Asst. Comm. of Income-tax, Pune V. M/s. Kruti Constructions, Pune

ITA 1031/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9747 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-08-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 12-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: R R VORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER, AND SHRI R.S.PADVEKAR, JUDICIAL MEMBER, ITA.NO.1031, 1032 AND 1033/PN/2011 (ASSTT. YEAR : 2003-04, 2004-05 AND 2007-08) ACIT, CIRCLE-5, PUNE. .. APPELLANT VS. M/S.KRUTI CONSTRUCTIONS, 783, BHAWANI PETH, PUNE. PAN: AAGFK4851R .. RESPONDENT AND C.O.NO.73, 74 AND 75/PN/2011 (ARISING OUT ITA.NOS.1031, 1032 AND 1033/PN/2011) (ASSTT. YEAR : 2003-04, 2004-05 AND 2007-08) M/S.KRUTI CONSTRUCTIONS, 783, BHAWANI PETH, PUNE. PAN: AAGFK4851R .. APPELLANT VS. ACIT, CIRCLE-5, PUNE. .. RESPONDENT ASSESSEE BY : SHRI R.R.VORA & SHRI RAJENDRA AGIWAL DEPARTMENT BY : MS.ANN KAPTHUAMA DATE OF HEARING : 27.08.2012 DATE OF PRONOUNCEMENT : 29.08.2012 ORDER PER G.S.PANNU, AM : THE CAPTIONED THREE APPEALS BY THE REVENUE AND CRO SS OBJECTIONS BY THE ASSESSEE RESPECTIVELY INVOLVE A C OMMON ISSUE AND, THEREFORE, THEY WERE HEARD TOGETHER AND A CONSOLIDA TED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVIT Y. 2. THE PROCEEDINGS RELATE TO A.YS. 2003-04, 2004-0 5 AND 2007-08 AND INVOLVE A SOLITARY ISSUE RELATING TO AS SESSEES CLAIM FOR DEDUCTION U/S.80IB(10) OF THE ACT IN RELATION TO TH E PROFITS AND 2 GAINS DERIVED FROM THE BUSINESS OF UNDERTAKING OF D EVELOPMENT AND BUILDING OF HOUSING PROJECTS. 3. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN TH E BUSINESS OF DEVELOPING LAND AND CONSTRUCTION OF HOUSING PROJECT S THEREON. DURING THE YEARS UNDER CONSIDERATION, IT HAD UNDERT AKEN DEVELOPMENT AND BUILDING OF A HOUSING PROJECT KNOWN AS KUMAR RESIDENCY PHASE-I AND THE PROFITS EARNED FROM SU CH PROJECT WERE CLAIMED AS EXEMPT IN TERMS OF SECTION 80IB(10) OF T HE ACT. THE ASSESSMENTS IN QUESTION, RELATING TO A.YS. 2003-04 AND 2004-05, HAVE BEEN PASSED U/S.143(3) R.W.S. 263 OF THE ACT DATED 30.12.2009 AS A CONSEQUENCE OF AN ORDER PASSED BY T HE COMMISSIONER OF INCOME-TAX-III, PUNE, U/S.263 OF TH E ACT. IN SO FAR AS THE A.Y. 2007-08 IS CONCERNED, THE ASSESSMENT HA S BEEN FRAMED U/S.143(3) OF THE ACT DATED 29.12.2009. HOWEVER, T HE REASONS PREVAILING WITH THE ASSESSING OFFICER TO DENY THE C LAIM OF DEDUCTION U/S. 80IB(10) STAND ON AN IDENTICAL FOOTING IN ALL THE THREE YEARS. 