The ITO, Ward-2(6),, Baroda v. M/s. Vishnu Developers, Baroda

ITA 2999/AHD/2008 | 2005-2006
Pronouncement Date: 31-01-2011 | Result: Dismissed

Appeal Details

RSA Number 299920514 RSA 2008
Assessee PAN AACFV9610R
Bench Ahmedabad
Appeal Number ITA 2999/AHD/2008
Duration Of Justice 2 year(s) 5 month(s) 6 day(s)
Appellant The ITO, Ward-2(6),, Baroda
Respondent M/s. Vishnu Developers, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 31-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 31-01-2011
Date Of Final Hearing 31-01-2011
Next Hearing Date 31-01-2011
Assessment Year 2005-2006
Appeal Filed On 25-08-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH D DD D BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI N NN N. .. .S. SAINI S. SAINI S. SAINI S. SAINI ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AND AND AND AND SHRI SHRI SHRI SHRI MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING 31-1-11: DRAFTED ON: 31-1-11. ITA NO. 2999 /AHD/ 20 0 8 ASSESSMENT YEAR : 2005-06 INCOME TAX OFFICER WARD 2(6) 1 ST FLOOR AAYAKAR BHAVAN RACE COURSE CIRCLE BARODA. VS. M/S. VISHNU DEVELOPERS 5 NANDISH COMPLEX OPP. YASH COMPLEX GOTRI ROAD BARODA. PAN/GIR NO. : AACFV 9610R (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI D.S. CHAUDHARY SR. D.R. RESPONDENT BY: SHRI BANDISH SOPARKAR. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-II BARODA DATE D 3-6-2008 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- GROUNDS OF APPEAL 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE ID. CIT (A) ERRED IN ALLOWING THE DEDUCTION U/S 80IB(10) TO THE ASSESSEE WHO WAS NOT GRANTED APPROVAL BY THE LOCAL AUTHORITY TO CARRY ON THE BUSINESS OF AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT S IN CONTRAVENTION OF A PLAIN READING OF SECTION 80IB(10) R.W.S. 80IB(1) E XPLANATION TO SECTION 80IB(10) AND RULE 18BBB. 2. THE ID. C1T(A) FAILED TO MAKE A COMBINED READING OF SECTION 80IB(1) WHICH IS THE SUBSTANTIVE PROVISION AND SECTION 80I B(10) WHICH IS A MACHINERY PROVISION POSTULATING COMPLETE IDENTITY BETWEEN TH E ASSESSEE AS REFERRED TO IN SECTION 80IB(1) AND THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY AS REFERRED TO IN S ECTION 80IB(10) NOT PERMITTING SUCH SPLITTING BETWEEN THE ASSESSEE AND THE PERSON WHO IS GRANTED APPROVAL BY THE LOCAL AUTHORITY FOR DEVELOPING AND BUILDING HOU SING PROJECTS AS PRESUMED BY THE CIT(A). PAGE 2 OF 7 3. THE ID CIT (A) FAILED TO ABIDE BY THE SCHEME OF SECTION 80! B BASED ON COMPLETE IDENTITY BETWEEN THE ASSESSEE AS REFERRED TO IN SECTION 80IB(1) ON THE ONE HAND AND THE ENTITY FULFILLING THE CONDITIONS LAID DOWN IN SECTIONS 80LB(3) 80IB{9) 80IB(11) AND 80IB(11AA) BESIDES SECTION 8 0IB(10) ON THE OTHER. 