TaxTMI 
TaxTMI 
2012 (10) TMI 858
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.... rejected the contention of the assessee for proportionate deduction. The same has been opposed before us. The assessee has also raised additional ground which reads as under: 1. The appellant submits that the learned A.O. erred in disallowing the deduction u/s.80IB(10) on the ground that the project Dwarakadheesh Residency constructed by the assessee included commercial area and since the project was started prior to 01.04.2005, the assessee is not entitled to claim the deduction. 2. The learned A.O. failed to appreciate that the housing project of the assessee was started in F.Y. 2003-04 and therefore, there was no restriction on the commercial area includible in the housing project and hence, there was no reason to deny the deduction u/s.80IB(10). 3. The facts of the case before us are that A.O. has rejected the claim of deduction u/s.80IB(10) on the point that built up area of row house No.36 consisted of total built up area of 1587 sq.ft. which exceeded maximum prescribed limit, i.e., 1500 sq. ft. for allowing deduction u/s.80IB(10). He further held that the entire project is not eligible for deduction u/s.80IB(10). In this regard, the Ld. Authorised Representative su....
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....race in the built up area comes up only w.e.f. 1-4-2005, because the definition is introduced in the section with effect from that date. For the period prior to 1-4-2005 no such definition was on the statute and hence the built up area has to be considered as per the DC rules of the sanctioning authority. In this regard, it was submitted that the DC rules do not include terrace in the built up area, the definition of built up area and that the area covered immediately plinth level of the building or the external area of any upper floor whichever is more is the built up area. As the terrace is open to sky, it is not includible in the built up area and that is why it is excluded by the assessee's Architect from the built up area. The view that the amended definition of built up area that the terrace is included w.e.f. 1-4-2005 is not applicable for the earlier years as held by the ITAT Pune Bench in the case of Tushar Developers in ITA No. 165/PN/2007 and 94/PN/2007 for A.Y. 2003-04 and 2004-05 dated 31-5-2011, wherein it has been held as under: "So far as the issue of application of definition of 'Built up area' as brought on the Statute by Finance Act (2004) vide sub-section 14 ....
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....n to para 13 at page 19 wherein Tribunal has observed as under: 13. In view of above it is undisputed that the project had started prior to 1-4-2005 the definition of built up area as given in section 80IB(14) is not applicable and the built up area as per the DC rules of PMC was less than 1500 sq.ft. The Assessing Officer has included the area covered by the terrace in the built up area. The terrace is not includible in the built up area computed as per DC rules. Accordingly, the built up area of the flat is less than 1500 sq.ft. and therefore, the CIT(A) was justified in allowing the deduction as claimed by the assessee. 4.2. In this regard, it was submitted that the issue was covered and is to be decided as it is covered by Brahma Builders (supra). On other hand, the Ld. Departmental Representative supported the orders of the authorities below and submitted that amended provisions are not applicable for the A.Y. 2005-06 which is under consideration. 5. After going through the above submissions and material on record, we are not inclined to concur with the finding of the CIT(A). The deduction under question has been rejected by the A.O. and confirmed by the CIT(A) on the....
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....it has been observed as under: "6. I have given careful consideration to the contents of the assessment order, the Statement of Facts submitted by the appellant, and the detailed written and oral submissions made by the learned AR of the appellant. The same ground of appeal had been raised by the appellant in their appeal for A.Y. 2005-06. Further, the relevant facts as well as the submissions made on behalf of the appellant were along the same lines for that year too. In my appellate order for that year, I have discussed the factual position obtaining in the appellant's case, as well as the legal requirements for claiming deduction under the said provision in considerable detail before confirming the disallowance of deduction under section 80IB(10). I do not consider it necessary to reproduce everything that has been said in that appellate order, but rely upon my decision in that order to confirm the disallowance of deduction under section 80IB(10) to the appellant for the A.Y. in question under this appeal too." 9. The A.O. as well as the CIT(A) has rejected the claim of the assessee on the point of commercial issue. It is strange to note that the A.O. as well as the CIT(A)....