M/s. Vishwa & Lunkad Associates, Pune V. ITO, Pune

ITA 1484/PUN/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62771 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 29-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: V L JAIN
• Keywords: Opportunity of being heard
• Section: 80IB

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1484 & 1485 /PN/2009 (ASSTT.YEARS : 2005-06 AND 2006-07) M/S. VISHWA & LUNKAD ASSOCIATES, 207/2, KASPATE WASTI, KALEWADI PHATA, WAKAD, PUNE 411 057. .. APPELLANT PAN NO. AADFV 6714D VS. ITO, WARD 4(6), PUNE .. RESPONDENT APPELLANT BY : SRI V.L. JAIN RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 16-07-2012 DATE OF PRONOUNCEMENT : 25-07-2012 ORDER PER R.K. PANDA, AM : THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE SEPARATE ORDERS DATED 29-10-2009 AND 12-11-2009 OF THE CIT(A )-II, PUNE RELATING TO ASSESSMENT YEAR 2005-06 AND 2006-07 RESPECTIVELY. SINCE COMMON GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN BOTH THESE APPEALS, T HEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER. ITA NO. 1484/PN/2009 (A.Y. 2005-06) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PARTNERSHIP FORM CARRYING ON BUSINESS OF BUILDERS AND DEVELOPERS AND IS EXECU TING A HOUSING PROJECT CALLED NISARGA CITY. THE ASSESSEE FILED ITS RETURN OF I NCOME ON 27-10-1005 DECLARING INCOME OF RS. 8,49,620 AFTER CLAIMING DED UCTION U/S. 80IB(10) OF THE I.T. ACT. AT RS. 90,93,502. IN THIS CASE A SURVEY WAS C ONDUCTED ON 09-02-2005 DURING WHICH IT WAS OBSERVED THAT THE SHOPPING AREA IN THE HOUSING PROJECT NISARG CITY IS 2 3494.83 SQ.FT. IN THE TOTAL BUILT UP AREA OF 1,07,9 30 SQ.FT. AFTER DISCUSSING THE VARIOUS ISSUES IN THIS CASE AND AFTER CONSIDERING T HE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE FROM TIME TO TIME THE AO DISALLOWED TH E CLAIM OF DEDUCTION U/S.80IB(10) OF THE I.T. ACT ON THE FOLLOWING GROUN DS : 1. BUILT UP AREA OF SHOPS IS MORE THAN 2000 SQ.FT. 2. BUILT OF AREA OF FLAT NO. 502 IS MORE THAN 1500 SQ.FT. 3. BUILT UP AREA OF ALL THE ROW HOUSES IS MORE THA N 1500 SQ.FT. IF THE AREA OF ROOF TERRACE IS TAKEN INTO CONSIDERATION. 4. BUILT UP AREA OF ROW HOUSES NO. 1 TO 8 AND 25 TO 31 IS MORE THAN 1500 SQ.FT. EVEN IF AREA OF ROOF TERRACE IS NOT TAKEN INTO CONSIDERA TION. 3. IN APPEAL, THE LEARNED CIT(A) UPHELD THE DISALLO WANCE MADE BY THE AO. WHILE DOING SO, HE OBSERVED THAT THE DECISION OF TH E SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BRAHMA ASSOCIATES REPORTED IN 122 TT J (PUNE) (SPECIAL BENCH) 433 FOR ASSESSMENT YEAR 2003-04, IS PRIOR TO THE AMENDM ENT BROUGHT INTO THE STATUTE W.E.F, ASSESSMENT YEAR 2005-06. BY THIS AMENDMENT CLAUSE (D) WAS INSERTED IN