DCIT, Jaipur V. ASHIANA MANGALAM DEVELOPERS, Jaipur

ITA 204/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5135 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 27-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAGHUVIR SINGH DAGUR
• Assessee Lawyers: P C PARWAL CA DHK
• Section: 143(3); 80IB; 15

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NOS. 204 & 270/JP/2015 ASSESSMENT YEARS : 2010-11 & 11-12. THE DY COMMISSIONER OF INCOME - TAX, CIRCLE-6, JAIPUR. CUKE VS. M/S. ASHIANA MANGALAM DEVELOPERS, 401, 3 RD FLOOR, APEX MALL, LAL KOTHI, TONK ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AANFA 4297 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAGHUVIR SINGH DAGUR (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.08.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08/09/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAIN ST THE TWO DIFFERENT ORDERS OF LD. CIT (A), JAIPUR DATED 15.12.2014 AND 28.01.2015 PERTAINING TO ASSESSMENT YEARS 2010-11 AND 2011-12 RESPECTIVELY. IN BOTH THE APPEALS, THE REVENUE HAS RAISED A COMMON GROUND EXCEPT CHANGE IN FIGURE, THEREFORE, BOTH THE APPEALS ARE BEING DISPOSED OFF BY A CONSOLIDATED OR DER, FOR THE SAKE OF CONVENIENCE. THE REVENUE IN ITA NO. 204/JP/2015 HAS RAISED THE F OLLOWING GROUND OF APPEAL :- WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 7,13,77,130/- MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IB(10) WITHOUT APPRECIATING THE FACT THAT THE BU ILT UP AREA OF THE VILLAS CONSTRUCTED BY THE ASSESSEE IS 1772.81 SQ. F T. THAT EXCEEDS THE LIMIT OF 1500 SQ. FT., THEREBY IGNORING THE DEFINIT ION AS GIVEN IN SECTION 80IB(14)(A) OF INCOME-TAX ACT, 1961. 2 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY AND THE ASSESSMENT WAS FRAMED UNDER SECTIO N 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE ORDER DATED 25.03.2013. WHILE FRAMING THE ASSESSMENT, THE AO REJECTED THE CLAIM O F DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, ON THE GROUND THAT THE ASSESSE E HAS NOT FULFILLED THE BASIC ELIGIBILITY CONDITION FOR DEDUCTION U/S 80IB(10) AS THERE IS VIOLATION OF CLAUSE (C). THE ASSESSEE AGGRIEVED BY THIS ORDER, PREFERRED APPEAL BEFORE LD. CIT (A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ALLOWED THE APPEAL OF THE ASSESSEE AND HELD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UN DER SECTION 80IB(10) OF THE ACT. 3. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL . 4. THE LD. D/R VEHEMENTLY ARGUED THAT THE LD. CIT ( A) WAS NOT JUSTIFIED IN DELETING THE DISALLOWANCE AND DIRECTED THE AO TO AL LOW DEDUCTION. HE SUBMITTED THAT AS PER SECTION 80IB (10) THE COVERED AREA EXCEEDED 1500 SQ. FT BUT IN THE PRESENT CASE THE AO FOUND THAT BUILT UP AREA COMES TO 1772. 81 SQ. FT. WHICH IS MUCH MORE THAN PRESCRIBED LIMIT. THEREFORE, THE AO WAS JUSTI FIED IN DECLINING THE CLAIMED DEDUCTION. 4.1. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE AO WRONGLY APPRECIATED THE FACTS OF THE CASE. HE SUBMI TTED THAT THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE SATISFIED ALL THE CONDITIONS. THE ONLY DISPUTE IS WITH REGARD TO THE INCLUSION OF AREA OF TERRACE. H E SUBMITTED THAT THE ONLY ISSUE TO BE EXAMINED IS WHETHER THE OPEN TERRACE IS TO BE TR EATED AS BALCONY FOR THE PURPOSE OF DETERMINING THE BUILT UP AREA. HE SUBMITTED THAT BUILT UP AREA IS DEFINED UNDER SECTION 80IB(14)(A), WHICH MEANS THE INNER MEASUREM ENTS OF THE RESIDENTIAL UNIT AT 3 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS THE FLOOR LEVEL, INCLUDING THE PROJECTION AND THE B ALCONIES, AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COM MON AREAS SHARED WITH OTHER RESIDENTIAL UNITS. HE SUBMITTED THAT FROM THE DEFI NITION IT CAN BE CONSTRUED THAT BUILT UP AREA EXCLUDES ONLY THE COMMON AREA SHARED WITH O THER RESIDENTIAL UNITS. IN THE CASE OF FLATS, THERE MAY BE COMMON AREA SUCH AS COM MON STAIRS, LIFT, LOBBY ETC. BUT VILLA IS A SEPARATE AND EXCLUSIVE UNIT WHERE IS NO COMMON AREA WHICH IS SHARED WITH OTHER RESIDENTIAL UNIT. THE AO PRESUMED THE OPEN T ERRACE AREA AS BALCONY. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT UNDER THE I DENTICAL FACTS, THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ASHINA AM AR DEVELOPERS VS. ITO IN ITA NO. 12/KPL/2014 DATED 22.01.2016 AFTER EXAMINING THE ST ATUTORY PROVISIONS AND THE CASE LAWS CAME TO THE CONCLUSION THAT OPEN TERRACE IS NO T COVERED WITHIN THE MEANING OF BUILT UP AREA AS IT IS OPEN TO SKY AND WOULD NOT BE PART OF THE INNER MEASUREMENT OF THE RESIDENTIAL FLOOR AT ANY FLOOR LEVEL. HE, THERE FORE, SUBMITTED THAT THE AO ERRONEOUSLY INCLUDED THE AREA OF OPEN TERRACE TAKIN G IT AS BUILT UP AREA. THE LD. CIT (A), THEREFORE, HAS RIGHTLY EXCLUDED THE AREA AND A ND ALLOWED DEDUCTION UNDER SECTION 80IB(10). 4.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE AO DECLINED THE DEDUCTION UNDER SECTION 80IB(10) BY OBSERVING AT PA GES 13 & 14 AS UNDER :- AS DISCUSSED ABOVE, THE AREA TAKEN BY THE ASSESSE E AS TERRACE IS IN FACT BALCONIES, WHICH ARE ATTACHED AND ACCESSIBLE F ROM THE TWO BED ROOMS SITUATED ON THE FIRST FLOOR OF THE VILLA. THI S IS NOT A COMMON AREA WHICH IS SHARED WITH OTHER RESIDENTIAL UNITS. THAT BEING SO, THIS AREA HAS TO BE INCLUDED FOR THE PURPOSE OF CALCULATION O F BUILT UP AREA. IF THIS 4 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS AREA IS INCLUDED, THE BUILT UP AREA OF THE VILLA EX CEEDS THE LIMIT OF 1500 S. FT. PRESCRIBED UNDER SECTION 80B(10). EVEN OTHER WISE, THE ASSESSEE HIMSELF HAS INCLUDED 33.33% OF THE AREA TAKEN BY IT AS TERRACE (I.E. 105 S.FT) IN THE CALCULATION, BUT THIS HAS BEEN EXCLUDE D FOR WORKING OUT BUILT UP AREA. IF WE ADD THIS AREA OF 105 S.FT, THE TOTAL COMES TO 1580.81 S.FT, WHICH IS MORE THAN THE PRESCRIBED LIMIT OF 15 00 S. FT. IN THIS CASE, THE ASSESSEE HAS MADE AN ATTEMPT TO EXCLUDE THE BAL CONIES ATTACHED AND ACCESSIBLE FROM THE TWO BED-ROOMS, TERMING IT A S TERRACE SO AS TO CLAIM THE DEDUCTION. AS DISCUSSED ABOVE, IF THE ARE A OF THE BALCONIES IS INCLUDED, THE BUILT UP AREA COMES TO 1772.81 S. FT, WHICH IS MUCH MORE THAN THE PRESCRIBED LIMIT OF 1500 S. FT. SINCE THE BASIC ELIGIBILITY CONDITION AS LAID DOWN IN CLAUSE (C) OF SEC. 80IB(1 0) IS NOT FULFILLED, THE BENEFIT OF DEDUCTION U/S 80IB(10) CANNOT BE ALLOWED TO THE ASSESSEE. THE BUILT-UP AREA OF THE SHOPS AND OTHER COMMERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED (TH REE) PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR [ FIVE] THOUSAND SQUARE FEET, WHICHEVER IS HIGHER]; IT HAS BEEN STATED THAT THE NO COMMERCIAL ESTABLISH MENT IS INCLUDED IN THE HOUSING PROJECT AND THERE IS NO VIOLATION OF TH IS CONDITION. NOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUSING P ROJECT SHOULD BE ALLOTTED TO A PERSON BEING AN INDIVIDUAL AND IN CAS E WHERE A RESIDENTIAL UNIT IN SUCH HOUSING PROJECT IS ALLOTTED TO A PERSO N BEING AN INDIVIDUAL, NO OTHER RESIDENTIAL UNIT SHOULD BE ALLOTTED TO SPO USE OR MINOR CHILDREN OF HIS HUF. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, VIDE L ETTER DATED 17.1.2013, THE ASSESSEE STATED THAT NO FLAT HAS BEE N ALLOTTED TO ANY SPOUSE OR MINOR CHILDREN OF THE ALLOTTEE. FURTHER, AN AFFIDAVIT DATED 05.02.2013 WAS ALSO FILED BY THE AUTHORIZED SIGNATO RY, SHRI SANJEEV RAWAT DULY NOTARIZED TO THE EFFECT THAT NOT MORE TH AN ONE RESIDENTIAL UNIT IN THE HOUSING PROJECT HAS BEEN ALLOTTED TO AN INDIVIDUAL, HIS SPOUSE, OR MINOR CHILDREN OR HUF BY THE ASSESSEE. 