Income Tax Appellate Tribunal - Pune
Prime Properties, Pune vs Department Of Income Tax
IN THE INCOME TAX APPELLATE TRIBUNAL
Pune Bench "A" , Pune
Before Shri Shailendra Kumar Yadav Judicial Member
and Shri R.K. Panda Accountant Member
ITA Nos. 887, 888 & 889/PN/2010
(Asstt. Years : 2003-04 to 2005-06 )
Income Tax Officer, Ward 3(1), Pune ... Appellant
2nd floor, 'B' Wing, PMT Commercial Bldg.,
Shankarshet Road,
Pune 37
v.
M/s Prime Properties ... Respondent
42, Krishna Kunj Apts.,
Shanti Sheel Soc.
Law College Rd., Pune 04
PAN : Not available
ITA No. 838/PN/2010
(Asstt. Year : 2005-06)
M/s Prime Properties ... Appellant
42, Krishna Kunj Apts.,
Shanti Sheel Soc.
Law College Rd., Pune 04
PAN : Not available
v.
Income Tax Officer, Ward 3(1), Pune ... Respondent
nd
2 floor, 'B' Wing, PMT Commercial Bldg.,
Shankarshet Road,
Pune 37
Appellant by : Shri. Nikhil Pathak
Department by : Ms. Ann Kapthuama
Date of Hearing :18-4-12
Date of Pronouncement : -4-12
ORDER
Per R.K. Panda, AM
ITA No. 887/PN/2010 and 888/PN/2010 filed by the revenue are directed
against the common order dated 26.3.2010 of CIT(A) -II, Pune relating to A.Y. 2003-04 and 2004-05 respectively. ITA No. 889/PN/2010 filed by the Revenue and ITA No. 838/PN/2010 filed by the assessee are cross appeals and are directed 2 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 against the order dated 26th March 2010 of the CIT(A) -II, Pune relating to A.Y. 2005-06. Since common issues are involved in all these appeals, therefore, these were heard together and are being disposed of by this common order. ITA No. 888/PN/2010 (A.Y. 2004-05)
2. The grounds raised by the revenue are as under :
"01. The order of the learned CIT(A) is contrary to law and to the facts and circumstances of the case.
02. On the facts and in the circumstances of the case and in law, the learned CIT(A) grossly erred in allowing the deduction u/s 80IB(10) of the I.T. Act 1961 of Rs.5,32,174/- instead of confirming the disallowance made in the assessment of this issue.
03. The learned CIT(A) erred in holding the assessee as eligible for deduction u/s. 80 IB (10) even when the built up area of some of the units after combining exceeds 1500 sq.ft.
04. The learned CIT (A) erred in holding the assessee's plea that built up area should be considered as per the meaning understood by the sanctioning authority (PMC) and not as per the provisions of sec. 80IB(10) of the Income- tax Act, 1961.
05. For these and such other grounds as may be urged at the time of the hearing, the order of the learned CIT (APPEALS) may be vacated and that of the Assessing Officer be restored "
3. Facts of the case in brief are that the assessee is a promoter and builder. During the relevant previous year, the assessee has shown sale of flats of Rs.1.06,81,985/- in a project named 'Prime Heights' situated at Pashan - Sus Road. The assessee claimed the entire profit earned on this project amounting to Rs. 5,32,174/- as deduction u/s. 80 IB (10). In order to check the eligibility of the 3 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 project for claiming deduction u/s. 80 IB (10), the A.O asked the assessee to furnish the following information :
1. Name, address and copy of brochure of the project.
2. Copies of approved plan, completion plan, commencement certificates and completion certificates issued by the Local Authority.
