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TMI Blog2012 (12) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3300/Ahd/2009 A.Y. 06-07 of the Revenue. 2. The Revenue has raised the following grounds of appeal:- "1. On the facts and in the circumstances of the case and in law, the ld. CIT(Appeals) erred in allowing the deduction u/s. 80IB(10) to the assessee, who was not granted approval by the local authority to carry o the business of an undertaking developing and building housing projects, in contravention of a plain reading of section 80IB(10), r.w.s. 80IB(1), Explanation to Section 80Ib(10) and rule 18BBB. 2. The ld. CIT(Appeals) failed to make a combined reading of section 80IB(1), which is the substantive provision, and section 80IB(10), which is a machinery provision, postulating complete identity between the assessee as referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um size of the plot of land, which can be fulfilled only by the landowner and the person getting approval from the local authority. 6. The ld CIT(Appeals) erred in making assumption regarding passing no of the benefit of section 80IB(10) by the landowner getting approval from the local authority for developing and building of housing projects to the person with whom he enters into agreement for execution of such projects, without there being any provision in section 80IB for such passing on, as contained in section 80HHC(1A). 7. Without prejudice, the ld CIT(Appeals) erred in allowing deduction u/s. 80IB(10) in respect of the proceeds attributable to the sale of unutilized FSI and not to the dwelling units in the housing projects, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment u/s.143(3) r.w.s. 147 was concluded vide order dated 30- 03-2009, whereby the Assessing Officer disallowed the claim of the assessee u/s. 80IB(10) of the Act. Against this order, assessee filed appeal before Ld. CIT(A) who after considering the submissions of the assessee and relying upon the decision of Hon'ble co-ordinate Bench in the case of ITO and Otrs. V Shakti Corporation Baroda in ITA No.1503/Ahd/2008, allowed the appeal of assessee. 4. Now the Revenue feeling aggrieved by this order of Ld. CIT(A) filed appeal before the Tribunal. 5. Ground No.1 to 6 is against the deduction u/s.80IB(10) on the basis that assessee was not the owner of the land. Ld. Departmental Representative of the Revenue relied upon the order of Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such for the detailed discussion given in the body of the assessment order (Page Nos. 2 to 16), the claim of the assessee u/s. 80IB(1) with respect to these two projects was disallowed. Further, thought the assessee is responsible for the risk and costs involved in both these projects as envisaged in the development rights/agreements and since the department has no accepted the decision of the Hon'ble ITAT in the case of M/s Radhe Developers and M/s. Shakti Corporation and the matter is subjudice before the High Court of Gujarat, the contention put forth by the assessee has not accepted as concluded at para 25 of the assessment order. Since the Assessing Officer, after due verification, has stated that the assessee is responsible for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee submitted that this issue is squarely covered in favour of assessee by the decision of Hon'ble co-ordinate Bench in the case of Radhe Developers & Ors. V. ITO & Ors. (2008) 113 TTJ 300 (Ahd). 8. We have heard the rival submissions and perused the materials available on record. We find that Hon'ble co-ordinate Bench in the case of Radhe Developers & Ors. (supra). Respectfully following the decision of Hon'ble co-ordinate Bench in the case of Radhe Developers & Ors.(supra) this ground of Revenue's appeal is dismissed. 9. In the result, Revenue's appeal is dismissed. Now we take up ITA No.2183/Ahd/2010 A.Y.07-08 by the Revenue. 10. Ld. AR of the assessee submitted that the facts are identical with facts in ITA No.3300/Ahd/2009 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment proceedings. 15. At the outset, Ld. AR of the assessee has stated that he is instructed by assessee not to press this issue. Hence, the same is dismissed as not pressed. 16. Next ground is against the confirmation of action of Assessing Officer in disallowance the deduction on the following:- a) sale of bricks b) sale of bitumen c) Miscellaneous income 17. Ld. AR of the assessee submitted that sale of brick represents sale of damaged brick in view of construction activity undertaken by the assessee and this income is mainly in the form of sale of scrap generated during the manufacturing process and therefore eligible for deduction u/s. 80IB(10) of the Act. He submitted that sale of bitumen was purchased for building roa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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