the year under consideration had shown income from two projects i.e. the first project namely Ishani Garden , under which, it has shown income at ₹ 9,43,080/-. Another project developed by the assessee was Eden Garden , situated at Bank Land No.2(part), Sector No.26, PCNT, Nigdi, Pune. The assessee from this project had declared income at ₹ 1,10,33,637/- and had claimed deduction under section 80IB(10) of the Act in respect of the sa .....

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cony. The report of Departmental Valuation Officer (DVO) is scanned and is reproduced under para 3 of the assessment order. The perusal of the report reflects that under clause (b), the Valuer had declared gross area of the plot as per layout sanctioned by Pune Municipal Corporation (PMC) was 4000 sq. mtrs. and plot area was less than one acre. Further, Valuer had reported the built up area of the units constructed by the assessee and in respect of twin bungalow No.1, built up area was more than .....

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assessee referred to The Standards of Weights and Measures Act, 1956, adopted in India with the primary unit of measure of area is square meter i.e. SI unit of measurement. It was further pointed out that earlier the area was measured as acres and guntas. After the said enactment, the area was measured as Hectarors and Are. Normally, the conversion is as one acre is equivalent to 0.4046 Hectares. Again as per the same Act, the measurement in area was upto 2 digits, therefore, the conversion was .....

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. mtrs. and 1000 sq. mtrs. of land was taken by PCMC for garden purpose. The Assessing Officer observed that plot area of the project as per Development Agreement and as per layout sanctioned by PCMC was only 4000 sq. mtrs., which was below one acre. The second contention of the assessee that earlier area was measured as Hectares and Are and the precision of measurement in area up to 2 digits, was also not accepted by the Assessing Officer as under section 80IB(10)(b) of the Act, the project is .....

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ut sanctioned by the PCMC is 4000 sq. mtr. The plot area is less than one Acre . Therefore area of plot of 4000 Sq. mtr. is cannot be equal to 1 Acre, it is below the 1 Acre only. The area of 1 Acre is equivalent to 4048 sq. mtr. and the size of the assessee s plot of land is 4000 sq. mtr. only which is clearly below 1 Acre. 5. In respect of twin bungalow No.1 also, the Assessing Officer observed that the maximum built up area of the said bungalow was exceeding 1500 sq. ft., hence, on both these .....

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numeration, after the commencement of the Act, shall be stated in any unit other than the standard unit of weight, measure or numeration. It was further submitted that the conversion of one acre to metric system works out to 0.4046 ha. and under the principles of rounding off, the same has to be rounded off to 0.40 ha., which is equal to 4000 sq. mtrs. The precision of measurement as per the assessee, had to be considered up to two decimal places. It was further submitted by the assessee that si .....

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that the area of land before the assessee acquired the right to develop, the same was more than one acre was neither here nor there, hence, this plea of the assessee was dismissed. The next contention of the assessee was based on the interpretation of the Standards of Weights and Measures Act, 1956, on the basis of which, the assessee contended that 4000 sq. mtrs., upon rounding off would constitute one acre. The CIT(A) observed that the said Act had been repealed by Standards of Weights and Me .....

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her observed that it was not in dispute that one acre of land equals 4046.9 sq. mtrs. and not 4000 sq. mtrs., which was the size of plot of land in assessee s case. Further, the CIT(A) on perusal of the Act, 1976 observed that there was no support for the assessee s contention that the area of plot must be rounded off to nearest second decimal place, yielding, in the assessee s case, 4000 sq. mtrs., as the metric conversion of one acre. Further, reference was made to the decision of Pune Bench o .....

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tative for the assessee referred to the orders of Assessing Officer and CIT(A) and pointed out that where the section had used the term one acre , which as per the study is 40 Are, which is equivalent to 4000 sq. mtrs., then the same has to be understood as one acre. Our attention was drawn to the letter filed by the Revenue along with plan dated 05.12.2012, in which PCNTDA has mentioned 4000 sq. mtrs. in Lease Deed. Further, the learned Authorized Representative for the assessee pointed out tha .....

