ITO, Ward 3(2), Pune V. M/s. Rane Associates, Pune

ITA 367/PUN/2013

• Counselvise Citation: 36724514 RSA 2013
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.367/PN/2013 ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD 3 (2), PUNE APPELLANT VS. M/S. RANE ASSOCIATES 201/1324, ANANT CHAMBERS, SHIVAJI NAGAR, PUNE 411005 RESPONDENT PAN: AAAFL6980A CO NO.13/PN/2014 ASSESSMENT YEAR : 2009-10 M/S. RANE ASSOCIATES 201/1324, ANANT CHAMBERS, SHIVAJI NAGAR, PUNE 411005 CROSS OBJECTOR VS. THE INCOME TAX OFFICER, WARD 3 (2), PUNE RESPONDENT ASSESSEE BY : SHRI S.N. PURANIK REVENUE BY : SHRI B.C. MALAKAR DATE OF HEARING : 19-01-2015 DATE OF PRONOUNCEMENT : 11-03-2015 ORDER PER G. S. PANNU, AM: THE CAPTIONED APPEAL BY THE REVENUE AND CROSS OBJEC TION BY ASSESSEE ARE DIRECTED AGAINST AN ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 18.09.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 30.12.2011 PASSED BY THE ASSESSING OFFICER U/ S 143(3) OF THE INCOME- TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT Y EAR 2009-10. ITA NO.367/PN/2013 M/S. RANE ASSOCIATES 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL:- 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN ALLOWING DEDUCTION U/S.80IB(10) OF INCOME TAX A CT, 1961 OF RS.4,35,03,664/-. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE PROJECT 'VANSHAJ PRESTIGE' HAD CO MMENCED CONSTRUCTION MUCH BEFORE THE AMENDMENT TO SECTION 8 0IB(14)(A) AND THEREFORE IT IS NOT POSSIBLE FOR THE ASSESSEE TO COMPLY WITH THE DEFINITION OF BUILT UP AREA. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80IB(10) WITHOUT APPRECIATING THAT AS PER PROVISIONS OF SECT ION 80IB(14)(A) BUILT UP AREA IS TO BE CALCULATED TAKING INTO ACCOU NT ALL THE PROJECTIONS AND BALCONIES AND AS SUCH THE FLATS ON THE FIRST FLOOR OF BUILDING B EXCEEDED THE BUILT UP AREA OF 1 500 SQ.FT. MAKING THE ASSESSEE INELIGIBLE FOR DEDUCTION U/S.80 IB(10) OF THE ACT. 4) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80IB(10) IGNORING THE FINDINGS GIVEN IN THE ASSESSMENT ORDER WHICH WAS BASED ON FACTS AND WHICH WAS ALSO BASED ON THE REPO RT OF THE GOVT. APPROVED VALUER. 3. IN THE APPEAL OF THE REVENUE, THE ONLY ISSUE RAI SED IS WITH REGARD TO THE ACTION OF THE CIT(A) IN ALLOWING THE DEDUCTION UNDE R SECTION 80IB(10) OF THE ACT, WHICH HAD BEEN DISALLOWED BY THE ASSESSING OFF ICER. 4. IN BRIEF, THE RELEVANT FACTS ARE THAT, ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF BUILDERS AND PROMOTERS. FOR THE ASSESSMENT YEAR 2009-10, IT FILED A RETURN OF INCOME DECLARING TOTA L INCOME OF RS.1,71,390/-, WHICH INTER-ALIA, INCLUDED A CLAIM OF DEDUCTION UND ER SECTION 80IB(10) OF THE ACT OF RS.4,35,03,664/- IN RESPECT OF THE PROFITS D ERIVED FROM DEVELOPMENT AND