SECTION 80IB(10) IMPOSING RESTRICTION ON THE COMMER CIAL AREA TO 5% OF BUILT UP AREA OR 2000 SQ.FT., WHICHEVER IS LOWER. THE DECIS ION OF THE SPECIAL BENCH DID NOT RELATE TO ASSESSMENT YEAR 2005-06 AND SUBSEQUENT YE ARS AT ALL. THEREFORE, THE DECISION OF THE ITAT, PUNE DID NOT PERTAIN TO POST AMENDMENT PERIOD, I.E. ASSESSMENT YEAR 2005-06 WHICH IS THE SUBJECT MATTER OF THE APPEAL. SO FAR AS THE CLAIM OF THE ASSESSEE THAT THERE WAS NO VIOLATION O F CONDITION UNDER SECTION 80IB(10)(C) HE HELD THAT AFTER INCLUDING THE TERRAC E AREA THE BUILT UP AREA AND SOME OF THE FLATS EXCEED 1500 SQ.FT. THE SUBMISSION OF THE ASSESSEE THAT THE DEFINITION OF BUILT UP AREA AS INSERTED BY THE FINANCE (2) ACT 20 04 W.E.F. 01-04-2005 IS NOT APPLICABLE TO IT WAS ALSO REJECTED BY HIM ON THE GR OUND THAT THE AMENDED PROVISIONS WOULD BE SQUARELY APPLICABLE TO THE ASSESSEE FROM A SSESSMENT YEAR 2005-06 AND ONWARDS. REJECTING THE VARIOUS DECISIONS CITED BEF ORE HIM THE LEARNED CIT(A) UPHELD THE ACTION OF THE AO. AGGRIEVED WITH SUCH O RDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 3 1. THE LEARNED CIT(A)-II HAS ERRED ON FACTS AND IN LAW IN CONFIRMING A DISALLOWANCE OF THE CLAIM U/S. 8OIB (10) OF RS. 90,83,502/-. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT( A)-II HAS ERRED ON FACTS AND IN LAW IN NOT ALLOWING A PRO-RATE CLAIM U/S. 80IB(10) WITH REFERENCE TO THE ELIGIBLE PORTION OF THE HOUSING PROJECT. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING T O PAGE NO.22 OF THE PAPER BOOK SUBMITTED THAT THE PROJECT WAS APPROVED AND SA NCTIONED VIDE COMMENCEMENT CERTIFICATE DATED 20-10-2003. HE SUBMITTED THAT THE BUILT UP AREA EXCLUDING THE BALCONY/TERRACE AREAS OF ALL THE UNITS IS LESS THAN 1500 SQ.FT. HE SUBMITTED THAT THE AMENDMENTS MADE W.E.F. 01-04-2005 TO PROVISIONS OF SECTION 80IB(10) DO NOT APPLY TO PROJECTS APPROVED PRIOR TO 31-03-2005. TH EREFORE, CLAUSE (D) OF SECTION 80IB(10) AND CLAUSE (A) OF SECTION 80IB (14) DO NOT APPLY TO THE CASE OF THE ASSESSEE. FOR THIS PROPOSITION HE RELIED ON THE FO LLOWING DECISIONS : A. HIRANADANI AKRUTI JV VS. DCIT REPORTED IN 39 SOT 498 (MUM.) B. OPEL SHELTERS PVT. LTD. VS. ACIT ITA NO. 219/P N2009 (2005-06) C. CIT VS. ANIRIYA PROJECT MANAGEMENT SERVICES PVT. LTD. ITA NO. 138/2010 (KARNATAKA HIGH COURT) D. BRAHMA ASSOCIATES VS. JCIT REPORTED IN 333 ITR 289 4.1 REFERRING TO THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. PRIME PROPERTIES VIDE ITA NOS. 887, 888, & 889/PN/2010 ORDER DATED 26- 04-2012 FOR THE ASSESSMENT YEARS 2003-04 TO 2005-06 HE DREW THE ATTENTION OF THE BENCH TO PARA 6 OF THE ORDER AND SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION AFTER CONSIDERING THE VARIOUS DECISIONS