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TMI Blog2022 (5) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is entitled to have deduction u/s 80IB(10) of the Act on eligible units. Thus, grounds raised by the Revenue fails and are dismissed. Denying deduction u/s 80IB(10) of the Act in respect of 10 flats - HELD THAT:- We find the contentions raised by the ld. AR were raised before both the authorities below. It was contended that the assessee erected an additional wall and a box like window instead of a regular window shed which was separated from the internal wall of the said residential unit with 6 cavity is not usable. In order to verify the same, the AO sought report from the DVO, who clearly stated the said 10 flats exceeding the prescribed built up area of 1500 sft. and particularly held that the said window is includable in the built up area. Therefore, it is clear the additional wall and box like window is to be included in the built up area which is above the prescribed built up area as required for claiming deduction u/s 80IB(10) of the Act. There is no dispute with regard to this position by the ld. AR. Therefore, we find no infirmity in the order of CIT(A) as it was thoroughly discussed from para No.6.10 to 6.12 of the impugned order. Thus, we hold that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd with the consent of both the parties, we proceed to hear both the appeals together and to pass a consolidated order for the sake of convenience. 3. First, we shall take up appeal in ITA No. 2080/PUN/2017 for A.Y. 2011-12 filed by the Revenue. 4. The only issue is to be decided is as to whether the CIT(A) is justified in holding that the assessee is eligible for claiming proportionate deduction u/s. 80IB(10) of the Income-tax Act, 1961 (hereinafter referred to as the Act‟) as a whole in the facts and circumstances of the case. 5. The brief facts of the case relating to the issue on hand are that the assessee is a company and engaged in the business of real estate development, mainly construction of residential and commercial units in and around Pune. The assessee filed return of income declaring a total income of Rs. Nil. Notice u/s. 142(1) of the Act was issued to the assessee. In response to the said notice, Authorized Representative on behalf of the assessee appeared and filed details as sought by the AO. According to the AO, the assessee shown sale of Rs.2,87,39,570/- from Emerald City (North Projects) and similarly, sale of Rs.34,40,21,811/- from Emerald City ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt up area as per clause (a) of section 80IB(14) of the Act. The report of Registered Valuer though it is acceptable but wrongly included window box projection for double wall and revised the built up area of flats. The elevation of the building constructed for beautification and aesthetic view could not be included in computation of built up area. In PMC approved plan calculation of built up area of each flat and consumption of FSI elevation area is not considered as part of built up area. The definition of built up area is at floor level and it should be usable area. The elevation area is neither at floor level of each unit nor usable and it cannot be part of built up area. The meaning of projections and balconies are the same and it is not only the word balcony which is more popularly used and the meaning of word balcony from the Development Control Rules for PMC. The ld. AR vehemently argued that all the 10 flats are in compliance with the provisions of section 80IB(10) of the Act and the assessee is entitled to claim deduction u/s. 80IB(10) of the Act. 9. The ld. DR submits that the built up area is defined in clause (a) of sub-section (14) of section 80IB and the inner mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and box like window is to be included in the built up area which is above the prescribed built up area as required for claiming deduction u/s 80IB(10) of the Act. There is no dispute with regard to this position by the ld. AR. Therefore, we find no infirmity in the order of CIT(A) as it was thoroughly discussed from para No.6.10 to 6.12 of the impugned order. Thus, we hold that the assessee is not entitled to claim deduction u/s80I(10) of the Act and we completely agree with the reasons recorded by the CIT(A) and it is justified. Thus, ground No.1 raised by the assessee fails and is dismissed. 11. Ground No.2 raised by the assessee challenging the action of CIT(A) in confirming the disallowance made by the AO on account of warranty expenses. 12. We note that the said issue was adjudicated by the Tribunal in Gera Development Pvt. Ltd. for A.Y. 2007-08 which is sister concern of assessee herein. The order of Tribunal is placed at pages 72 to 80 of paper book. The Tribunal discussed the relevant issue from para No.9 to 16. On perusal of the same, we note that the Tribunal modified the order of CIT u/s 263 of the Act and upheld to the extent only on the issue of applicability o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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