4. IN BRIEF, THE DISPUTE IS WITH REGARD TO THE COND ITION PRESCRIBED IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT, WHICH , AS PER THE ASSESSING OFFICER, HAS NOT BEEN COMPLIED WITH BY TH E ASSESSEE. CLAUSE (C) TO SECTION 80IB(10) OF THE ACT PRESCRIBE S THAT THE BUILT-UP AREA OF THE RESIDENTIAL UNITS IN THE APP ROVED PROJECT SHOULD NOT EXCEED 1500 SQ. FT. IN THE CITIES OTHER THAN DELHI AND MUMBAI. AS PER THE ASSESSING OFFICER, IN THE PRESE NT CASE SUCH A CONDITION HAS NOT BEEN FULFILLED IN AS MUCH AS IN C ASE OF FOUR RESIDENTIAL UNITS IN THE PROJECT BEING FLAT NOS.602 , 702 IN B-WING AND FLAT NOS.202, 203 IN C-WING WERE COMBINED INTO TWO BIGGER UNITS AND THE BUILT UP AREA OF THE COMBINED UNITS E XCEEDED 1500 SQ.FT. THE ASSESSING OFFICER HAD REFERRED THE MATT ER TO A GOVERNMENT APPROVED VALUER AND ON THE BASIS OF SUCH REPORT, THE ASSESSING OFFICER OBSERVED THAT FLAT NOS.602, 702 I N B-WING AND FLAT NOS.202, 203 IN C-WING HAVE BEEN COMBINED INTO ONE UNIT WITH CUMULATIVE BUILT UP AREA OF 2713.8 SQ.FT. + 195.25 SQ.FT. AND 2713.8 SQ.FT. + 160.38 SQ.FT. RESPECTIVELY. IN THIS BACKG ROUND, THE ASSESSING OFFICER HELD THAT SINCE THE BUILT-UP AR EA OF THE AFORESAID 3 FLATS EXCEEDED THE MAXIMUM LIMIT PRESCRIBED IN CLAU SE (C) OF SECTION 80IB(10) OF THE ACT, THEREFORE, THE ENTIRE CLAIM OF DEDUCTION U/S. 80IB(10) WAS DENIED. 5. THE STAND OF THE ASSESSEE BEFORE THE ASSESSING O FFICER AS WELL AS BEFORE THE CIT(A) WAS THAT THE AFORESAID UNITS W ERE SHOWN AS INDEPENDENT UNITS IN THE SANCTION PLANS AND WERE AL SO ISSUED COMPLETION CERTIFICATES INDIVIDUALLY BY THE MUNICIP AL AUTHORITIES AND THE SAME WERE ALSO SOLD BY THE ASSESSEE INDEPENDENT LY TO DIFFERENT CUSTOMERS AND WERE IN FACT COMBINED BY THE PURCHASE RS AFTER TAKING POSSESSION FROM THE ASSESSEE. THE PLEA OF T HE ASSESSEE WAS THAT THE CONSEQUENT INTERNAL ALTERATIONS MADE BY TH E BUYER WERE NOT CARRIED OUT THROUGH THE ASSESSEE AND, THEREFORE , THE ASSESSEE COULD NOT BE HELD RESPONSIBLE FOR SUCH CHANGES CARR IED OUT AFTER THE POSSESSION OF THE UNITS WAS HANDED OVER TO THE RESP ECTIVE OWNERS. THE CIT(A) CONSIDERED THE RIVAL STANDS AND HAS INFE RRED AS UNDER: (I) THAT FOR THE PURPOSES OF CLAUSE (C) OF SECTION 8 0IB(10) THE BUILT UP AREA OF THE FLATS HAS TO BE SEEN ON THE DA TE OF HANDING OVER OF POSSESSION OF THE FLATS AND THAT FA CTUALLY THE IMPUGNED FLATS ARE SEPARATE UNITS AS PER THE BUILDI NG PLANS AS APPROVED BY THE LOCAL AUTHORITY AND THE SAME WER E ALSO INDIVIDUALLY SOLD UNDER SEPARATE AGREEMENTS; (II) THAT THE DATE OF BOOKING OF THE FLATS IN QUESTION I S DIFFERENT IN EACH CASE AND THE FLATS WERE REGISTERED UNDER SEPAR ATE AGREEMENTS; (III) THAT THE INDIVIDUAL FLATS HAVE DIFFERENT ENTRANCES, KITCHEN, LOBBIES, ETC., AND THAT THERE WAS NO ALLEGATION THA T THE INDIVIDUAL FLATS WERE NOT INDEPENDENT RESIDENTIAL U NITS BY THEMSELVES; (IV) THAT THE COMPLETION CERTIFICATES DATED 11.07.2002 A ND 30.01.2003 ISSUED BY THE MUNICIPAL AUTHORITIES CLEA RLY SHOW THE FOUR FLATS SEPARATELY; (V) THAT THE INDIVIDUAL FLATS HAVE DIFFERENT ELECTRICIT Y CONNECTION WITH SEPARATE ELECTRICITY METER AS EVIDENCED BY THE SEPARATE ELECTRICITY BILLS PLACED ON RECORD; AND 4 (VI) THAT EACH FLAT OWNER WAS A SEPARATE SHARE HOLDER/ME MBER IN THE SOCIETY CREATED. 