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amenities had to be left for one acre and above plots and no amenities space for less than one acre. The learned Authorized Representative for the assessee fairly admitted that the assessee had left no space for amenities while developing its plot. Again reference was made to Standards of Weights and Measures Act and it was pointed out that it refers to meters, whereas section 80IB(10) of the Act talks of one acre. The contention of the learned Authorized Representative for the assessee before .....

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ther, the learned Authorized Representative for the assessee stated that in interpreting the provisions of section 80IB(10) of the Act, liberal interpretation should be given as held in Bajaj Tempo Vs. CIT reported in 196 ITR 188 (SC). The learned Authorized Representative for the assessee fairly submitted that the connotation one acre was understood differently in different States and 7/12 extract of the present plot of land referred to Guntas. He further stressed that where two views are possi .....

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r dated 29.02.2012. Further, the learned Authorized Representative for the assessee made submissions with regard to built up area of row house and the claim of the assessee and also an alternate plea of prorata deduction under section 80IB(10) of the Act. 10. The learned Departmental Representative for the Revenue has placed on record written submissions and pointed out that the report referred to by the assessee was made with the purpose to make data base of land records, which nowhere defines .....

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the Revenue as the same was regulating trade or commerce and not for measuring plots. He further admitted that there was no definition under the Income-tax Act. Though, in the plans, it was written as one acre, but these were as per the assessee, it means that one acre is 4000 sq. mtrs. Though in the Lease Deed, Development Agreement, registered plans, the area was mentioned as 4000 sq. mtrs. and nowhere it was mentioned as one acre. Reference was made to the Valuation Report and it was pointed .....

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As per landsofmaharashtra.com, the international acre as defined in 1958 was exactly 4,046.8564224 sq.mtrs. Even as per Wikipedia, one acre was 4046.856 sq. mtrs. Even as per Oxford dictionary, an acre was defined as unit for measuring an area of land which was equal to 4,840 sq. yds. or about 4,050 sq. mtrs. As per the letter dated 03.09.2014 received from PCNTDA, it was clarified that the land was measured by the PCNTDA in sq. mtrs. and acre was not used as unit of measurement. Further, even .....

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to the assessee for ignorance of law and he further submitted that the popular connotation was to be applied, only if information was not available in public domain. Further, he submitted that the case laws were dealt by the CIT(A) and it was also pointed out that the assessee has not provided any amenities and in case the plot area was one acre or more, then he was bound to provide area for amenities. Further submissions were made with respect to built up area of row house No.1. 11. We have hea .....

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irement of section 80IB(10)(b) of the Act is to develop and construct the housing project on a plot area which has minimum area of one acre in order to be eligible for claiming deduction under section 80IB(10) of the Act, after satisfying all the other conditions laid down in other sub-sections to the said section. The area of one acre is qualified with the word minimum and while applying the said condition, provision of the Statute has to be considered in entirety. 12. The Hon ble Bombay High C .....

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) would have to be construed as commonly understood. The expression housing project in common parlance would mean constructing a building or group of buildings consisting of several residential units and further held that the construction of even one building with several residential units of the size not exceeding 1000 sq. ft would constitute a housing project under section 80IB(10) of the Act. Another condition noted by the Hon ble High Court was Moreover, a plain reading of section 80IB(10) d .....

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and applying the said ratio, for any assessee to avail the deduction under section 80IB(10) of the Act, one of the conditions to be fulfilled is that plot of land should have a minimum area of one acre . Undoubtedly, the object of granting deduction under section 80IB(10) of the Act equal to 100% of the profits of an undertaking, arising from developing and constructing a housing project is, with a view to boost the stock of houses for lower and middle income groups, subject to fulfilling the sp .....

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es certain conditions, then the conditions laid therein, have to be fulfilled. 13. The issue before us is the connotation of meaning of one acre i.e. the size of plot of land on which the housing project has to be developed in order to avail the deduction under section 80IB(10) of the Act. As per clause (b) to section 80IB(10) of the Act, the requirement that the plot of land should have a minimum area of one acre, which in other terms, mean that where a person does not fulfill the conditions of .....

