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TMI Blog2018 (4) TMI 1852X X X X Extracts X X X X X X X X Extracts X X X X ..... ual measurement of plot of land on the date of start of development. The assessee had in the present set of facts, purchased the plot of land, which measured slightly more than one acre at 4077.21 sq.mtrs. Basic condition of fulfillment of having plot area of one acre stands fulfilled by the assessee. The said area had to be set apart only as per the requirements of different rules under the Municipality Act, but the same does not lead to the conclusion that the assessee had less than one acre of plot of land area for its development. The gross total area was more than one acre and hence, the assessee was entitled to claim the deduction under section 80IB(10) of the Act irrespective of the fact that the assessee had set apart certain portion of land for making DP road. There is no merit in the orders of authorities below in denying the claim of deduction under section 80IB(10) of the Act. Accordingly, the Assessing Officer is directed to allow the deduction under section 80IB(10) of the Act as the assessee had fulfilled the condition of holding plot of land, having area of more than one acre The finding of CIT(A) that the original plot size itself in the hands of assessee was less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act and hence, was entitled to said deduction. The Assessing Officer in the first round of proceedings noted that the area of plot was less than one acre and the completion certificate for the last building was not obtained before 31.03.2008, hence the assessee was not entitled to the said 80IB(10) deduction. 5. The CIT(A) upheld the order of Assessing Officer. The Tribunal in ITA Nos.1394 to 1396/PUN/2010, relating to assessment years 2005-06 to 2008-09, vide order dated 30.07.2013 remitted the issue back to the file of Assessing Officer for actual measurement of plot size. The Assessing Officer in thesecond round referred the matter to the DVO, who in the report states that practically area in hand was 4077.21 sq.mtrs. However, on account of proposed road, the area reserved for the proposed housing project was less than one acre. The Assessing Officer denied 80IB(10) deduction to the assessee while giving effect to the order of Tribunal under section 254 of the Act. The CIT(A) upheld the order of Assessing Officer, against which the assessee is in appeal. 6. The learned Authorized Representative for the assessee pointed out that plot of land purchased by the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation method as 4077.1 sq.mtrs. The said contention of assessee was not considered while denying the assessee's claim of 80IB(10) deduction. The Tribunal in such circumstances, was of the view that where both the facts were mentioned in the same plan, which was not taken note of the Revenue authorities, then the said issue needs to be re-considered to decide the same as per fact and law, hence the matter was set aside to the Assessing Officer. In the second round proceedings, the Assessing Officer referred the matter to the DVO, copy of valuation report of DVO is placed at pages 15 to 18 of Paper Book. The DVO while considering the size of plot in column No.3 observed that the same should be more than one acre i.e. more than 4046.82 sq.mtrs. Vide point No.3.1, the DVO referred to Purchase Deed and the Development Agreement, wherein it was for the area of 1300 sq.mtrs. + 1300 sq.mtrs. + 1400 sq.mtrs., equivalent to 4000 sq.mtrs. As per point 3.2, he thus, commented that as per sanctioned plan, the plot area was 4000 sq.mtrs. Vide point No.3.3, the claim of assessee that on the same sanctioned plan, area actually measured was 4077.21 sq.mtrs. was also noted by the DVO. He further go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the area of 4600 sq.mtrs. was available. All the calculations or specifications were based on the said area, therefore, the said area was the start point for calculation of amenities, as well as for granting FSI to the assessee. The Tribunal held that the Courts have pronounced the question of easement or right of possession had to be determined on the basis of boundaries over which such rights were generally exercised. The Courts had also held that boundaries as existed at the site must prevail over the dimensions. The Tribunal thus, held that for applicability of the said section, one had to simply ascertain the size of plot available for the impugned housing project and the amenities space which was parted with by the developer was subject to allotment of additional FSI and the developer was not in a dis-advantageous situation. 10. Coming to the facts of present case before the Tribunal, the Tribunal in the first round had noted that in the area statement, area of plot was mentioned as 4000 sq.mtrs. in the sanctioned building plan; and on the said plan itself, in the middle, plot area by triangulation method, area was 4077.21 sq.mtrs. The case of assessee before the Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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