TMI Blog2016 (5) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... Further on perusal of the certificate, it is seen that it gives details about the area of land, permission number, approved built up area, date of approval etc. which are important factors which would go in determining the eligibility of assessee for deduction u/s.80IB(10) of the Act. In such a situation, in the larger interest of justice, we are of the view that the issue about deduction u/s.80IB(10) of the Act needs to be re-examined in the light of the aforesaid certificate issued by AUDA and in accordance with law - Decided in favour of assessee for statistical purposes. - ITA Nos: 2427/Ahd/2010 & 552/Ahd/2011 - - - Dated:- 28-3-2016 - Shri Shailendra Kumar Yadav, J.M. Shri Anil Chaturvedi, A.M. For The Assessee : Shri Bharat Shah, A.R. For The Revenue : Shri Dinesh Singh, Sr. D.R. ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER These two appeals filed by assessee are against the order of CIT(A)-XV, Ahmedabad, dated 04.06.2010 28th October, 2010 for the assessment years 2006-07 2007-08 respectively. 2. Before us, at the outset, ld. A.R. submitted that though the two appeals of the assessee pertain to different assessment years, but solitary iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Sakal Cooperative Housing Society Ltd. and the approval for project from the local authority namely Ahmedabad Urban Development Authority (AUDA) was also obtained from AUDA by Sakal Co-operative Housing Society Ltd. A.O. was therefore of the view that assessee was acting merely as an agent and had not acquired dominant control over the project and assessee has acted merely as an agent of contractor in the construction of housing project. He was therefore of the view that the necessary conditions required u/s.80IB(10) of the Act have not been complied by assessee and therefore, the assessee was not eligible for deduction u/s.80IB(10) of the Act. He accordingly denied the claim of deduction amounting to ₹ 46,40,938/-. 5. Aggrieved by the order of Assessing Officer, Assessee carried the matter before the ld. CIT(A) who confirmed the action of A.O. of denying the deduction but for different reasons. The reasons for denying the claim of deduction u/s.80IB(10) of the Act by ld. CIT(A) was that there were violation of conditions mentioned in sub-clause (a), (b) (c) of Section 80IB(10) of the Act, namely, that assessee has not completed the construction of the housing proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t their requirements and the modifications by the purchasers were done by them subsequent to the sale made by assessee. He submitted that since each unit was less than 1500 sq. ft. at the time of sale and the subsequent modifications by the purchasers could not be a ground for denial of benefit. He further submitted that as per the provision of Section 80IB(10) of the Act which were applicable for the year under consideration, assessee was eligible for deduction and that the condition as stipulated in clause (e) (f) to Section 80IB(10) of the Act with respect to not allotting more than one unit to an individual and his relatives was introduced by Finance Act (No.2), 2009 w.e.f. 01/04/2010 and was therefore not applicable for the year under consideration. With respect to the observation of District Valuation Officer (DVO) of assessee not effectively developed minimum one acre, he submitted that the aforesaid observation of the DVO which has been relied upon by the ld. CIT(A) on the basis of FSI calculation worked out by DVO is wrong in view of the fact that the plot area of 8838.74 sq. mtrs. has been utilized for development and that assessee has constructed the total built up are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the area of the combined flat being in excess of 1500 sq. ft., cannot be said to be done by assessee and therefore it cannot be said that assessee has sold flat whose area was in excess of 1500 sq. ft. In such a situation, on the ground that the size of flat was in excess of ₹ 1500 sq.ft., the deduction u/s.80IB(10) of the Act cannot be denied to assessee. We further find that ld. CIT(A) had denied the claim of deduction for the reason that assessee had not complied with the conditions stipulated under clause (a), (b) (c) of Section 80IB(10) of the Act and the basis such conclusion was DVO's report. It is CIT(A) s observation that assessee has constructed only on 5686.74 sq.mtrs., but on the other hand, it is assessee s contention that it has developed on the area of 8838.74 sq. mtrs. of land and for which, support is drawn by ld. A.R. on the certificate being no. 1870 dated 9th September, 2010 issued by Ahmedabad Urban Development Authority (AUDA). On perusal of the aforesaid certificate, it is seen that the certificate has been issued by AUDA on 09.09.2010 whereas the impugned order of ld. CIT(A) is dated 04.06.2010 meaning thereby that when the order was passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