CITED BEFOR E IT HAS HELD THAT PROVISIONS OF SUB SECTION 14(A) OF SECTION 80IB WHICH DEFINES BU ILT UP AREA TO INCLUDE PROJECTIONS AND BALCONIES ARE APPLICABLE ONLY IN RE SPECT OF THE PROJECTS APPROVED AFTER 01-04-2005 AND CONSEQUENTLY BALCONIES/TERRACE CANNOT BE INCLUDED IN THE BUILT UP AREA OF THE FLATS IN THE ASSESSEES HOUS ING PROJECT. SINCE IN THE INSTANT CASE THE PROJECT HAS BEEN APPROVED PRIOR TO 01-04-2 005 AND SINCE AFTER EXCLUDING THE PROJECTIONS AND BALCONIES THE BUILT UP AREA OF NONE OF THE FLATS EXCEEDS 1500 SQ.FT., THEREFORE, THE ASSESSEE IS ENTITLED TO DEDU CTION U/S. 80IB(10). 4 5. SO FAR AS THE ISSUE REGARDING COMMERCIAL AREA I S CONCERNED HE SUBMITTED THAT IN VIEW OF THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) THE ASSESSEE IS ENTITLED TO DEDU CTION U/S. 80IB(10). 5.1 THE LEARNED D.R. ON THE OTHER HAND HEAVILY RELI ED ON THE ORDERS OF THE AO AND THE CIT(A). 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. IN THE INSTANT CASE THE PROJECT WAS APPROVED ON 20-10-2003 WHICH IS PRIOR TO 01-04-2005. WE FIND THE AO DENIED THE BENEFIT OF DEDUCTION U/S. 80IB(10) ON THE GROUND THAT THE COMMERCIAL AREA IN THE PROJECT IS MORE THAN 200 0 SQ.FT. AND BUILT UP AREA OF SOME OF THE FLATS IS MORE THAN 1500 SQ.FT. WHICH HA S BEEN UPHELD BY THE LEARNED CIT(A). IN THE INSTANT CASE, THE BUILT UP AREA OF THE HOUSING PROJECT IS 1,07,930 SQ.FT. AND THE TOTAL SHOPPING AREA IS 3494.83 SQ.FT . SO FAR AS THE ISSUE RELATING TO THE COMMERCIAL AREA EXCEEDING 2000 SQ.FT. IS CONCERNED, WE FIND THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA) WHILE DISCUSSING THE ISSUE IN DETAILS HAS BEEN PLEASED TO ANSWER THE VARIOUS QUES TIONS RAISED BEFORE IT WHICH ARE AS UNDER : 30. IN THE RESULT, THE QUESTIONS RAISED IN THE APP EAL ARE ANSWERED THUS:- A) UPTO 31/3/2005 (SUBJECT TO FULFILLING OTHER COND ITIONS), DEDUCTION UNDER SECTION 80IB(10) IS ALLOWABLE TO HOUSING PROJECTS A PPROVED BY THE LOCAL AUTHORITY HAVING RESIDENTIAL UNITS WITH COMMERCIAL USER TO TH E EXTENT PERMITTED UNDER THE DC RULES / REGULATIONS FRAMED BY THE RESPECTIVE LOC AL AUTHORITY. B) IN SUCH A CASE, WHERE THE COMMERCIAL USER PERMIT TED BY THE LOCAL AUTHORITY IS WITHIN THE LIMITS PRESCRIBED UNDER THE DC RULES / REGULATION, THE DEDUCTION UNDER SECTION 80IB(10) UPTO 31/3/2005 WOU LD BE ALLOWABLE IRRESPECTIVE OF THE FACT THAT THE PROJECT IS APPROVED AS HOUSIN G PROJECT OR RESIDENTIAL PLUS COMMERCIAL. C) IN THE ABSENCE OF ANY PROVISIONS UNDER THE INCOM E TAX ACT, THE TRIBUNAL WAS NOT JUSTIFIED IN HOLDING THAT UPTO 31/3/2005 DE DUCTION UNDER SECTION 80IB(10) WOULD BE ALLOWABLE TO THE PROJECTS APPROVED BY THE LOCAL AUTHORITY HAVING 5 RESIDENTIAL BUILDING WITH COMMERCIAL USER