3. The details of total area of the plot.
4. The details of built-up area of all the flats constructed in the building and the total number of residential flats.
5. Names of the flat buyers and built up area of each flat etc.
6. Names of the flat buyers and built up area of each flat etc."
After considering the approved sanctioned layouts submitted by the assessee, the AO noted that there are number of instances where assessee has constructed residential units by combining 2 flats on the same floor. As a result, the total area of above said residential units has crossed the maximum limit of 1500 sq. ft. specified in Section 80 IB (10)(c) of the I.T. Act. The A.O calculated the built up area as per the definition given in 80 IB(14)(a) which has been introduced w.e.f. 1.4.2005 according to which, projections and balconies at the floor level area to be included for computation of built up area. He, therefore, was of the opinion that the condition given in 80 IB (10)(c ) was violated. The A.O. further observed that the adjacent units were combined by assessee itself and not by the purchasers at a later stage since the part completion certificate issued by PMC showed the units as joint. Further, the lay out plan approved by the PMC also showed that there is no dividing walls between these adjacent flats i.e. at the layout stage itself these were proposed to be combined. He, therefore, rejected the claim of deduction u/s. 80 IB (10) of the I.T. Act since the assessee has violated the conditions given in clause
(c) of 80 IB (10).
4. Before CIT(A), the assessee made detailed submissions and relied on various case laws. It was submitted that there are certain factual errors in the assessment 4 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 order. It was submitted that in Building A none of the flats were combined. Only in Building B some of the flats were combined and were sold to the same individual or family members. After accepting the additional evidences filed by the assessee and after considering the report /comments of the AO the Ld CIT(A) allowed the claim of deduction 80- IB(1) by holding as under :
"3.7 I have considered the submission of the appellant and material available on record. The issue involved in this case regarding computation of built-up area of some of the residential units has got two aspects; One factual and the other legal. So far as the legal basis is concerned, on the issue whether definition of 'Built-up area' introduced into the statute by way of section 80IB(14(a) w.e.f. 1.4.2005, it has already been held by various tribunal benches that the same was prospective in nature, and applicable w.e.f. 1.4.2005. These tribunal decisions which were cited by the appellant, are listed below :
i) ITO vs. A.R. Developers (2009) 25 DTR 287 (Nag) order dtd. 21.5.08
ii) ACIT vs. Sheth Developers (P) Ltd. (2009) 33 SOT 277 (Mum); order dated 25.6.2009; and
iii) ACIT vs. M/s. Vaman Estate, ITA No. 3106/Mum/2008 dtd. 27.10.2009 In all these three decisions of various tribunal benches, assessment years involved were either 2003-04 or 2004-05; and it has been held that the definition of built-up area given in 80IB(14)(a) cannot be considered with retrospective effect. Following these decisions, it is held that for the A.Ys.
2003-04 and 2004-05 in the appellant's case, the definition of built-up area was not to be taken in accordance with section 80IB(14)(a ), but in accordance with the PMC Rules.
3.8 Now, coming to the factual position, it was emphasized by the appellant that in the common submissions dated 22.4.2009 for A.Yrs. 2004- 05 and 2005-06 at para 5.1; which was reiterated in the submissions filed on 28.8.2009 for A.Ys. 2003-04 and 2004-05, that the adjacent flats as mentioned in para 4 of the assessment order of A.Y. 2004-05 which were in building 'A', were not combined at all and were in fact independent units. While calling for Assessing officer's report vide this office letter dated 24.4.2009 for A.Y. 2004-05, in para 2, I had specifically asked the Assessing Officer to examine this contention and submit the factual position. However, 5 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 in the report dated 27.5.2009, the Assessing Officer is only mentioning combining of the flats nos. 501 and 502 in building B and no comments have been given regarding building 'A'. In fact, this point has also been raised by the appellant as its ground No. 4. The appellant had also attached Architect's Certificate confirming the factual position, which was sent to the Assessing Officer with letter dated 24.4.2009; since it was an additional evidence which was to be examined and commented upon by the Assessing Officer in accordance with Rule 46A of I.T. Rules. In the report dated 27.5.2009, the Assessing Officer has objected to the admission of the additional evidence being Architect's Certificate regarding the measurement of the flats; and has also attached Xerox copies of the building plans for flat Nos. 501 & 502 of building B as well as the corresponding copy of the brochure in which breakup of the saleable area has been given. 3.9 The appellant's comments on the Assessing Officer's report objecting to the additional evidence dtd. 26.3.2010 have been reproduced above. Further, in this letter, it has been further elaborated and explained as to how this computation of built-up area given by the Architect was to be taken into account otherwise by the layout plan itself it was simple to calculate. It was contended by the appellant that the additional evidence being the Architect's Certificate giving the flatwise measurements of Built-up areas for the two buildings was such that even on the basis of floor plan submitted before the Assessing Officer in the assessment proceedings and also enclosed by the Assessing Officer in the remand report, the Built-up area can be calculated. Therefore, it was only to give the measurement of all the flats which could otherwise also have been calculated as per the floor plan, that the Architect's Certificate was submitted, and therefore, the additional evidence should be admitted. It is also contended that the built-up area which is mentioned in the brochure was inclusive of common areas, and the total saleable area was shown including the terrace. The appellant has then cited decisions regarding admission of additional evidence including that of the jurisdictional High Court in the case of Prabhavati S. Shah, 231 ITR 1 (Bom.) in support of the contention that the additional evidence deserves to be admitted.
