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3.3 The Ld. CIT (A) erred in substituting the meaning/definition assigned to 'flower bed' as 'balcony' according to its own convenience so as to deny the deduction u/s. 80IB (10) of the Act.

3.4 On facts and circumstances of the case and in law, Ld. CIT (A) erred in assuming that structural changes made by the flats owner after handing over possession were done by the appellant.

3.5 On facts and circumstances of the case and in law, Ld. CIT (A) erred in excluding only 50% area of common wall from built-up area instead of 100% area of common wall.

24.On merits the assessee challenged the order of the ld.CIT(A) in denying the claim for deduction u/s 80IB(10) for including the flower bed area which is open to sky and not on floor level and 50% of common wall area as part of built up area prescribed under section 80IB(14) of the Act. The AO while completing the assessment included the service area, window projection, cupboard projection, sunken area (flower bed) and common wall area in arriving at the eligible limit of 1000 sq.ft. of built up area of each flat. The AO observed that after inclusion of these areas in built up area, the total built up area is exceeding 1000 sq.ft and therefore he denied the assessee the benefit of deduction 80IB(10) of the Act on various flats.

25.However, the ld. CIT(A) sustained the action of the AO in including sunken area (flower bed) and 50% of common wall area for the purpose of computing eligible area of 1000 sq. ft of built up area for the purpose of computing deduction u/s 80IB(10) of the Act.

25.The assessee before us filed detailed written submissions and argued extensively and submitted that the flower bed area should not be included in the definition of built up area as the flower bed area is below the floor level open to sky and outside the scope of definition of built up area. It was submitted that the flower bed area is open to sky and area open to sky including terrace shall not be included in the built up area. The ld. Counsel also contended that when the survey was carried out on 2.2.2012 the allowability for claiming deduction u/s 80IB(10) was duly verified by the survey party. They have visited project site. They have conducted exercise during the course of survey with regard to measurement of flats by the CPWD, Departmental Valuation Officers. They have satisfied with the construction area of each flat i.e. built up area of each flat is within eligible limit of 1000 sq. ft. Therefore, it was contended that the report of the District Valuation Officer of the department cannot be brushed aside and the AO cannot rely on the subsequent DVO's report which was not based on the any scientific measurement but was taken on rough sketch taken by the DVO. It was contented that wide variation between the two valuation reports is practically not possible and therefore the subsequent valuation report prepared by the DVO without proper measurement cannot be the basis for denying the benefit u/s 80IB(10) of the Act. During the course of hearing before us, the assessee filed detailed submissions as under:

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26.We find considerable force in the submissions of the assessee that the flower bed area and common wall area are not includible in the definition of built up area while calculating the eligible limit of 1000 sq. ft for the purpose of allowing deduction u/s 80IB(10) of the Act. The flower bed area is open to sky and not covered by any sides whereas balcony is covered with three sides. The flower bed area is few inches below floor level. It is the submission of the assessee that the flower bed area is outside the balcony area and the starting point for the flower bed area is a point where the balcony area ends.