4. THE ID CIT(A) FAILED TO APPRECIATE THAT THE LAND BEING INTEGRAL PART OF ANY HOUSING PROJECT THE ASSESSEE WITHOUT OWNING THE L AND COMPONENT COULD NOT PASS ON FULL TITLE OVER DWELLING UNITS TO THE CUSTO MERS SO AS TO DERIVE PROFITS FROM DEVELOPING AND BUILDING HOUSING PROJECTS AND THIS I NTEGRATION IS FURTHER FORTIFIED BY THE REQUIREMENT OF APPROVAL BY THE LOCAL AUTHORI TY AS WELL AS GRANT OF COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY UNDER CLAUSE (II) OF THE EXPLANATION BELOW SECTION 801B(10) BOTH OF WHICH ARE GRANTED T O THE LANDOWNER THUS TREATING HIM ALONE AS RUNNING THE UNDERTAKING FROM THE BEGINNING TO THE END. 5. THE ID. CIT(A) ERRED IN DISPENSING WITH THE OWNE RSHIP OF LAND INTRINSICALLY LINKED WITH THE APPROVAL BY THE LOCAL AUTHORITY AL SO IN DISREGARD OF SECTION 80IB(10)(B) PROVIDING FOR THE CONDITION OF MINIMUM SIZE OF THE PLOT OF LAND WHICH CAN BE FULFILLED ONLY BY THE LANDOWNER AND THE PERS ON GETTING APPROVAL FROM THE LOCAL AUTHORITY. 6. THE ID CIT(A) ERRED IN MAKING ASSUMPTION REGARDI NG PASSING ON OF THE BENEFIT OF SECTION 80IB(10) BY THE LANDOWNER GETTIN G APPROVAL FROM THE LOCAL AUTHORITY FOR DEVELOPING AND BUILDING OF HOUSING PROJECTS TO THE PERSON WITH WHOM HE ENTERS INTO AGREEMENT FOR EXECUTION OF SUCH PROJECT S WITHOUT THERE BEING ANY PROVISION IN SECTION 80IB FOR SUCH PASSIN G ON AS CONTAINED IN SECTION 80HHC(1A). 7. WITHOUT PREJUDICE THE ID CIT(A) ERRED IN ALLOWI NG DEDUCTION U/S 80IB(10) IN RESPECT OF THE PROCEEDS ATTRIBUTABLE TO THE SAL E OF UNUTILIZED FSL AND NOT TO THE DWELLING UNITS IN THE HOUSING PROJECTS WHICH C OULD NOT BE TERMED AS PROFITS 'DERIVED' FROM DEVELOPING AND BUILDING HOUSING PROJECTS IN TE RMS OF THIS PROVISION. 8. THE APPELLANT CRAVES LEAVE TO ADD TO AMEND OR A LTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DECIDED THE ISSUES INVOLVED IN THE ABOVE GROUNDS AS UNDER:- THE PRESENT APPEAL IS FILED AGAINST THE ORDER PASS ED BY THE ITO WARD- 2(2) BARODA. IN RESPONSE TO THE NOTICE OF HEARING SHRI PRADEEP GORADIA CA ATTENDED ARGUED AND FILED WRITTEN SUBMISSIONS. 2. THE FIRST AND SECOND GROUNDS OF APPEALS ARE AGA INST DISALLOWANCE OF DEDUCTION UNDER SECTION -6016(10) AND NOT ALLOWI NG THE PROFIT ATTRIBUTABLE TO THE SALE OF UNUTILIZED FSI SINCE B OTH THE GROUNDS ARE CO- RELATED THEY ARE TAKEN UP TOGETHER. PAGE 3 OF 7 2.1. THE ASSESSEE IN ITS RETURNS OF INCOME HAS CLAI MED DEDUCTION SECTION 80 IB(10) WHICH WAS DISALLOWED BY THE ASSES SING OFFICER ON THE GROUND THAT ASSESSEE WAS NOT THE OWNER OF THE P ROPERTY AND THE PERMISSION WAS NOT GRANTED IN THE ASSESSEE'S NAME A ND THE APPROVAL BY VADODARA MUNICIPAL CORPORATION WAS IN THE NAME OF T HE ORIGINAL LAND AND NOT IN THE NAME OF ASSESSEE DEVELOPER AND THE O RIGINAL LAND OWNER HAS ASKED THE SERVICES OF ASSESSEE FIRM FOR DEVELOPMENT AND CONSTRUCTION OF THE PROJECT. IN VIEW OF ASSESSING O FFICER THE FUNDAMENTAL CONDITION THAT THE APPROVAL MUST BE ACCORDED IN ASS ESSEE'S NAME WAS NOT SATISFIED AND THEREFORE THE CLAIM WAS DENIED. WITHOUT PREJUDICE TO THE AFORESAID ARGUMENT IT WAS OBSERVED BY THE ASSESSIN