TaxTMI 
TaxTMI 
2013 (6) TMI 250
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2. The Ld. CIT(A) has erred in the facts & circumstances of the case & in law accepting the assessee claim that it had fulfilled all the conditions u/s.80IB(10) of the Act in respect of the construction of houses at Chunchale Shivar. 3. The order of the Ld. CIT(A) be cancelled and that of the AO be restored. 2. The assessee is a firm engaged in the business of land development and building construction. For A.Y. 2008-09, it has continued the construction of houses on the land at Gat No.66/B at Chunchale Shivar, Satpur Ambad Link Road, Nashik, which was started in the year 2003. The assessee has completed the construction on the same Gat at 66/B/1, and 66/B/2 in the earlier assessment years. During the prev....
X X X X Extracts X X X X
X X X X Extracts X X X X
....disallowing the assessee's claim u/s.80IB(10) of the Act. The Ld. Departmental Representative submitted that the CIT(A) was not justified in accepting the assessee claim that it had fulfilled all the conditions u/s.80IB(10) of the Act in respect of the construction of houses at Chunchale Shivar. Accordingly the order of the Assessing Officer be restored. On the other hand Ld. Authorised Representative supported the order of the CIT(A). 6. After going through the above submissions and material on record we find it undisputed that the size of the plot of land as per completed building plan on this Gat No.66/B/3 was 7368 sq.mt. on which the permissible built up area was 4569 sq.mt. Therefore the area is more than 1 acre. Date of approval to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... after the 1st day of April, 2004, [but not later than the 31st day of March, 2005], within four years from the end of the financial year in which the housing project is approved by the local authority. (iii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s higher." 7. There is nothing in the provision to suggest that there is a necessity that entire permissible FSI on the plot of land has to be consumed. It is prerogative of builder to consume the FSI on the plot and there are various factors which are in the domain of builder itself. There is nowhere envisaged in the law that the entire FSI should be utilised for the purpose of claiming deduction u/s.80IB(10). The assessee has fulfilled all main conditions of section 80IB(10) namely size of the plot as per completed building plan is 7638 sq.mt. and permissible built up area was 4569 sq.mt. which is more than 1 acre (4047 sq.mt.). Secondly, the approval to construct from the local authority is 21.06.2003 which is after 01.10.1998. Thirdl....