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Areas of a unit at the floor level used in the Act and the exception of areas with the level difference of 0.3Mts under the DCR had a greater significance, that same had not been used in the relevant provisions without any meaning or reason, that the areas stipulated under the DRC were to be with the level difference to the floor level are chajjas, flower beds, dry balcony etc. which difference of 0.3Mts under the DCR had a greater significance, that same had not been used in the were to be provided for proper ventilation, light and protection from weather to the actual useable area of the flat, that same were not on the same floor level as the useable flat area for the occupant and therefore under the definition of built up area those areas were not includable, that inner built up area and projection and balconies - and thickness of wall was to be included as per Act, that the certificate issued by the architect, gave typical floor plan, floor wise various accommodation in each flat and carpet area thereof, built up area of all the flats in each floor which tallied with the aggregate area of the flats shown in ITA No.2853/ M/2015 and 5 other appeals M/s Nahar the agreements of sale, that assessee had taken the aggregate of the balcony area as the built up area of the flat, which prima facie appeared to be correct, considered under the definition of the built up area under the Act and DCR provisions. Thus, the Area below the floor even in inner side of outer side will not be consider while calculating built up area for section 80IB(14).

10.9. By a combined reading of the provisions of the Income tax Act and the Development control regulations, it transpires that the areas of a unit at the floor level used in the I T Act and the exception of area with the level difference of 0.3 Mts under the DCR have a greater significance. They have not been used in the relevant provision without any meaning or reason. The areas stipulated under the DCR to be with the level difference to the floor level are chajjas , flower beds, dry balcony etc. which are to be provided for proper ventilations, light and protection from weather to the actual useable flat area of the flat. They are not on the same floor level as the useable area for the occupant and therefore under the definition of built up area, these areas are not includable. However, inner built-up area and projection and balconies and thickness of wall is to be included as per IT Act, 1961. The counsel referring to the sanctioned plans filled before me which was also filed before the AO, submits that the DCR allows a part of the balcony not exceeding 10% of the carpet area of the flat to be on the same floor level and the same could be enclosed with the wall. He submits that the DCR however does not take such balcony area as consumption of FSI available in relation to the plot area. It is free of FSI under the DCR. But, the same being on the floor level as that of the flat, the appellant has included the balcony area in The calculation of the built up area. To the same effect is the certificate issued by the architect, which is on records of the AO. The sheet shown as CHE/ 8711/ BP(WS}AP 11/11 is the relevant plan referred. It gives typical ITA No.2853/ M/2015 and 5 other appeals M/s Nahar floor plan, floor-wise various accommodation in each flat and carpet area thereof, built up area of all the flats in each floor which tallies with the aggregate area of the flats shown in the agreements of sale, permissible balcony area, actual balcony area which in case of the flat appears to be slightly in excess of what is allowable and the total built up area of the flats in each floor. The appellant has taken the aggregate of the flat area and the balcony area as the built up area of the flat, which prima facie appear to be correct, consider under the definition of the built up area under both IT and DCR provisions"

"10.9 By a combined reading of the provisions of the IT Act and the Development control regulations, it transpires that the area of a unit the floor level used in the IT Act and the exception of area with the level difference of 0.3 Mts under the DCR have a greater significance. They have not been used in the relevant provisions without any meaning or reason. The areas stipulated under the DCR to be with the level difference to the floor lever are chajjas, flower beds, dry balcony etc which are to be provided for proper ventilations, light and protection from weather to the actual useable flat area of the flat. They are not on the same floor level as the useable area for the occupant and therefore under the definition of built up area, these areas are not includable.
d) Service area: Next issue is relating to inclusion of service areas. The service area is in the nature of service pipe duct, which continues from top floor to ground floor and carries service pipes, namely soil pipe, waste water pipe, water mains, etc. During the course of physical inspection of various apartments on 5/6/2014, it was noticed that this area is quite small and carries as many as 12 -

14 pipes - about 4 pipes having 4" diameter, about 3 pipes having 2"

diameter, and some pipes having about one inch diameter. No doubt, a slab has been constructed at every floor and a door is provided in the bathroom to enter into the service area, But this area is primarily meant for repair of service pipes and it cannot be used for any other purposes. Further, this service duct is some kind of common area like stair case, flowing from top to bottom, and in case of any blockage of pipes or repair or leakage, etc, the mechanic has to enter this area for repairing the same. Generally speaking, this area, being small, cannot be used for any other purposes. This area has also not been sold by the assessee to the flat owners, as is evident from sale agreements. Further, it is also not part of the carpet area or BUA calculated by the BMC authorities. This is not also considered for FSI computation of the building, as per bye laws. In fact, on physical inspection, it was noticed that some of these pipes were leaking, giving a foul smell, and, therefore, I am of the view that it cannot be used for any other purposes. The photographs submitted by the assessee clearly show that these ducts are open and dangerous, and a child may in fact fall through it. These photos were forwarded to the AO for her comments. Also, for the sake of clarity, the same are enclosed as annexure to this order.Though the AO has enclosed some photos of such areas in ITA No.2853/ M/2015 and 5 other appeals M/s Nahar respect of some flats, where such areas are being used towards storage, etc. by a few flat owners, but it is on their own peril and builder cannot be blamed for it. As per the bye laws, this area cannot be used for any purpose and flat owners are prohibited from doing so. But still, if some people, because of any reasons, are using the same for storage or putting a washing machine or a LPG cylinder, they are doing it on their own accord. Moreover, there is no evidence to suggest that the assessee has sold these areas to respective buyers, or otherwise, buyers own such areas. Therefore, the observation of the AO that such area was under exclusive possession of flat owners, remains unsubstantiated, as in my opinion, the flat owners may be using the area, but largely the area is meant for common facilities for all the flats and acts as duct for various kinds of facilities for all the floors. In any case, it does not alter the material position. Considering the overall facts of the case, I am of the opinion that this area. should not form part of the BUA, as it is in the nature of common area meant for all the flat owners from top floor to ground floor, and purpose of this area is to provide a platform for repair, and replacement of the service pipes, including soil pipe, waste water pipes, water mains, etc. Similar opinion' has been given by the other experts. Accordingly, considering overall facts of the case, I direct the AO to exclude this area from the BUA.