C/TAXAP/28/2020 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 28 of 2020 PRINCIPAL COMMISSIONER OF INCOME-TAX , VADODARA-1 Versus M/S. PRATHAM DEVELOPERS Appearance: MR.VARUN K.PATEL(3802) for Appellant(s) No. 1 for Opponent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 02/03/2020 ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. This tax appeal filed under Section 260A of Income Tax Act, 1961 [for short 'The Act, 1961'] at instance of Revenue is directed against order dated 30th April, 2019 passed by Income Tax Appellate Tribunal, Ahmedabad 'B' Bench, Ahmedabad [for short 'The Tribunal'] in ITA No.2769/AHD/ 2015 for A.Y 2012 2013. 2. Revenue has proposed following questions of law as substantial questions of law for consideration of this Court. [a] Whether in facts and circumstances of case, learned ITAT has erred in law and on facts in upholding decision of CIT(A) deleting disallowance of Rs.9,92,52,643/ with respect to deduction u/s.80IB(10) of Income Tax Act, 1961 without appreciating that assessee is not eligible for deduction u/s. 80IB(10) of Act as assessee had obtained single approval from Local Authority consisting of approval for development and construction of residential unit having area of more than 1500 Page 1 of 3 Downloaded on : Tue Mar 31 11:09:15 IST 2020 C/TAXAP/28/2020 ORDER sq.ft. which is in violation of provisions of clause (c) of section 80IB(10) of Act? (b) Whether in facts and circumstances of case, learned ITAT has erred in law and on facts in allowing deduction u/s. 80IB(10) of Income Tax Act, 1961 by holding that project of assessee Pratham Vistas compiles with conditions prescribed for built up area of 1500 sq.ft. whereas actual fact shows is that assessee has failed to fulfill essential condition of not constructing residential units exceeding 1500 sq.ft.? (c) Whether in facts and circumstances of case, learned ITAT has erred in law and on facts in upholding decision of learned CIT(A) allowing deduction u/s.80IB(10) of Income Tax Act, 1961 to assessee on pro rate basis when there is no such provision under statute permitting same? (d) Whether in facts and circumstances of case, learned ITAT has erred in law and on facts in allowing deduction u/s.80IB(10) to assessee on profit derived from sale of un utilized FSI not being element of profits derived from business activity of development and construction of housing project relating to sale of tenements? (e) Whether in facts and circumstances of case, learned ITAT has erred in law and on facts in upholding decision of Ld. CIT(A) in allowing deduction u/s.80IB(10) ignoring facts that in Pratham Residency, Pratham Vatika and Pratham Vistas, assessee has exploited project land to maximum keeping in view various legal and regulatory impediments and assessee firm had sufficient reasons for not being able to fully utilize FSI in project? (f) Whether in facts and circumstances of case, learned ITAT has erred in law and on facts in upholding decision of CIT(A) in allowing deduction u/s.80IB(10) ignoring fact that only profits which are derived from development and construction of housing units are eligible for benefit u/s.80IB(10) and not profits which are attributable to FSI that was sold as such without developing and constructing? 3. above questions proposed by Revenue are not required to be admitted as similar questions proposed by Revenue for A.Y.2010 11 and A.Y.2011 12 are not admitted by order of even date in Tax Appeal No.25 of 2020 and Tax Appeal No.34 of 2020 in Page 2 of 3 Downloaded on : Tue Mar 31 11:09:15 IST 2020 C/TAXAP/28/2020 ORDER case of same assessee. 4. Following orders passed in Tax Appeal No.25 of 2020 and Tax Appeal No.34 of 2020 of even date, questions of law proposed by Revenue in present Tax Appeal are also not admitted for A.Y.2012 13. 5. appeal, therefore, fails and is hereby dismissed accordingly. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) aruna Page 3 of 3 Downloaded on : Tue Mar 31 11:09:15 IST 2020 Principal Commissioner of Income-tax, Vadodara-1 v. Pratham Developer