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er Book. The perusal of Lease Deed reflects that in consideration of the land agreed upon between the lessee and lessor on premium, the area of land for development which was handed over to the assessee was 2500 + 1500 P. C area for development in village limits of Ravet, Haveli, district Pune. The Lease Deed clearly provides that the area under consideration is 4000 sq. mtrs. or thereabouts. The owner entered into a lease agreement for the term of 99 years starting from March, 1991 and premium .....

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lan. The Development Agreement refers to the plot of land admeasuring 4000 sq. mtrs., and the plan refers to 4000 sq. mtrs. and the plan annexed at page 60 of the Paper Book is the same layout plan as was issued by PCMC with the same mention as referred to by us in the paras hereinabove. The assessee has also placed on record the copy of sanctioned plans for the housing projects in which the area statement shows the area of plot to be 4000 sq. mtrs. and after deduction of 10% for open space and .....

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ent Agreement and also is the start point for area calculation in the sanctioned plan. However, the plan accompanying in the Lease Agreement refers to the plot as 4000 sq. mtrs. suffixed by one acre. The assessee in this regard contends that impliedly the lessor of the plot refers to 4000 sq. mtrs. as one acre. The lessor of the plot in this case was PCNTDA. The assessee has filed before us a summary of contentions made during the course of hearing, which reads as under:- Summary of Contentions .....

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rs to 4000 sq meter as one acre. b) The report from the AO only brings home that the plot leased out is defined as 4000 sq meter in the agreement. It remains silent on the notings on the plan. c) The concept of acre is understood differently in different states in the country as has been pointed out in the Technical Report prepared at the behest of the Ministry of Rural Development, Government of India.( See Pages 50 &51 of the Report) d) "Acre" is not defined in the Income Tax Act .....

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t no other usage is permitted. In spite of this proposition, the Act uses acre instead of sq. mtr. f) If a statute contains lacunae, the Court cannot plug it by a strained construction in preference to a supposed intention.(CIT V Vegetable Products Ltd. (88 ITR 1 9 2.) g) As "acre" is understood differently in different States, a uniform interpretation is necessary throughout the country in reading a Central Statute. A discriminatory practice would be violative of Article 14 of the Con .....

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e 2 (page 4) and Annexure 3 (page 8) of the written submissions filled by the Revenue concede the fact that an acre is also understood as 4000 sq mtr. By pointing out that 1 hectare is 2.5 acres and 1 hectare is 10,000 sq mtrs. 3. The Lessor is the prime developer of the area under PCNTDA which falls within the jurisdiction of the PCMC whose DC rules apply to all developments therein. Accordingly, the amenity spaces at 15% have to be carved out besides other requirements. This is done by the Les .....

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up area has been brought by Finance Act, 2004 w.e.f. 01.04.2005. 2. For the plans sanctioned prior to 01.04.2005, built up area has to seen as understood as by the sanctioning authority as held in DS Kulkarni Developers Ltd (Page 38 of Case Law Compilation) and GK Builders (Page 79 of Case Law Compilation). As per the plans in the present case, the built .up area of Row House No. 1 is 138.61 Sq. Mts. 3. The amended definition does not apply to plans approved to 1.4.2005 as held by Supreme Court .....

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er dated 05/12/2014). In continuation to the above and in response to the detailed submission made by the AR of the assessee before the Hon'ble Court on 02/12/2015 to make his point that 1 Acre should be taken as 4000 Sq.meters instead of 4046.9 Sq.mtrs and accordingly the assessee is eligible for deduction u/s 80IB of the Income tax act 1961, following submission may be taken on record. In support of his claim the AR mainly relied upon following documents/ submission which is dealt with as .....