BUILDING OF A HOUSING PROJECT NAMED VANSHAJ PRESTI GE. THE ASSESSING OFFICER CARRIED OUT A VERIFICATION EXERCISE WITH RESPECT TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IN THE COURSE OF THE VERIFICATION EXERCISE, ASSESSING OFFICER ISSUED COMMISSIONS UNDER SECTION 131(1)(D) OF THE ACT TO A ITA NO.367/PN/2013 M/S. RANE ASSOCIATES GOVERNMENT REGISTERED VALUER CALLING FOR A REPORT W ITH RESPECT TO THE PROJECT OF THE ASSESSEE. THE GOVERNMENT REGISTERED VALUER FURNISHED A REPORT AFTER INSPECTING THE PROJECT OF THE ASSESSEE, IN TERMS OF WHICH WITH RESPECT TO FOUR FLATS IN THE PROJECT, VIOLATION OF CLAUSE (C) OF SE CTION 80IB(10) OF THE ACT WAS POINTED OUT. NOTABLY, THE PROJECT VANSHAJ PRESTIG E EXECUTED BY THE ASSESSEE COMPRISED OF 84 FLATS AND ASSESSEE CLAIMED THAT THE PROJECT COMPLIED WITH ALL THE CONDITIONS PRESCRIBED FOR CLAIM OF DEDUCTION UN DER SECTION 80IB(10) OF THE ACT. AS PER THE ASSESSING OFFICER, BASED ON THE RE PORT OF THE GOVERNMENT REGISTERED VALUER, THE BUILT-UP AREA IN RELATION TO FOUR FLATS NAMELY, B/101, B/102, B/103 AND B/104 EXCEEDED THE PRESCRIBED LIMI T OF 1500 SQ. FT. THE DETAILS OF ALLEGED VIOLATION ARE AS UNDER:- FLAT NO. B/UP AREA SQ. FT. ATTACHED TERRACE PROJECTION SQ. FT ADDITIONAL COMMON TERRACE SQ. FT TOTAL BUILT UP AREA SQ. FT B/101 1163.91 251.23 822.69 2237.83 B/102 1257.67 66.2 803.75 2127.62 B/103 1062.19 121.42 826.24 2009.85 B/104 1364.88 66.2 536.15 1967.23 5. AS PER CLAUSE (C) OF SECTION 80IB(10) OF THE ACT , THE BUILT-UP AREA OF RESIDENTIAL UNITS, IN THE CONTEXT OF A PROJECT LOCA TED IN PUNE, SHOULD NOT EXCEED 1500 SQ. FT. AS PER THE ASSESSING OFFICER, THE BUI LT-UP AREA OF THE AFORESAID FOUR FLATS, BY INCLUDING THE TERRACE PROJECTIONS AS WELL AS THE ADDITIONAL COMMON TERRACE ATTACHED TO THE FLATS, EXCEEDED THE LIMIT OF 1500 SQ. FT. PRESCRIBED BY CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. 6. IN RESPONSE, ASSESSEE POINTED OUT THAT THE PROJE CTIONS AND BALCONIES COULD NOT BE INCLUDED IN THE EXPRESSION BUILT-UP A REA AS ASSESSEES PROJECT WAS APPROVED AND COMMENCED PRIOR TO 31.03.2005. IT WAS POINTED OUT THAT THE DEFINITION OF THE EXPRESSION BUILT-UP AREA CO NTAINED IN SECTION 80IB(14)(A) OF THE ACT, WHEREBY IT INCLUDES THE PROJECTIONS AND BALCONIES, WAS INSERTED BY FINANCE (NO.2) ACT, 2004 W.E.F. 01.04.2005. IN SO FAR AS THE ASSESSEES ITA NO.367/PN/2013 M/S. RANE ASSOCIATES PROJECT WAS CONCERNED, IT WAS APPROVED PRIOR TO 01. 