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TMI Blog2016 (10) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers. Entire sale consideration was received by the assessee from such members. As per the agreement, the assessee had to provide the payment from construction, engage architect, engineer and site supervisor and also obtain necessary permission from AUDA. The Tribunal concluded that these conditions would show that the assessee was a developer and not a contractor. The case of the assessee would in background of such findings of the Tribunal be covered by the judgment of this Court in case of Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT] wherein held assessee as entitled to the benefit u/s 80IB(10) even where the title of the lands had not passed on to the assessees and in some cases, the development permissions may also have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... often used as synonyms to gallery, loggia, veranda, piazza, porch, portico, stoop etc. In the context of residential or even commercial complexes, term 'balcony' has gained a definite common parlance meaning. It usually consists of a projection from a building covered by a parapet or railing and may or may not but usually is covered from the top. This term 'balcony' certainly would not include an open terrace adjoining a bedroom or any other constructed area of a penthouse. The terrace is not a projection. - Decided against revenue - TAX APPEAL NO. 1372 of 2011 - - - Dated:- 4-10-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR NITIN K MEHTA, ADVOCATE FOR THE OPPONENT : RULE UNSERVED ORAL JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 80IB(10) of the Act. 4. The decision of the Tribunal in case of Radhe Developers and Shakti Corporation, came up for consideration before this Court in case of Commissioner of IncomeTax v. Radhe Developers, reported in [2012] 341 ITR 403 (Guj). The Division Bench of this Court confirmed the view of the Tribunal making following observations: 36. We have noted at some length, the relevant terms and conditions of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land owners agreed to give necessary signatures, agreements, and even power of attorney to facilitate the work of the developer. In short, the assessee had undertaken the entire task of development, construction and sale of the housing units to be located on the land belonging to the original land owners. It was also agreed between the parties that the assessee would be entitled to use the the full FSI as per the existing rules and regulations. However, in future, rules be amended and additional FSI be available, the assessee would have the full right to use the same also. The sale proceeds of the units allotted by the assessee in favour of the members enrolled would be appropriated towards the land price. Eventually after paying off the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Petition was dismissed. 6. Learned counsel for the Revenue however, sought to draw two distinctions. He contended that in the present case, the terms of the agreement between the assessee and the society were different and the case of this assessee therefore, would not be governed by the ratio of Radhe Developers (supra). His second contention was that some of the units exceeded the maximum permissible builtup area. In a penthouse, according to the counsel, the open space adjoining the top floor constructed area of the unit would also form part of the builtup area of the unit. 7. Neither of these contentions can be accepted. The Tribunal in the impugned judgment has referred to the terms and conditions between the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent a certain area is not shared but is exclusively assigned for the use of a particular residential unit holder, would not mean that such area would automatically be included in the builtup area. In order to be part of the builtup area, the same must be part of the inner measurements of a residential unit or projection or balcony. The open terrace space on the top floor of a building would not satisfy this description. It will also not be covered in the expression balcony. Term 'balcony' has been explained in Webster's Third International Dictionary (Unabridged) as unroofed platform projecting from the wall of a building, enclosed by a parapet or railing, and usually resting on brackets or consoles. It is often used as synonyms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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