TMI Blog2011 (7) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible to claim deduction u/s.80IB(10) of the Income Tax Act,1961 on the ground that the appellant has constructed some units with built up area of more than 1500 sq.fts. The ld.CIT(A) erred in fact and in law in not appreciating the fact that entire deduction u/s.80IB(10) of the Act cannot be denied even on the ground that the appellant has constructed units with built up of more than 1500 sq.fts. The ld. CIT(A) erred in fact and in law in not appreciating the fact that the actual built up area of the unit was less than 1500 sq.fts. and therefore the appellant is eligible to claim deduction u/s.80IB(10) of the Act. 2. The ld. CIT(A) erred in fact and in law in confirming action of the AO in charging interest u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, claimed deduction of ₹ 48,63,131/- u/s 80IB(10) of the Act in their return of income for the AY 2004-05 . The AO disallowed the claim on the ground that the assessee was not the owner of the land and the permission of the local authority viz. Vadodara Municipal Corporation for development of the project was not granted in the name of the assessee and such permission was in the name of the original land owners. The original land owner had asked for the services of assessee firm for development and construction of the project. Moreover, the assessee utilised FSI of only 8763.85 sq.mt.,leaving unutilized FSI of 13985.55 sq.mt. and thus sale of unutilized FSI fell outside the ambit of provision of section 80IB(10) of the Act ,s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned counsel for the assessee submitted that similar claim for deduction u/s 80IB(10) of the Act in the AYs 2003-04 2006-07 had been allowed by the Commissioner of Income Tax-I, Baroda vide his order dated 18.12.2009 u/s 264 of the Act for the AY 2006-07 , followed in order dated 21.1.2010 u/s 264 of the Act for the AY 2003-04. Since facts and circumstances in the years under consideration were similar to the facts and circumstances in the AYs. 2003-04 2006-07 , the ld. AR pleaded that the claim may be allowed in the years under consideration. On the other hand, the ld. DR argued that there is nothing in the impugned orders to suggest that facts and circumstances in the years under consideration were similar to those in the AYs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer. The assessing officer has stated that the assessee's claim that the built-up area in some units was approved for 1500 sq.ft. but actual constructed built-up area did not exceed this figure. However, the assessing officer was constrained to deny the claim because the assessee did not produce any clearcut material evidence. During the course of proceedings, the authorized representative and the partner produced the following details: (i) A certified copy of application to the Vadodara Municipal Corporation (VMC) dated 07.11.2003 enclosing revised plans for 6 big units in question prepared by Shri Chirag V. Patel, VMC approved architect and engineer where the area has been shown at 137.50 sq.mtrs. for each of thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the AYs 2003-04 2006-07 have not been disputed by the Revenue before us while the ld. CIT(A) upheld the disallowance only on the ground that the assessee did not fulfill the condition stipulated in clause (c) of sec. 80IB(10) of the Act. In these circumstances, we consider it fair and appropriate to set aside the order of the ld. CIT(A) and restore the matter relating to claim for deduction u/s 80IB(10) of the Act to his file for deciding the issue afresh in accordance with law, in the light of aforesaid findings of the CIT in the AYs 2003-04 2006-07 after allowing sufficient opportunity to both the parties. The ld. CIT(A) is free to undertake any independent enquires, if found necessary and thereafter, may pass such order as he dee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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