By TIOL News Service

MUMBAI, APR 02, 2014: THE issues before the Bench are - Whether the area of the rear courtyard enclosed by walls of a residential unit is to be taken into account to compute built up area for the purpose of Sec 80IB(10) benefits; Whether in case there is no construction activity on the area of the courtyard which is open to the sky, it can still be included to compute the built-up area u/s 80IB and Whether the Tribunal can inquire into and get measured the courtyard which is not included in the built-up area and which is not the lis between the parties. And the verdict favours the assessee.

Facts of the case

The assessee concern had submitted its return of income declaring a total income of Rs.53,620/- on 30.10.2006. An order was passed u/s 143(3) on 21.11.2008 on the returned income. Thereafter, CIT invoked its jurisdiction u/s 263 and set aside the order passed u/s 143(3) with a direction to AO to examine the relevant facts in connection with the claim of deduction u/s 80-IB(10). After examination, AO concluded that the assessee was granted permission on 07.07.2003 by the Margao Municipal Council for construction of row villas with built-up area of 1500 square feet comprising of ground floor and first floor and the compound wall in the property situated at Fatorda,Margao. The AO noted that the assessee had not fulfilled the conditions specified u/s 80-IB(10) essentially on the ground that only flats or apartments constructed on the land will have common areas sharing with other residential units and as such since the construction of villas/bungalows/row houses were independent and do not share common areas, the assessee did not fulfill one of the conditions specified u/s 80-IB(10) and as such invited the objections of the assessee. A reply was filed by the assessee disputing the said contention and it was pointed out that all the conditions specified in Section 80-IB(10) were duly satisfied by the assessee. But however, the AO disallowed the claim of the appellant u/s 80-IB(10). On appeal, CIT(A) deleted the disallowance by the AO observing that there was nothing in the Act to suggest that such deduction was available only to the projects to construct apartments or flats and that the absence of common areas cannot disqualify the appellant from claiming the deduction u/s 80-IB(10). It was further observed that the intention of the legislature had been ensured by limiting the size of the residential unit to 1500 square feet. Accordingly, the deduction refused by the AO was ordered to be deleted and the appeal was allowed. On further appeal, Tribunal held that the presence of common area was not a condition in order to qualify for deduction u/s 80-IB(10). Nevertheless, upon inspection of the concerned residential unit, it was concluded that the row house constructed by assessee had a courtyard on the rear which also had to be added for computing the said built up area of 1500 square feet and as such the appeal filed by the revenue was allowed.

Before HC, the assessee's counsel had pointed out the meaning of the words 'built-up area' as contemplated in the provisions of the Act. It had pointed out that in order to invite the inclusion of an area as 'built-up area' there should be something built in such area. The counsel further pointed out that when the area was open to the sky the question of holding that there was anything built therein to be included as 'built-up area' would not arise at all. The counsel further pointed out that in case the rear courtyard area was excluded the residential unit would not exceed 1500 square feet and as such the judgment of the Tribunal deserves to be quashed and set aside as the assessee was eligible for deduction u/s 80-IB(10). The counsel had thereafter taken us through the judgment of Tribunal and pointed out that the issue with regard to the area of the residential unit was not at all disputed by the Revenue and in any event, the approach of the Tribunal was erroneous in terms of the provisions of the Income Tax Act. The counsel had thereafter taken us through the relevant provisions of the Income Tax Act and pointed out that the impugned judgment of the Tribunal deserves to be quashed and set aside. On the other hand, counsel appearing for the respondent had supported the impugned judgment. The counsel had pointed out that the dispute with regard to the area of the residential unit was a question of fact which cannot be interfered by HC in the present appeal. It was further submitted that the Tribunal on the basis of an inspection had concluded that the residential unit put up by the assessee was exceeding 1500 square feet and as such the assessee was not entitled for the deduction in terms of Section 80-IB(10). The counsel further submitted that as the area of the courtyard was enclosed by the compound wall, it was in exclusive use of the appellant being the owner of the residential unit and as such the Tribunal had rightly included the said area to compute the 'built-up area'. The counsel had thereafter taken us through the definition of the words 'built-up area' under the said Act and pointed out that only the common open spaces were to be excluded for computing the 'built-up area' and not the exclusive area.

Held that,

++ on going through the said provisions, in order to avail of the deduction the built-up area of the residential unit cannot exceed 1500 square feet. Having regard to the rival contentions the only aspect to be examined is whether the area of the rear courtyard which is open to the sky and appurtenant to the residential unit is to be included to compute the built-up area as provided under Section 80-IB(10). In order to examine the situation at loco we called upon the appellant and the respondent to produce the photographs with regard to such courtyard area and we have noted that such area is an open piece of land though enclosed by a compound wall but without any masonary construction therein. It is also contended by the appellant that such area has not been transferred in favour of the owner of the residential unit. In fact, a copy of the agreement was even produced before the Tribunal to show that the built-up area mentioned in the agreement in respect of each villa is 134.83 square metres as computed by the Architect. In this background, we shall proceed to examine the rival contentions. The built-up area is the carpet area plus the thickness of outer walls and balcony. The carpet area of a property is defined as net usable area from the inner side of one wall to another. The carpet area comprises of carpet area of the demised premises, toilet areas within such demised premises. Thus, it can be seen that to meet the requirement of an area to be treated as a 'built -up area' some construction has to be in existence in such area;

