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TMI Blog2022 (7) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... to reiterate here that legislature has not only defined inner measurements of the residential unit at the floor level in section 80IB(14)(a) but also the same has to be increased by the thickness of the walls. It is in this backdrop that this tribunal s order in Kumar Builders Consortium [ 2013 (11) TMI 465 - ITAT PUNE ] has already decided the issue in Revenue s favour. We therefore, adopt judicial consistency to affirm both the lower authorities action disallowing the assessee s 80IB(10) deduction claim to this effect. Assessee had allotted more than one flat to one person i.e. Smt. Sandhya Rakesh Sharma and therefore, the same violates section 80IB(10)(f) - The fact remains that Mr. Jain has neither placed on record the corresponding joint sale deed that Ms.Syamlee only owned or possessed the entire share in Flat I-1 independently. This is in addition to the fact that the Commission s report in assessee s paper book dated 22.01.2015 at pages number 1 to 9 held that it had allotted more than one flat to Smt.Sandhya Rakesh Sharma and therefore, we find no merit in the taxpayer s stand. The Revenue succeeds in all of its corresponding substantive ground(s) to this effect. Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee. Ordered accordingly. X X X X Extracts X X X X X X X X Extracts X X X X ..... he prescribed built up area of 1500 sq.feet. 5. The Revenue has placed strong reliance on the CIT(A) foregoing detailed discussion. 6. We have given our thoughtful consideration to vehement rival contentions against and in support that the impugned disallowance and find due merit in the Revenue's stand herein. We first of all note that the CIT(A)'s common order herein as followed his conclusion drawn in A.Y. 2009-10's which has been reproduced in the preceding paragraphs. The same appears to have attained finality as there is no material on record to suggest the contrary. This is coupled with the fact that the corresponding site plan of these four units O1-1, O1-2, O2-1 and O2-2 in issue is on record (page 10) wherein it is clearly indicates that this garden area is meant for the concerned allottees' exclusive use and ownership and falls within the walls only than any common area not covered u/s 80IB(14)(a) of the Act. 7. We further wish to reiterate here that legislature has not only defined "inner measurements" of the residential unit "at the floor level" in section 80IB(14)(a) but also the same has to be increased by the thickness of the walls." It is in this backdrop that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer. In this case, the approval of first building plan is dated 31.05.2006 and therefore in terms of section 80IB(10)(a)(iii) of the Act, the project is required to be completed within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation (i) below clause (a) of section 80IB(10) of the Act, as seen earlier, provides that the date of approval of the first building plan of the housing project shall be considered as the date of approval by the local authority. As a consequence in terms of clause (a) of section 80IB(10) of the Act, construction of the impugned housing project was liable to be completed within five years from the end of the financial year in which the building plan of the housing project is first approved by the local authority i.e. calculated from 31.05.2006 (i.e. date of approval of first building plan), the housing project was liable to be completed by 31.03.2012. Factually speaking, there is no dispute that the construction of the project by the assessee has been completed by 31.03.2011, a position which also stands certified by the Talegaon Dabhade Municipal Council, which has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant contended that terrace open to sky was not part of built-up area hence it was not required to be included in the built-up area for the purpose of deduction u/s 80IB(10). The appellant relied on the decision of ITAT Pune Bench in case of N.T. Wadhwani (ITA NO.18/PN/2013). The AO noted the decision but in view of the fact that issue of exclusion of terrace area has not reached finality she treated the same as violative of the clause (c) of section 80IB(10). During the course of appellate proceedings, appellant furnished the copy of the order of ITAT Pune in the case of N.T. Wadhwani and it was noted that relying on the decision of Madras High Court in case of Ceebros Hotels Pvt. Ltd. (ITA No.581 of 2008) it was held that area of terrace open to sky would be excluded from the working of built-up area. Respectfully following the decisions of Madras High Court and ITAT Pune, it is held that above discussed 4 units did not exceed the built-up area and were not in violation of clause (c) of section 801 B( 10) of the Act." 13. Suffice to say, it has come on record that the foregoing judicial precedents have already held that such that a "terrace" in a residential unit doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n violation of stipulated conditions, the amount would be added to work out profit on sale of such unit including the on money received and no deduction would be allowed on the same. Ground raised by the appellant is partly allowed." 15. Both parties reiterated their respective stands against and in support of correctness of the CIT(A) foregoing directions. The assessee relies upon the hon'ble jurisdictional high court's decision (supra). There would hardly be any issue about the legal preposition settled hereinabove. The fact however remains that the assessee is eligible for sec 80IB(10) deduction on proportionate basis only as it has already failed on the foregoing "garden area" and "multiple allotment" issues in preceding paras. We make it clear that it has not filed any evidence on record that the impugned 'on-money' pertains to sec 80IB(10)'s eligible units only. Or that the remaining allottees except Smt.Sharma or those having garden area only had paid the entire sum. Faced with this situation, we restore the impugned disallowance on account of the assessee's failure to prove all the foregoing clinching factual aspects. The Revenue succeeds in all of its corresponding subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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