G OFFICER THAT THE ASSESSEE HAD UTILIZED FSI OF 5993.03 SQ. MT. AND L EFT UNUTILIZED FSI OF 3587 SQ. MT. AND AS THE SAID LAND WAS DISPOSED BY T HE ASSESSEE ALONG WITH THE TENEMENTS TO PROSPECTIVE BUYERS THE PROFI T BOOKED FROM SALE OF 3587 SQ. MT. WAS STATED TO BE OUTSIDE THE AMBIT OF PROVISIONS OF SECTION 80IB (10) AS IT IS NOT THE PROFIT DER IVED FROM ACTIVITIES OF MERIT AND CONSTRUCTION. IN ESSENCE ' DEDUCTION U/ S.80IB(10) WAS DENIED AND IN THE ALTERNATE THE DEDUCTION ON SALE O F UNUTILIZED FSI WAS DISALLOWED. 2.2. IT IS CONTENDED BY THE COUNSEL THAT SIMILAR IS SUE CAME UP THE HON'BLE ITAT AHMEDABAD IN ITA NO.2482/AHD./2006 I N THE M/S. RADHE DEVELOPERS & OTHERS. THE ITAT AHMEDABAD HELD THAT PURPOSE OF CLAIMING DEDUCTION U/S.80IB (10) OF THE ACT IT IS NOT NECESSARY FOR THE ASSESSEE TO OWN THE LAND. SINCE SUCH CONDITION IS N OT ED IN THE SECTION IT WOULD NOT BE CORRECT TO DENY DEDUCTION ON THIS GROU ND. THE COUNSEL HAS REQUESTED TO DELETE THE ADDITIONS MADE AND ALLOW NS U/S.80IB (10) AND IN RESPECT OF UNUTILISED FSI. THE APPELLANT REFERRED RELEVANT PARAS OF THE ORDER OF ITAT. 28. THE CONTENTION OF REVENUE AUTHORITY THAT TO CLAIM DEDUCTION U/S. 80 IB(10) THERE IS A CONDITION PRECEDENT THAT THE ASSESSEE MUST BE OWNER OF THE LAND ON WHICH HOUSING PROJECT IS CONST RUCTED HAS NO FORCE WE DO NOT FIND ANY SUCH CONDITION AS APPEARING IN T HE PROVISION THE SECTION EXTRACTED ABOVE. A PLAIN READING OF SUBSECT ION (10) OF SEC.80IB REVEALS AND MAKES IT EVIDENT THAT THERE MUST BE AN UNDERTAKING DEVELOPING AND BUILDING A HOUSING PROJECT AS APPROV ED Y A LOCAL AUTHORITY. IT DOES NOT HAVE ANY FURTHER CONDITION T HAT SUCH DEVELOPMENT AND BUILDING OF THE HOUSING PROJECT SHOULD ALSO BE ON A LAND OWNED BY AN ASSESSEE UNDERTAKING. IT MIGHT BE TRUE THAT THE LA ND BELONGS TO THE PERSONS WHO HAS ENTERED INTO AN AGREEMENT WIT E ASS ESSEE TO DEVELOP AND BUILD HOUSING PROJECT BUT ON A PERUSAL OF E AGR EEMENT AS NARRATED ABOVE IT IS EVIDENT THAT THE DEVELOPMENT D BUILDIN G WORK HAS BEEN CARRIED OUT BY THE ASSESSEE IN PURSUANCE A TRIPARTI TE AGREEMENT AND IT IS NOT BY THE LAND OWNERS. THEREFORE E MERE FACT TH AT THE LAND-OWNER AND THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PRO JECT ARE TWO DIFFERENT ENTITIES WOULD NOT MAKE ANY DIFFERENCE. THE DEDUCT ION WOULD BE ELIGIBLE TO THE PERSON O IS DEVELOPING AND BUILDING HOUSING PROJECT AND NOT TO THE MERE OWNER THEREOF. PAGE 4 OF 7 29. IT IS ALSO THE CASE OF THE REVENUE THAT THE ASS ESSEE WAS A MERE CONTRACTOR DEVELOPING AND BUILDING HOUSING PROJECT AND THEREFORE IT COULD NOT BE A DEVELOPER. WE FAIL TO UNDERSTAND AS TO HOW SUCH A SITUATION COULD EMERGE. A PERSON WHO ENTERS INTO A CONTRACT W ITH OTHER PERSON IS NO DOUBT A CONTRACTOR. HAVING ENTERED INTO AGREEMEN TS WITH LANDOWNERS FOR DEVELOPMENT AND BUILDING THE HOUSING PROJECT W AS OBVIOUSLY A CONTRACTOR BUT IT DOES NOT DEROGATE E ASSESSEE FOR BEING