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2019 (4) TMI 1850 - AT - Income TaxDisallowance u/s 80IB(10) - assessee had obtained the single approval from Local Authority, which also consisted approval for development and construction of residential unit of more than 1500 sq. ft. in violation of provisions of clause (c) of section 80IB(10) - CIT-A allowed claim - HELD THAT:- After considering the decision of the Hon’ble High Court of Gujarat in the case of Radhe Developer [2007 (6) TMI 316 - ITAT AHMEDABAD] as elaborated above in the findings of the ld. CIT(A) and development of 55 residential units by the another assessee M/s. Pratham Properties, we do not find any infirmity in the decision of the ld. CIT(A). Assessing Officer is directed to allow deduction u/s 80IB(10) on profits relatable to the residential units of 'Pratham Vista' which are below the prescribed built up area of 1500 sft. - therefore, we do not find any merit in the appeal of the Revenue. Disallowance of claim of deduction for the project Pratham Citadel - HELD THAT:- We observed that the ld. CIT(A) is justified in allowing the appeal of the assessee for deduction in respect of unutilized FSI except Pratham Citadel after taking into consideration the special grounds and circumstances as elaborated supra in his findings. Therefore, we do not find any merit in the this ground of appeal of the revenue and the same are dismissed. Project Pratham Citedal on which the ld. CIT(A) has disallowed the claim of the assessee u/s. 80IB(10) deduction in respect of utilization of FSI, we observe that in this case the assessee has shown very less area of utilization of FSI. It is noticed that total un-utilization of FSI was worked out at 45.30% which was quite high therefore the ld. CIT(A) has disallowed the claim of the assessee -restore this issue to the file of assessing officer for deciding afresh after examination and verification of the detail to be furnished by the assessee. Revision u/s 263 - taxability of profit on sale of un-utilized FSI in respect of taxability of profit on sale of un-utilized FSI - HELD THAT:- Specific details were required to be examined by the assessing officer and the ld. PCIT has rightly held in his order u/s. 263 that matter was set aside to the assessing officer to provide opportunity to the assessee to prove its contentions. After considering the aforesaid fact and legal finding, we observe that the assessing officer has not examined the issue of under-utilization of the FSI in the case of the assessee according to the directions of the Hon’ble High Court of Gujarat laid down in the above cited judicial pronouncements, therefore, the issue to be examined by the assessing officer according to the directions of Hon’ble High Court SHREENATH INFRASTRUCTURE [2014 (4) TMI 482 - GUJARAT HIGH COURT] In the light of the above facts and circumstances, we observe that the impugned issue was not examined while finalizing the assessment therefore the order of the assessing officer was erroneous as well as prejudicial to the interest of the revenue. We therefore uphold the order of the ld. Pr. CIT.
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