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Therefore, if an overall view is taken, each of the above facts indicates that the individual residential unit, measuring less than 1,500 sq.ft. in built up area on paper was never meant to be sold as such but was always to be sold together with the adjoining unit, the built-up area of the two units exceeding 1500 sq.ft. and thereby making the appellant ineligible to claim the deduction u/s.80IB. 5.4 As a last ditch effort, during the appellate proceedings, it was submitted by the appellant that the structural changes in converting two residential units into one residential unit had been undertaken by the respective flat owners. The photo copy of the agreement with the M/s Vatsalya Engineers Pvt. Ltd., sister concern of M/s Thistle Properties Pvt. Ltd. was filed to substantiate that M/s Vatsalya Engineers Pvt. Ltd. as per agreement was required to carry out the structural changes. The matter was remanded to the AO for examination as the agreements were not produced during assessment proceedings and, therefore, constituted fresh evidence. The AO examined the flat owners during remand proceedings on this point and found that -

"Neither the structural changes were made by any flat owner nor was any additional expenditure incurred for such structural alternation."

Therefore, the appellant's contentions is found to be false and no consideration and is, therefore, rejected.

6. What therefore, clearly emerges after on the spo9t enquiry of flats, the examination of flat owners and the enquiries made from various authorities is that the appellant is not entitled to claim deduction u/s.80IB on the Paradise Tower Project, Baner, Pune as it has not fulfilled the condition laid down in sec.80IB(10)© because the residential flats constructed and sold by the appellant, as elaborated above, have a built up area of more than 1,500 sq.ft. The action of the AO in denying the claim of deduction u/s.80IB of `.80,16,678/- is, therefore, upheld."

23. On the other hand, Ld.DR submitted that assessee has constructed about 100 flats then how it is possible that in all the cases two adjacent flats have been sold to the same buyer and/or family. This only shows that, in fact, assessee had constructed only one flat which was complimentary to each other. He pointed out that through spot enquiry it was clearly found that there was only one electric meter per set of two flats. If the flats were meant to be individual flats, then how and why only one electric connection was obtained for two adjoining flats. Spot enquiries further revealed that in one of the flats kitchen was shown only on the paper as no drainage pipe was there. Once the drainage pipes have been laid out same cannot be later on removed. This further shows that assessee has manipulated the sanctioned plan only for the purpose of claiming deduction u/s.80IB[10]. Spot enquiries have further revealed that there was only one entry and merely showing two entries on the paper would not alter the situation. He then referred to copies of affidavits of Shri Sadanand Dattatrey Bapat and Shri Chittaranjan Behel filed by the assessee at pages 64-65 of the paper book and pointed out that the language is identical which only shows that it is a self serving affidavits. In any case, both the affidavits contained clause [4] through which it is clearly mentioned that the particular buyer was in need of two separate flats and was looking for one flat and such prospective buyers asked the assessee whether same could be combined into one. This clearly shows that assessee had itself converted the two flats into one which becomes further clear from the statement recorded from various parties, e.g. in the case of statement recorded from Shri Davies K. Thalakottur. In response to question whether any internal structural changes were made to the flats, it was stated that internal changes were made through agreement with Vatsalya Engg. Pvt. Ltd. which is a sister concern of the assessee. He then referred to the statement of Shri Anant Gupta at page 75 wherein in response to question no.15 whether the idea of purchasing two units was his own or of the builder's, it was stated that it was builder's idea. This clearly shows that builder had planed both the flats together and gave ideas to the buyers for purchase the adjacent flats. He then referred to the statement of Shri Sumit Shah, copy of which is at page 84 of the paper book wherein in response to question no.5 whether any internal structural changes were made to the flats, the answer was no structural changes were made. This clearly shows that even without internal structural changes two adjacent flats could be used as one. In turn, this could only lead to the inference that, in fact, only one flat was constructed and the same was shown as two flats only on paper.

Q.5Were there any alternations/structural changes, made to the flat? If so, give details regarding the date/month in which such changes were made< Ans: No structural changes were made.

The above clearly shows that two adjacent flats could be used even without making any internal changes. This further proves that both the adjacent flats were originally planned and designed and constructed as a single unit.

29. Though Ld.counsel of the assessee has referred to clauses [e] and [f] to sec.80IB[10][c] which has been introduced by the Finance Act, 2009 w.e.f. 1-4-2010 whereby it is provided that deduction will not be available if more than one residential unit is allotted to any one single persons. Though this provision could not be attracted in the case of the assessee, but as we have noted earlier Revenue's case is that assessee never constructed the flats which were less than 1500 sq.ft. as per the requirement of law u/s.80IB[10]. The flats have been merely shown in the municipal plan to be one, whereas on physical examination and all the surrounding circumstances which we have discussed in detail above, show that adjacent flat was meant to be single unit only. In these circumstances, we find nothing wrong in the order of the ld. CIT(A) and confirm the same.