TaxTMI 
TaxTMI 
2016 (5) TMI 249
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....gh the two appeals of the assessee pertain to different assessment years, but solitary issue in both the years is with respect to deduction u/s.80IB(10) of the Act and therefore the submission made by him would be applicable to both the assessment years. Ld. D.R. did not object to the aforesaid submission of ld. A.R. We therefore, for the sake of convenience, proceed to dispose of both the appeals by a common order and proceed with the facts for A.Y. 2006-07. 3. The relevant facts as culled out from the materials on record are as under: 4. The Assessee is a partnership firm stated to be engaged in the business of construction of housing project. Assessee filed its return of income for A.Y. 2006-07 on 05.10.2006 declaring total income of R....
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.... that the appellant is not entitled to deduction u/s.80IB(10) of the Act. 4.1 During the course of assessment proceedings, A.O. noticed that assessee had constructed housing project on the land which was purchased 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 A....
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....lation of conditions mentioned in sub-clause (a), (b) & (c) of Section 80IB(10) of the Act instead of the ground of ownership of land not being assessee's name, as was the stand taken by the A.O. Ld. A.R. submitted that on the issue of claim of deduction on the ground that assessee is not the owner of land the issue is now covered in favour of the assessee by the decision of Hon'ble Gujarat High Court in case of Radhe Developers reported in 341 ITR 483 (Guj) and many other decisions of Tribunal including the decision in the case of Shakti Corporation. As far as the denial of deduction on the ground that the size of the plot on which the housing project was constructed was not having minimum area of one acre, ld. A.R. submitted that the area....
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....10 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 area of 6945 sq. mtr. which is as per AUDA's BU permission and certificate. He also pointed to the copy of the certificate dated 9th September, 2010 issued by Ahmedabad Urban Development Authority (AUDA) which certifies the total build up area, numbe....
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....ad sold 4 flats namely A 41-42, A 47-48 & A 79-80 to 6 different purchasers vide separate sale deeds which have also been confirmed by the respective purchasers and at the time of its sale, each flat was less than 1500 sq. ft. It is also a fact that the inspection was carried out by the DVO subsequent and much after the date when assessee had handed over the possession to respective owners of the flat. The respective owners have also confirmed to have carried out the modification in those flats and combining those 6 flats into 3 flats. In such a situation, the act of the purchasers of flats of converting the 2 flats in to 1 flat resulting into the area of the combined flat being in excess of 1500 sq. ft., cannot be said to be done by assess....
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....n 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. We therefore restore the issue back to the file of ld. CIT(A) to decide the issue of deduction u/s.80IB(10) of the Act afresh in view of our observations made hereinabove. Needless to state that ld. CIT(A) shall grant adequate opportunity of hearing to both the parties. The assessee is also directed to promptly furnish all the required details called for by the authorities. Thus, the ground of assessee is allowed for statistical purposes. 8. In the result, the appeal of assessee....