TaxTMI 
TaxTMI 
2025 (6) TMI 241
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.... Year 2008-09, dated 22.03.2012 (for short, 'the impugned order'); I.T.T.A.No.229 of 2016 is filed by the appellant under Section 260-A of the Income Tax Act, 1961 assailing the order passed by the Income Tax Appellate Tribunal, Hyderabad "A" Bench in I.T.A. No. 1565/Hyd/2013 for the Assessment Year 2009-10, dated 29.01.2016 (for short, 'the impugned order'); and I.T.T.A. No. 230 of 2016 is filed by the appellant under Section 260-A of the Income Tax Act, 1961 assailing the order passed by the Income Tax Appellate Tribunal, Hyderabad "A" Bench in I.T.A. No. 1566/Hyd/2013 for the Assessment Year 2009-10, dated 29.01.2016 (for short, 'the impugned order'). 3. Heard Mr. S. Ravi, learned Senior Counsel appearing on behalf of Mr. C.H. Pushyam Kiran, learned counsel for the appellant, in all the appeals; and Mr. J.V. Prasad, learned Senior Standing Counsel for the Income Tax Department, for the sole respondent, in all the appeals. 4. For convenience, the facts in I.T.T.A.No.229 of 2016 are discussed hereunder. 5. The appellant herein is a real estate developer, (for short, 'the assessee'). The assessee is engaged in the business of construction of residential units / bungalows w....
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..... For proper understanding of the issue involved, it is also necessary to refer to the definition of the "width of area" as is envisaged in Clause (14) (a) of Section 80-IB of the Act, which for ready reference is being reproduced as under, viz., : "(14) For the purposes of this section -- (a) "built-up area" means the inner measurements of the residential unit at the floor level including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units." 11. A plain reading of above Clause (14) (a) of Section 80-IB would clearly indicate that the built-up area would include the entire inner measurement of a residential unit on the floor level added by thickness of a wall and includes projections and balconies. However, common areas shared with other residential units are excluded from the same. This, in other words, would mean that to be a part of built-up area, the same must be part of the inner measurements of a residential unit and it would exclude the open terrace space and would also exclude a balcony which is shared by more than one residential owner. The area of dispute i....
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.... Commissioner of Income Tax vs. Amaltas Associates 2016 SCC Onlilne Guj 4685 wherein the Division Bench at paragraph Nos.3 and 8 had discussed the term "built-up" area in its proper perspective, as has been discussed in the preceding paragraph. For ready reference, paragraph Nos.3 and 8 of the said decision are extracted hereunder, viz., "3. The Tribunal, allowed the assessee's appeal by the impugned judgment and held that the assessee was a developer. The assessee had undertaken full responsibility of constructing the residential units and had also been responsible for the resultant profit or loss arising out of such venture. The assessee thus, had undertaken full risk. Regarding the Revenue's contention regarding excess built-up area, the Tribunal held that the open space attached to a penthouse, cannot be included in the term "balcony". The Tribunal was of the view that the case of the present assessee was same as the cases of Radhe Developers and Shakti Corporation, two sets of appeals, where the Tribunal had allowed the deduction under Section 80-IB (10) of the Act. ... ... ... 8. Section 80-IB (14) of the Act contains definitions for the purpose of ....
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....also by the Appellate authority and the Tribunal, the factual matrix of the case does not seem to have been discussed as to whether the area which the assessee intends to get excluded from the built-up area is one which can be brought within the purview of an inner measurement of a residential unit or not. Admittedly, in the case of the assessee, if it is only a projection or a balcony there can be no doubt that under the definition of "built-up" area, projections and balconies are also included and by no stretch of imagination those can be excluded from computation of built-up area. 14. Nonetheless, from the drawing of the construction which is available along with the Assessment Order which is marked as Annexure-I, the portion which is being sought to be excluded is an open terrace and a portico. Both "open terrace" and an "open portico" has nowhere been mentioned to be a part of the built-up area. In the said circumstances, relying upon the decision of the High Court of Gujarat in the case of Amaltas Associates (1 supra), a balcony certainly would not be excluded treating it as "open terrace". So also, an open terrace can never be termed to be a balcony or a projection. Likew....