TaxTMI 
TaxTMI 
2019 (2) TMI 1411
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....at assessee not disputed qualification of DVO 1.2 On the facts and circumstances of case and in law, the Ld. CIT(A) erred in disallowing deduction u/s 80IB(10) on 24 flats of B wing of phase XV of Golden Nest Project on ground that as per Valuation Officer these flats had vilated the condition of area less than 12000 sq.ft. without considering the facts these flats are less than 1000 sq.ft. and eligible or deduction u/s 80IB(10). 1.3 On the facts and circumstances of case and in law, Ld. CIT(A) erred in ignoring the other valuer Mr. Nittn Lele obtain by the Department where it is clearly certified that area of flat is below 1000 sq. ft. and assessee is eligible for claiming deduction u/s80IB(10). 1.4 On the facts and circumstances of case arid in law, Ld. CIT(A}failed to consider that in flat no. B-904 the Valuation Officer had added the area which is Open to Sky (i.e. not a balcony) and not approachable from the flat hence, cannot be part of the built-up area. The similar area is not taken into part of builtup area by the same DVO in Flat No. B-303. Thus, the built-up area of all the flats are less than 1000 sq,ft arid assesses is eligible for deduction ....
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.... Rs. 40,41,60,131/- made u/s 80IB(10) of the Act by observing that the assessee has violated the conditions prescribed in that section by constructing some flats exceeding the prescribed area. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who restricted the disallowance prorata basis on the 24 flats only. Still aggrieved, the assessee has filed the present appeal before us. ISSUE NOs. 1 to 4:- 5. All the issues are in connection with the disallowance of claim of the assessee u/s 80IB(10) of the Act. Initially for the measurement of flats, Mr. Nitin M. Lele was appointed by the AO who reported that the area of the flats are less than 1000/- sq.ft. The AO, however, again directed the Valuation Officer to measure the flats, who reported that the area of twenty four (3 BHK flats) situated at 'B' Wing of appellant project 'Golden Nest Phase XV" was above 1000 sq.ft.. Therefore, on relying upon the report of DVO, the claim of assessee was declined by AO and the finding of the AO was partially confirmed by CIT(A). At the time of argument before us, the assessee contended that the area of the flat in question is less than the 1000 sq.ft., therefore, the assessee i....
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....annot form part of constructed area of flat for the purpose of Determining the eligibility of the assessee to deduction u/s 80(IB)(10) of the Act. Coming to the Revenue's appeals, department has challenged the orders of the ld.CIT(A) in directing the AO to exclude the service area, window area, window projection, cupboard projection from the definition of built up area for calculating the deduction u/s 80IB(10) of the Act and the eligible area of 1000 sq. ft. The ld. CIT(A) excluded the said services area, cupboard projection and window projection by observing as under: c Cupboard projections; The next objection is about inclusion of cupboard area. It is gathered that cupboards are normally carved out of wall area only. In some cases, cupboards may be projected a few inches outside the walls. Considering the facts of the case, I am of the view that as cupboard area is already included in the wail area itself, so addition on this account may not be warranted in built-up are, in some cases, when it is projected in other room, it would have already included In the area of other room, Therefore, separate addition L this regard may not be warranted. If therefo....
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.... it on their own accord. Moreover, there is no evidence to suggest that the assessee has sold these areas to respective buyers or otherwise, buyer own such areas. Therefore, the observation of the AO that such area was under exclusive possession of flat owners, remains unsubstantiated, as in my opinon, the flat owners may be using the area, but largely the area is meant for common facilities for all the flats and acts as duct for various kinds of facilities for all the floors. In any case, it does not alter the material position. Considering the overall facts of the case, I am of the opinion that this area. Should not form part of the BUA as it is in the nature of common area meant for all the flat owners from top floor to ground floor, and purpose of this area is to provide a platform for repair, and replacement of the service pipes, including soil pipe, waste water pipes, water mains, etc. Similar opinion has been given by the other experts. Accordingly, considering overall facts of the case, I direct the AO to exclude this area from the BUA. e) Window Projections: It is gathered that the Valuation Officer, in respect of some of the fists, has added cer....
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....ue has raised the following grounds.: - "On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 8,09,32,500/- made on the account of sale of parking spaces. 2. On the facts and circumstances of the case in law, the Ld. CIT(A) while deleting the addition of Rs,8,09,32,500/- failed to appreciate the fact that in the assessment order it has been held that some documents seized during the search notable the hard disc shows that several parking are not mentioned in the agreement to sale. 3. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal." 11. The facts of the present case are quite similar to the facts of the case as narrated above while deciding in ITA. No.6277/M/2017 narrated above, therefore, there is no need to repeat the same. But in the instant case, the AO made adhoc addition of Rs. 8,09,00,000/- on assumption that the appellant had sold 305 Car Parking @ Rs. 3,50,000/- per car parking. The CIT(A) has allowed the claim of the assessee on the basis of evidences produced before him. It is necessary to advert the finding of the CIT(A) on record.: - ....
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....y accounted by the appellant. The difference between Rs. 10,67,50,000 and Rs. 2,47,50,000/- was treated by the AO as undisclosed receipts of the appellant from sale of parking space, 99% of this difference was added to this year's income. 9 it is apparent that the entire addition made by the AO is based on his surmises and conjectures. The relevant seized material does not show that the appellant had sold 305 parking slots or that each parking was sold @ 3,50,000/- There is nothing in the appellant's submissions or in the seized material that the sale of parking happened in this asst year. There is absolutely no evidence that anybody had paid cash to the appellant against purchase of parking or the flat, 9.7 The seized chart shows that an amount of Rs. 2.50 cr on sale of parking was duly included in the sale price of the flats. The AO has also accepted this. There is no visible cause why the AO did not accept the rest of the contents of the same seized material! which shows that total parking slots sold independent of the flat sales were about 126 slots against which the appellant had actually received an amount of Rs. 50.36 lacs till the date and balance ....