UPTO 10% OF THE TOTAL BUILT-UP AREA OF THE PLOT. D) SINCE DEDUCTIONS UNDER SECTION 80IB(10) IS ON TH E PROFITS DERIVED FROM THE HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY AS A WHOLE, THE TRIBUNAL WAS NOT JUSTIFIED IN RESTRICTING SECTION 80IB(10) DEDUCTION ONLY TO A PART OF THE PROJECT. HOWEVER, IN THE PRESENT CASE, SINCE THE ASSESSEE HA S ACCEPTED THE DECISION OF THE TRIBUNAL IN ALLOWING SECTION 80IB(10) DEDUCTION TO A PART OF THE PROJECT, WE DO NOT DISTURB THE FINDINGS OF THE TRIBUNAL IN THAT BE HALF. E) CLAUSE (D) INSERTED TO SECTION 80IB(10) WITH EFF ECT FROM 1/4/2005 IS PROSPECTIVE AND NOT RETROSPECTIVE AND HENCE CANNOT BE APPLIED FOR THE PERIOD PRIOR TO 1/4/2005. SINCE IN THE PRESENT CASE THE TOTAL COMMERCIAL AREA PERMITTED BY THE LOCAL AUTHORITY IS WITHIN THE LIMITS PRESCRIBED UNDER THE DC RULES/ REGULATIONS THEREFORE THE DEDUCTION U/S. 80IB(10) UPTO 31-03-2005 WOULD BE AL LOWABLE IRRESPECTIVE OF THE FACT THAT THE PROJECT IS APPROVED AS HOUSING PROJEC T OR RESIDENTIAL-CUM-COMMERCIAL. 7. SO FAR AS THE ISSUE RELATING TO DENIAL OF BENEFI T OF DEDUCTION U/S. 80IB(10) ON THE GROUND THAT THE BUILT UP AREA IN SOME OF THE CA SES EXCEEDS 1500 SQ.FT. WE FIND THIS BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. P RIME PROPERTIES VIDE ITA NOS. 887, 888 AND 889/PN/2009 ORDER DATED 26-04-2012 HAS HELD AS UNDER : 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE PARTIES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BE FORE US. THE ONLY DISPUTE IN THE GROUNDS RAISED BY THE REVENUE IS REGARDING ALLOWABI LITY OF DEDUCTION U/S.80IB(10) SINCE THE TOTAL AREA OF CERTAIN FLATS WHICH WERE COMBINED TOGETHER EXCEED THE MAXIMUM LIMIT OF 1500 SQ.FT. IT IS THE SUBMISSION OF THE LD. COUNSE L FOR THE ASSESSEE THAT EVEN IF 2 FLATS ARE COMBINED TOGETHER, TOTAL BUILT UP AREA OF NONE OF T HE FLATS EXCEEDS 1500 SQ.FT. IF BALCONY/TERRACE ARE EXCLUDED. WE FIND THE A.Y. INV OLVED IN THE IMPUGNED APPEAL IS A.Y.2004-05 AND THE PROJECT HAS BEEN APPROVED PRIOR TO IST APRIL, 2005. THEREFORE, IN VIEW OF THE DECISION OF MUMBAI BENCH OF THE TRIBUNA L IN THE CASE OF HAWARE CONSTRUCTIONS(P) LTD., (SUPRA), THE PROVISIONS OF S UB SECTION 14(1) OF SECTION 80IB WHICH DEFINES BUILT UP AREA TO INCLUDE PROJECTIONS AND BA LCONIES ARE APPLICABLE ONLY IN RESPECT OF THE PROJECTS APPROVED AFTER IST APRIL 2005 AND C ONSEQUENTLY, BALCONY/TERRACE CANNOT BE INCLUDED IN THE BUILT UP AREA OF THE FLATS IN THE A SSESSEES HOUSING PROJECT WHICH WAS ADMITTEDLY APPROVED PRIOR TO IST APRIL 2005. SINCE AFTER EXCLUDING THE BUILT UP AREA OF 1500 SQ.FT. A FACT BROUGHT ON RECORD BY THE LD. CIT (A) AND NOT CONTROVERTED BY THE REVENUE, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWING THE DEDUCTION U/S.80IB(10) OF THE I.T. ACT. THE GROUND S RAISED BY THE REVENUE ARE ACCORDINGLY DISMISSED. 