3.10 In the submission dated 26.3.2010 it is pointed out by the appellant that in response to its contention that the flats in building A were not combined at all, the Assessing Officer has not objected to this in her report. 6 ITA . Nos. 887 to 889/PN/2010 & IT No.
838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 Therefore, it is reiterated that the flats in building A mentioned in para 4 of the assessment order for A.Y. 2004-05 were not combined. Therefore, there was no question of computing the combined built-up area as contended by the Assessing Officer. Coming to building B, in respect of combination of the adjacent flats mentioned in para 4 of the assessment order for A.Y. 2004-05, the explanation in the submission dated 26.3.2010 is again reproduced as under :
"4] In respect of the objection of the learned A.O. in the remand report that the additional evidence should not be admitted, it is submitted that the contention of the A.O. is not valid. In respect of the flats which are combined in building B, there is no dispute that the said flats are combined. The learned A.O. has given the details of the flats which are combined in building B which are as under -Flat No. 103 & 104 Flat No. 403 & 404 Flat No. 501 & 502 Flat No. 505 & 506 Flat No. 603 & 604
5] The assessee invites your kind attention to the architect's certificate. As per the said certificate, even if, flat Nos. 103 & 104 are combined, the built up area is less than 1500 sq.ft. Similar is the position in respect of all the above flats. If the terrace area is excluded, all the flats even if combined are less than 1500 sq.ft. This is clear from the architect's certificate. However, the learned A.O has stated that the built up area of flat Nos. 501 & 502 is 781 sq.ft. each and the total built up area after combining the two flats exceeds 1500 sq.ft. In that context, the assessee has submitted that the certificate. The learned A.O has stated that the said area of 781 sq.ft. is as per the brochure of the assessee. Thus, according to him, the built up area of the two flats after combining is more than 1500 sq.ft.
6] In this context, the assessee submits that the contention of the learned A.O. is not correct. No doubt, in the brochure of the assessee, the built up area specified is 781 sq.ft. and the terrace area 75 sq.ft. and the total salable area is 819 sq.ft. The copy of the brochure is enclosed by the learned A.O. in his remand report. It may be noted that in Pune, the builders have a system of super built up area i.e. basic built up area which is further increased on account of proportionate amenity areas by around 10 - 15%. Thus, the area after increasing by 10 - 15% is known as super built up area and that is considered as the saleable area. Now, in the brochure of the assessee, the built up area is shown as 781 sq.ft. and after including the terrace, the saleable area is arrived at 819 sq.ft. Thus, this fact itself indicates that the built up area of 781 sq.ft. includes the proportionate area for amenities and is nothing but the super built up area. Hence, this fact is clarified by the architect in his certificate wherein the built up area of the said two flats is calculated at 700 sq.ft. each as against 781 sq.ft. shown in the brochure. Accordingly, the assessee submits that the area mentioned in the brochure - 781 sq.ft. is the super built up area and not the basic built up area. If 781 sq.ft. is the basic built up area, the super built up area would have 7 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 been increased by minimum 10 - 15% and the saleable area would have been more than 900 sq.ft. in respect of each flat. The internal details of the said two flats are as under -
Particulars Area
(sq.ft)
Living Room 216
Kitchen 90
Bedroom 1 122
Toilet 1 13
Bath 27
Passage 51
Bedroom 2 147
Toilet 2 34
Total 700
Therefore, the assessee submits that the built up area of the above two flats is only 700 sq. ft each and this fact has been clarified in the form of the architect's certificate."