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ion of List of Land attributes / Fields for facilitating creation, of Data Warehouse and Data Mining at State and National Level. 2.Extraction of meaningful information through land records databases as available in different States. 3.Interoperability of the land records data with other national level databases like census/Below Poverty Line (BPL) and Agriculture Census. 4.Formation of a National Level Data Repository with uniformity across the States. " As can be seen from the above that .....

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nits in practice in land records in various states. The AR has simply relied on that conversion factor which suits the assessee and disregarded the conversion factor of 1 acre=4046.94 Sq.mtrs as applicable in the state of Jharkhand and as mentioned at line no.4 of page no. 52 of this report. Such partial and out of context reliance on the report cannot be and should not be accepted by the Hon'ble Court. c) Though the report mention about various area units in practice and land record of vari .....

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quot;acre" instead of Sq.mtrs in section 80IB. This argument is devoid of any merits for the following reasons: a) In this regard it is relevant to mention here that the object of this The Standards of Weights and Measures Act, 1976 is very clear i.e. 'to establish standards of weights and measures, to regulate trade or commerce in weights, measures and other goods which are sold or distributed by weight, measure or number, to provide for matters connected therewith or incidental theret .....

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of interpretation, the word "acre" used in section 80lB has to be derived meaning from the external aids of interpretation and the discussion in para 3 below wherein various sources have been relied upon has made it crystal clear that 1 acre = 4046.856 Sq.mtrs and there is no scope of ambiguity. Hence on this count also the argument of the assessee needs to be squarely rejected. 3. Layout plan of the land under consideration: In the layout plan submitted by the AR at page no.33 of the .....

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the paper book dated 14/08/2014) executed on 02/03/1991 between PCNTD and Shri RC Patel the area of plot under consideration is mentioned as 4000 Sq.mtrs. Even in the development agreement executed by the assessee on 16/07/1997 (page 37-59 of the paper book dated 14/08/2014) the area of plot under consideration is mentioned as 4000 Sq.mtrs. These documents show that since beginning the size of the plot was mentioned as 4000 Sq.mtrs in all the legal documents. It nowhere says or indicate that 1 a .....

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MBAY HIGH COURT, 1 acre has been taken as 4067.23 Sq.metres. The document down loaded from the website of the BOMBAY HIGH COURT is enclosed as annexure -I (page 1-3). e) As per landsofmaharashtra.com, the international acre as defined in 1958 is exactly 4,046.8564224Sq.mtrs. The copy of printout taken from the website is enclosed as an annexure-II (page4-5). f) Even as per Wikipedia 1 acre = 4046.856 Sq.mtrs. The print out of the definition taken from the Wikipedia is enclosed as an annexure- II .....

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plan submitted by the AR in the court on 02/12/2015 the gross area of plot is mentioned as 4000 sq.mtrs and after deduction for amenities, etc. the net area of plot is taken as 202.261sq.mtrs j) Even the case laws relied upon by the assessee on this issue has already been distinguished in the order of the CIT (A) and therefore, these case laws are of no help to the assessee. Under this scenario i.e. the report of the valuation officer, registered legal document in the form of lease agreement and .....

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d by way of letter dated 03/09/2014 of the approving authority i.e. PCNTDA. In such circumstances i.e. when there is no ambiguity in understanding the meaning of a word and sufficient facts and documentary evidences are available in public domain as well as in the records of the department which has made the case crystal clear, it would be totally unjustified to interpret a word simply on the basis of something written on a piece of document or to add meaning to a simple word like acre which has .....

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ease Deed talks of plot admeasuring 4000 sq. mtrs. The Assessing Officer was directed to furnish remand report after examination of the aforesaid plea and he was also free to carry out such enquiries as he may deem fit and the requisite report was to be furnished through the learned Departmental Representative for the Revenue. In reply, the Assessing Officer obtained a measuremen t report from PCNTDA along with the layout plan of the land in which it was intimated that the land available with th .....

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to 4000 .0 sq. mtrs. Vide the said letter, it was also intimated that the units of measurement used by PCNTDA were in sq. mtrs., but in the demarcated area in the plan, bulk land was written as one acre, two acres and three acres. Further, reference was made to the letter of PCNTDA dated 03.09.2014, under which, they have replied that they have used the land measurements in sq. mtrs. Another communication was sent to PCNTDA to enquire what is the area acre equivalent of sq. mtrs. valued by PCNT .....

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hereinabove establish that the plot, which was leased out by PCNTDA as per the agreement was admeasuring 4000 sq. mtrs. However, in the layout plan annexed to the lease deed, there is mention in Devnagari of one acre and hence, the submissions of the assessee before us that one acre should be understood as equivalent to 4000 sq. mtrs. 18. In view of the above said facts and circumstances, the issue raised before us for adjudication is the measurement of one acre, which is the unit measurement s .....

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e for Computerization of Land Records with special reference to para 2.7 at pages 50 to 52 of the Paper Book. The perusal of the Technical Report reflects that National Informatics Centre, Department of Information Technology, Ministry of Communications & Information Technology , under Land Records Information System Division had compiled the said data for the purpose of computerization of land records. The perusal of the same in para 1.3 reflects that the report was formulated to gather inf .....

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lent. Further, the said table points out that one acre is equal to 40 Guntas and one Gunta is equal to 100 sq. mtrs. and in some areas, one acre is equal to 121 sq. yds. In the said list itself, one acre is shown to be equal to 4046.94 sq. mtrs. in the State of Jharkhand. The list also provides that 100 sq. mtrs. is equal to 1 Are and one Hectare is equal to 100M x 100M = 10000 sq. mtrs. The perusal of the report reflects that though various area units which are prevalent in different States are .....

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equivalent sq. mtrs. prevalent in the State of Maharashtra, the land measurement units are provided as under:- 12 inches = 1 foot 3 feet = 1 yard 9 square feet = 1 square yard 121 square yard = 1 Guntha 40 Guntas = 1 acre 21. Further, it is provided that one acre is equal to 1 furlong x 1 chain or 660 ft x 66 ft or 43560 sq. ft. or 4840 square yards or 4046.8564224 square meters. It is also provided that one hectare is equal to 10,000 square meters and / or to 2.47 acres. Further, in the said li .....

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is equal to 43560 square feet, 4840 square yards or 160 square rods. The precise meaning of this depends on the exact definition adopted for a foot: the international acre is 4046.8564224 sq. mtrs. For measurements based specifically on the US survey foot the US survey acre is ca.4046.872610 sq. mtrs. 23. Hence, as per convertunits.com, one acre in US survey is 4046.872610 sq. mtrs. The international acre is thus same as the acre recognized by India. 24. The learned Authorized Representative fo .....

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nd no merit in the contention raised by the assessee in view of the definition for one acre available under various sources in public domain, etc. Even the Lease Deed executed by PCNTDA to the Lessee talks of area of plot as 4000 sq. mtrs. The information was received from PCNTDA, which confirmed that as a unit of measurement, the land was measured in square meters and not in acres. The PCNTDA also confirmed that the area of 4000 sq. mtrs. i.e. 2500 + 1500 P.C. was allotted to the Lessee with wh .....

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g one acre, certain portion of the land was left for amenities. Admittedly, in the facts of the assessee as confirmed by the learned Authorized Representative for the assessee also, no land was left for amenities, meaning thereby the same did not conform to measurement of one acre. 25. Another aspect to be taken note in the present case is that 7/12 extract also talks of unit of measurement as Gunta in the State of Maharashtra. The learned Authorized Representative for the assessee had admitted .....

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tances and information available in public domain and the unit measurement prevalent in the State of Maharashtra i.e. Guntas, we hold that the unit measurement of one acre is equal to 4046.8726 sq. mtrs. Even the information on Wikipedia in Marathi shows one acre is equal to 4046.8726 sq. mtrs. In the totality of the above said facts and circumstances, we find no merit in the claim of assessee in this regard that one acre is equal to 4000 sq. mtrs. 27. Now, coming to the claim of the assessee th .....

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