04.2005 AND THEREFORE, THE EXPRESSION BUILT-UP AREA IS NOT TO BE UNDERSTOOD IN TERMS OF THE DEFINITION IN SECTION 80IB(14)(A) OF THE ACT AND RATHER THE SAME HAS TO BE UNDERSTOOD HAVING REGARD TO THE DEVELOPMENT CONTROL RULES OF T HE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION. WITH REGARD TO THE INC LUSION OF THE COMMON TERRACE, ASSESSEE POINTED OUT THAT SUCH AREA WAS NO T SOLD EXCLUSIVELY TO ANY OF THE FLAT OWNERS AND THEREFORE, THE RESPECTIVE FLAT HOLDERS ARE NOT ENJOYING THE EXCLUSIVE USE OF SUCH ATTACHED COMMON TERRACE, AND ON THIS COUNT ALSO SUCH AREA COULD NOT BE INCLUDED TO CALCULATE THE BUILT- UP AREA OF THE FOUR FLATS IN QUESTION. IN SUM AND SUBSTANCE, THE CLAIM OF THE A SSESSEE WAS THAT THE BUILT-UP AREA OF THE AFORESAID FOUR FLATS WAS LIABL E TO THE CONSIDERED BY EXCLUDING THE ATTACHED TERRACE PROJECTIONS OR THE A TTACHED COMMON TERRACE; AND, IF IT WAS SO DONE, THE BUILT-UP AREA WAS WITHI N THE PRESCRIBED LIMIT. THE ASSESSING OFFICER REJECTED THE PLEA OF THE ASSESSEE AND OBSERVED THAT ON ACCOUNT OF FOUR FLATS VIOLATING THE CONDITION PRESC RIBED IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT, THE ENTIRE CLAIM FOR DEDUCTION AMOUNTING TO RS.4,35,03,664/- WAS DENIED. 7. IN APPEAL BEFORE THE CIT(A), ASSESSEE REITERATED THAT THE DEFINITION OF BUILT-UP AREA INTRODUCED BY FINANCE (NO.2) ACT, 2 004 WOULD NOT BE APPLICABLE IN THE INSTANT PROJECT AS IT WAS COMMENCED PRIOR TO THE SAID AMENDMENT IN SECTION 80IB(14)(A) OF THE ACT. THE CIT(A) FOUND W EIGHT IN THE AFORESAID PLEA OF THE ASSESSEE HAVING REGARD TO THE VARIOUS DECISI ONS OF THE TRIBUNAL RELIED UPON BEFORE HIM. IN PARTICULAR, THE CIT(A) HAS REL IED UPON THE ORDER OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. PRIME PROPERTIES VIDE ITA NOS.887, 888, 889/PN/2009, ORDER DATED 26.04.2012 T O HOLD THAT FOR A PROJECT APPROVED PRIOR TO 01.04.2005, THE DEFINITION OF BU ILT-UP AREA PRESCRIBED IN SECTION 80IB(14)(A) OF THE ACT WOULD NOT BE APPLICA BLE. APART THEREFROM, THE ITA NO.367/PN/2013 M/S. RANE ASSOCIATES CIT(A) ALSO UPHELD ASSESSEES PLEA THAT THE COMMON TERRACE WAS NOT A PART OF THE FLAT AGREEMENTS WITH THE RESPECTIVE FLAT OWNERS AND THEREFORE, THE FLAT HOLDERS COULD NOT BE TREATED AS OWNERS OF SUCH AREA OF COMMON TERRACE. ACCORDING TO THE CIT(A), INCIDENTAL USE OF COMMON T ERRACE BY THE FLAT OWNERS COULD NOT BRING IT WITHIN THE DEFINITION OF BUILT- UP AREA OF THE RESIDENTIAL UNITS IN AS MUCH AS OTHER RESIDENTS OF THE BUILDING WERE ALS O ENTITLED TO USE SUCH COMMON TERRACE. THE CIT(A) ALSO FOUND WEIGHT IN AS SESSEES PLEA THAT EVEN THE GOVERNMENT REGISTERED VALUER IN HIS REPORT NOWH ERE STATED THAT THE COMMON TERRACE WAS BEING EXCLUSIVELY USED BY THE IM PUGNED FOUR FLAT OWNERS OF BUILDING B IN QUESTION. THE CIT(A) HAS ALSO R EFERRED TO THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF D.S. KULK ARNI DEVELOPERS LTD. VS. ACIT, VIDE ITA NOS.1428 & 1429/PN/2008, DATED 08.08 .2012 IN SUPPORT OF HIS FINDING THAT THE EXPRESSION BUILT-UP AREA DEFINED IN SECTION 80IB(14)(A) OF THE ACT CANNOT BE APPLIED TO