2014 (4) TMI 1004 - AT - Income Tax

Deduction u/s 80IB(10) of the Act Development of housing project - Approval by the local authority and completion certificate not granted Held that - what is available for deduction u/s 80IB(10) of the Act is the profit of an undertaking derived from developing and building a housing project - Mere sale of open land or unused FSI as part of housing project where utilization of the FSI is way short of permissible limits cannot be said to have been derived from housing project - The AO while denying the deduction to the Assessee u/s 80IB(10) had apart from the fact that Assessee is not the owner of land but had acted as a contractor had also noted that Assessee had not fully utilized the FSI available to it for the construction of project and had utilized only 4068.58 sq. mt. out of the total area of 8900.32 sq. mt. of land - CIT(A) while adjudicating the issue has not dealt with the aspect of FSI - There is no factual finding by CIT(A) with respect to the Assessee s eligibility of deduction u/s 80IB(10) with respect to utilization of FSI thus, the factual issue needs re-examination, the matter is remitted back to the CIT(A) for fresh adjudication Decided in favour of Revenue.

Summary

Issues Involved:
- Dispute over deduction u/s. 80IB(10)

Detailed Analysis:
1. The appeal was filed by the Revenue against the order of CIT(A)-V, Baroda for A.Y. 2005-06. The Assessee, a partnership firm engaged in housing projects, had filed its return of income, and the Assessment Officer (A.O.) determined the total income at Rs. 13,80,630. The main issue was the deduction u/s. 80IB(10) claimed by the Assessee.

2. The A.O. denied the deduction under 80IB(10) as the Assessee was not the landowner, did not fully utilize the Floor Space Index (FSI), and acted as a contractor rather than a developer. The CIT(A) partly allowed the appeal based on previous ITAT decisions. The Revenue appealed, arguing that the issue of FSI utilization was not adequately addressed by the CIT(A), citing a recent High Court decision in Moon Developers' case.

3. The ITAT noted that the CIT(A) did not address the FSI utilization aspect, which was crucial for determining eligibility for deduction u/s. 80IB(10). Referring to the Moon Star Developers case, the ITAT emphasized the importance of proper utilization of FSI for claiming deductions under 80IB(10). The ITAT remanded the matter back to the CIT(A) for a fresh examination in light of the High Court decision, directing the Assessee to provide necessary details for the assessment.

4. The ITAT's decision highlighted the significance of FSI utilization in determining eligibility for deductions under 80IB(10) and emphasized the need for a case-by-case analysis. The judgment underscored that mere sale of open land or underutilized FSI cannot be considered as profits derived from a housing project. The ITAT's decision to remit the matter back to the CIT(A) for a reevaluation based on the Moon Star Developers case demonstrates a meticulous approach to ensure proper application of legal provisions and precedents.

5. Ultimately, the ITAT allowed the Revenue's appeal for statistical purposes, indicating that the matter was remanded back to the CIT(A) for a fresh examination concerning the Assessee's eligibility for deduction u/s. 80IB(10) in light of the FSI utilization issue. The decision was pronounced in open court on 24-04-2014, highlighting the thorough legal analysis and procedural fairness exercised by the ITAT in resolving the dispute over the deduction claimed by the Assessee.