7.1 SIMILARLY WE FIND THE TRIBUNAL AT PARA 11 OF TH E ORDER HELD AS UNDER : 11. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. THERE IS NO DISPUTE TO THE FACT THAT THE PROJECT WAS APPROVED P RIOR TO 1.4.2004. THEREFORE, THE DEFINITION OF BUILT UP AREA AS PER SEC. 80 IB (14) (A) WHICH IS INSERTED W.E.F. 1.4.2004 DOES NOT APPLY TO PROJECTS APPROVED PRIOR TO THAT D ATE. WE FIND THE PUNE BENCH OF THE 6 TRIBUNAL IN THE CASE OF D.S. KULKARNI & ASSOCIATES (SUPRA) AT PARA 20 OF THE ORDER HAS OBSERVED AS UNDER : 20. BY APPLYING THE PRINCIPLE OF HARMONIOUS CONSTR UCTION TO INTERPRET THE PROVISIONS UNDER SUB-SECTION (10) TO SECTION 80IB A S AMENDED W.E.F. 1.4.2005 WE COME TO THE CONCLUSION THAT THE LEGISLATURE ALWAYS INTENDED THAT THE PROJECT MUST BE APPROVED BY THE LOCAL AUTHORITY, THUS IN TH OSE APPROVED PROJECTS WHERE CONSTRUCTION HAS BEEN STARTED MUCH EARLIER THAN 1.4 .2005, THE ASSESSEES ARE REQUIRED TO COMPLETE THE PLAN AS IT HAS BEEN APPROV ED. AS PUTTING SUCH ASSESSEES TO COMPLETE THE PLAN MEETING OUT CONDITION UNDER CL AUSE (D) OF THE SUB-SECTION WOULD LEAD INTO ABSURDITY AND IMPOSSIBILITY FOR THE ASSESSEE AND IN CONTRADICTION TO THE PROVISIONS U/S. 80 IB(10) AS PREVAILED AT TH E TIME OF APPROVAL AND COMMENCEMENT OF THE CONSTRUCTION OF THE PROJECT WE LL BEFORE 1.4.2005. BOMBAY BENCH OF THE TRIBUNAL IN THE CASE OF HIRANANDANI AK RUTI J.V (SUPRA) HAS DISCUSSED ALL THESE RELEVANT ASPECTS RAISED BY THE DEPARTMENT . IN THE CASE OF HIRANANDANI AKRUTI J.V V/S. DCIT, IT HAS BEEN HELD THAT THE L AW AS EXISTED WHEN THE ASSESSEE SUBMITTED ITS PROPOSAL AND PERMISSION FOR CARRYING OUT THE DEVELOPMENT WAS ACCORDED AND WHEN THE ASSESSEE COMMENCED DEVELOPMEN T IS TO BE APPLIED. IN THE PRESENT CASES, AS PER PAGE NOS. 17 AND 20 OF T HE PAPER BOOK IN THE CASE OF OPEL SHELTER THE PROJECT WAS COMMENCED ON 23.2.2001 AND EVEN COMPLETED ON 14.5.2004, SIMILARLY AS PER THE CONTENTS OF PAGE NO .2 OF THE ASSESSMENT ORDER AND PAGE NO. 41 OF THE PAPER BOOK IN THE CASE OF D. S. KULKARNI AND ASSOCIATES, THE PROJECT WAS COMMENCED ON 12.4.2001 AND COMPLETED IN THE MONTH OF NOVEMBER 2003. THUS, THE ASSESSEES WERE SUPPOSED TO COMPLET E THE PROJECTS AS PER THE LAW AS EXISTED IN THE A.Y. 2001-02 IN THE CASE OF OPEL SHELTERS AND IN THE A.Y. 2002-03 IN THE CASE OF D.S. KULKARNI AND ASSOCIATES. WE T HUS FOLLOWING THE DECISION IN THE CASE OF HIRANANDANI AKRUTI JV V/S. DCIT (SUPRA) HO LD THAT AMENDED PROVISIONS UNDER SECTION 80 IB(10) W.E.F. 1.4.2005 ARE NOT APP LICABLE IN THE PRESENT CASE, HENCE ASSESSEES ARE ELIGIBLE FOR THE CLAIMED DEDUCT ION U/S. 80 IB (10) OF THE ACT. WE ACCORDINGLY DIRECT THE A.O TO ALLOW THE CLAIMED DEDUCTION TO THE ASSESSEES. 