PROJECTS WHICH HAVE COMMEN CED PRIOR TO 01.04.2005. AS A CONSEQUENCE, THE CIT(A) SET-ASIDE THE ORDER OF ASSESSING OFFICER AND ALLOWED ASSESSEES CLAIM FOR DEDUCTION UNDER SECTIO N 80IB(10) OF THE ACT AS ACCORDING TO HIM, THE FOUR FLATS IN QUESTION DID NO T VIOLATE THE CONDITION PRESCRIBED IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. AGGRIEVED WITH THE ORDER OF CIT(A), THE REVENUE IS IN APPEAL BEFORE US . 8. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATI VE APPEARING FOR THE REVENUE HAS CONTENDED THAT THE CIT(A) ERRED IN ALLO WING ASSESSEES CLAIM FOR DEDUCTION WITHOUT APPRECIATING THAT THE DEFINITION OF BUILT-UP AREA CONTAINED IN SECTION 80IB(14)(A) OF THE ACT WAS TO BE APPLIED TO EXAMINE THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FROM AS SESSMENT YEAR 2005-06 ONWARDS, IRRESPECTIVE OF THE DATE OF APPROVAL OF TH E PROJECT. 9. ON THE OTHER HAND, THE LEARNED REPRESENTATIVE FO R ASSESSEE HAS RELIED UPON THE ORDER OF CIT(A) IN SUPPORT OF THE CASE OF THE ASSESSEE. IT HAS ALSO ITA NO.367/PN/2013 M/S. RANE ASSOCIATES BEEN SUBMITTED BY THE LEARNED REPRESENTATIVE FOR AS SESSEE THAT THE DECISIONS OF PUNE BENCH OF THE TRIBUNAL RELIED UPON BY THE CI T(A) CONTINUE TO HOLD THE FIELD AND THAT EVEN IN THE LATER DECISIONS OF THE T RIBUNAL, SAME POSITION HAS BEEN UPHELD. IN THIS CONTEXT, HE RELIED UPON DECIS ION OF PUNE BENCH OF THE TRIBUNAL IN SHRI NARESH T. WADHWANI VS. DCIT, VIDE ITA NOS.18, 19 & 20/PN/2013 & OTHERS, DATED 28.10.2014. RELIANCE HA S ALSO BEEN PLACED ON THE JUDGMENT OF THE HONBLE MADRAS HIGH COURT IN TH E CASES OF CIT VS. SANGHVI AND DOSHI ENTERPRISES REPORTED IN (2013) 21 4 TAXMAN 463 (MADRAS) AND CIT VS. MAHALAKSHMI HOUSING IN TAX CASE (APPEAL ) NOS.585 OF 2011 AND 318 OF 2012, VIDE ORDER DATED 02.11.2012. RELIANCE HAS ALSO BEEN PLACED ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN COMMON WEALTH DEVELOPERS VS. ACIT REPORTED IN (2014) 102 DTR (BOM) 89. 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE CONTROVERSY IN THE PRESENT CASE RELATES TO THE CONDITION PRESCRIBE D IN CLAUSE (C) OF SECTION 80IB(10) OF THE ACT. IN TERMS OF CLAUSE (C) OF SEC TION 80IB(10) OF THE ACT, IT IS PRESCRIBED THAT IN CASES OF A PROJECT SITUATED IN C ITIES OTHER THAN DELHI AND BOMBAY, BUILT-UP AREA OF RESIDENTIAL UNITS SHALL NO T EXCEED 1500 SQ. FT. IN THE PRESENT CASE, THE CLAIM OF THE REVENUE IS THAT THE BUILT-UP AREA OF FOUR OUT OF THE 84 RESIDENTIAL UNITS CONSTRUCTED BY THE ASSESSE E IS HAVING BUILT-UP AREA IN EXCESS OF 1500 SQ. FT. IN COMING TO SUCH CONCLUSIO N, THE REVENUE HAS RELIED UPON THE DEFINITION OF BUILT-UP AREA CONTAINED IN SECTION 80IB(14)(A) OF THE ACT, WHICH READS AS UNDER:- 80IB(14) FOR THE PURPOSES OF THIS SECTION,- (A) BUILT-UP AREA MEANS THE INNER