2012 (7) TMI 90

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..... ted On 20.5.2003 occupancy certificate is issued, therefore, the construction is within the 4 years period stipulated. The assessee has sold these apartments to various purchasers who in turn are using it as service apartments for which the assessee cannot be held liable in any way and on that ground he cannot be denied the benefit. Out of 63 flats as it is stated 8 flats exceed the built-up area in excess of 1,500 sq. ft the authorities have taken into consideration the balcony area and the common area whereas prior to 1.4.2005 as law stood then balconies and common areas have to be excluded for the purpose of calculating the built-up area - deleting these two areas admittedly the apartments measure less than 1,500 sq. ft - no gro .....

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..... ription of the land held by the assessee is clearly set out and thereafter a fraction of the share in the said land proportionate is transferred to the purchasers. Therefore, the assessee claimed the benefit of the aforesaid provision. The Assessing Officer denied the said benefit on the ground that the said project was not completed within four years, the construction is put in violation of the sanctioned plan, flats are used as service apartments, the housing project is only in an area of 38 guntas and some of the flats exceed 1,500 sq. ft. On that ground, the Assessing Officer denied the relief to the assessee. 3. Aggrieved by the said order, the assessee preferred an appeal to the Commissioner of Income Tax (Appeals). He confirmed t .....

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..... ng into consideration that the assessee on facts had not complied with the conditions and consequently recorded a perverse finding? 7. From the aforesaid material, it is clear though the assessee owned only 38 guntas of land when he started the construction, he acquired an extent of 1,440 sq. ft. of land adjoining the said land, thus making the total land in which the project was put up, to 44,470 sq.ft. more than 43,480 sq.ft. which is prescribed under the law. The modified housing project was approved in the year 2001 after the aforesaid provision was inserted. On 20.5.2003 occupancy certificate is issued. Therefore, the construction is within the 4 years period stipulated. The assessee has sold these apartments to various purchasers. .....

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