5 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS FROM THE DETAILED DISCUSSION MADE ABOVE, IT IS CLEA R THAT THE ASSESSEE HAS NOT FULFILLED THE BASIC ELIGIBILITY CONDITION F OR DEDUCTION U/S 80IB(10) OF THE IT ACT AS THERE IS VIOLATION OF CLAUSE (C) A S DISCUSSED ABOVE. ON THE BASIS OF THESE FINDINGS, IT IS HEREBY HELD THAT THE ASSESSEE IS NOT ENTITLED TO THE DEDUCTION CLAIMED BY IT AND ACCORDI NG, THE CLAIM FOR DEDUCTION U/S 80IB(10) AMOUNTING TO RS. 7,13,77,130 /- IS HEREBY DISALLOWED. HOWEVER, THE LD. CIT (A) AFTER CONSIDERING THE SUBM ISSIONS HAS OBSERVED AS UNDER :- 3.2. THE FACTS OF THIS ISSUE ARE : (I) THE RESIDENTIAL UNIT WHOSE BUILT UP AREA IS UNDER C ONSIDERATION IS A GROUND FLOOR PLUS FIRST FLOOR UNIT HAVING A COMMO N BOUNDARY WALL WITH AN ADJOINING UNIT. THEREFORE, THIS RESIDE NTIAL UNIT IS IN THE NATURE OF A ROW HOUSE WHICH HAS BEEN MARKETED AS A VILLA. (II) THE BUILT UP AREA OF THE VILLA WITHOUT INCLUSION OF THE TERRACE/BALCONY IS 1475.81 SQ. FT. WHILE THE AREA O F THE TERRACE/BALCONY IS 297 SQ. FT. (III) THIS BALCONY/TERRACE IS ACCESSIBLE FROM THE BED ROO MS ON THE FIRST FLOOR. (IV) THIS BALCONY/TERRACE IS NOT A PART OF THE COMMON AR EA. THE OWNER OF THE RESIDENTIAL UNIT HAS EXCLUSIVE RIGHTS OVER THIS AREA. THEREFORE, THIS AREA IS THE EXCLUSIVE, PRIVATE AREA OF THE OWNER OF THE VILLA. (V) THIS BALCONY/TERRACE IS ON THE FIRST FLOOR OF THE V ILLA AND IS THE ROOF OF THE GROUND FLOOR. (VI) AS PER PLAN OF THE FIRST FLOOR OF THE RESIDENTIAL U NIT, ANNEXED TO THE ASSESSMENT ORDER, THE BROCHURE AND PHOTOGRAPHS OF THE RESIDENTIAL UNIT, THERE IS NO CONSTRUCTION IN THIS AREA AND IT IS OPEN TO SKY. 6 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS (VII) 33.33% OF THE AREA OF THIS BALCONY/TERRACE WAS CHAR GED FROM THE CUSTOMERS. HOWEVER, THIS FACT MAY NOT BE DIRECT LY RELEVANT TO THE ISSUE AT HAND IN VIEW OF THE DEFINITION OF B UILT UP AREA, GIVEN EXPRESSLY IN THE ACT. 3.3. AT THIS STAGE, IT WILL BE PERTINENT TO DISCUSS THE CASE LAWS ON THIS ISSUE - (A) IN THE CASE OF CIT VS. MAHALAKSHMI HOUSING (201 4) 222 TAXMAN 356 (MAD), THE MADRAS HIGH COURT HAS HELD THAT OPEN TER RACE CANNOT FORM A PART OF THE BUILT UP AREA. (B) IN THE CASE OF COMMONWEALTH DEVELOPERS CD FOUNT AINHEAD VS. ACIT (2014) 267 CTR 297 (BOM.), THE BOMBAY HIGH COURT HA S HELD THAT THE REAR COURTYARD CANNOT FORM A PART OF THE BUILT UP AREA OF A ROW HOUSE. IN THIS CASE, THE ITAT, PANAJI HAD EARLIER HELD THA T REAR COURTYARD WOULD FORM PART OF THE BUILT UP AREA OF THE ROW HOU SE. THE BOMBAY HIGH COURT QUASHED THE ABOVE DECISION BY HOLDING THAT FOR INCLUDING ANY AREA AS BUILT UP AREA THERE SHOULD BE SOMETHING BUILT IN SU CH AREA. WHEN AN AREA WAS OPEN TO SKY, QUESTION OF HOLDING THAT THERE WAS ANY THING BUILT THERE, TO BE INCLUDED AS BUILT UP AREA, WOULD NOT ARISE AT ALL. THE RELEVANT EXTRACT OF THE HEAD NOTES OF THIS CASE LAW IS AS UNDER HELD, IT WAS HELD BY MADRAS HIGH COURT IN CIT VS. M/S. MAHALAKSHMI HOUSING, 2012-TIOL-951-HC MAD-IT, THAT OPEN TERRACE AREA CANNOT FORM PART OF BUILT UP AREA- FOR INCLUDING ANY AREA AS BUILT-UP AREA THERE SHOULD BE SOMETHING BUILT IN SUCH AREA WHEN AREA WAS OPEN TO SKY QUESTION OF HOLDING THAT THERE WAS ANYTHING BUI LT THEREIN TO BE INCLUDED AS BUILT UP AREA WOULD NOT ARISE AT ALL FOLLOWING RATIO LAID DOWN BY MADRAS HIGH COURT, AREA OF COURTYARD WAS TO BE EXCLUDED TO CALCULATE BUILT-UP AREA ON EXCLUSION OF COURTYARD AREA, RESIDENTIAL UNIT CAME TO BE LESS THAN 1500 SQUARE FEET WHICH WOULD E NTITLE APPELLANT/ASSESSEE TO CLAIM DEDUCTION U/S 80-IB(1) APPELLANT/ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S 8 0-IB(10) JUDGMENT OF ITAT QUASHED AND SET ASIDE ASSESSEES APPEAL ALLOWED. 7 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS (C) IN THE CASE OF SANGHVI & DOSHI ENTERPRISES (201 1) 12 TXMANN.COM 240, THE ITAT CHENNAI BENCH HELD THAT AREA OF THE TERRAC E WILL BE INCLUDED IN THE BUILT UP AREA. THE ISSUE THAT WAS ADJUDICATED UPON WAS SIMILAR TO THE INSTANT CASE. THE RELEVANT EXTRACT OF THIS ORDER IS GIVEN B ELOW COMING TO THE ISSUE AS TO WHETHER THE PRIVATE TER RACE IS TO BE INCLUDED IN THE COMPUTATION OF BUILT UP AREA, IT IS NOTICED THAT THE TERM BUILT UP AREA HAS BEEN DEFINED IN SECTION 80-IB(1 4)(A) TO INCLUDE THE PROJECTIONS AND THE BALCONIES. THUS THE PRIVATE TER RACE IS NOTHING BUT THE PROJECTION OF THE FLAT. IT CAN ALSO BE TERMED