++ thus, unless and until it is shown that some construction is put up the area of the courtyard which is open to the sky cannot be included to compute the built-up area. The definition of the words 'built-up area' was introduced by the Finance Act of 2004 w.e.f. 1.4.2005, which is not otherwise applicable to the facts of the present case, also clearly provides that the built-up area would mean the inner measurements of the residential unit at the floor level including the projections and balconies as increased by the thickness of the wall but does not include the common area shared with other residential unit. In such circumstances, the built-up area is to be worked out from the wall of the residential unit. The question of extending it to mean that the area within the compound around an open land is erroneous. The building plan sanctioned by the statutory authorities does not disclose that the built-up area was exceeding 1500 square feet of the residential unit. The Karnataka High Court in the judgment reported in the case of CIT V/s G.R. Developers (2012-TIOL-1101-HC-KAR-IT), has observed that prior to the insertion of this definition in the aforesaid section, built up area did not include projections and balconies as per the National Building Code, Building Industry Practice and also according to the Building by-laws. Probably taking advantage of this fact, the builders provided these balconies and projections which made these residential units bigger than 1,500 square feet and thus, had the benefit of this prevision on the one hand. Whereas the object, with which this provision was made in reality was defeated as probably such residential units would be beyond the reach of the common man;

++ in respect of approvals obtained prior to 01.04.2005, if such section 14(a) of Section 80-IB is held to be applicable, then, the assessee has to necessarily seek for a modified plan. Otherwise, if he proceeds with the construction without obtaining the sanction of the modified plan, he would not be eligible for benefit of tax exemption u/s 80-IB(10). Similarly, if a valid approval is obtained and the building is constructed in all respects prior to 01.04.2005 and if the said substituted provision is held to be applicable retrospectively, the assessee would not be entitled to the benefit of tax exemption, if he effects sales subsequent to 01.04.2005. Such an interpretation not only would be absurd but have disastrous consequences so far as the assessee is concerned. Therefore, it cannot be said that, that was the intention of the legislature while bringing in the substitution. So we should keep in mind the object behind enacting this provision, namely to bring in investments and to encourage the infrastructure development of middle income housing projects. If the aforesaid provision is held to be retrospective in nature, it would negate the object of the said provision. It is settled law that the Courts have to harmonize these provisions and interpret the same in a manner to achieve the object of the legislature than to distress the said object. In that view of the matter, the definition of built-up area as inserted in sub-section 14(a) of Section 80-IB by Finance No.2 Act of 2004, which came into effect from 01.04.2005 cannot be held to be retrospective; it applies only to such housing projects, which are approved subsequent to 01.04.2005. In that view of the matter, the assessee, in the instant case, is entitled to the benefit of the aforesaid provision and hence the said substantial question of law is answered in favour of the assessee and against the revenue;

++ the Division Bench of the Karnataka HC in the case of CIT V/s G.R. Developers (2012-TIOL-1101-HC-KAR-IT), has observed that the assessee obtained approval for building housing project on 14.06.2002 and has built 84 flats in an area, which is in excess of one acre of land. The construction is completed within the period stipulated. 84 flats, according to the assessee is within the 1,500 square feet. The material on record discloses that a head room is constructed. The head room is not included in the sale deed. The local authority, after construction of the building, inspected the same and has granted occupancy certificate. Therefore, the construction put up by the assessee prima facie can be said to be as per the sanctioned plan. If after issue of occupancy certificate and after sale of these residential flats, if the owners of these flats on the top floor decided to put up a head room and engaged the very same contractor and the engineer may have put up the identical structures, it cannot be said that the assessee has put up the said construction and thus, contravened the requirement of Section 80-IB. The material on record does not disclose that the assessee put up the said construction prior to the sale of those flats and excluded the said construction in the sale deed with an intention of getting benefit of Section 80-IB(10). Insofar as balconies are concerned, prior to 01.04.2005, the area covered by them has to be excluded in calculating the built-up area. As the housing project was approved on 14.06.2002 and in the said plan, all these balconies are shown and excluding those balconies, the construction put up is admittedly less than 1,500 square feet. After 01.04.2005, the authorities cannot add the balcony area to the built up area and deny the benefit to the assessee. Therefore, as the material on record discloses that all the 84 or 83 flats constructed are less than the 1,500 square feet, the assessee cannot be denied the benefit and taxed on the ground that it exceeds 1,500 square feet. Hence, this question of law is answered in favour of the assessee and against the revenue;

++ the Division Bench of the Madras High Court in the judgment reported in - 2012-TIOL-951-HC-MAD-IT in the case of the CIT, Channai V/s M/s Mahalakshmi Housing has held that the open terrace area cannot form part of the built up area; in the result, the assessee would be entitled to deduction u/s 80-IB(10) and that the assessee would be entitled to proportionate relief as regards the units having built up area not more than 1500 square feet. Considering the ratio laid down in the aforesaid judgments, we find that the area of courtyard cannot be included to calculate the built-up area in terms of Section 80- IB(10). Tribunal was not justified to come to the conclusion that the said area of the courtyard is to be included to calculate the built-up area and thereby holding that the residential unit was more than 1500 square feet which would disentitle the appellant to claim such deduction. The contention of the counsel appearing for the respondent that the findings of the fact arrived at by the Tribunal cannot be interfered in the present appeal cannot be accepted in the facts of the present case as the Tribunal has misconstrued the provisions of Income Tax Act and the material on record to deny the benefit of deduction to the appellant in terms of Section 80-IB(10). The first substantial question of law is answered accordingly. In view of the findings on the first substantial question of law, there is no need to examine the second substantial question of law. Thus, the appeal is allowed. The impugned judgment dated 13.09.2013 passed by the learned Income Tax Appellate Tribunal is quashed and set aside. The appeal stands disposed of accordingly.

(See 2014-TIOL-404-HC-MUM-IT)