3.11 I have considered the above explanation of the appellant and have also gone through the report of the Assessing Officer regarding admission of additional evidence, including the copy of floor plan / approved layout plan of the various flats as well as the details given in the brochure. Considering the same, I am of the considered opinion that this is a case where the measurements were already apparent from the floor plan and brochure given to the Assessing Officer during assessment proceedings; and it was only to quantity the measurements of all the flats by an expert that the Architect's Certificate was requested to be admitted as additional evidence. Considering the appellant's explanation in this regard, the Architect's Certificate is allowed to be admitted as an additional evidence.
3.12 Now coming to the measurement of the different units given by the Architect, including the units which are specifically mentioned in the assessment order by the Assessing Officer, it is held that since there are no adjacent flats which were actually combined in building A, there was no question of taking into consideration the combined area of the flats for this building. So far as building B is concerned, it is admitted by the appellant that the some of the flats were combined but in respect of most of 8 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 them, when the terrace area was excluded, the combined area was less than 1500 sq.ft. It is only in respect of flat No. 501 and 502 that the Assessing Officer has pointed out that the built-up areas itself was 781 sq.ft. each, and even if the terrace was excluded, the area of the combine becomes 1562 sq.mtrs. However, the appellant has explained along with the calculation according to which the actual built-up area was only 700 sq.ft., and the area mentioned in brochure at 781 sq.ft. was actually the super builtup area and not the basic built-up area. This is also corroborated by the Architect's Certificate. It has been explained by the appellant that in the brochure, the built-up area is shown at 781 sq.ft. and terrace at 75 sq.ft., and after combining the same (50% of terrace area) the total saleable area arrived at is 819 sq.ft. Thus, the facgt that the addition of built-up area and 50% of terrace area gives the resultant area shown under 'saleable area', it implies that the built-up area shown in the brochure at 781 sq.ft. includes the proportionate common areas/amenities, and, therefore was nothing but the super built-up area itself. Further, it was stated that the basic built-up area was normally increased by 10 to 15% to arrive at the super built-up area or the saleable area. This explanation of the appellant has been carefully considered and found to be acceptable. Accordingly, it is held that even after combining the adjacent flats no. 501 and 502 in building 'B', as mentioned by the Assessing Officer in the assessment order, the combined areas did not exceed 1500 sq.ft., since terrace area was to be excluded as discussed above. Therefore, there were no combined units in building B also which violated the restrictions given in section 80IB(10)(c ) of the Act. Grounds of appeal Nos. 1 to 3 are therefore, held to be allowed for both the assessment years; while ground no. 4 is partly allowed."
Aggrieved with such order of the CIT(A), the Revenue is in appeal before us.
5. The Ld. D.R. strongly relied on the order of the A.O. She submitted that since the assessee has violated the provisions of 80 IB(10) by 9 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 constructing, more than 1500 sq.ft. per unit therefore it is not entitled to benefit of deduction u/s. 80 IB (10). The Ld. Counsel for the assessee, on the other hand, submitted that even if certain flats are combined together, the total built up area does not exceed 1500 Sq.ft. in any case if the projections/balconies are excluded. He submitted that definition of built up area as per Sub-section 14(a) of Section 80 IB is inserted by Finance Act (No.2) w.e.f. 1st April 2005 and therefore, the same is applicable only in respect of the projects approved after 1st April 2005 and consequently balconies/terrace cannot be included in the built up area of the flats in the assessee's housing project which was approved prior to 1st April 2005. For this proposition, he relied on the decision of the Mumbai Bench of the Tribunal in the case of Haware Constructions (P) Ltd. v. ITO, reported in 64 DTR 251 and the decision of Pune Bench of the Tribunal in the case of D.S. Kulkarni & Associates vs. ITO vide ITA No. 17/PN/2009 order dt. 31.5.2010 for A.Y. 2005-06.