A S AN OPEN BALCONY. THE LEARNED AUTHORIZED REPRESENTATIVE HAS SPECIFICA LLY AGREED THAT THE ACCESS TO THE PRIVATE TERRACE IS ONLY THROUGH THE S PECIFIED FLAT. A PERUSAL OF THE AGREEMENT IN RESPECT OF THE FLATS WH ICH HAVE THE PRIVATE TERRACE CLEARLY SHOWS THAT THE PRIVATE TERRACE IN F OR THE EXCLUSIVE USE OF THE PURCHASER. ONCE THE PRIVATE TERRACE IS FOR THE EXCLUSIVE USE OF THE PURCHASER OF THE FLAT THEN, OBVIOUSLY, THE SAID PRI VATE TERRACE DOES NOT FALL WITHIN THE COMMON AREAS SHARED WITH THE OTHER RESIDENTIAL UNITS AND CONSEQUENTLY WOULD HAVE TO BE INCLUDED IN THE M EASUREMENT FOR ARRIVING AT THE BUILT UP AREA. IT ALSO TOOK NOTE OF THE FACT THAT THIS PRIVATE TERRACE WAS ADJOINING THE DWELLING UNIT AND HAD TO BE CONSIDERED AS A PROJECTION OF THE DWELLING UNIT AND THEREFORE HAD TO BE INCLUDED IN THE BUILT UP AREA. IN APPEAL, THE MADRAS HIGH COURT, IN THE ABOVE CASE (2013) 81 DTR (MAD) 75, REVERSED THE ABOVE DECISION OF THE ITAT C HENNAI AND HELD THAT OPEN, PRIVATE TERRACE AREA COULD NOT BE THE SUBJECT MATTER OF INCLUSION TO BUILT UP AREA TO DENY THE BENEFIT OF SECTION 80IB OF THE I.T. ACT, 1961. (D) IN THE CASE OF AMALTAS ASSOCIATES VS. ITO (2011 ) 142 TTJ (AHD.) 849, THE ITAT AHMEDABAD ON A SIMILAR ISSUE HAS HELD AS U NDER :- BUILT-UP AREA MEANS INNER MEASUREMENT OF THE RESI DENTIAL UNIT AT THE FLOOR LEVEL INCLUDING THE PROJECTIONS AND BALCONIES AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COM MON AREAS SHARED WITH OTHER RESIDENTIAL UNITS. IT WAS AN ADMITTED FA CT THAT THE OPEN TERRACE IN FRONT OF PENT-HOUSE WAS CONSIDERED AS BA LCONY/VERANDAH. THE OPEN TERRACE BEING NOT COVERED AND OPEN TO SKY WOULD NOT BE PART OF THE INNER MEASUREMENT OF THE RESIDENTIAL FLOOR A T ANY FLOOR LEVEL. THE DEFINITION OF BUILT-UP AREA IS INCLUSIVE OF BALC ONY WHICH IS NOT OPEN TERRACE. THE DVO HAD CONSIDERED THE OPEN TERRACE AS ANALOGO US TO 8 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS BALCONY/VERANDAH WITHOUT ANY BASIS. THEREFORE, THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN REJECTING THE CLAIM OF THE AS SESSEE BY TAKING THE OPEN TERRACE AS BALCONY/VERANDAH. THEREFORE, THE AS SESSEE HAD COMPLIED WITH ALL THE REQUIREMENTS OF SECTION 80-IB (10) IN THIS REGARD.(EMPHASIS SUPPLIED) (E) THE ASSESSING OFFICER HAS RELIED UPON THE CASE OF MODI BUILDERS & REALTORS (P) LTD. VS. ACIT ITA NO. 1541/HYD/2010 OF THE ITAT HYDERABAD, WHEREIN IT HAS HELD THAT BALCONY AND PORTICO WOULD BE INCLUDED IN THE BUILT UP AREA. ON THIS ISSUE THERE IS NO DISPUTE. HOWEVER, T HIS CASE LAW IS NOT RELEVANT TO THE ISSUE UNDER CONSIDERATION. 3.4. FROM THE DECISIONS OF THE MADRAS HIGH COURT, B OMBAY HIGH COURT AND THE ITAT AHMEDABAD, DISCUSSED ABOVE IN PARA 3.3 ABO VE, IT IS SEEN THAT THE AREA UNDER CONSIDERATION CANNOT BE INCLUDED IN THE BUILT UP AREA IF IT IS UNCOVERED, OPEN TO SKY, AND WITHOUT ANY CONSTRUCTIO N ON IT, NOTWITHSTANDING THE FACT THAT IT IS A PRIVATE, EXCLUSIVE AREA OF TH E OWNER, ACCESSIBLE ONLY THROUGH THE DWELLING UNIT (BED ROOM) AND ADJOINING TO IT. IN THIS CASE, THE AREA UNDER CONSIDERATION IS THE ROOF OF THE GROUND FLOOR, IS UNCOVERED, OPEN TO SKY, AND WITHOUT ANY CONSTRUCTION ON IT ALTHOUGH IT IS ACCESSIBLE EXCLUSIVELY TO THE OWNER THROUGH THE BEDROOM (AND NOT A PART OF TH E COMMON AREA). THEREFORE, FOLLOWING THE ABOVE CASE LAWS (DISCUSSED IN PAFRA 3.3, ABOVE), THIS PRIVATE, OPEN TERRACE, CANNOT BE INCLUDED IN THE B UILT UP AREA OF THE RESIDENTIAL UNIT, AS DEFINED IN SEC 80IB(14)(A). TH EREFORE, THE BUILT UP AREA OF THE RESIDENTIAL UNITS IS LESS THAN 1500 SQ. FT. AND CONSEQUENTLY, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB(10). THESE GROUNDS ARE ALLOWED. