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TMI Blog2014 (3) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 80IB(10) - To verify the compliance of the conditions as stipulated by the co-ordinate Bench, the matter needs re-examination – thus, the matter is remitted back to the CIT(A) for verification of compliance of the conditions – Decided in favour of Revenue. - I.T.A. No. 156/AHD/2011 - - - Dated:- 7-3-2014 - Shri D. K. Tyagi, J.M. And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Shri D. K. Mishra, D.R. For the Respondent : Shri Chirag R. Shah ORDER Per Shri Anil Chaturvedi,A.M. 1. This appeal is filed by the Revenue against the order of CIT(A)-II, Baroda dated 20.10.2010 for A.Y. 2006-07. 2. The relevant facts as culled out from the material on record are as under. 3. Assessee is a partnership firm and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 80IB(10) r.w.s. 80IB(1) of the Income-tax Act to the on profit not an from sale of unutilized FSI, without appreciating that this profit not an element of profits derived from the business activity of development and construction of the housing project relating to the sale of tenements. 4. Since the grounds are interconnected and relates to deduction u/s. 80IB, both are considered together. 5. During the course of assessment proceedings, A.O. noticed that Assessee firm had constructed housing project and had shown total net profit of Rs. 67,40,560/- derived from development and building of the housing project and as such the entire profit was claimed as deduction u/s. 80IB(10) of the Act. A.O was of the view that Assessee is not eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly denied the claim of deduction u/s. 80IB(10). Aggrieved by the order of A.O, Assessee carried the matter before CIT(A). CIT(A) after considering the submissions of the Assessee held that the Assessee is eligible for deduction under 80IB(10) by observing as under:- 2.3 I have considered the submissions of the ld. counsel and facts of the case and the recent decision of Hon'ble ITAT, Ahmedabad, in the case of M/s. Radhe Developers and Other vide order in ITA No. 2482/AHD/2006 dated 29.06.2007. The facts and circumstances of the appellant are identical to the cases decided by Hon'ble ITAT, Ahmedabad. Also all the pleas raised by the Assessing Officer have been effectively dealt with and discussed in the said order and thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Bench in the case of Shikar Developers ITA No. 854/AHD/2010 has noted the various requirements as stipulated in the case of Radhe Developers (2010) 329 ITR 01 (Guj) that needs to be fulfilled by a developer so as to become eligible for claiming deduction u/s. 80IB(10) . The relevant portion of the guidelines as noted by the Tribunal are as under:- 6. Having heard the submissions of both the sides, we are of the considered view that the issue of admissibility of deduction prescribed u/s.80-IB(10) is now to be decided as per the observations made by Hon'ble Gujarat High Court in the case of Radhe Developers India Ltd. in Tax Appeal No. 171 of 1999 vide order dated 01/04/2009 [reported at (2010) 329 ITR 01 (Guj.)]- The Hon'ble C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) The AO has to examine about the profit or loss arising from the said project. (g) Though the ownership of land has been held as not the only criteria for allowing the claim u/s 80IB(10) but the domain over the land and the control over the project has to be examined by the A.O. (h) Whether on transfer of domain the land owners have received any consideration and whether it was a fixed amount or depend upon the profits of the project. Likewise, the AO has to ascertain that whether the assessee was given a fixed percentage as remuneration for the said project in lieu of granting permission to construct the residential units or to earn profits as a project developer. (i) The AO has to ascertain the position of the possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the conditions as stipulated by the co-ordinate Bench, we feel that the matter needs re-examination. We therefore restore the issue back to the file of ld. CIT(A) to verify the compliance with the conditions as laid by the co-ordinate Bench in case of Shikhar Developers (supra) and give a specific finding on them and thereafter decide the issue. Needless to state that CIT(A) shall grant adequate opportunity of hearing to both the parties. The Assessee is also directed to furnish before CIT(A) all the necessary information/details called for by CIT(A) for deciding the issue. Thus this ground of Revenue is allowed for statistical purposes. 9. In the result, the appeal of Revenue is allowed for statistical purposes. Order pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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