MEASUREMENTS OF THE RESIDENTIAL UNIT AT THE FLOOR LEVEL, INCLUDING THE PROJECTIONS AND B ALCONIES, AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NO T INCLUDE THE COMMON AREAS SHARED WITH OTHER RESIDENTIAL UNITS ITA NO.367/PN/2013 M/S. RANE ASSOCIATES 11. IN TERMS OF THE AFORESAID DEFINITION, THE ASSES SING OFFICER SEEKS TO INCLUDE THE AREA OF THE ATTACHED TERRACE PROJECTION S AS WELL AS AREA OF ADDITIONAL COMMON TERRACE TO THE FOUR FLATS IN ORDE R TO CALCULATE THE BUILT-UP AREA OF THE UNITS. THE DETAILS IN THIS REGARD HAVE ALREADY BEEN REPRODUCED BY US IN THE EARLIER PART OF THIS ORDER AND AFTER INCL UDING THE AFORESAID TWO COMPONENTS, THE BUILT-UP AREA OF FOUR FLATS EXCEEDE D 1500 SQ. FT. 12. THE AFORESAID ACTION IS SOUGHT TO BE RESISTED B Y THE ASSESSEE ON TWIN GROUNDS. FIRSTLY, IT IS CONTENTED THAT THE DEFINIT ION OF THE BUILT-UP AREA CONTAINED IN SECTION 80IB(14)(A) OF THE ACT WAS INS ERTED BY THE FINANCE (NO.2) ACT, 2004 W.E.F. 01.04.2005 AND IT IS NOT APPLICABL E IN THE PRESENT CASE AS ASSESSEES PROJECT WAS APPROVED AND COMMENCED PRIOR TO 01.04.2005. WE ARE IN COMPLETE AGREEMENT WITH THE AFORESAID PLEA, WHICH HAS ALSO BEEN ACCEPTED BY THE CIT(A). IN FACT, AN IDENTICAL ISSU E CAME UP BEFORE THE TRIBUNAL IN THE CASE OF D.S. KULKARNI DEVELOPERS LT D. VS. ACIT (SUPRA), WHEREIN THE RELEVANT DISCUSSION IS AS UNDER:- '18. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. IN THIS CONNECTION, THE FIRST AND FOREMOST ISSUE IS WITH RE GARD TO THE MEANING OF THE EXPRESSION 'BUILT UP AREA' FOR THE PURPOSES OF CLAUSE (C ) TO SEC.80IB(10) OF THE ACT. SEC. 80 IB (14)(A) WAS INS ERTED BY THE FINANCE (NO.2) ACT, 2004 W.E.F. 01.4.2005 PRESCRIBING THE D EFINITION OF THE EXPRESSION 'BUILT UP AREA'. IN TERMS OF THE SAID DE FINITION, THE BUILT UP AREA INTER ALIA, INCLUDES THE AREA OF PROJECTIONS A ND BALCONIES. THE MOOT POINT IS AS TO WHETHER THE SUCH DEFINITION IS APPLI CABLE IN RESPECT OF THE PROJECT IN QUESTION BEFORE US. ADMITTEDLY, IT IS EM ERGING FROM THE ORDERS OF THE AUTHORITIES BELOW THAT THE PROJECT DSK FRANG IPANI COMMENCED ON 12.12.2003 I.E. PRIOR TO THE 01.4.2005. THEREFORE, REVENUE AUTHORITIES ARE NOT JUSTIFIED IN INCLUDING THE BALCONIES/OPEN T ERRACES IN THE CALCULATION OF 'BUILT-UP AREA' AND THE DEFINITION O F 'BUILT-UP AREA' IN TERMS OF SEC. 80IB(14)(A) OF THE ACT CANNOT BE APPLIED TO PROJECTS COMMENCED PRIOR TO 1.4.2005. THE AFORESAID PROPOSITION IS IN LINE WITH THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HAW ARE CONSTRUCTIONS (SUPRA) AS ALSO THE DECISION OF THE PUNE BENCH OF T HE TRIBUNAL IN THE CASE OF PRIME PROPERTIES (SUPRA). NOW COMING TO THE ISSUE OF INCLUSION OF AREA OF CAR PARKING, THE ASSESSING OFFICER HAS I NCLUDED THE SAME IN THE CALCULATION OF ' BUILT-UP AREA' AND SUCH AREA H AS BEEN CONSIDERED BY HIM AT 300 SQ.FT. FOR EACH OF THE RESIDENTIAL UNITS . AS NOTED BY US EARLIER, THE DEFINITION OF 'BUILT- UP AREA' CONTAINED IN SEC . 