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH E AO REJECTED THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) ONLY ON THE GROUND THAT A TERRACE IS AN ENTIRELY OPEN AND LARGE SPACE ON THE TOP MOST LEVEL OF A BUI LDING, WHEREAS BALCONIES ARE RELATIVELY SMALLER AREAS AFFIXED TO A ROOM OF THE H OUSE. HE FURTHER OBSERVED THAT 9 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS BALCONIES ARE ACCESSIBLE ONLY THROUGH THE ROOM THAT THEY ARE ATTACHED WITH AND TERRACES WILL USUALLY HAVE INDEPENDENT ENTRANCES. THE ASSESSEE HAS DEMONSTRATED FROM THE PICTURES OF THE BUILDING THAT THE AREA IS A TERRACE AS IT IS COMPLETELY OPEN AND IS A ROOF OF A ROOM UNDERNEATH. MERELY BECAUSE THE FIRST FLOOR ROOMS OF VILLA HAS AN OPENING ON THE TERRACE, IN OUR CONSIDERED VIEW W OULD NOT MAKE THE TERRACE AS A BALCONY AS THE BALCONY NORMALLY IS ATTACHED WITH TH E ROOMS AND COVERED BY ENCLOSURE BUT IT IS NOT SUPPORTED BY THE WALLS OF T HE ROOM UNDERNEATH. WE FIND THAT THE COORDINATE BENCH UNDER THE IDENTICAL FACTS IN I TA NO. 12/KOL/2014 IN THE CASE OF M/S. ASHINA AMAR DEVELOPERS VS. ITO AFTER CONSIDERI NG THE CASE LAW AND PROVISIONS OF SECTION 80IB HAS DECIDED THE ISSUE BY OBSERVING AS UNDER :- 4.2.1. WE FIND THAT THE LEARNED AO DURING THE COUR SE OF ASSESSMENT PROCEEDINGS ASKED THE ASSESSEE INTER ALIA TO SUBMIT BEFORE HIM THE COPIES OF BROCHURE ISSUED BY THE ASSESSEE TO THE PROSPECTIVE BUYERS FOR EFFECTING THE SALE OF RESIDENTIAL UNITS DURING THE ASST YEAR UNDE R APPEAL. THE ASSESSEE DULY MADE AVAILABLE THE COPIES OF THE BROCHURE ISSUED IN ORDER TO ATTRACT PROSPECTIVE BUYERS AND ALSO COPIES OF ORIGINAL SALE DEEDS BEFORE THE LEARNED AO WHICH WERE DULY RETURNED BY THE LEARNED AO AFTER VERIFICATION. WE FIND THAT THE LEARNED AO CALCULATED THE SUPER BUILT UP A REA OF EACH BUILDING BASED ON THE BROCHURES BY INCLUDING THE AREA OF OPEN TERR ACE AND THEREFROM ESTIMATED THE BUILT UP AREA BY TAKING 90% OF THE SU PER BUILT UP AREA OF EACH BUILDING AS BUILT UP AREA. WE FIND THAT THE LEARNED AO BRUSHED ASIDE THE ARGUMENT OF THE ASSESSEE THAT THE BROCHURES ARE ONL Y INDICATIVE IN NATURE AND THE ACTUALS MAY VARY FROM WHAT IS STATED IN THE BRO CHURES. THE ASSESSEE ALSO TRIED TO EXPLAIN THAT AS PER THE SALE DEED WHICH WA S REGISTERED WITH REGISTRAR FOR STAMP DUTY PURPOSES, THE TOTAL BUILT UP AREA OF EACH BUILDING WAS BELOW THE MAXIMUM AREA SPECIFIED IN SECTION 80IB(10) OF T HE ACT. THE LEARNED AO SIMPLY IGNORED THE SALE DEEDS THAT WERE PRODUCED BE FORE HIM AND PLACED RELIANCE ON THE BROCHURES ISSUED BY THE ASSESSEE TO ATTRACT PROSPECTIVE BUYERS AND ESTIMATED THE BUILT UP AREA BY INCLUDING THE TE RRACE AREA. WE FIND THAT THE ACTUAL BUILT UP AREA OF RESIDENTIAL BUILDING SH OULD NOT EXCEED THE MAXIMUM AREA SPECIFIED IN THE ACT AND THERE IS NO S COPE FOR MAKING THE ASSUMPTIONS AND ESTIMATES. 4.2.2. RELIANCE IS PLACED ON THE CO-ORDINATE BENCH DECISION OF MUMBAI TRIBUNAL IN THE CASE OF ACIT VS SHETH DEVELOPERS RE PORTED IN 33 SOT 277 (MUM)WHEREIN IT WAS HELD THAT THE BUILT UP AREA HAS TO BE CALCULATED ON AN 10 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS ACTUAL BASIS AND NOT ON THE BASIS OF ESTIMATES. IN THAT CASE, THE AO RELIED ON A RATIO WORKED OUT FROM THE MAP ATTACHED WITH THE O CCUPANCY CERTIFICATE, FOR ARRIVING AT THE BUILT UP AREA FROM THE CARPET AREA WHICH WAS TURNED DOWN BY THE TRIBUNAL. 4.2.3. WE ALSO FIND LOT OF FORCE IN THE ALTERNATIVE ARGUMENTS OF THE LEARNED AR THAT THE TERM TERRACE IS NOT DEFINED IN THE ACT. HOWEVER THE WORD TERRACE ORIGINATES FROM A FRENCH TERM AND IS KNOWN AS TERRA SSE, TERRAZZO IN ITALIAN AND SPELLED AS TERRAZA IN SPANISH. THIS IS AN OUTDO OR EXTENSION THAT CAN BE OCCUPIED BY LOTS OF PEOPLE AND IS BEYOND GROUND LEV EL. A TERRACE HAS MORE SPACE AND WITH AN OPEN-TOP. WE FIND THAT THE DEFINI TION OF BUILT UP AREA MEANS INNER MEASUREMENT OF THE RESIDENTIAL UNIT AT THE FLOOR LEVEL INCLUDING THE PROJECTIONS AND BALCONIES AS INCREASED BY THE T HICKNESS OF THE WALLS BUT DOES NOT INCLUDE THE COMMON AREAS SHARED WITH OTHER RESIDENTIAL UNITS. HENCE IT COULD BE CONCLUDED THAT THE OPEN TERRACE IS NOT COVERED WITHIN THE MEANING OF BUILT UP AREA AS IT IS OPEN TO SKY AND WOULD NOT BE PART OF THE INNER MEASUREMENT