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13. Dwarika DS10A 3069 1490 2209.68 2209.68 Exceeds It was further seen that flat No.1 of Block-C had a balcony attached to the said flat. The built up area of the flat was 1421 sq.ft. and the built up area of the balcony was 442 sq.ft.

The definition of "built up area" as per the Act has been defined as under -

"Built-up area" means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units. The term 'balcony' means a horizontal cantilever projection including a handrail or balustrade, to serve as passage or sit out place.
Hence the total built up area of this flat works out to 1863 sq.ft.
It was further seen that several flats were sold along with servants quarters and the built up area of these flats as increased by the built up area of the servants quarters exceed 1500 sq.ft.. The list of such flats are as follows:
TABLE· C Sl.No Block Flat Buyer Super Builtup Builtup Servant Total Remarks . No Built up Area as Area Quarters Built up Area per applying Built up area Assess 72% area ee ratio
Page | 8 [Assessment Year: 2006-07 & 2007-08]
a) Built-up area (BUA) of flats being above 1500 sq. ft. per unit
(i) Applying a fixed ratio of 72% of SBUA The AO has calculated BUA of the flats under his own calculation which as it appears is based on reverse method of calculation. I agree with the contention of the appellant that this method of calculation is neither specified in the Act nor is relevant for determination of the BUA, when the BUA of the flats can be calculated straight from the measurements mentioned in the Sanctioned Plan. I have perused the sanctioned plan, architect's certificate and chartered engineer's certificate wherein the measurements are categorically mentioned from which BUA can be calculated by such straight method. Under these facts, it is not the case of the AO to consider in any way the super built up area for determining the built-up area as neither the measurements in the sanctioned plan nor the authenticity of the sanctioned plan, architect's certificate, chartered Engineer's certificate and agreements in this respect with the buyers are disputed by the AO. It is also seen that this issue was duly considered and settled in favour of the appellant vide this office order in the appellant's own case in earlier years. It is also relevant to mention that the AO ought to have considered the specific percentage of 71.7% when its consideration has got bearing upon the very crux of the subject matter. It is also seen from the evidences/details filed before me which were also filed before the AO that one flat of 2069 sq. ft. has been considered by him to be of 3069 sq. ft. which vitiated his own calculation. On actual area of 2069 sq. ft. under his own calculation falls outside his list of the flats having more than 1500 sq. Ft. The AO is not justified in ignoring the evidences filed before him and in computing the BUA by reverse method of calculation taking the super built-up area as the basis of his calculations. BUA ought to be calculated by straight method. It is seen that architect's certificate and chartered engineer's certificate have shown the calculation by straight method and by which none of the flat is of an area exceeding 1500 sq. ft. The appellant can not be denied the deduction u/s. 80IB(10) on this ground.

80IB(10)(c) of the Act. The AO has determined the built up area of three flats by applying an average percentage of total built up area on the basis of total super built up area of the three flats to that of the whole project and calculated the built up area of the said three flats at 1540.8 sq. ft. each. The AO was of the opinion that flat No. BF, 7E and 8E situated vertically having been sold to one buyer in the relevant AY was one flat of built up area of 1752 sq. ft. which has been broken into two units to avoid being hit by sec. 80IB(10)(c) of the Act. The AO also found in Block C of the building plan that 1500 mm wide open terrace was not included in the built up area of the residential unit having such open terrace. Before the Ld. CIT(A), the assessee drew the attention of the Ld. CIT(A) that the method adopted by the AO for calculating the built up area is faulty and that there is no uniformity in the super built up charged to the buyer. It has also been brought to the knowledge of the Ld. CIT(A) that the evidence furnished by the assessee like building plan, architect certificate and the agreement with the buyer has been brushed aside by the AO and the AO has wrongly included the area of open terrace in respect of concerned flats to come to the conclusion that built up area is more than 1500 sq. ft. After taking Page | 13 [Assessment Year: 2006-07 & 2007-08] note of the contention of the Ld. AR which is reproduced by the Ld. CIT(A) from pages 13 to 19, the Ld. CIT(A) concluded that the AO has not given any credence to the evidence furnished by the assessee like building plan, architect certificate, agreement with the buyer in order to prove the claim that the built up area was less than 1500 sq. ft. The Ld. CIT(A) rightly held that the AO erred in discarding the building plan submitted by the assessee which specifies the measurement of each unit is on record, and the calculation of built up area which was adopted by the AO by method of reverse calculation was totally unwarranted in the facts of the case. When the exact figures can be derived from the record submitted by the assessee, the AO resorting to estimation was an exercise not called for without finding any fault in the building plan and certificate of the architect which were submitted before the AO. The conclusion of the AO that the issue of 1500 mm wide open terrace cannot be sustained because the Coordinate Bench of this Tribunal of Ahmedabad Bench in the case of Amaltas Associates Vs. ITO (2011) 11 Taxman.com 420 (Ahd.) has held that while calculating the built up area of a residential unit, the area of open terrace shall not be included. We note that the AO erred in stating that flat No. BF, 7E and 8E are situated vertically whereas there are two residential units side by side on the same floor and the buyer was Shri Vivek Golcha. The Ld. CIT(A) has gone through the agreement with the buyer and has made a finding that the two residential units as per the sanctioned building plan and the architect certificate which certifies the built up area of the said unit as 858 and 894 sq. ft. which is much below the specified limit of 1500 sq. ft. The Ld. CIT(A) rightly relied on the Coordinate Bench decision of Bombay in the case of Emgeen Holdings (P) Ltd. Vs. DCIT (2011) 12 Taxmann.com 468 (Mum) wherein it has been held that even if flats were constructed or planned in such a way that two flats would be merged into one larger unit, as long each flat was an independent residential unit, deduction u/s. 80IB(10) of the Act could not be declined. The Ld. CIT(A) rightly took note of the fact that clause (f) of sec. 80IB(10) of the Act which restricts more than one unit to the same person or his relative is applicable w.e.f. 01.04.2010 and has no retrospective effect. We fully concur with the reasons adduced by the Ld. CIT(A) to reverse the finding of the AO which is factually and as per the law is correct and we do not find any infirmity in the order of the ld. CIT(A), therefore, we dismiss the ground of appeal of the revenue.