Section 80-IB(10): Open terrace area excluded by Local Authority from working of built-up area cannot be included by revenue

The Deputy Commissioner of Income Tax Vs. M/s. Ace star Properties Pvt. Ltd (ITAT Chennai)

Madras High Court in M/s. Ceebros Hotels Pvt. Ltd. vs. DCIT (TCA No. 581 of 2008, 1186 of 2008 and 136 of 2009, dated 19.10.2012) found that while contemplating deduction under Section 80- IB(10) of the Act to a housing project approved by the local authority, the area excluded from the working of built-up area by the local authority, cannot be taken as built-up area. In fact, the Madras High Court has observed as follows at para 36 of its judgment:-

“Given the fact that contemplation of deduction is to Housing Projects approved by the Local Authority, we hold that once the Local Authority have excluded open terrace from the working of built-up area, it is not open to the Revenue to review the approval given by the competent authority to hold that terrace would also be included in the built-up area. As already held the definition also does not speak in different language from what is given in the measurement provision of Bureau of Indian Standards in the context of the definition of Balcony in the Indian Standard.”

We find that this Tribunal had remitted the issue back to the ld. Assessing Officer for examining the matter afresh considering the approval given by the local authorities for the housing project, for ascertaining whether private open terrace was part of built up area or not. Similar directions are given for the impugned assessment year also.

Full Text of the ITAT Order is as follows:-

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