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TMI Blog2017 (11) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the AO on this issue. the basis for calculation of built up area has been inserted in the Act w.e.f. 01/04/2005 and prior to this the built up area was to be considered as per the general terms of the agreements and certificates issued by the architects. It is undisputed that the project was completed in the year 2001 and at that point of time, the definition of built up area was not in the Act. The assessee had furnished sale deeds before the AO where in the built up area was less than 1000 ft.˛. These sale deeds were not found to be incorrect or fabricated. The sale deeds have been signed both by the buyers as well as by the seller and have been duly witnessed. The assessee has also submitted certificates from the architects regarding the two projects “Kingston” and “Monarch” with respect to the built up area. It is also a fact on record that the assessee has been granted deduction under section 80-IB (10) of the Act for assessment years 2000–01 to 2005–06 and assessment year 2007–08. There has been no change in facts and circumstances in the year under consideration and there being no evidence to the contrary, the rule of consistency requires that the settled po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidential unit having a maximum built up area of 1000 ft. was also not fulfilled. The AO collected drawings of the project from Noida Development Authority and on the basis of such drawings, calculated the built up area. According to the AO, the built up area in respect of Kingston project and Monarch project came to 1292.2 and 1409.2 ft. respectively. During the assessment proceedings, the AO required the assessee to file copies of sale deeds which were filed showing the built up area of less than 1000 ft. but this also did not find favour with the AO. The AO denied the assessee the benefit of section 80 IB (10) of the Act on this ground also. 2.2 Aggrieved, the assessee preferred an appeal before the first appellate authority who, on facts, directed the AO to allow the benefit of deduction under section 80 IB (10) of the Act to the assessee. 2.3 Now, the Department has approached the ITAT and has challenged the adjudication of the Ld. CIT (Appeals) and has raised the following grounds of appeal 1. That on the facts and circumstances of the case and in law the Ld. CIT(A) erred in deleting the addition of ₹ 3,44,56,419/- made on account of disallowance of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of October 1998. It was also submitted that the assessee was granted deduction in preceding assessment years 2000 01, 2001 02, 2002 03, 2003-04, 2004 05 and 2005 06 and subsequent assessment year 2007 08. The Ld. Authorised Representative also submitted that the date of approval to the project by Noida Development Authority prior to 01/10/1998 cannot be taken as commencement of development and construction activities. The Ld. Authorised Representative placed reliance on the order of the ITAT Pune Bench in the case of Nimriti Construction versus DCIT reported in 95 TTJ 1117. Reliance was also placed in the case of Shipra Estates Ltd reported in 35 SOT 256 wherein ITAT Delhi had allowed relief to the assessee on similar facts. 4.1 On the second issue, i.e. the dispute regarding the built up area, the Ld. Authorised Representative submitted that the built up area was less than 1000 ft. as per the sales deeds. It was further submitted that the definition of built up area which was introduced by the Finance Act, 2004 w.e.f. 01/04/2005 to include balcony, etc. cannot be applied to a project which stood completed in 2001. It was also submitted that the deduction had already been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) has taken note of this order of the ITAT Pune Bench while allowing relief to the assessee on this issue. Accordingly, we do not find any reason to interfere with the adjudication of the Ld. CIT (Appeals) on this issue and we dismiss the Department s challenge on this issue. 5.1 As far as the second issue before us is concerned, it is undisputed that the basis for calculation of built up area has been inserted in the Act w.e.f. 01/04/2005 and prior to this the built up area was to be considered as per the general terms of the agreements and certificates issued by the architects. It is undisputed that the project was completed in the year 2001 and at that point of time, the definition of built up area was not in the Act. The assessee had furnished sale deeds before the AO where in the built up area was less than 1000 ft. . These sale deeds were not found to be incorrect or fabricated. The sale deeds have been signed both by the buyers as well as by the seller and have been duly witnessed. The assessee has also submitted certificates from the architects regarding the two projects Kingston and Monarch with respect to the built up area. The AO was called upon by the Ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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