OF THE RESIDENTIAL FLOOR AT ANY FLOOR L EVEL. RELIANCE IN THIS REGARD IS MADE ON THE DECISION OF THE CO-ORDINATE BENCH OF AHMEDABAD TRIBUNAL IN THE CASE OF AMALTAS ASSOCIATES VS ITO REPORTED IN 1 31 ITD 142 (AHD.) WHEREIN IT WAS HELD THAT THE DEFINITION OF BUILT UP AREA IS INCLUSIVE OF BALCONY BUT NOT OPEN TERRACE. IT FURTHER HELD THAT DVO HAS CONSIDERED THE OPEN TERRACE AS ANALOGOUS TO BALCONY/ VERANDAH WITHOUT A NY BASIS. THEREFORE, IT TOOK THE VIEW THAT THE AUTHORITIES BELOW WERE NOT J USTIFIED IN TAKING THE OPEN TERRACE AS BALCONY / VERANDAH REJECTING THE CLAIM O F THE ASSESSEE. 4.2.4. RELIANCE IN THIS REGARD IS PLACED ON THE DEC ISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS M/S MAHALAKSHMI HOUSING IN TAX CASE (APPEAL) NOS. 583 & 584 OF 2011 AND 316 & 317 OF 2012 DATED 2.11.2012, WHEREIN THE QUESTIONS RAISED BEFORE THEIR LORDSHIPS AND THE DEC ISION RENDERED THEREON ARE AS UNDER:- WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPELLATE TRIBUNAL IS RIGHT IN LAW IN HOLDING THAT THE PRIVAT E TERRACE AREA SHOULD BE INCLUDED IN THE BUILT UP AREA OF THE FLATS FOR T HE PURPOSE OF MAKING OUT STATUTORY EXTENT OF BUILT UP AREA AS PER CLAUSE (A) OF SECTION 80IB(14) OF THE INCOME TAX ACT ? HELD: 5. IT IS SEEN FROM THE FACTS NARRATED HEREIN THAT T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION. THE ASSESS EE ENTERED INTO AN AGREEMENT OF SALE WITH ONE ASHOK KUMAR FOR JOINT DE VELOPMENT OF THE PROPERTY. THE ASSESSEE'S CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE INCOME TAX ACT IS REJECTED ON THE GROUND THAT T HE ASSESSEE WAS NOT THE OWNER OF THE LAND. AGGRIEVED BY THE SAME, T HE ASSESSEE WENT ON APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (AP PEALS), WHO 11 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS DISMISSED THE APPEAL. AGGRIEVED BY THE SAME, THE A SSESSEE WENT ON FURTHER APPEAL BEFORE THE INCOME TAX APPELLATE TRIB UNAL. 6. THE TRIBUNAL CONSIDERED THE ASSESSEE'S APPEAL ALONG WIT H TWO OTHER ASSESSEES' APPEALS INVOLVING SIMILAR QUESTIONS OF L AW AND PASSED A COMMON ORDER. ONE SUCH ASSESSEE'S CASE CAME UP FOR CONSIDERATION IN T.C.NOS.581, 1186 OF 2008 AND 136 OF 2009 IN THE CA SE OF CEEBROS HOTELS P\IT. LTD. VS. DEPUTY COMMISSIONER OF INCOME 'TAX. 8Y JUDGMENT DATED 19.10.2012, THIS COURT ALLOWED THE A SSESSEE'S APPEAL, HOLDING THAT THE OPEN TERRACE AREA CANNOT FORM PART OF THE BUILT UP AREA; IN THE RESULT, THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT AND THAT THE ASSESSEE WOULD BE ENTITLED TO PROPORTIONATE RELIEF AS REGARDS THE UNITS HAVING BU ILT UP AREA NOT MORE THAN 1500 SQ.FT. 7. EVEN THOUGH LEARNED STANDING COUNSEL FOR THE REV ENUE RAISED ADDITIONAL GROUNDS REGARDING THE PRINCIPLE OF PROPO RTIONALITY FOR GRANT OF RELIEF, YET, WE FIND BY REASON OF EXCLUSION OF O PEN TERRACE ARE FROM THE BUILT UP AREA, APPLICATION OF PROPORTIONALITY T HEORY DOES NOT ARISE. IN THE CIRCUMSTANCES, WE FIND NO JUSTIFIABLE GROUND TO ACCEPT THE PLEA OF THE REVENUE ON THIS ASPECT. 8. AS FAR AS THE REVENUES CONTENTION THAT FOR THE PURPOSE OF SECTION 80-IB(10} DEDUCTION, THE ASSESSEE SHOULD HAVE OWNED THE PROPERTY IS CONCERNED, THE SAME IS LIABLE TO BE REJECTED BY REA SON OF OUR DECISION RENDERED IN T.C.NOS. 581, 1186 OF 2008 AND 136 OF 2 009 CEEBROS HOTELS PVT LTD V. DEPUTY COMMISSIONER OF INCOME TAX DATED 19,10.2012. HENCE, THE APPEALS FILED BY THE REVENUE VIZ., T.C. (A). NOS. 583 AND 584 OF 2011 STANDS DISMISSED AND THIS PORTION OF THE TRIBUNAL'S ORDER STANDS CONFIRMED. THE ASSESSEE'S A PPEALS IN T.C.NOS.316 AND 317 OF 2012 STAND ALLOWED, HOLDING THAT THE TERRACE AREA . NO COSTS. 