A DEVELOPER AS WELL. THE TERM CONTRACTOR IS NO T ESSENTIALLY CONTRADICTORY TO THE TERM DEVELOPER. AS STATED ABOVE IS THE UNDERTAKING THAT DEVELOPS OR BUILDS THE HOUSING PROJECT THAT ENTITLED TO DEDUCTION IRRESPEC TIVE OF THE FACT WHETHER THAT IT IS THE OWNER OR NOT OR WHETHER IT IS THE CO NTRACTOR THEREOF THE REQUIREMENT R CLAIMING DEDUCTION IS THAT SUCH AN UN DERTAKING MUST DEVELOP AND BUILD HOUSING PROJECT BE IT ON THEIR O WN LAND OR ON THE LAND OF OTHERS D FOR WHICH A TRIPARTITE AGREEMENT HAS BE EN ENTERED INTO FOR DEVELOPMENT AND BUILDING HOUSING PROJECT; OR BE THE ASSESSEE A CONTRACTOR FOR DEVELOPING AND BUILDING HOUSING PROJ ECT OR AN OWNER OF THE LAND. 45. THEREFORE LOOK AT FROM ANY ANGLE WE ARE OF TH E CONSIDERED OPINION THAT TO CLAIM DEDUCTION FOR DEVELOPING AND BUILDING HOUSING PROJECT IT IS NOT NECESSARY THAT ASSESSEE MUST BE AN OWNER OF THE LAND AND IT W OULD BE SUFFICIENT IF THERE WAS AN UNDERTAKING DEV ELOPS AND BUILD HOU SING PROJECT. THE ASSESSEE IS ALSO THE OWNER OF THE PROJECT THOUGH THE TITLE DOES NOT VEST IN IT. 2.1.1. FURTHER IN RESPECT OF UNUTILIZED FSI THE HON. ITAT HAS AHMEDABAD OBSERVED HAS FOLLOWS : 63. A QUESTION HAS ALSO BEEN RAISED BY THE REVENU E THAT THE PROFIT EARNED THE ASSESSEE ARE NOT FOR DEVELOPING AND BUILDING HO USING PROJECT ALONE BUT FOR THE SALE OF EXTRA FSI WHICH HAS NOT BEEN UTILI ZED FOR DEVELOPING AND BUILDING HOUSING PROJECT. ON A PERUSAL OF THE P ROVISIONS OF SEC. 80IB (10). WE FIND THAT IT IS NOT MANDATORY REQUIREMENT TO FU LLY UTILIZE PERMISSIBLE FSI; THERE IS NO CONDITION AS TO FSI UNDER THE SCHEME OF THE PROVISIONS OF SEC. 80IB(10) OF THE ACT; THERE IS NO QUESTION OF SELLIN G UNUSED FSI TO THE INDIVIDUAL BUYER FOR PROJECT AND ALSO THERE IS NO Q UESTION OF CALCULATING THE PROFITABILITY ON FSI AS THE SAME HAS NOT BEEN CONTE MPLATED U/S. 80IB (10) OF THE ACT. ON VERIFICATION OF THE SALE DEED EXECUTED IN FAVOUR OF BUYERS OF THE RESIDENTIAL HOUSES IT IS CLEAR THAT THE ASSESSEE M ADE THIS SALE DEED FOR SALE OF PLOT OF LAND. FURTHER ON VERIFICATION OF DEVELO PMENT AGREEMENT WITH THE LAND OWNER WE FIND THAT HERE ALSO THE REFERENCE IS WITH RESPECT TO LAND AREA ONLY. IN BOTH HE DOCUMENTS ASSESSEE HAD NOT ACQUIRE D RIGHTS AND HAS NOT RELINQUISHED RIGHTS WITH REFERENCE TO FSI. FURTHER ON VERIFICATION OF APPROVED MAP FOR EACH UNIT IS WITH REFERENCE TO BUILT UP ARE A ONLY UNDER THE CIRCUMSTANCES THE ASSESSEE HAS NEVER DEALT WITH FS I BOTH N TERMS OF ACQUIRING RIGHTS IN THE LAND AND FOR RELINQUISHMENT OF SUCH RIGHTS IN THE LAND. THE CALCULATION GIVEN IN APPROVED PLAN IS OF MAXIMU M PERMISSIBLE FSI AND BY GIVING SUCH CALCULATION IT IS NOT MADE MANDATORY BY ANY PROVISIONS OF ANY ACT TO MAKE CONSTRUCTION TO THE FULLEST EXTENT OF MAXIMUM PERMISSIBLE FSI. THE UTILIZATION OF FSI THE BUILDER DEVELOPER DEPEND S ON MANY FACTORS LIKE SITUATION OF THE TYPE OF LOCALITY AND THE TYPE OF BUYERS' AFFORDABILITY. IT