80 IB (14)(A) OF THE ACT IS NOT APPLICABLE IN THE PRESENT CASE, BEING A PROJ ECT HAVING COMMENCED PRIOR TO 01.4.2005, AND THEREFORE FOR SUC H LIKE PROJECTS, IT ITA NO.367/PN/2013 M/S. RANE ASSOCIATES WOULD BE IN FITNESS OF THE THINGS THAT THE EXPRESSI ON 'BUILT UP AREA' IS UNDERSTOOD AS PER THE DEVELOPMENT CONTROL RULES OF THE LOCAL AUTHORITY, WHICH HAS APPROVED SUCH A PROJECT. IN THIS CONNECTI ON, CLAUSE 2.13 OF THE DEVELOPMENT CONTROL RULES, PUNE, DEFINES 'BUILT -UP AREA' AS UNDER: '2.13 BUILT-UP AREA - AREA COVERED IMMEDIATELY ABOVE THE PLINTH LEVEL BY THE BUILDING OR EXTERNAL AREA OF ANY UPPER FLOOR WHICHEVER IS MORE EXCEPTING THE AREAS COVERED BY RU LE NO. 15.4.2' 19. OSTENSIBLY, A PERUSAL OF ABOVE DEFINITION SHOWS THAT AN AREA COVERED BY RULE 15.4.2 IS NOT INCLUDIBLE IN THE MEA NING OF ' BUILT UP AREA'. THE EXTRACT OF RULE 15.4.2, HAS BEEN PLACED IN THE PAPER BOOK AT PAGE 36, AND IT REFLECTS THAT A MULTI STORIED STILT FLOORING SPACE CONSTRUCTED UNDER A BUILDING IS ALLOWED TO BE USED AS A PARKING SUBJECT TO HEIGHT RESTRICTIONS. IN TERMS THEREOF, IT IS SOU GHT TO BE MADE OUT THAT THE AREA OF CAR PARKING IS SPECIFICALLY EXCLUDIBLE WHILE CALCULATING ' BUILT- UP AREA' AS PER THE DEVELOPMENT CONTROL RULES AND T HEREFORE, THE ASSESSING OFFICER WAS WRONG IN CONSIDERING SUCH ARE A FOR THE PURPOSE OF COMPUTING 'BUILT- UP AREA' OF THE RESIDENTIAL UN ITS. A BARE PERUSAL OF THE DEVELOPMENT CONTROL RULES, IN OUR VIEW, SUPPORT S THE ASSERTIONS PUT FORTH BY THE ASSESSES AND THEREFORE, THE AREA OF CA R PARKING IS NOT TO BE INCLUDIBLE FOR THE PURPOSES OF COMPUTING 'BUILT- UP AREA' OF RESIDENTIAL UNITS IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE.' 13. NEVERTHELESS, ANOTHER POINT WHICH HAS CANVASSED BY THE ASSESSEE IS THAT THE COMMON TERRACE IDENTIFIED BY THE ASSESSING OFFICER WAS NOT ATTACHED FOR EXCLUSIVE USE OF ANY OF THE FLAT OWNERS AND THE REFORE, THE SAID AREA COULD NOT BE INCLUDED IN THE BUILT-UP AREA OF THE RESPECT IVE FLATS MADE. ON THIS ASPECT ALSO, WE FIND THAT THE CIT(A) HAS GIVEN A FA CTUAL FINDING THAT THE AGREEMENTS WITH FLAT OWNERS DO NOT INDICATE THAT TH E COMMON TERRACE WAS A PART OF THE FLAT AGREEMENT. IT IS ALSO OBSERVED BY THE CIT(A) THAT THE RESPECTIVE FLAT OWNERS WERE NOT THE OWNERS OF SO CALLED COMMON TERRACE AND THE ASSESSEE ALSO POINTED OUT BEFORE HIM THAT EVEN THE GOVERNMENT REGISTERED VALUER IN HIS REPORT NOWHERE STATED THAT THE COMMON TERRACE AREA IS EXCLUSIVELY USED BY THE FOUR FLAT OWNERS REFERRED A BOVE. HAVING REGARD TO THE AFORESAID, IN THE ABSENCE OF ANY CONTROVERSION FROM THE SIDE OF THE REVENUE, WE FIND NO REASONS TO APPROVE THE ACTION OF ASSESSI NG OFFICER IN INCLUDING THE AREA STYLED AS ADDITIONAL COMMON TERRACE AS A PAR T OF THE BUILT-UP AREA OF THE ITA NO.367/PN/2013 M/S. RANE ASSOCIATES FOUR RESIDENTIAL UNITS IN QUESTION. THE STAND OF T HE CIT(A) ON THIS ASPECT IS UPHELD. 