4.2.5. RELIANCE IS ALSO PLACED ON THE DECISION OF T HE CO-ORDINATE BENCH DECISION OF PUNE TRIBUNAL IN THE CASE OF SHRI NARES H T. WADHWANI VS DCIT IN ITA NO.S 18, 19 & 20 /PN/2013 FOR ASST YEARS 2007-0 8,2008-09 & 2009-10 DATED 28.10.2014, WHEREIN IT WAS HELD THAT :- 18. A BARE PERUSAL OF THE AFORESAID QUESTION OF L AW BEFORE THE HON'BLE MADRAS HIGH COURT WOULD REVEAL THAT THE ISSUE RELAT ED TO WHETHER OPEN SPACE OF THE TERRACE WOULD FALL WITHIN THE EXPRESSI ON 'BUILT-UP AREA'. THE FACTS BEFORE THE HON'BLE HIGH COURT WERE THAT A SSESSEE HAD CONSTRUCTED VARIOUS APARTMENT BLOCKS AND EACH BLOCK HAD 64 APARTMENTS. THE APARTMENTS LOCATED AT FIRST TO SIXT H FLOOR WERE OF AREAS LESS THAN 1500 SQ.FT.. HOWEVER, THE FLATS LOCATED O N THE 7 TH FLOOR HAD THE ADVANTAGE OF EXCLUSIVE OPEN TERRACE. WHILE CONS IDERING THE RELIEF U/S 801B(10) OF THE ACT, THE ASSESSING OFFICER TOOK INTO CONSIDERATION THE AREA OF SUCH EXCLUSIVE/PRIVATE OPEN TERRACE AS A PART OF THE BUILT-UP 12 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS AREA OF THE UNITS LOCATED AT THE 7 TH FLOOR. AFTER CONSIDERING THE ABOVE ASPECT, THE BUILT-UP AREA OF THE FLATS LOCATED AT T HE 7 TH FLOOR EXCEEDED 1500 SQ.FT. AND HENCE THE ASSESSING OFFICER HELD TH AT THE CONDITION PRESCRIBED IN CLAUSE (C) OF SECTION 8018(10) OF THE ACT WAS NOT FULFILLED. THE SAID POSITION TAKEN BY THE ASSESSING OFFICER WA S UPHELD RIGHT UP TO THE TRIBUNAL. HOWEVER, THE HON'BLE HIGH COURT DISAG REED WITH THE STAND OF THE REVENUE AND HELD THAT SUCH OPEN TERRAC E WOULD NOT BE INCLUDIBLE IN THE CALCULATION OF 'BUILT-UP AREA' FO R THE PURPOSE OF EXAMINING THE CONDITION PRESCRIBED IN CLAUSE (C) OF SECTION 8018(10) OF THE ACT. IN THIS VIEW OF THE MATTER, THE AFORESAID JUDGEMENT OF THE HON'BLE MADRAS HIGH COURT AND WHICH HAS BEEN FURTHE R AFFIRMED IN A SUBSEQUENT DECISION IN THE CASE OF SANGHVI AND DOSH I ENTERPRISE (SUPRA), COVERS THE ISSUE BEFORE US.19. HOWEVER, IN THE COURSE OF HEARING, THE LEARNED CIT -OR ATTEMPTED TO DISTINGUI SH THE JUDGEMENT OF THE HON'BLE HIGH COURT BY POINTING OUT THAT THE SAME RELATED TO ASSESSMENT YEAR 2003-04, A PERIOD DURING WHICH THE DEFINITION OF 'BUILT- UP AREA' CONTAINED IN SECTION 801B(14)(A) OF THE AC T WAS NOT ON THE STATUTE AND ALSO THE FACT THAT THE HOUSING PROJECT UNDER CONSIDERATION OF THE HON'BLE HIGH COURT WAS APPROVED BY THE CONCE RNED LOCAL AUTHORITY PRIOR TO 01.04.2005 I.E. PRIOR TO THE DAT E WHEN THE DEFINITION OF 'BUILT-UP AREA' WAS BROUGHT ON THE STATUTE BY WA Y OF SECTION 80IB(14)(A) OF THE ACT. 20. WE HAVE CAREFULLY PERUSED THE JUDGEMENT OF THE HON'BLE MADRAS HIGH COURT AND FIND THAT THOUGH THE HON'BLE HIGH CO URT WAS CONSIDERING A PROJECT APPROVED PRIOR TO 01.04.2005 YET IT HAS TAKEN INTO CONSIDERATION THE DEFINITION OF 'BUILT-UP AREA' CON TAINED IN SECTION 801B(14)(A) OF THE ACT, WHICH WAS INSERTED W.E.F. 0 1.04.2005. AS PER THE HON'BLE HIGH COURT EVEN AFTER ASSUMING THAT SUC H DEFINITION WAS TO BE RETROSPECTIVELY APPLIED YET THE AREA OF OPEN TER RACE WOULD NOT FALL WITHIN THE MEANING OF THE EXPRESSION 'BUILT-UP AREA '. THE HON'BLE HIGH COURT REFERRED TO THE INDIAN STANDARD METHOD OF MEA SUREMENT OF PLINTH, CARPET AND RENTABLE AREAS OF BUILDINGS AS I SSUED OF BUREAU OF INDIAN STANDARDS AND ALSO THE MEANING OF THE AFORES AID EXPRESSION ASSIGNED AS PER THE RULES AND REGULATIONS OF THE LO CAL AUTHORITY AND CONCLUDED THAT AN OPEN TERRACE COULD NOT BE EQUATED TO A 'PROJECTION' OR 'BALCONY' REFERRED TO IN SECTION 80IB(14)(A) OF THE ACT. 21. NOTABLY, THE HON'BLE HIGH COURT ALSO CONSIDERED AN ARGUMENT FROM THE SIDE OF THE REVENUE TO THE EFFECT THAT THE SALE OF THE AREA OF OPEN TERRACE BY THE ASSESSEE TO THE RESPECTIVE PURCHASER WOULD JUSTIFY THE INCLUSION OF SUCH TERRACE AREA INTO THE CALCULATION OF 'BUILT-UP AREA'. BEFORE US ALSO, THE LEARNED CIT-DR HAS RAISED THE S AID ISSUE THOUGH SHE HAS FAIRLY CONCEDED THAT SUCH A FINDING WAS NOT EMERGING FROM THE ORDERS OF THE LOWER AUTHORITIES. BE THAT AS IT MAY, THE HON'BLE HIGH COURT HAS NOTED AND DEALT WITH THE SAID ARGUMENT IN THE FOLLOWING WORDS ;- 13 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS '29. THUS, IN THE FACE OF TERRACE BEING AN OPEN ARE A, NOT BEING A PROJECTION AND HENCE, NOT INCLUDED IN THE PLINTH AR EA, THE QUESTION HEREIN IS AS TO WHETHER THE TRIBUNAL IS JU STIFIED IN CONFIRMING THE ORDER OF ASSESSMENT TO INCLUDE THE T ERRACE AREA INTO THE BUILT-UP AREA SOLELY BY REASON OF THE FACT THAT THE ASSESSEE HAD SOLD IT TO PURCHASERS OF THE 7 TH FLOOR AS A PRIVATE TERRACE. 