6. ON THE BASIS OF THE AFORESAID, THE CIT(A) HELD T HAT THE MERGER OF FLATS OCCURRED IN THE HANDS OF THE FLAT PURCHASE RS AFTER THE SALE OF FLATS BY THE ASSESSEE, AND THEREFORE, IT COULD NOT BE SAID THAT THE PROJECT OF THE ASSESSEE VIOLATED THE CONDITION PRES CRIBED IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. IN COMING TO SUCH CONCLUSION, THE CIT(A) RELIED UPON THE DECISION OF THE MUMBAI BENCH OF TRIBUNAL IN THE CASE OF G.V. CORPORATION REPORTED IN 133 TTJ 17 8 (MUM). THE CLAIM OF DEDUCTION U/S.80IB(10) WAS THUS ALLOWED FO R THE THREE CAPTIONED ASSESSMENT YEARS. 7. AGAINST THE AFORESAID, THE REVENUE IS IN APPEAL BEFORE US. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE APPE ARING FOR THE REVENUE HAS REITERATED THE OBJECTION RAISED BY THE ASSESSING OFFICER WHICH IS TO THE EFFECT THAT AFTER CONSIDERING THE B UILT UP AREA OF THE FLATS COMBINED, THE SAME EXCEEDED THE LIMIT PRESCRI BED U/S. 80IB(10) OF THE ACT, AND THEREFORE, THE CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/ S. 80IB(10) OF THE ACT. IT HAS BEEN SUBMITTED THAT MORE THAN ONE CONS TRUCTED UNIT WAS JOINED TOGETHER TO MAKE A SINGLE DWELLING UNIT AS WAS BROUGHT OUT BY THE ASSESSING OFFICER ON THE BASIS OF THE RE PORT OF THE GOVERNMENT APPROVED VALUER AND, THEREFORE, THERE WA S JUSTIFICATION WITH THE ASSESSING OFFICER TO HAVE DENIED THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT, CONSIDERING THE BUILT-UP AREA OF THE COMBINED FLATS. 8. ON THE OTHER HAND, THE LD. COUNSEL FOR THE RESPO NDENT ASSESSEE VEHEMENTLY POINTED OUT THAT THE FACTUAL AS SERTIONS MADE BY THE CIT(A) CLEARLY DEPICT THAT THE FOUR FLATS IN QUESTION INDIVIDUALLY HAVE BUILT-UP AREA OF LESS THAN 1500 SQ.FT. AND THAT THEY WERE SEPARATELY SOLD AT DIFFERENT POINTS OF TI ME AND IN ANY CASE THEY HAVE BEEN JOINED TOGETHER BY THE FLAT HOLDERS AFTER TAKING OVER POSSESSION OF FLATS FROM THE ASSESSEE. THE LD. COU NSEL VEHEMENTLY SUBMITTED THAT THERE IS NO ALLEGATION MUCH LESS AN ASSERTION BY THE ASSESSING OFFICER THAT THE FOUR FLATS INDIVIDUALLY COULD NOT HAVE 5 BEEN USED AS AN INDEPENDENT RESIDENTIAL UNITS. IN FACT, THE LD. COUNSEL SUBMITTED THAT THE BUILDING PLANS AS APPROV ED, THE COMPLETION CERTIFICATES AS ISSUED BY THE MUNICIPAL AUTHORITIES AND ALSO THE SEPARATE ELECTRIC CONNECTIONS ALONGWITH SE PARATE ELECTRICITY METERS CLEARLY SHOW THAT WHAT THE ASSESSEE SOLD WAS INDIVIDUAL FLATS AND THAT THE SAME HAVE BEEN COMBINED SUBSEQUENTLY B Y THE FLAT HOLDERS. ACCORDING TO THE LD. COUNSEL THE FACT THA T FLATS WERE JOINED TOGETHER SUBSEQUENTLY BY THE FLAT HOLDERS WHICH LEA D TO BUILT UP AREA IN EXCESS OF 1500 SQ.FT. WOULD NOT DISENTITLE THE ASSESSEE FROM THE CLAIM OF SECTION 80IB(10) ESPECIALLY WHEN THE F LATS WERE SO JOINED TOGETHER BY THE FLAT HOLDERS AFTER TAKING PO SSESSION FROM THE ASSESSEE. IN THIS MANNER, THE ORDER OF THE CIT(A) IS OUGHT TO BE DEFENDED. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. QUITE CLEARLY, FOR AVAILING THE BENEFIT ENVISAGED U/S.80I B(10) OF THE ACT, CERTAIN CONDITIONS HAVE BEEN PRESCRIBED THEREOF. I N THE PRESENT CASE, THE ONLY CONTROVERSY IS IN RESPECT OF CLAUSE (C) OF SECTION 80IB(10) OF THE ACT WHICH PRESCRIBES THAT THE BUILT UP AREA OF THE RESIDENTIAL UNIT SHOULD NOT EXCEED 1500 SQ.FT. WHER E SUCH RESIDENTIAL UNIT IS SITUATED IN THE CITY OF PUNE. IN THE PRESENT CASE, THE PROJECT OF THE ASSESSEE HAS 83 DIFFERENT FLATS OUT OF WHICH IT WAS NOTICED THAT FLAT NOS.602, 702 IN B-WING AND FLAT N OS.202, 203 IN C-WING, WERE COMBINED INTO TWO BIGGER UNITS AND IN THIS MANNER THE BUILT-UP AREA OF THE BIGGER UNITS EXCEEDED 15 00 SQ.FT. THE ASSERTIONS OF THE ASSESSEE WERE TO THE EFFECT THAT THE MERGER OF THESE UNITS TOOK PLACE AFTER THE SALE AND HANDING OVER OF POSSESSION OF THE FLATS TO THE BUYERS BY THE ASSESSEE. THE CIT(A) HA S ACCEPTED THE PLEA OF THE ASSESSEE FOR THE REASONS WE HAVE NOTED EARLIER IN THIS ORDER. 10. FACTUALLY SPEAKING, IT IS EMERGING FROM THE ORD ERS OF THE AUTHORITIES BELOW THAT THE FOUR FLATS ARE SEPARATE UNITS IN THE BUILDING SANCTIONED PLANS AS APPROVED BY THE LOCAL AUTHORITIES. FURTHER, IT IS ALSO NOTICEABLE FROM PARA 5.2 OF THE ORDER OF THE CIT(A) THAT THEY HAVE BEEN BOOKED BY THE CUSTOMERS AND SOL D INDIVIDUALLY 6 UNDER SEPARATE AGREEMENTS. FURTHER, THE FLATS HAVE DIFFERENT ENTRANCES, KITCHENS, LOBBIES ETC. THE FLATS HAVE B EEN ISSUED COMPLETION CERTIFICATES BY THE MUNICIPAL AUTHORITIE S INDIVIDUALLY SHOWING THEIR SEPARATE CHARACTER. EACH FLAT HAS A ELECTRICITY METER/CONNECTION AS NOTED BY THE CIT(A) IN PARA 5.4 OF THE IMPUGNED ORDER. IN FACT THE ASSERTIONS OF THE ASSE SSEE WERE THAT THE FLATS HAVE BEEN MERGED/COMBINED BY THE FLATS PU RCHASERS AFTER THE SALE BY THE ASSESSEE. THE AFORESAID ASSERTIONS ARE SUPPORTED BY FACTUAL MATRIX AND IN ANY CASE THERE IS NO MATERIAL BROUGHT ON BY THE REVENUE TO NEGATE THE AFORESAID ASSERTIONS OF T HE ASSESSEE. IN THIS CONNECTION, THE FOLLOWING DISCUSSION BY THE CI T(A) IS RELEVANT: 5.5. THE FACTS NARRATED ABOVE CAREFULLY INDICAT E THAT THE MERGER OF FLATS OCCURRED IN THE HANDS OF THE FLAT P URCHASERS AFTER THE SALE OF FLATS. THE APPELLANT HAS NO CONT ROL ON WHAT THE PURCHASER DOES IN HIS FLAT AFTER THE POSSESSION IS HANDED OVER. NO EVIDENCE IS BROUGHT