TaxTMI 
TaxTMI 
2014 (4) TMI 122
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.... the Income Tax Act on 21.11.2008 on the returned income of Rs.53,620/-. Thereafter, CIT invoked its jurisdiction under Section 263 and set aside the order passed under Section 143(3) vide order dated 30.3.2011 with a direction to the AO to examine the relevant facts in connection with the claim of deduction of the assessee under Section 80-IB(10) of the Income Tax Act. The AO proceeded to examine the claim of deduction of the appellant under Section 80-IB(10) amounting to Rs.1,71,24,680/-. The AO ultimately came to the conclusion that the appellant was granted permission on 07.07.2003 by the Margao Municipal Council for construction of row villas with built-up area of 1500 square feet comprising of ground floor and first floor and the compound wall in the property bearing Chalta Nos. 34 and 35 of P. T. Sheet No. 77 situated at Fatorda,Margao. The AO noted that the appellant did not fulfill the conditions specified under Section 80-IB(10) of the said Act essentially on the ground that only flats/apartments constructed on the land will have common areas sharing with other residential units and as such since the construction of villas/bungalows/row houses are independent and do not s....
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....built therein to be included as 'built-up area' would not arise at all. The learned counsel further pointed out that in case the rear courtyard area is excluded the residential unit would not exceed 1500 square feet and as such the judgment of the learned Income Tax Appellate Tribunal deserves to be quashed and set aside as the appellant is eligible for deduction under Section 80- IB(10) of the said Act. The learned counsel has thereafter taken us through the judgment of the Income Tax Appellate Tribunal and pointed out that the issue with regard to the area of the residential unit was not at all disputed by the respondent and in any event, the approach of the learned Tribunal is erroneous in terms of the provisions of the Income Tax Act. The learned counsel has thereafter taken us through the relevant provisions of the Income Tax Act and pointed out that the impugned judgment of the learned Income Tax Appellate Tribunal deserves to be quashed and set aside. 5. On the other hand, learned counsel appearing for the respondent has supported the impugned judgment. The learned counsel has pointed out that the dispute with regard to the area of the residential unit is a question....
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....to note that the said definition of the words 'built-up area' was inserted by the Finance Act of 2004 w.e.f. 01.04.2005 much before the plans were approved in the present case. 9. On going through the said provisions, in order to avail of the deduction the built-up area of the residential unit cannot exceed 1500 square feet. Having regard to the rival contentions the only aspect to be examined is whether the area of the rear courtyard which is open to the sky and appurtenant to the residential unit is to be included to compute the built-up area as provided under Section 80-IB(10) of the said Act. In order to examine the situation at loco we called upon the appellant and the respondent to produce the photographs with regard to such courtyard area and we have noted that such area is an open piece of land though enclosed by a compound wall but without any masonary construction therein. It is also contended by the appellant that such area has not been transferred in favour of the owner of the residential unit. In fact, a copy of the agreement was even produced before the learned Tribunal to show that the built-up area mentioned in the agreement in respect of each villa is 134.....
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....ections which made these residential units bigger than 1,500 square feet and thus, had the benefit of this prevision on the one hand. Whereas the object, with which this provision was made in reality was defeated as probably such residential units would be beyond the reach of the common man. 9. In respect of approvals obtained prior to 01.04.2005, if such section 14(a) of Section 80-IB is held to be applicable, then, the assessee has to necessarily seek for a modified plan. Otherwise, if he proceeds with the construction without obtaining the sanction of the modified plan, he would not be eligible for benefit of tax exemption under Section 80-IB(10). Similarly, if a valid approval is obtained and the building is constructed in all respects prior to 01.04.2005 and if the said substituted provision is held to be applicable retrospectively, the assessee would not be entitled to the benefit of tax exemption, if he effects sales subsequent to 01.04.2005. Such an interpretation not only would be absurd but have disastrous consequences so far as the assessee is concerned. Therefore, it cannot be said that, that was the intention of the legislature while bringing in the substitution. So w....
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....on and essentially forming part of the building/buildings and which includes all area computed under covered area/floor area as well as all area specifically exempted under covered area/floor area calculations". 12. The building bye laws of the Municipal Council of Mapusa Goa also has definition of the words 'built up area' at clause 2(11) which reads thus : "'built up area' means and includes an area which is built up on whether below or above ground level and shall include main structure with cellars, out-houses, servant quarters, privies, bath rooms, ramps or stairways leading to cellars or upper floor, water purification plants, humidification ducts, smoke chimneys, reservoirs, swimming pools, but shall not include any area covered by balconies not projecting more than 1.2 metre, steps, septic tanks, soak pits manholes, fountains, constructed below the level of ground, swing frames, compound walls and gates". Though, the said definitions are for the purpose of respective statutory Regulations nevertheless, the same have been examined to consider what is the meaning of built up area in terms of such regulations. Considering the above, in order that an area is ....