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2015 (2) TMI 575 - AT - Income TaxDeduction u/s.80IB(10) - disallowance as Assessee is not a developer but is a contractor - Held that:- As far as the issue with respect to 80IB(10) with respect to the land being not in the name of the Assessee is concerned, it is now settled by the decision of Hon’ble Gujarat High Court in the case of Radhe Developers[2011 (12) TMI 248 - GUJARAT HIGH COURT] wherein has held ownership of property is not a condition precedent for grant of deduction because there is nothing in section 80IB(10) of the Act requiring that the ownership of land must vest in a developer for him to be able to qualify for deduction. - Decided in favour of asssessee. Non utilizing the FSI available for the construction of the housing project fully - Held that:- As far as the issue with respect to unutilized FSI is concerned, we find that Assessing Officer while denying the deduction u/s. 80IB(10) has noted that out of the total FSI of 8000.27 s.q. mts available with Assessee, the FSI that has been consumed is to the extent of 1310.02 sq. mts (which works out to around 17% of the total FSI) and the FSI unutilized is to the extent of 6690.25 sq. mts. We further find that in the decision of Hob’ble Gujarat High Court in the case of Shreenath Infrastructure [2014 (4) TMI 482 - GUJARAT HIGH COURT], the underutilization of FSI as noted by Hon’ble Gujarat High Court was in the range of 25 to 30 % and therefore the ratio of decision in the case of Shreenath Infrastructure, which has been relied by ld. A.R. would not be applicable to the facts of the present case. We further find that while denying the issue, ld. CIT(A) has given no finding with respect to the unutilized FSI. We therefore feel that the issue of unutilized FSI and thereby the deduction u/s. 80IB (10) on the unutilized FSI needs to be re-examined at the end of CIT(A) in view of the decision of Hon’ble Gujarat High Court in the case of Moon Developers (2014 (4) TMI 1042 - GUJARAT HIGH COURT). We therefore remit the issue to the file of CIT(A) to decide the issue afresh as per law and after giving adequate opportunity of hearing to both the parties. - Decided in favour of revenue for statistical purposes.
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