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TMI Blog2008 (10) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... not granted approval by the local authority to carry on the business of an undertaking developing and building housing projects, in contravention of a plain reading of section 80IB(1) r.w.s. 80IB(1), Explanation to section 80IB(10) and rule 18BBB. 2. The ld. CIT(Appeals) failed to make a combined reading of section 80IB(1), which is the substantive provision, and section 80IB(10), which is a machinery provision, postulating complete identity between the assessee as referred to in section 80IB(1), and the undertaking developing and building housing projects approved by the local authority as referred to in section 80IB(10), not permitting such splitting between the assessee and the person who is granted approval by the local authority for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing approval from the local authority for developing and building of housing projects to the person with whom he enters into agreement for execution of such projects, without there being any provision in section 80IB for such passing on, as contained in section 80HHC(1A). 7. Without prejudice, the ld CIT(Appeals) erred in allowing deduction u/s. 80IB(10) in respect of the proceeds attributable to the sale of unutilized FSI and not toe the dwelling units in the housing projects, which could not be termed as profits 'derived' from developing and building housing projects in terms of this provision." 2. None appeared on behalf of assessee, the notice of hearing sent by registered pose with acknowledgement due has been returned by the Postal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted approval in the name of the original land owners and not in the name of assessee/developer. Ld. CIT(A) observed in para-2.1 and 2.2 of his order, which is reproduced below:- "2.1. The assessee in its return of income has claimed deduction und section 80IB(10) which was disallowed by the Assessing Officer on the ground that the assessee was not the owner of the property and the permission was not granted in the assessee's name. The approval by the Vadodara Municipal Corporation was in the name of the original land owners and not in the name of assessee developer and as per the Assessing Officer the original land owner had merely obtained the services of assessee firm for development and construction of the project. In view of the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Revenue. We are conscious that against the ITAT order rendered in ITA No.1503/Ahd/2008 an appeal was field by the Revenue before Hon'ble jurisdictional High Court and Hon'ble jurisdictional High Court has also decided in favour of assessee rendered in the case of CIT v. Radhe Developers (2010) 341 ITR 403 (Guj). In this view of the matter we do not find any infirmity into the order passed by Ld. CIT(A). Respectfully following the ratio laid down in the judgment of Hon'ble jurisdictional High Court rendered in the case of Radhe Developers (supra), we confirm the order of Ld. CIT(A). This appeal of Revenue's appeal is dismissed. 6. In the result, Revenue's appeal is dismissed. Order pronounced in Open Court on the date mentioned h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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