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TMI Blog2010 (4) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... t As this approach of the AO, who is a judicial officer is not justified, because before making addition or rejecting a genuine claim of the assessee, it is the bounden duty of the AO to deal with the objections of the assessee. We are further unable to understand why the AO did not do the reverification exercise to find out the correct measurement. As per DR the sale consideration is different with reference to different flats and, therefore, there must be different sizes. In our opinion, this fact rather supports the claim of the assessee, because this again goes to show that sample taken by the Department is not the representative one. Thus, on the basis of above facts itself, the action of the AO is not correct in law. Having stated so, now we shall deal with other aspects. On the aspect of nature of provisions of s. 80-IB(14)(a), we find that it is a settled proposition of law that when a particular term is defined by an amendment, which results into increase/levy of civil liability, the same has to be considered as the substantive one, hence prospective. - we reject the contention of the Revenue that the provisions of s. 80-IB(14)(a) are of retrospective n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... developing and construction of housing projects and claimed deduction under s. 80-IB(10) amounting to ₹ 1,52,67,762. The AO found that in the year under consideration, the assessee developed and sold housing projects comprising of row houses and flats in Green City at E-8, Arera Colony, Bhopal. The AO in order to ascertain actual built-up area of each house of the project conducted a physical verification on the site on 8th Dec., 2006 and on taking measurement of three flats, the built-up area of such flats was found to be more than 1,500 sq. ft. The details of such flats are as under : The AO, accordingly, gave the copies of the measurement so taken for the comments of the assessee and was also required to explain as to why the deduction under s. 80-IB(10) should (sic- not) have been disallowed. The assessee vide its letter dt. 26th Dec., 2006 has submitted that measurements were not correctly taken and also submitted the areas as per the report of a technical expert, was within the prescribed limit of 1,500 sq. ft. The AO, however, rejected such claim of the assessee and such report for the reason that the measurements were done by the Department in the presence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked the measurement and its calculation. It was also contended that the owner of such house had also accepted that 400 sq. ft. of additional portion was constructed subsequently by the owner. The assessee also submitted that the provisions of cl. (a) of sub-s. (14) of s. 80-IB were of prospective nature and the correct method to calculate the built-up area had to be in accordance with M.P. Bhoomi Vikas Rules, 1984, which was applicable in the State of Madhya Pradesh where such housing project had been constructed. The assessee also referred to the methodology of measurement as per these rules to compute the built-up area, which was also adopted by the approved Valuation Officer and on that basis, it was found that such built-up area was less than 1,500 sq. ft. The assessee also submitted that the measurement was done by the Department through unqualified persons in spite of the fact that services of technical personnel to carry out such jobs were also available with the Department and this approach of the Department indicated that it was a predetermined action to disallow the eligible claim of the assessee. The learned CIT(A) after considering all the documents as well as legal pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.P. Bhoomi Vikas Rules were not relevant and consequently methodology of such rules could also not be applied in computing the built-up area of each flat. The learned CIT-Departmental Representative further contended that it was a case of row housing and not a case of tower/multi-storeyed flats, hence, no question of common parking areas or common facilities, which could be excluded in computing built-up area. The learned CIT-Departmental Representative further contended that assessee s engineer s subsequent report was not to be accepted without confronting the same to the AO or verification of the same by the technical persons, hence, in view of the fact that no such exercise was done by the CIT(A), the same could not be given any weightage. The learned CIT-Departmental Representative further contended that the learned CIT(A) also did not verify the approved map/registration documents to find out the correct facts. Hence, the order of learned CIT(A) was not correct. Thereafter, the learned CIT(A) referred to pp. 123 and 124 to draw our attention towards the amount of consideration, which was not same, hence, the units could not be of same size. The learned CIT-Departmental Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . vs. ITO 1976 CTR (SC) 192 : (1976) 103 ITR 123 (SC). Thereafter, the learned counsel submitted that the AO had worked out the built-up area as per such definition by including mumty, staircase, balcony, arch, projection and terrace and if that was excluded then the area was less than the specified limits. The learned counsel further submitted that in the year under consideration i.e., in asst. yr. 2004-05, there was no definition of built-up area in the Act. Hence, either commonsense meaning or other legislations dealing with the same subject were to be resorted to find out the meaning of built-up area. The learned counsel thereafter submitted that this housing project as per the Act had been approved as a housing project by a local authority. Hence, definition of built-up area had also to be taken as given by the local authorities. In this regard, he again relied on the decision of the Tribunal in the case of AIR Developers (supra). The learned counsel thereafter referred to the M.P. Bhoomi Vikas Adhiniyam read with Bhopal Master Plan to show that the items added by the AO were not to be added and, thus, the calculation done by the technical expert appointed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject of State Government rules/by-laws were different from the object of provisions of s. 80-IB(10), hence, said rules could not be conclusive. He further contended that once the measurement taken by the Department had been signed by the project manager of the assessee, as evident from the assessment record, hence, there was no necessity for the AO to consider the report of the technical expert submitted subsequently, as the matter had to be given finality. He further contended that in the case of AIR Developers (supra) only a few flats were found to be of more than 1,500 sq. ft. Hence, whereas in the present case, all the flats measured on sample basis were found to have a built-up area of more than 1,500 sq. ft. Hence, this decision was not of any help to the assessee. We have considered the submissions made by both the sides, material on record and the orders of the authorities below. It is noted that the assessee is engaged in the construction of houses. The impugned houses have been constructed in three phases having different dimensions and designs. The AO has, however, taken the measurement physically only of one category of houses and that too has been carried out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial decisions cited by the assessee also support this view. Accordingly, we reject the contention of the Revenue that the provisions of s. 80-IB(14)(a) are of retrospective nature. This view leads us to another question i.e., in the absence of any specific term in the Act how that term should be interpreted. In this regard, it is also a settled principle that some commonsense approach or dictionary meaning if the term is of general nature should be found out or if the term is of technical nature, then the definition of such term used in other laws should be taken into consideration. Accordingly, we hold that the meaning of term built-up area prior to insertion of definition clause in the Act has to be found out as per the local law i.e., rules and regulations of Bhopal Municipal Corporation as well as from M.P. Bhoomi Vikas Rules and as a consequence thereof, the built-up area of such flats is undisputedly less than the specified limit. Hence, the assessee, in our opinion, is eligible for deduction under s. 80-IB(10). In this view of the matter, there remains no question for any pro rata deduction. However, we consider it pertinent to state that it is beneficial provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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