9911796707
TMI Blog2014 (4) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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. - I.T.A. No. 2909 /AHD/2010 - - - Dated:- 24-4-2014 - Shri D. K. Tyagi, J.M. And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Shri K. C. Mathews, Sr. D.R. For the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, in respect of issue regarding deduction u/s.80IB(10) r.w.s.80IB(1) claimed by the assessee, without appreciating the fact that the approval by the local authority as well as completion certificate was not granted to the assessee but to the land owner and the rights and obligation under the said approval were not transferable, and that transfer of dwelling units in favor of the end-users was made by the landowner and not by the assessee The only dispute is with respect to deduction u/s. 80IB(10). 5. During the course of assessment proceedings, A.O noticed that Assessee firm has constructed housing project and shown total net profit of Rs. 11,35,963/- which was claimed as exempt under section 80IB(10) of the Act. A.O noticed that As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and perused the arguments of the Assessing officer. On the main issue of deduction u/s. 80IB (10), it is seen that although, the issue was decided in favor of the appellant and against revenue by the order of the Jurisdictional ITAT, in the case of Radhe Developers vs ITO ward 3(2) Baroda No 2482/Ahd/2006 A bench Ahmedabad. The said decision has also decided the matter of proportionate profit from unutilized FSI also in favour of the appellant. Thus the alternate plea of the AO is rejected. However the decision was partly modified by the subsequent decision in the case of ITO vs M/s. Shakti Corporation ITA No. 1503/AHD/2008 dated 07/11/2008 wherein, the Hon'ble ITAT has indicated that the benefit under 801B(10) would be availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is way short of permissible limits cannot be said to have been derived from housing project. He further submitted that CIT(A), while deciding the issue has given no finding with respect to sale of FSI. He therefore submitted in view of the decision in the case of Moon Star Developers (supra), the issue needs to re-examined at the end of CIT(A) and therefore submitted that the matter may be remanded back to CIT(A). 8. We have heard the ld. D.R. and perused the material on record. We find that the A.O 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 construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the line. In our opinion, the issue has to be seen from case to case basis. Marginal under-utilization of FSI certainly cannot be a ground for rejecting the claim under section 80IB(10) of the Act. Even if there has been considerable under-utilization, if the assessee can point out any special grounds why the FSI could not be fully utilized, such as, height restriction because of special zone, passing of high tension electric wires overhead, or any such similar grounds to justify under utilization, the case may stand on a different footing. However, in cases where the utilization of FSI is way short of the permissible area of construction, looking to the scheme of section 80IB(10) of the Act and the purpose of granting deduction on the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