IS THE PAGE 5 OF 7 MARKET FORCE WHICH DETERMINES THE AVERAGE SIZE OF THE RESIDENTIAL UNIT - A COMMERCIAL DECISION WHICH PREVAILS FOR THE PURPOSE OF CARRYING OUT THE BUSINESS AND FOR MAKING RESIDENTIAL UNITS AND NOT T HE PERMISSIBLE MAXIMUM FSI. IT WOULD ALSO BE IMPOSSIBLE TO CONSTRUCT ANY H OUSING UNIT AS PER THE PROVISIONS OF SEC. 80IB (10) BY UTILIZING THE MAXIM UM FSI. 64. THE AO STATES FURTHER THAT IN THE APPROVED LAY OUT PLAN THE LOCAL AUTHORITY HAD PERMITTED TO BUILD RESIDENTIAL UNIT O F LESSER AREA THAN THE MAXIMUM PERMISSIBLE BUILT UP AREA ON THE LAND AND T HEREFORE THE ASSESSEE HAD CARRIED OUT ONLY PARTIAL CONSTRUCTION OF THE AV AILABLE FSI VIS-A-VIS THE ENTIRE PLOT OF LAND AVAILABLE FOR DEVELOPMENT WITH THE ASSESSEE. WE FIND THAT THE APPROVED FSI IN REGARD TO THE UNITS CONSTRUCTED HAS BEEN FULLY UTILIZED AS PER THE APPROVED LAND OF THE LOCAL AUTHORITY NA MELY THE FSI IS FULLY UTILIZED THE FSI ACTUALLY PASSED AND PERMITTED BY THE AUTHORITIES FOR EACH PROJECT. 65. THE AO OBSERVES ASSESSEE HAS SOLD UNUTILIZED FS I WITHOUT INVOLVING ANY PROCESS OF DEVELOPMENT AND CONSTRUCTI ON WHICH IS THE PRIMARY CRIITERION REQUIRED TO BE SATISFIED FOR T HE PURPOSE OF THE CLAIM OF DEDUCTION UNDER SECTION 80IB OF THE ACT HAVE NO FOR CE; THAT THE ASSESSEES HAVE CLAIMED DEDUCTION UNDER SECTION 80IB OF THE ACT FOR THE PROFIT DERIVED DURING THE YEAR UNDER CONSIDERATION FROM THE BUSINESS : DEVELOPMENT AND CONSTRUCTION OF A HOUSING PROJECT W HICH THOUGH ETUDES PROFIT EARNED FROM SALES OF UNUTILIZED FSI OF THE H OUSING PROJECT ALSO AND THAT THE OTHER PART OF UNUTILIZED FSI RELATING TO T HE 'PROVED UNITS HAVE NOT BEEN CONSTRUCTED OR DEVELOPED BUT BEING SOLD DIRECT LY ALTHOUGH AS A UNRESTRICTIVE BUNDLE OF RIGHTS ATTACHED THE SALE OF LAND PLOT. AS AFORESAID THERE IS NO REQUIREMENT AS TO FSI UNDER THE SCHEME OF PROVISIONS OF SEC. 80IB(1). IN ANY CASE ASSESSEE HAS NOT SOLD FSI OF PLOT EVEN IF THE UNUTILIZED FSI RIGHTS AVAILABLE WITH THE ASSESSEE IT IS THE ONLY WAY LEFT OUT OF UTILIZING UNUTILIZED FSI IS TO MAKE CONSTRUCTION ON TOP OF THE GROUND FLOOR WHICH IS ALREADY BEING SOLD TO PROSPECTIVE B UYERS. WITH THIS SO CALLED UTILIZED FSI RIGHTS IF THE ASSESSEE WISHES TO MAKE FURTHER INSTRUCTION THAN IT WILL PRACTICALLY IMPOSSIBLE AS THE ASSESSEE IS LEFT WITH NO EASEMENT RIGHTS FOR MAKING CONSTRUCTION OR ACCESS T O GO ON PI OF THE GROUND FLOOR AS THE GROUND LEVEL RIGHTS ARE ALREADY SOLD TO PROSPECTIVE CUSTOMER. IN THIS SITUATION IT WOULD BE PRACTICALLY POSSIBLE TO MAKE EITHER CONSTRUCTION I OR TO GIVE ACCESS FOR CONSTRUCTION MADE. THUS THE CONCEPT OF ELEMENT OF UNUTILIZED FSI SOLD IS IMAGINARY AND BASED ON SURMISES AND CONJUNCTURES. 2.