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TMI Blog2013 (6) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... IB(1)allowed by CIT(A) - Held that:- As relying on cases of Radhey Developers [2007 (6) TMI 316 - ITAT AHMEDABAD] & Paritosh Infrastructure [2013 (6) TMI 437 - ITAT AHMEDABAD] the concept of element of unutilized FSI sold is imaginary and base on surmises and conjunctures. Against revenue. - ITA No. 2713/Ahd/2011 and 2195/Ahd/2012 - - - Dated:- 14-6-2013 - Shri Mukul Kr. Shrawat And Shri Anil Chaturvedi,JJ. For the Petitioner : Shri D. P. Gupta, D.R. For the Respondent : Smt. Urvashi Shodhan ORDER Per Shri Mukul Kr. Shrawat, Judicial Member :- These two appeals have been filed by the Revenue for A.Y:2008-09 2009-10 arising from the orders of CIT(A)-II, Baroda respectively dated 12.8.2011 and 26.7.2012. A. Grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness activity of development and construction of the housing project." 1.1 As per the respective two assessment orders dated 21.12.2010 and 23.11.2011, the undisputed fact is that the assessee firm is stated to be builder and developer. For A.Y.2008-09 the assessee has claimed a deduction under Section 80IB(10) of Rs.2,48,88,698/- and for A.Y: 2009-10 claimed deduction of Rs.97,98,413/-. At the outset, we have been informed that the identical issue of claim of deduction under Section 80IB(10) was decided by ITAT 'D' Bench, Ahmedabad, vide order dated 6.8.2010 in a group of cases, wherein assessee's name has appeared in the nomenclature of the order as follows:- "Income Tax Officer, Ward,2(6), Aayakar Bhawan, Race Course Circle, Baroda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Developers, ITA No.854/Ahd/2010 for A.Y:2007-08 dated 31.5.2012, wherein certain guidelines have been issued to the Revenue Department to ascertain the correctness of the claim of deduction under Section 80IB(10). Sri Gupta has pleaded that in respect of this assessee as well on the same lines directions can be issued by following the decision of M/s. Shikar Developers (supra). 3. Having heard the submission of both the sides, we have noted that in respect of ground no.1, the learned CIT(A) has followed the decisions of the tribunal pronounced in assessee's own case for A.Y:2007-08 dated 6.8.2010, relevant portion reproduced (supra). Since, the tribunal in assessee's case had taken a view in the past, therefore, learned CIT(A) has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not acceptable in vie of the above quoted judgments of Ahmedabad ITAT. Hence the deduction is directed to be allowed on that basis also." 3.1 At present, we are also of the opinion that the tribunal had given a clear cut finding while deciding assessee's appeal for A.Y: 2007-08 (supra) that the dominent control over the project belonged to the assessee and the project was developed at the risk and the cost of the assessee. It has also been noted by the respected co-ordinate Bench that there was no contrary material placed on record from the side of the Revenue, therefore, there was no reason to take any other different view. Moreover all these facts are to be ascertained by the AO as per the above noted directions. Accordingly, we hereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of deduction under section 80IB of the Act have no force; that the assessees have claimed deduction under section 80IB of the Act for the profit derived during the year under consideration from the business of development and construction of a housing project which though includes profit earned from sales of unutilized FSI of the housing project also and that the other part of unutilized FSI relating to the approved units have not been constructed or developed but being sold directly, although as a unrestrictive bundle of rights attached with the sale of land plot. As aforesaid, there is no requirement as to the FSI under the scheme of provisions of Sec. 80IB(10). In any case the assessee has not sold FSI of plot, even if the unutili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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