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TMI Blog2013 (11) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... by the decision of the Hon'ble Gujarat High Court in the case of CIT Vs. Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT] - Lower authorities were not justified in disallowing the claim of deduction under section 80IB of the Act, on such ground. For the disallowance on the ground that unit size exceeds 1500 sq.ft., reliance has been placed on the judgment in the case of M/s.Aakar Associates Vs. ITO [2013 (11) TMI 719 - ITAT AHMEDABAD] - Following the above judgment, issue restored to the to the file of the AO with direction to restrict the disallowance under section 80IB(10) of the Act only in respect of profit derived from one corner flat of 1517.47 sq.ft. only, and allow the deduction under section 80IB(10) of the Act in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are that the assessee in the return of income filed claimed deduction of Rs. 74,34,997/- under section 80IB(10) of the IT Act. The AO disallowed the claim of deduction to the assessee on the ground that the assessee acted only as an agent of the land owner, and therefore, is not qualified as a developer, as there is no constructive ownership of the land with the assessee. 8. On appeal before the learned CIT(A) confirmed the order of the AO, for the reasons that according to section 80IB(10) of the Act, the profits should be derived by an assessee from carrying on the business of developing and building housing project. Since the assessee is not the owner of the land on which the project is developed and the assessee has also not acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied by the assessee, still in the interest of Revenue, he asked the DVO to inspect the project u/s.131(1)(a)(d) of the IT Act vide letter dated 17.8.2009 and the DVO was asked to inform if the two conditions mentioned in clause (b) (c) above were found fulfilled by the assessee, and the DVO informed that near corner "A" one of the residential units, was found to measure 1517.47 sq.ft. which was more than 1500 sq.ft., and therefore, assessee has violated the mandatory condition of exceeding 1500 sq.ft. limit for claiming deduction under section 80IB(10) of the Act. Further, DVO also stated that the assessee has not properly utilized the area of land in other words has not developed one acre of land, because as per permissible FSI more numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 403 (Guj) and submitted that the Hon'ble High Court has held that the assessee was entitled to deduction under section 80IB of the Act, even where the title of the land had not passed on to the assessee and in some cases, the development permission also was obtained in the name of the original owner. He submitted that the SLP filed by the Department against the said decision of the Hon'ble Gujarat High Court was dismissed by the Hon'ble Supreme Court. 10. On the other hand, the learned DR fully supported the orders of the lower authorities. 11. We have heard rival submissions and perused the orders of the lower authorities and material available on record. In the instant case, the AO disallowed the claim of the assessee for deduction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible FSI; there is no condition as to FSI under the scheme of the provisions of Sec. 80IB(10) of the Act;". The contrary view thus taken by the learned CIT(A) is not sustainable. The learned CIT(A) has also observed that one corner flats was of an more than 1500 sq.ft. No material was brought before us by the assessee to dispute the above finding of the learned CIT(A). We, thus, find that one corner flat is of 1517.47 sq.ft. We find that this Bench of the Tribunal in the case of M/s.Aakar Associates Vs. ITO, in ITA No.2093/Ahd/2009 order dated 4.5.2011 has held as under: "5.5 In the light of the view taken in the aforesaid decisions, especially when the Revenue have not placed before us any contrary decision, we have no hesitation In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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