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2013 (11) TMI 726 - AT - Income TaxDeduction u/s 80IB of the Income Tax Act - Assessee claimed deduction of Rs. 74,34,997/- under section 80IB(10) of the IT Act. The AO disallowed the claim of deduction 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 - Learned CIT(A) confirmed the action of the AO on the very same ground, and also further observed that one corner house flat was of 1517.47 sq.ft., i.e. more than 1500 sq.ft. – Held that:- Issue of land ownership is squarely covered in favour of the assessee 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 respect of profit derived from other flats where it is not in dispute that they are of 1500 sq.fts. or less than that – Decided in favor of Assessee.
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