ON RECORD BY THE A.O. TO SHOW THAT THE APPELLANT HAS ARTIFICIALLY GIVEN TWO FLAT NUMBERS TO ONE SINGLE FLAT. THE VALUERS REPORT STATES THAT FOUR FLATS WERE COMBINED INTO TWO UNITS BUT IT DOES NOT INDICATE AT WHAT POINT OF TIME THE MERGER OF THE UNITS TOOK PLACE. FURTHE RMORE, THERE WAS A TIME LAG OF 4 YEARS BETWEEN THE APPELLANT DE VELOPERS HANDING OVER POSSESSION OF FLATS TO THE PURCHASERS IN THE YEAR 2004/2005 AND THE INSPECTION CARRIED OUT BY THE DEPARTMENTS VALUER IN DECEMBER, 2009. IN SUCH A S ITUATION, IT IS NOT POSSIBLE TO DRAW THE INFERENCE THAT THE A PPELLANT BUILDER BUILT THE RESIDENTIAL FLATS OF MORE THAN 15 00 SQ.FT. OF BUILT-UP AREA AND THE IMPUGNED UNITS WERE COMBINED BY THE APPELLANT BEFORE HANDING OVER POSSESSION OF FLATS T O THE PURCHASERS IN VIOLATION OF THE CONDITION IN CLAUSE (C) OF SEC. 80IB(10). IF EACH RESIDENTIAL UNIT DOES NOT EXCEED THE BUILT-UP AREA OF 1500 SQ.FT. AS PER APPROVED PLAN, THE FACT THAT THEY WERE JOINED TOGETHER BY THE FLAT HOLDERS FOR BETTER LIVING OR FOR MORE SPACE OR FOR ANY OTHER REASON DOES NOT DISENTI TLE THE APPELLANT TO THE CLAIM FOR DEDUCTION UNDER SECTION 80-IB, PARTICULARLY WHEN THESE CHANGES IN THE FLATS WERE M ADE AFTER HANDING OVER POSSESSION OF FLATS TO THE FLAT HOLDER S. IN THESE CIRCUMSTANCES, MERELY BECAUSE FOUR OUT OF 83 PURCHA SERS OF FLATS IN FOUR BLOCKS INTERNALLY JOINED THE FLATS PU RCHASED BY THEM INTO ONE SINGLE UNIT, WHICH EXCEEDED 1500 SQ.F T. OF BUILT UP AREA, IT CANNOT BE SAID THAT THE APPELLANT IS NO T ENTITLED TO THE DEDUCTION AT ALL IN RESPECT OF THE PROFITS DERI VED FROM THE PROJECT. IN THIS CONTEXT, REFERENCE CAN BE MADE TO THE RECENT DECISION OF ITAT, MUMBAI, IN THE CASE OF G.V. CORPO RATION REPORTED IN 133 TTJ 178, WHEREIN IT IS HELD AS UNDE R: IT WAS NOT ALSO THE CASE OF THE COMMISSIONER THAT EACH FLAT IN THE HOUSING PROJECTS UNDERTAKEN BY THE ASSE SSEE 7 COULD NOT HAVE BEEN USED AS AN INDEPENDENT OR SELF- CONTAINED RESIDENTIAL UNIT NOT EXCEEDING 1,000 SQUA RE FEET OF BUILT-UP AREA AND THAT THERE WOULD BE A COM PLETE, HABITABLE RESIDENTIAL UNIT ONLY IF TWO OR MORE FLAT S WERE JOINTED WITH EACH OTHER, WHICH WOULD ULTIMATELY EXC EED 1,000 SQUARE FEET OF BUILT-UP AREA. IN SUCH A SITU ATION, MERELY BECAUSE 9 OUT OF 140 PURCHASES DESIRED TO JO IN THE FLATS PURCHASED BY THEM INTO ONE SINGLE UNIT, W HICH EXCEEDED 1,000 SQUARE FEET OF BUILT-UP AREA, COULD NOT DISENTITLE THE ASSESSEE TO THE DEDUCTION. IF EACH RESIDENTIAL UNIT DID NOT EXCEED THE BUILT-UP AREA O F 1,000 SQUARE FEET, THE FACT THAT THEY WERE JOINED TOGETHE R BY THE PURCHASERS FOR BETTER LIVING OR FOR MORE SPACE OR F OR ANY OTHER REASON DID NOT DISENTITLE THE ASSESSEE TO THE CLAIM FOR DEDUCTION UNDER SECTION 80-IB. 11. OSTENSIBLY THE