6. We have considered the rival arguments made by both the parties, perused the orders of the A.O and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. The only dispute in the grounds raised by the Revenue is regarding allowability of deduction u/s. 80 IB (10) since the total area of certain flats which were combined together exceed the maximum limit of 1500 sq.ft.. It is the submission of the Ld. Counsel of the assessee that even if 2 flats are combined together, total built up area of none of the flats exceeds 1500 sq.ft. if balcony/terrace are excluded. We find the A.Y. involved in the impugned appeal is A.Y. 2004-05 and the project has been approved prior to 1st April 2005. Therefore, in view of the decision of Mumbai Bench of the Tribunal in the 10 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 case of Haware Constructions (P) Ltd. (Supra), the provisions of Sub- section 14(a) of Section 80 IB which defines built up area to include projections and balconies are applicable only in respect of the projects approved after 1st April 2005 and consequently, balcony/terrace cannot be included in the built up area of the flats in the assessee's housing project which was admittedly approved prior to 1st April 2005. Since after excluding the projections and balconies, none of the combined flat exceeds the built up area of 1500 sq.ft., a fact brought on record by the Ld CIT(A) and not controverted by the Revenue, therefore, we do not find any infirmity in the order of CIT(A) allowing the deduction u/s. 80 IB (10) of the I.T. Act. The grounds raised by the revenue are accordingly dismissed.
ITA No. 887/PN/2010
7. After hearing both the sides, we find the grounds raised by the Revenue in the grounds are identical to the grounds in ITA No. 888/PN/2010. We have already decided the issue and the grounds raised by the Revenue have been dismissed. Following the same ratio, the ground raised by Revenue are dismissed ITA No. 889/PN/2010 (A.Y. 2005-06 (By Revenue) & 838/PN/2010(A.Y. 2005-06) (BY Assessee)
8. Facts of the case in brief are that the A.O following his orders for the preceding A.Y. disallowed the claim of deduction u/s. 80 IB (10) amounting to Rs.1,13,290/- on the ground that assessee had constructed flats which were having built up area of more than 1500 sq ft. In appeal, the ld CIT(A) held that there is material difference in the impugned A.Y. as compared to the earlier A.Ys. He observed that as per 11 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 the provisions of Sec. 80 IB (14)(a) of the I.T. Act w.e.f. 1.4.2005, the definition of "built up" area has been provided according to which, projections, balcony, terraces etc., are to be included in the computation. He observed that in respect of the additional flat No. 501 & 502, the "built up" area in accordance with the architect's certificate and the working/explanation given by the assessee in written submission shows that the total built up area including balcony and terrace etc. is more than 1500 sq. ft. Since the amended provision was introduced with effect from A.Y. 2005-06, therefore, the same being applicable to this A.Y, the assessee is not entitled to benefit of deduction u/s. 80 IB (10). Aggrieved with such order of the CIT(A), both the assessee as well as revenue are in appeal before us.
9. We have considered the rival arguments made by both the sides, perused the orders of the A.O and CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. So far as the grounds of revenue are concerned, we find the ld CIT(A) has disallowed the claim of assessee by upholding the order of the A.O and the Revenue has filed grounds in a stereo type manner which were filed during A.Y. 2003-04 and 2004-05. Since the Ld CIT(A) has upheld the action of the A.O in disallowing the claim of deduction made u/s. 80 IB (10) amounting to Rs. 1,13,290/-, therefore, there cannot be any grievance by the revenue. Accordingly, the grounds raised by the revenue being infructuous are dismissed.
10. So far as the grounds raised by the assessee are concerned, they relate to denial of benefit of deduction u/s. 80 IB (10) of the Act. According to the Ld CIT(A), the amended provisions of Sec. 80IB (14)(a) 12 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 which are inserted by the Finance (No.2) Act 2004 were applicable w.e.f. A.Y. 2005-06. It is the contention of the Ld Counsel for the assessee that in view of the decision of the Co-ordinate Bench of the Tribunal in the case of D.S. Kulkarni & Associates, vide ITA No. 17/PN/2009, order dated 31st May 2011 for the A.Y. 2005-06 and the decision of the Bombay Bench of the Tribunal in the case of Haware Constructions (P) Ltd. (Supra), the definition of "built up" area as given in Sub-Section 14(a) of Sec. 80 IB as inserted by the Finance No. 2 Act 2004 is inserted w.e.f. 1.4.2005 and therefore, the same is applicable only in respect of the projects approved after 1st April 2005. When the assessee submits the proposal for carrying out development of a housing project, then whatever law is there on the day, that would regulate the rights of the assessee. According to the ld. AR, since in the instant case, the housing project was started by the assessee on 2nd April 2003 which is much before 1.4.2004, therefore, in view of the decisions cited above, balconies/terrace etc. cannot be included in the built up area. Since after excluding balcony/terrace etc. the total built up area of none of the flats would exceed 1500 sq.ft. Therefore, the assessee cannot be denied the benefit of deduction u/s. 80 IB (10).
