TaxTMI 
TaxTMI 
2022 (7) TMI 1286
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....antive issue of assessee's section 80IB(10) deduction claim involving various aspects. We note that the impugned "lis" has arisen on account of department's "Search" action dated 12.02.2013 in M/s.Namrata, Pristine and Jalah group of cases. There is hardly any dispute that the foregoing search led to initiation of section 153C proceedings against the assessee; which in turn, has given rise to all these cross appeals preferred by both the parties. 3. It further transpires that the assessee's sole substantive issue pressed during the course of hearing seeks to reverse both the lower authorities action denying section 80IB(10) deduction thereby holding that the corresponding residential units had built up "BUA" area exceeding 1500 sq.ft. The CIT(A)'s detailed discussion upholding the Assessing Officer's action to this effect reads as follows: "III.Flat exceeding built-up area of 1500 sq.ft.(including garden area): During the course of assessment proceedings, the AO gathered that flat No.O1-1, O1-2, O2-1 and O2-2 had built up area exceeding 1500 sq.ft, on inclusion of garden area attached to the unit. On the other hand, appellant contended that garden area is requi....
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....for the concerned allottees' exclusive use and ownership and falls within the walls only than any common area not covered u/s 80IB(14)(a) of the Act. 7. We further wish to reiterate here that legislature has not only defined "inner measurements" of the residential unit "at the floor level" in section 80IB(14)(a) but also the same has to be increased by the thickness of the walls." It is in this backdrop that this tribunal's order in Kumar Builders Consortium (supra) has already decided the issue in Revenue's favour. We therefore, adopt judicial consistency to affirm both the lower authorities' action disallowing the assessee's 80IB(10) deduction claim to this effect. 8. Mr.Jain does not press for assessee's legal ground(s) challenging validity of section 153C proceedings in these appeals. Rejected accordingly. The assessee's instant four appeals ITA No's.1679 to 1682/PUN/2016 fail in above terms. 9. This leaves us with Revenue's four cross appeals ITA No.1684 to 1687/PUN/2016 raising identical as many issues. Its first and foremost substantive grievance is that the assessee had allotted more than one flat to one person i.e. Smt. Sandhya Rakesh Sharma and therefore, the sam....
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....n of the housing project is first approved by the local authority i.e. calculated from 31.05.2006 (i.e. date of approval of first building plan), the housing project was liable to be completed by 31.03.2012. Factually speaking, there is no dispute that the construction of the project by the assessee has been completed by 31.03.2011, a position which also stands certified by the Talegaon Dabhade Municipal Council, which has been also relied upon by the CIT(A). In terms of the said material, it is evident that with regard to the development of the housing project undertaken by the assessee, last of the completion certificate is dated 31.03.2011. The claim of the Assessing Officer is that a completion certificate has also been issued by the local authority on 02.09.2011, which is the last certificate. Even if the said certificate is taken into consideration, yet it does not breach the outer limit of 31.03.2012 which is stipulated date in the present case for completion of project, as seen earlier. However, the claim of the assessee and which has been upheld by the CIT(A) is that the said completion certificate pertains to construction on a plot, which was undertaken by the purchaser h....
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....a of terrace open to sky would be excluded from the working of built-up area. Respectfully following the decisions of Madras High Court and ITAT Pune, it is held that above discussed 4 units did not exceed the built-up area and were not in violation of clause (c) of section 801 B( 10) of the Act." 13. Suffice to say, it has come on record that the foregoing judicial precedents have already held that such that a "terrace" in a residential unit does not satisfy the section 80IB(14)(a) basic benchmark of "inner measurement" since open to sky. We, thus, adopt the very reasoning mutatis-mutandis to uphold the CIT(A) action deleting the impugned disallowance qua this "terrace" inclusion issue. This third substantial ground canvassed at the Revenue behest stands declined. 14. The Revenue's fourth substantive grievance is that the CIT(A) has erred on law and facts in treating the assessee's alleged "on money' receipts as eligible for sec 80IB(10) deduction as follows: "37.2 I have considered the assessment order and submission filed by the appellant. Brief facts are that during the course of search entries in respect of on money received over and above recorded transaction w....
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....paras. We make it clear that it has not filed any evidence on record that the impugned 'on-money' pertains to sec 80IB(10)'s eligible units only. Or that the remaining allottees except Smt.Sharma or those having garden area only had paid the entire sum. Faced with this situation, we restore the impugned disallowance on account of the assessee's failure to prove all the foregoing clinching factual aspects. The Revenue succeeds in all of its corresponding substantive grounds to this effect. 16. Learned departmental representative vehemently argued before parting that the CIT(A) has further erred in granting the assessee's proportionate sec 80IB(10) deduction regarding the eligible housing units only. We find no merit in the Revenue's instant last argument as the CIT(A) has discussed the issue as follows: "16.6 Vide alternate ground No.2 the appellant prayed that pro-rata deduction may be allowed in case alleged violations were considered fatal to the admissibility of the claim. During the course of appellate proceedings, appellant submitted that the principle of pro-rata deduction has been accepted by the Apex Court in case of Shri Ostwal Builders Ltd. In the case of Shri....