9911796707
TMI Blog2015 (2) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; "1. Whether on the facts and circumstances of the case, the Tribunal was right in holding that as the provision is violated only on the 7th floor of the building, proportionate deduction under Section 80-IB(10) is to be allowed? 2. Whether on the facts and circumstances of the case, the Tribunal was right in granting partial exemption where one of the conditions of granting exemption is that the residential units should be less than 1500 sq.ft.?" 2. In the course of the hearing before this Court, learned Standing Counsel appearing for the Revenue sought permission to reframe the questions of law, since the questions admitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; "It is obvious that the ground floor has been exclusively constructed to accommodate the cars. The car park is allotted to the buyer of flat with a clear demarcation of the location and a specification of dimension. The value of the car park is fixed for each flat and is paid for. The right to car parks has been conveyed through proper deeds. The use of car park is for the exclusive purposes of the buyer of flat. The car park is not meant for others use. The car prk is covered on the top and on one or two of its sides. For these reasons the car parks of this project are taken as built up area. Since builtup area of half of the flats have exceeded the stipulated extent of 1500 sq.ft., the assessee looses his eligibility to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls). Aggrieved by the same, the Revenue is before this Court. 6. As far as the first substantial question of law is concerned, both the learned Standing Counsel appearing for the Revenue and the learned counsel appearing for the assessee submitted that first question of law is covered by a decision of this Court dated 02.11.2012 in T.C.(A)Nos.137 and 138 of 2009, wherein, the Division Bench of this Court following the earlier decision of this Court dated 19.10.2012 in T.C.Nos.581 and 1186 of 2008 and 136 of 2009 held that for the purpose of claiming deduction, it is not necessary that the assessee, who is engaged in the business of developing and construction of housing project, should be the owner of the land. 7. Accordingly, following t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea' for the assessment year in question, the Commissioner of Income Tax (Appeals) relied on the definition for the term 'common area and facilities' defined in the Tamil Nadu Apartment Ownership Act, 1994. The said Act was notified in the Tamil Nadu Government Gazette (Extraordinary) dated 24th April, 1995. He further submitted that even though Section 80IB(14)(a) of the Income Tax Act defining the term 'built-up area' is not available for the assessment year in question, when at the time of deciding the issue the definition is available, the Tribunal is justified in relying on the definition of the term 'built-up area' provided under Section 80IB(14)(a) of the Income Tax Act. 10. Heard learned Standing Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the housing project is approved by the local authority. Explanation.-For the purposes of this clause, (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) relied upon the provisions of the Tamil Nadu Apartment Ownership Act, 1994 , wherein Section 3(h) defines the term 'common areas and facilities' in which clause 3 states that the basements, cellars, yards, gardens, parking areas and storage spaces are common areas. Hence, following the said provision, the Commissioner of Income Tax (Appeals) allowed deduction. 13. In the absence of any specific definition for the term 'built-up area' during the relevant period, the reasoning of the Commissioner of Income Tax (Appeals), which was confirmed by the Tribunal is justified. Nevertheless, we find that Section 80IB(10) of the Income Tax Act speaks about the residential unit having a maximum built-up area of 1500 sq.ft. to claim d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