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE ID. C OUNSEL AND FACTS OF CASE AND THE RECENT DECISION OF HON'BLE ITAT AHMED ABAD IN THE OF M/S. RADHE DEVELOPERS & OTHER VIDE ORDER IN ITA NO. LID/2006 DATED 29.06.2007. THE FACTS AND CIRCUMSTANCES OF THE FIT ARE IDENTICAL TO THE CASES DECIDED BY HON'BLE ITAT AHMEDABAD. ALSO ALL THE PLEAS RAISED BY THE ASSESSING OFFICER HAVE BEEN EFFECTIVELY DEALT W ITH AND DISCUSSED IN THE SAID ORDER AND THEREAFTER HON'BLE ITAT HAS ALLOWE D THE DEDUCTION UNDER SECTION 80IB(10). RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE ITAT THE DEDUCTION UNDER SECTION 8016(10) IS DIREC TED TO BE ALLOWED. PAGE 6 OF 7 2.3.1 CONSIDERING THE DISCUSSION ABOVE THE SECOND GROUND OF APPEAL REGARDING DEDUCTION ON UNUTILIZED FSI HAS AL SO BEEN COVERED BY THE AFORESAID DECISION OF ITAT AHMEDABA D ADDITION MADE BY ASSESSING OFFICER IS THEREFORE DELETED. 4. AFTER HEARING BOTH THE PARTIES WE FIND THAT BOT H THE ISSUES NAMELY ALLOWING DEDUCTION UNDER SECTION.80IB(10) TO THE AS SESSEE WHERE ASSESSEE WAS NOT THE OWNER OF THE PROPERTY AND THE PERMISSION WA S NOT GRANTED IN THE ASSESSEES NAME AND THE APPROVAL BY THE MUNICIPAL; CORPORATION WAS IN THE NAME OF THE ORIGINAL LAND OWNERS AND NOT IN THE NAM E OF ASSESSEE-DEVELOPER AND THE ORIGINAL LAND OWNER HAS ASKED THE SERVICES OF ASSESSEE-FIRM FOR DEVELOPMENT AND CONSTRUCTION OF THE PROJECT AND GRA NTING OF DEDUCTION UNDER SECTION.80IB(10) ON UNUTILIZED FSI DISPOSED OFF BY THE ASSESSEE ALONG WITH THE TENEMENTS TO PROSPECTIVE BUYERS HAVE BEEN ALLOWED B Y THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN FAVOUR OF T HE ASSESSEE BY FOLLOWING THE ORDER OF THE TRIBUNAL AHMEDABAD BENCH IN ITA NO.2482/AHD./2006 IN THE CA SE OF M/S. RADHE DEVELOPERS & OTHERS. THE LEARNED DEPA RTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY MISTAKE IN THE ORDER OF THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS). HE ALSO COULD NOT BRING ANY MATERIAL ON RECORD TO SHOW THAT THE ABOVE ORDER OF THE TRIBUNAL WAS REVERSED IN APPEAL BY A HIGHER FORUM . THEREFORE WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) WHICH IS HEREBY CONFIRMED AND THE APPEAL OF THE REV ENUE IS DISMISSED. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT IN THE PRESENCE OF BOT H THE PARTIES ON 31 ST DAY OF JANUARY 2011. SD/- SD/- ( MAHAVIR SINGH) (N.S. S AINI) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED: AHMEDABAD 31 ST DAY OF JANUARY 2011. COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-II BARODA. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD PAGE 7 OF 7 DATE INITIALS 1. DRAFT DICTATED ON 31-1-2011 -------------- ----- 2. DRAFT PLACED BEFORE AUTHORITY 31-1-2011 ----- -------------- 3. DRAFT PROPOSED & PLACED 31-1-2011 ----------- -------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 31-1-2011 ----------- -------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 31-1-2011 -------- ------------ 6. KEPT FOR PRONOUNCEMENT ON 31-1-2011 --------- ----------- 7. FILE SENT TO THE BENCH CLERK 31-1-2011 ------ -------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------