2017 (5) TMI 75

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.... these appeals, we heard these appeals together and disposing of the same by this common order. 2. The only issue arises for consideration is deduction claimed by the assessee under Section 80-IB(10) of the Income-tax Act, 1961 (in short 'the Act'). 3. Shri Supriyo Pal, the Ld. Departmental Representative, submitted that the assessee is engaged in the business of promoting housing projects. The assessee has constructed nearly 426 residential units. All the residential units in the first floor have private open terrace ranging from 100 to 700 sq.ft. According to the Ld. D.R., the private open terrace is for exclusive use of attached residential units. The access to private open terrace is only from residential units as opening door....

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....her than the person to whom the residential unit was allotted, no one can access that extended area. The door to the private open terrace was attached with the bedroom of the residential unit allotted to the individual, therefore, it cannot be compared as open terrace area, which was not the subject matter for consideration in Mahalakshmi Housing (supra). According to the Ld. D.R., what was constructed by the assessee is a private terrace and not open terrace. Therefore, the judgment of Madras High Court in Malakshmi Housing (supra) may not be applicable. 5. Referring to the judgment of Madras High Court in Ceebros Hotels Pvt. Ltd. (supra), a copy of which is available at page 8 of paper-book, the Ld. D.R. submitted that the question arose....

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.... it cannot be said that the assessee has constructed residential unit exceeding 1500 sq.ft. Moreover, in view of the judgment of Madras High Court in Ceebros Hotels Pvt. Ltd. (supra) and Mahalakshmi Housing (supra), open terrace has to be excluded from built-up area. Therefore, according to the Ld. representative, the CIT(Appeals) has rightly allowed the claim of the assessee. 7. We have considered the rival submissions on either side and perused the relevant material available on record. The question arises for consideration is whether the private terrace attached with residential unit would form part of built-up area for the purpose of computing deduction under Section 80-IB(10)? By placing reliance in the judgment of Madras High Court i....

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....would form part of built-up area as per housing project or it was excluded from the approval granted by local authority. Since the copy of building approval was not available on record, this Tribunal is of the considered opinion that the matter needs to be reconsidered. 10. Moreover, from the order of the Assessing Officer it appears that in each floor there is a projection, which was termed as "private open terrace". The entry to such open terrace is only from inside the residential unit. It is not open to other residents to enter that place. Therefore, it is not a common area like open terrace. In view of the above, this Tribunal is of the considered opinion that the matter needs to be re-examined and bring on record whether the so-calle....