14. AT THE TIME OF HEARING, THE LEARNED REPRESENTAT IVE FOR THE ASSESSEE ALSO RELIED UPON THE DECISION OF PUNE BENCH OF THE TRIBU NAL IN THE CASE OF SHRI NARESH T. WADHWANI VS. DCIT (SUPRA), WHEREIN AFTER FOLLOWING THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF M/S. C EEBROS HOTELS PRIVATE LIMITED VS. DCIT, VIDE TAX CASE (APPEAL) NO.581 OF 2008 ORDER DATED 19.10.2012, IT WAS HELD THAT EVEN AFTER TAKING INTO CONSIDERATION THE DEFINITION OF BUILT-UP AREA CONTAINED IN SECTION 80IB(14)(A) OF THE ACT, THE AREA COVERED BY A OPEN TERRACE WOULD NOT FALL WITHIN THE MEANING OF EXPRESSION BUILT-UP AREA. INCIDENTALLY, THE HONBLE MADRAS HIGH COURT IN THE CASE OF M/S. CEEBROS HOTELS PRIVATE LIMITED VS. DCIT (SUPRA) WAS CONSIDE RING A PROJECT APPROVED PRIOR TO 01.04.2005, BUT IT ALSO CONSIDERED A SCENA RIO WHEREBY THE DEFINITION OF BUILT-UP AREA CONTAINED IN SECTION 80IB(14)(A) OF THE ACT WAS TO BE CONSIDERED AS RETROSPECTIVE IN OPERATION. IT WAS IN THIS CONT EXT, THE HONBLE MADRAS HIGH COURT OBSERVED THAT EVEN IF THE DEFINITION WAS RETR OSPECTIVELY APPLIED, YET THE AREA OF OPEN TERRACE WOULD NOT FALL WITHIN THE ME ANING OF THE EXPRESSION BUILT-UP AREA. BE THAT AS IT MAY, IN SO FAR AS T HE PRESENT CONTROVERSY BEFORE US IS CONCERNED, THE SAME IS FULLY COVERED BY THE D ECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF D.S. KULKARNI DEVELOPER S LTD. VS. ACIT (SUPRA), WHICH HAS BEEN RELIED UPON BY THE CIT(A). THE SAID DECISION CONTINUES TO HOLD THE FIELD AND THEREFORE, IN OUR VIEW, NO INTER FERENCE IS CALLED FOR IN THE ORDER OF CIT(A), WHICH WE HEREBY AFFIRM. IN THE RE SULT, APPEAL OF THE REVENUE IS DISMISSED. 15. IN SO FAR AS THE CROSS OBJECTION IS CONCERNED, THE SAME IS MERELY IN SUPPORT OF THE ORDER OF CIT(A). NO INDEPENDENT GRO UND HAS BEEN RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION AND THE ISSUE I S FULLY COVERED BY OUR ITA NO.367/PN/2013 M/S. RANE ASSOCIATES DECISION IN THE CROSS-APPEAL OF THE REVENUE. AS A CONSEQUENCE, THE CROSS OBJECTION IS RENDERED INFRUCTUOUS. 16. IN THE RESULT, THE APPEAL OF THE REVENUE AND TH E CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 11 TH MARCH, 2015. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT ME MBER PUNE, DATED: 11 TH MARCH, 2015. GCVSR COPY OF THE ORDER IS FORWARDED TO : - 1) THE DEPARTMENT; 2) THE ASSESSEE; 3) THE CIT(A)-II, PUNE 4) THE CIT-II, PUNE 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE