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TMI Blog2019 (8) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was approved 19.07.2003 i.e. prior to the amendment carried out w.e.f. 1/4/2005 and therefore the provisions of sec. 80I8(10) of the Act as on the date of approval would apply and not the amended provision and hence, the disallowance of deduction claimed u/s. 80IB(10) of the Act of Rs. 40,50,078/- is without any justification and liable to be deleted. 02. The learned CIT (A) failed to appreciate that in definition of 'built-up area' of the residential units was inserted w.e.f 1/4/2005 and therefore applied to projects approved on or after 1/4/2005 and since the def inition of 'bui lt- up area' did not apply to the project of the appellant, the same could not be invoked and thus, the built -up area as per D.C. Rules and as understood in common parlance ought to be considered whereby the projections and balconies need to be excluded and once excluded, even the built -up area of combined flats is less than 1000 sq.ft. and hence, the disallowance of deduction u/s 80I8(10) of the Act of Rs. 40,50,078/- applying the definition of built-up area is without any justification and liable to be deleted. 3. The learned CIT(A) failed to appreciate that even if for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2007, and also at its site office at Shreepati Royal Complex, Shantinagar Mira Road (E), District: Thane. During the course of the survey action it was found that the assessee had combined 30 Nos. of 1-BHK Flats into one unit. Apart there from, it was gathered that the flats were either allotted by the assessee to one individual or to two persons of the same family. The survey team measured the area of the combined flats, which revealed, that the area of certain flats which had been combined into one flat/unit exceeded 1000 sq. ft. The aforesaid fact was also admitted by Shri Mahindra Kanungo, partner of the assessee firm, who in his statement recorded during the course of the survey action had in reply to Q.30 admitted that the "built-up area" of 30 Nos. of 1-BHK flats which had been joined together had a "built-up area" exceeding 1000 sq. ft. each. 4. The assessee in the course of the assessment proceedings was confronted by the A.O as regards the discrepancies found in the course of the survey proceedings, which disentitled it from claiming deduction under Sec. 80IB(10). In reply, it was submitted by the assessee that while working out the area the Chajjas/projections could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 for A.Y. 2007-08 and ITA No. 5986/Mum/2011 and ITA No. 5378/Mum/2011 for A.Y. 2008-09, vide its order dated 26.09.2012. As the Tribunal in its aforesaid order had observed that the assessee was not eligible for claim of deduction under Sec. 80IB(10), therefore, the CIT(A) following the said view declined the assesses claim for deduction under Sec.80IB(10) in respect of the flats whose area after being combined exceeded 1000 sq. ft. It was observed by the CIT(A) that as the area of all the flats was in excess of the prescribed limit of 1000 sq. ft., therefore, the A.O had rightly declined the assesses claim for deduction of Rs. 40,50,078/- under Sec. 80IB(10) of the Act. Also, it was observed by the CIT(A) that the appeal filed by the assessee against the aforesaid order of the Tribunal had been admitted by the Hon‟ble High Court of Bombay and was pending adjudication. Accordingly, the CIT(A) following the view taken by the Tribunal dismissed the appeal. 7. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. authorized Representative (for short "A.R‟) for the assessee fairly admitted that the Tribunal while di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the assessee against the aforesaid order of the Tribunal had been admitted by the Hon‟ble High Court of Bombay, vide its order passed in ITA No. 229 of 2013, dated 18.03.2013 and is pending adjudication as on date. 10. We find that it is the claim of the assessee that the Hon'ble Supreme Court vide its order passed in the case of CIT-19, Mumbai Vs. Sarkar Builders (2015) 375 ITR 392 (SC) had inter alia concluded that the definition of "built-up area" envisaged in clause (a) to Sec.80IB(14), as had been made available by the legislature vide the Finance (No.2) Act, 2004 w.e.f 01.04.2005 would be applicable only to those cases where the "housing project" had been approved by the municipal corporation after 01.04.2005. Accordingly, the ld. A.R had tried to impress upon us that as the residential "housing project" in the case of the assessee had been approved on 19.07.2003 i.e much prior to the insertion of the definition of "built-up area" in clause (a) to Sec.80IB(14) as was made available on the statute vide the Finance Act, 2004 w.e.f 01.04.2005, therefore, the same would not be applicable in its case. We have perused the afore stated judgment of the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Sec.80IB(10), the CIT(A) followed the view therein taken and on similar terms concluded that the assessee was not entitled for claim of deduction under Sec.80IB(10) in respect of the flats whose area after being combined had exceeded 1000 sq. ft. At the same time, the CIT(A) observed that the assessee would be eligible for deduction under Sec. 80IB(10) on pro rata basis in respect of the flats having an area not exceeding 1000 sq. ft. On the basis of his aforesaid observations the CIT(A) partly allowed the appeal. 15. The assessee being aggrieved with the order of the CIT(A), wherein disallowance of deduction under Sec. 80IB(10) of Rs. 7,41,585/- was upheld, has carried the matter in appeal before us. The ld. representatives for both the parties submitted that the facts and the issue involved in the present appeal are identical to those which were there before us in the appeal of the assessee for A.Y. 2010- 11 viz. ITA No. 4932/Mum/2014. As the facts and the issue involved in the present appeals remains the same as were there before us in the appeal of the assessee for A.Y. 2009-10 viz. ITA No. 4932/Mum/2014, therefore, our order therein passed shall apply mutatis mutan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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