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2022 (10) TMI 343 - AT - Income TaxDisallowance claimed as deduction u/s 80IB(10) - whether assessee is a ‘Developer’ or ‘Works Contractor’? - Revenue argued that assessing officer has identified the assessee as a ‘Works Contractor”, therefore assessee is not eligible to claim deduction under section 80IB(10) - HELD THAT:- The question as to whether assessee is a ‘Developer’ or ‘Works Contractor’ has been adjudicated by the Coordinate Bench of ITAT, Surat, in favour of assessee [2018 (3) TMI 1979 - ITAT SURAT] As the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench, in assessee`s own case and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings of the Coordinate Bench (supra). We find no reason to interfere in the said order of the Coordinate Bench, therefore, respectfully following the binding judgment of the Coordinate Bench in assessee’s own case, CIT(A) has rightly deleted the addition. Therefore, we confirm the findings of ld CIT(A) and dismiss the ground raised by the Revenue. Disallowance at 10.41% being profit on sale of unutilized FSI - HELD THAT:- Marginal under utilization of FSI certainly cannot be a ground for rejecting the claim under section 80IB(10) of the Act. It has further contended that due to certain special grounds there may be considerable under utilization and such case may stand on a different footing. It has further contented that in the judgement in the case of CIT Vs. Shreenath Infrastructure [2014 (4) TMI 482 - GUJARAT HIGH COURT] the Hon'ble High Court, after considering the judgment in the case of Moonstar Developers has held that it is not possible to utilize the full FSI allotted and that the under utilization in the marginal range of 25 - 30% would not be hit by disallowance of deduction u/s 80IB(10). Assessee has also placed reliance on the case of Narayan Housing Corporation [2016 (9) TMI 247 - ITAT AHMEDABAD]wherein the order has been passed after discussing both the orders in the case of Moonstar and Srireenath Infrastructure. The Hon'ble ITAT Ahmedabad has held that disallowance on account of unutilized FSI was restricted to 30% as against the 60% made by AO. On the basis of the above order of Hon'ble ITAT, assessee has contended that in its case the disallowance of deduction may be restricted in relation to the unutilized FSI. CIT(A) directed the AO to restrict the disallowance in relation to the unutilized FSI at 10.41% of total claim of deduction u/s 80IB(10) of the Act, which comes to Rs.30,19,469/-. Accordingly, addition to the extent of Rs.30,19,469/- was confirmed out of total disallowance was deleted. We have gone through the findings of ld CIT(A) and noted that there is no infirmity in the conclusion reached by the ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
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