30. WE DO NOT THINK, THE TRIBUNAL IS JUSTIFIED IN T AKING THE VIEW THAT OPEN TERRACE WOULD FORM PART OF THE BUILT-UP A REA FOR THE PURPOSE OF SUB-CLAUSE (C) OF SECTION 80-IB(10). AS ALREADY SEEN IN THE PRECEDING PARAGRAPHS, AN ASSESSEE HAVING AN APPROVED PLAN PROJECT ALONE HAS THE RIGHT TO CLAIM DEDUCTION UNDER SECTION 80-IB. ANY PROJECT UNDERTAKEN NOT APPROVED BY THE L OCAL AUTHORITY IS OUTSIDE THE PURVIEW OF THE ACT. THUS, WHEN A LOCAL AUTHORITY, ENDOWED WITH THE JURISDICTION TO GRANT T HE APPROVAL IS GUIDED IN ITS APPROVAL BY REGULATION AS TO WHAT CON STITUTES THE PLINTH AREA, WHICH IS THE BUILT-UP AREA, IT IS DIFF ICULT FOR US TO AGREE WITH THE CONTENTION OF THE REVENUE AS WELL AS THE REASONING OF THE TRIBUNAL THAT FOR THE PURPOSE OF C ONSIDERING THE CLAIM UNDER SECTION 80-IB, THE BUILT-UP AREA WOULD BE DIFFERENT FROM WHAT HAS BEEN GIVEN APPROVAL BY THE LOCAL AUTH ORITY, ON A BUILDING PROJECT. GIVEN THE FACT THAT DURING 2003-0 4 THERE WAS NO DEFINITION AT ALL ON WHAT A BUILT-UP AREA IS, TH E UNDERSTANDING OF THE REVENUE, WHICH IS EVIDENTLY CONTRARY TO THE APPROVAL OF THE LOCAL AUTHORITY BASED ON THE RULES AND REGULATI ONS COULD NOT BE SUSTAINED. CONSEQUENTLY, WE HAVE NO HESITATI ON IN AGREEING WITH THE ASSESSEE'S CONTENTION THAT OPEN T ERRACE AREA, EVEN IF BE PRIVATE TERRACE CANNOT FORM PART OF THE BUILT-UP AREA 22. AS PER THE HON'BLE HIGH COURT, TERRACE AREA WOU LD NOT FORM PART OF THE BUILT-UP AREA BY THE REASON OF THE FACT THAT AS SESSEE SOLD IT TO THE PURCHASER AS A PRIVATE TERRACE. AT THIS STAGE, WE M AY ALSO POINT OUT THAT THERE IS NOTHING IN SECTION 80IB(14)(A) OF THE ACT TO SUGGEST THAT THE FACTUM OF THE TERRACE BEING AVAILABLE FOR EXCLU SIVE USE OF THE RESPECTIVE UNIT OWNER IS A GROUND TO CONSIDER IT AS A PART OF 'BUILT-UP AREA' FOR THE PURPOSES OF CLAUSE (C) OF SECTION 80I B(10) OF THE ACT. THUS, THE ARGUMENT OF THE LEARNED CIT-OR IS HEREBY REJECTED. 23. IN VIEW OF THE AFORESAID JUDGEMENT OF THE HON'B LE MADRAS HIGH COURT, WE ARE UNABLE TO UPHOLD THE STAND OF THE ASS ESSING OFFICER TO INCLUDE AREA OF TERRACE AS A PART OF THE 'BUILT-UP AREA' IN A CASE WHERE SUCH TERRACE IS A PROJECTION ATTACHED TO THE RESIDE NTIAL UNIT AND THERE BEING NO ROOM UNDER SUCH TERRACE, EVEN IF THE SAME IS AVAILABLE EXCLUSIVELY FOR USE OF THE RESPECTIVE UNIT- HOLDERS . 4.2.6. IN VIEW OF THE AFORESAID JUDICIAL PRECEDENTS , THE TERRACE AREA NEEDS TO BE EXCLUDED FROM THE BUILT UP AREA AND IF THE SAME IS EXCLUDED , THEN THE 14 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS RESULTANT BUILT UP AREA IS WELL WITHIN THE 1500 SQ. FT LIMIT PRESCRIBED IN THE STATUTE AND HENCE REJECTION OF DEDUCTION U/S 80IB(1 0) OF THE ACT ON THIS GROUND BY THE LEARNED AO IS NOT IN ORDER. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE I N THE ORDER OF LD. CIT (A). THE SAME IS HEREBY UPHELD. THE GROUND RAISED BY THE REV ENUE IS DISMISSED. ITA NO. 270/JP/2015 : 5. FACTS AND CIRCUMSTANCES IN THIS CASE ARE EXACTLY IDENTICAL TO ITA NO. 204/JP/2015. SINCE BOTH THE PARTIES HAVE ADOPTED T HE SAME ARGUMENTS AND WE HAVE DECIDED THE APPEAL IN ITA NO. 204/JP/2015 IN F AVOUR OF THE ASSESSEE, THEREFORE FOLLOWING THE SAME REASONING, WE UPHOLD THE ORDER O F LD. CIT (A) AND DISMISS THE GROUND OF THE REVENUE. 6. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 08/09/2016. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 08/09/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE DCIT CIRCLE-6, JAIPUR. 2. THE RESPONDENT- M/S. ASHIANA MANGALAM DEVELOPERS , JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 204 & 270/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 15 ITA NO. 204 & 270/JP/2015 M/S. ASHIANA MANGALAM DEVELOPERS