CONCLUSION REACHED BY THE CIT(A) IS BASED ON FACTUAL MATERIAL AND THERE IS NO MATERIAL BROUGHT O N RECORD BEFORE US WHICH WOULD ENABLE US TO INTERFERE WITH THE ORDE R OF THE CIT(A). HAVING REGARD TO THE AFORESAID DISCUSSION IN THE OR DER OF THE CIT(A), WE THEREFORE HOLD THAT THERE IS NO SUBSTANCE IN THE ASSERTION OF THE REVENUE THAT THE ASSESSEE UNDERTOOK DEVELOPMENT AND BUILDING OF A HOUSING PROJECT WHICH INVOLVED CONSTRUCTION OF A RE SIDENTIAL UNITS WITH BUILT UP AREA EXCEEDING 1500 SQ.FT., IN VIOLAT ION OF SECTION 80IB(10)(C) OF THE ACT. MERELY BECAUSE FOUR FLAT S OUT OF 83 FLATS CONSTRUCTED WERE JOINED TOGETHER INTO TWO BIGGER UN ITS, EXCEEDED 1500 SQ.FT. EACH, COULD NOT DISENTITLE THE ASSESSEE TO THE DEDUCTION, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. AS A RESULT THEREOF, WE HEREBY CONFIRM THE CONCLUSI ON DRAWN BY THE CIT(A) AND THE REVENUE HAS TO FAIL IN THEIR APPEALS . 12. RESULTANTLY, THE APPEALS OF THE REVENUE IN ITA. NO.1031, 1032 AND 1033/PN/2011 FOR A.YS. 2003-04, 2004-05 AND 200 7-08, ARE DISMISSED. 13. IN SO FAR AS THE CROSS OBJECTIONS RAISED BY THE ASSESSEE ARE CONCERNED, THE SAME ARE PRIMARILY IN SUPPORT OF THE CONCLUSION BY THE CIT(A) WITH WHICH WE HAVE ALREADY DEALT WITH IN THE EARLIER PART OF THIS ORDER WHILE CONSIDERING THE APPEALS OF THE REVENUE. ACCORDINGLY, THE SAME ARE RENDERED ACADEMIC. 8 14. ANOTHER ASPECT RAISED BY THE ASSESSEE IS THAT I N CASE IT IS HELD THAT THE CONDITION IN CLAUSE (C) OF SECTION 80IB(10 ) IS NOT FULFILLED IN RELATION TO THE FOUR FLATS IN QUESTION, THEN ALTERN ATIVELY THE ASSESSEE BE ALLOWED DEDUCTION PROPORTIONATE TO THE RESIDENTI AL UNITS WHERE BUILT-UP AREA DID NOT EXCEED 1500 SQ.FT. THE CIT (A) DID NOT ADJUDICATE ON THIS ALTERNATE CONTENTION AS HE HAD H ELD THE ASSESSEE ENTITLED TO DEDUCTION IN RESPECT OF ENTIRE PROFITS DERIVED FROM KUMAR RESIDENCY PHASE-I PROJECT. THE AFORESAID ALTERN ATE PLEA IS ACADEMIC IN NATURE IN AS MUCH AS THE SUBSTANTIVE PL EA OF THE ASSESSEE FOR NOT HAVING VIOLATED CLAUSE (C) OF SECT ION 80IB(10) FOR THE FOUR FLATS IN QUESTION HAVE BEEN AFFIRMED BY US. T HEREFORE, ON BOTH THE COUNTS, THE CROSS OBJECTIONS RAISED BY THE ASSE SSEE ARE ACADEMIC IN NATURE AND ARE, THEREFORE DISMISSED AS INFRUCTUOUS. 15. RESULTANTLY, THE APPEALS OF THE REVENUE AND CRO SS OBJECTIONS BY THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF AUGUST, 2012. SD/- SD/- ( R.S.PADVEKAR ) ( G.S.PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER GSPS PUNE, DATED THE 29 TH AUGUST, 2012. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ACIT, CIRCLE-5, PUNE. 3. THE CIT(A)-III, PUNE. 4. THE CIT-III, PUNE. 5. THE DR A BENCH, PUNE. 6. GUARD FILE. BY ORDER PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.