12. WE FIND SIMILAR VIEW HAS BEEN TAKEN BY THE MUM BAI BENCH OF THE TRIBUNAL IN THE CASE OF HAWARE CONSTRUCTIONS (P) LTD. (SUPRA). SIN CE THE PROJECTS HAS BEEN APPROVED PRIOR TO 1.4.2004 AND SINCE AFTER EXCLUDING THE BA LCONY/TERRACE, THE TOTAL BUILT UP AREA OF NONE OF THE FLATS EXCEEDS 1500 SQ. FT., THEREFORE, RESPECTFULLY FOLLOWING THE DECISIONS CITED (SUPRA) WE HOLD THAT THE BENEFIT OF DEDUCTION U/S. 80 IB (10) CANNOT BE DENIED TO THE ASSESSEE. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDERS OF THE CIT(A) AND DIRECT THE A.O TO ALLOW THE BENEFIT OF DEDUCTION U/S. 80 IB (1 0) CLAIMED BY THE ASSESSEE. 7.2 IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT AFTER EXCLUDING THE BALCONY/TERRACE THE TOTAL BUILT UP AR EA OF NONE OF THE FLATS EXCEEDS 1500 SQ.FT. WE FIND THE AO HAS DENIED THE BENEFIT O F DEDUCTION U/S. 80IB (10) ON THE GROUND THAT SOME OF THE RESIDENTIAL UNITS HAVE A BUILT UP AREA EXCEEDING 1500 SQ.FT. EVEN WHEN THE TERRACE AREA IS EXCLUDED. IN VIEW OF THE CONFLICTING STAND TAKEN BY THE ASSESSEE AS WELL AS THE REVENUE WE DEEM IT P ROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY AS TO WHE THER THE BUILT UP AREA OF ANY OF THE FLATS AFTER EXCLUDING THE BALCONY/TERRACE EXCEEDS 1 500 SQ.FT. OR NOT. IN CASE THE CONTENTION OF THE ASSESSEE THAT AFTER EXCLUDING THE BALCONY/TERRACE AREA, THE TOTAL 7 BUILT UP AREA OF NONE OF THE FLATS EXCEEDS 1500 S Q.FT. THEN IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE OF PRIME PROPERTIES (SU PRA) THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80IB(10). THE AO IS DIRECTED TO DECI DE THE ISSUE IN THE LIGHT OF OUR ABOVE OBSERVATIONS/DIRECTIONS AND IN ACCORDANCE WIT H LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GR OUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 1485/PN/2009 (A.Y. 2006-07) : 8. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUND S RAISED BY THE ASSESSEE ARE IDENTICAL TO GROUNDS RAISED IN ITA NO. 1484/PN/2009 . WE HAVE ALREADY DECIDED THE ISSUE AND THE MATTER HAS BEEN RESTORED TO THE F ILE OF THE AO FOR VERIFICATION WITH CERTAIN DIRECTIONS. FOLLOWING THE SAME RATIO, THE MATTER FOR THIS YEAR ALSO IS RESTORED TO THE FILE OF THE AO WITH THE SAME DIRECT IONS. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF JULY 2012. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PAND A) JUDICIAL MEMBER ACCOUNTANT MEM BER PUNE, DATED THE 25 TH JULY 2012 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-II, PUNE 4. D.R. A BENCH, PUNE 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRE TARY, INCOME TAX APPELLATE TRIBUNAL, PUNE