TMI Blog2014 (2) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... see is eligible for deduction u/s 80IB(10) the order of CIT(A) set aside – Decided in favour of Assessee. - I.T. A. No. 2679 & 2680 /AHD/2010 - - - Dated:- 21-2-2014 - Shri G. C. Gupta And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Shri S. N. Soparkar For the Respondent : Shri D. K. Mishra, D. R. ORDER Per Shri Anil Chaturvedi,A. M. 1. These two appeals are filed by the Assessee against the order of CIT(A)- XV, Ahmedabad dated 27.07.2010 for A.Ys. 2006-07 2007-08 respectively. 2. Before us, the ld. A.R. submitted that though the appeals are of two different years but the issue involved in both the years are identical except for the amounts and therefore the submissions made by them in case of one assessment year would be applicable to the other year also. He therefore submitted that both the appeals can be heard together. We therefore proceed to hear both the appeals together and pass a consolidated order for the sake of convenience. We thus proceed with the facts in ITA no. 2679/AHD/2010 for A.Y. 06-07. 3. The relevant facts as culled out from the material on record are as under. 4. Assessee is a firm engaged in the profession of develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plot in question being 4,050 sq. tints.), her accepting the learned DVO's version that the appellant did not fulfill that condition, and that too, on the basis of irrelevant considerations concerning FSI (Floor Space Index), was grossly erroneous; (b) that only a bare reading of the learned DVO's communications attached as Annexures to the impugned Appellate Order showed that the learned DVO had exceeded his jurisdiction by suggesting as under vide his communications dated 2-7-2010 and 22/26-7-2010 (Emphasis supplied by appellant): 5. Ld A.R. submitted that though various grounds have been raised but the only effective ground is with respect to denial of deduction u/s 801B(10) of the Act. . 6. During the course of assessment proceedings A.O. noticed that during the year under consideration, Assessee had undertaken construction work of a housing project known as Kalasagar Apartments at Ahmedabad. He also noticed that from the aforesaid project Assessee had claimed deduction of Rs 1,17,70,912/- u/s 80IB(10) of the Act. From the details submitted by the Assessee, AO noticed that Assessee was not the owner of the land on which the project was developed, he had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has resulted into inflated measurement of 1566.59 sq ft and 1571.544 sq ft. If the measurements were taken by only including the measurement of common walls correctly, the area of the flat did not exceed 1500 sq ft. He pointed to the measurement and the drawing of the flats which were placed at page 469 to page 473 of the paper book wherein the measurements of the areas of the flats is calculated and is below the 1500 sq ft. He further pointed that the aforesaid submission was made before DVO and also before CIT(A). He further submitted that the DVO had taken the measurements from terrace and had found it to be less than 1500 sq. Ft and for which he pointed to the copy of the notings of the DVO which were placed at page 442 of the paper book. He further submitted that the definition of built up area which was inserted by Finance No 2 of 2004 which came into effect from 1.4.2005 was prospective in nature and had no application to the housing project of the Assessee as the project of Assessee was approved on 17.1.2005 and was therefore prior to 1.4.2005 and for the aforesaid proposition he relied on the decision of Karnataka High Court in the case of CIT vs Anriya Project Manageme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O denied the deduction for the reason that the Assessee was not a Developer of the project but was a Contractor. CIT(A) on the other hand denied the deduction for the reason that the size of the individual flat was in excess of 1500 sq ft prescribed under the provisions of the Act. It is an undisputed fact that the project was undertaken by the Assessee in Ahmedabad and therefore as per the provisions of s. 80IB(10)(c), the maximum permissible area of flat is 1500 sq. Ft. Before us, the Ld.A R has submitted that the size of each of the flat constructed is below 1500 sq ft but the Ld. D.R. however submitted that there were certain flats which were having area of more than 1500 sq ft and further the Assessee did not arrange for the verification by the DVO of the measurements from inside of the flats. Before us, it has been submitted by the Assessee that DVO had taken the measurement from the terrace and based on those measurements the area was found to be less than 1500 sq ft. The exact noting of the DVO as placed on page 442 of the paper book reads as quote Property inspected from terrace. The flats from inside will not be available for verification of measurements in a day which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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