11. We have considered the rival arguments made by both the sides. There is no dispute to the fact that the project was approved prior to 1.4.2004. Therefore, the definition of built up area as per Sec. 80 IB (14)(a) which is inserted w.e.f. 1.4.2004 does not apply to projects approved prior to that date. We find the Pune Bench of the Tribunal in the case of D.S. Kulkarni & Associates (Supra) at para 20 of the order has observed as under :
"20. By applying the principle of harmonious construction to interpret the provisions under Sub-section (10) to Section 80IB as 13 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 amended w.e.f. 1.4.2005 we come to the conclusion that the Legislature always intended that the project must be approved by the local authority, thus in those approved projects where construction has been started much earlier than 1.4.2005, the assessees are required to complete the plan as it has been approved. As putting such assessees to complete the plan meeting out condition under clause (d) of the sub-section would lead into absurdity and impossibility for the assessee and in contradiction to the provisions u/s. 80 IB(10) as prevailed at the time of approval and commencement of the construction of the project well before 1.4.2005. Bombay Bench of the Tribunal in the case of Hiranandani Akruti J.V (supra) has discussed all these relevant aspects raised by the Department. In the case of Hiranandani Akruti J.V V/s. DCIT, it has been held that the law as existed when the assessee submitted its proposal and permission for carrying out the development was accorded and when the assessee commenced development is to be applied. In the present cases, as per page nos. 17 and 20 of the paper book in the case of Opel Shelter the project was commenced on 23.2.2001 and even completed on 14.5.2004, similarly as per the contents of page No.2 of the assessment order and page no. 41 of the paper book in the case of D.S. Kulkarni and Associates, the project was commenced on 12.4.2001 and completed in the month of November 2003. Thus, the assessees were supposed to complete the projects as per the law as existed in the A.Y. 2001-02 in the case of Opel Shelters and in the A.Y. 2002-03 in the case of D.S. Kulkarni and Associates. We thus following the decision in the case of Hiranandani Akruti JV V/s. DCIT (Supra) hold that amended provisions under Section 80 IB(10) w.e.f. 1.4.2005 are not applicable in the present case, hence assessees are eligible for the claimed deduction u/s. 80 IB (10) of the Act. We accordingly direct the A.O to allow the claimed deduction to the assessees."
12. We find similar view has been taken by the Mumbai Bench of the Tribunal in the case of Haware Constructions (P) Ltd. (Supra). Since the projects has been approved prior to 1.4.2004 and since after excluding the balcony/terrace, the total built up area of none of the flats exceeds 14 ITA . Nos. 887 to 889/PN/2010 & IT No. 838/PN/2010 M/s. Prime Properties, A.Ys. 2003-04 to 2005-06 Page of 14 1500 sq. ft., therefore, respectfully following the decisions cited (Supra) we hold that the benefit of deduction u/s. 80 IB (10) cannot be denied to the assessee. In this view of the matter, we set aside the orders of the CIT(A) and direct the A.O to allow the benefit of deduction u/s. 80 IB (10) claimed by the assessee.
13. In result, all the three appeals filed by the revenue are dismissed and appeal filed by the assessee is allowed.
The order is pronounced in the open Court on 26th April, 2012.
Sd/- Sd/-
(SHAILENDRA KUMAR YADAV) (R.K. PANDA )
JUDICIAL MEMBER ACCOUNTANT MEMBER
Pune, dated the 26th April , 2012
US
Copy of the order is forwarded to :
1. The Appellant
2. The Respondent
3. The CIT - II, Pune
4. The CIT(A)-II, Pune
5. The D.R. "A" Bench, Pune
6. Guard File
By order
Senior Private Secretary
Income Tax Appellate Tribunal
Pune