The ITO, Ward-2(4), Baroda V. M/s. Dhara Developers, Baroda

ITA 67/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80272 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-07-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 11-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS SONIA KUMAR
• Assessee Lawyers: MRS URVASHI SODHAN
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, J.M. & SHRI ANIL CH ATURVEDI, A.M.) I.T. A. NO. 67 /AHD/2011 (ASSESSMENT YEAR:2006-07) THE ITO, WARD. 2(4), BARODA V/S M/S. DHARA DEVELOPERS 1, ABHISHEK SOCIETY, GOTRI, IPCL ROAD, BARODA. (APPELLANT) (RESPONDENT) PAN: AADFD 544J APPELLANT BY : MRS. SONIA KUMAR SR. D.R. RESPONDENT BY : MRS. URVASHI SODHAN, A.R. ( )/ ORDER DATE OF HEARING : 25-07-2014 DATE OF PRONOUNCEMENT : 14-08-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE O RDER OF CIT(A)-II, BARODA DATED 09.09.2010 FOR A.Y. 2006-07. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECOR D ARE AS UNDER. 3. ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGE D IN THE BUSINESS OF BUILDING CONSTRUCTION. ASSESSEE FILED ITS RETURN OF INCOME F OR A.Y. 06-07 ON 20.12.2006 DECLARING TOTAL INCOME OF RS. NIL AFTER CLAIMING DE DUCTION OF RS. 8,26,505/- U/S. 80IB(10) OF THE ACT. THE CASE WAS SELECTED FOR SCRU TINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORD ER DATED 26.11.2008 AND ITA NO 67/AH D/2 011 . A.Y. 2006- 07 2 THE TOTAL INCOME WAS DETERMINED AT RS. 8,26,500/-. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT (A) VIDE ORDER DATED 09.09.2010 ALLOWED THE APPEAL OF THE ASSESSEE. AGGR IEVED BY THE ORDER OF CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ID CIT (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE DEDUCT ION U/S.80IB(10) R.W.S.80IB(L0) OF THE INCOME- TAX ACT TO THE ASSESSEE IN VIEW OF THE DECISION OF THE HON'BLE ITAT IN THE CASE OF M/S.RADHE DEVELOPERS IN ITA NO.2482/AHD/2006 DATED 29.06.2007 , WITHOUT APPRECIATING THAT THE APPROVAL BY THE LOCAL AUTHORITY AS WELL AS COMPLETION CERTIFICA TE WAS NOT GRANTED TO THE ASSESSEE BUT TO THE LANDOWNER AND THE RIGHTS AND THE OBLIGATIONS UNDER THE SAID APPROVAL WERE NOT TRANSFERABLE, AND THAT TRANSFER OF DWELLING UNITS IN FAVOUR OF THE EN D-USERS WAS MADE BY THE LANDOWNER AND NOT BY THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ID CIT (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE DEDUCT ION U/S.80IB(10) R.W.S.80IB(L0) OF THE INCOME- TAX ACT TO THE ON PROFIT DERIVED FROM SALE OF UNUTILIZED FSI, WITHOUT APPRECIATING THAT THIS PROFIT NOT AN ELEMENT OF V PROFITS DERIVED FROM THE BUSINE SS ACTIVITY OF DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT RELATING TO THE SALE OF TENEMEN TS. 4. THOUGH REVENUE HAS RAISED 2 GROUNDS BUT THEY RELAT E TO DEDUCTION U/S. 80IB(10) AND THEREFORE BOTH THE GROUNDS ARE CONSIDERED TOGET HER. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O N OTICED THAT ASSESSEE HAS CONSTRUCTED HOUSING PROJECT AND SHOWN NET PROFIT OF RS. 8,26,505/- BEING DERIVED FROM DEVELOPMENT AND BUILDING OF THE HOUSING PROJEC T AND THE SAME WAS CLAIMED AS EXEMPT FROM TAX U/S. 80IB(10) OF THE ACT. A.O DU RING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THE PROJECT WAS APPROVED IN THE NAME OF KASHIBEN GORDHANBHAI PATEL FOR CONSTRUCTION OF HOUS ING PROJECTS ON THE AREA OF LAND OWNED BY THEM, THE PERMISSIONS OF DEVELOPMENT BY THE LOCAL AUTHORITY WAS NOT IN THE NAME OF THE ASSESSEE AND THE LAND ON WHI CH HOUSING PROJECT WAS CONSTRUCTED WAS ALSO NOT OWNED BY THE ASSESSEE. A.O WAS OF THE VIEW THAT AS PER SECTION 80IB(10) OF THE ACT THE BASIC REQUIREME NT FOR CLAIMING DEDUCTION IS APPROVAL OF HOUSING PROJECT OF LOCAL AUTHORITY IN T HE NAME OF THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT AND THE LAN D ON WHICH HOUSING PROJECT IS CONSTRUCTED SHOULD ALSO BE OWNED BY THE ASSESSEE. H E ALSO NOTICED THAT THE LAND OWNERS HAD SOLD THE PIECES OF LAND TO UNIT HOLDERS DIRECTLY AND THE ASSESSEE HAD ITA NO 67/AH D/2 011 . A.Y. 2006- 07 3 ACTED AS MERELY AS CONFIRMING PARTY AND FURTHER THE ASSESSEE HAD ENTERED INTO CONSTRUCTION AGREEMENT WITH THE UNIT HOLDERS. HE AL SO NOTICED THAT ASSESSEE HAD NEVER SOLD THE HOUSE TO THE UNIT HOLDERS AS THERE W AS NO REGISTERED DOCUMENT IN RESPECT THEREOF. HE WAS THEREFORE OF THE VIEW THAT IN VIEW OF THE PROVISIONS OF SECTION 80IB(10), THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10) OF THE ACT. A.O ALSO NOTICED THAT ASSESSEE HAD CARRIED OUT CONSTRUCTION ACTIVITY ON THE LAND WITHOUT FULLY UTILIZING THE PERMISSIBLE FLOOR SPACE INDEX. (FSI) AND HAD CARRIED OUT ONLY PARTIAL CONSTRUCTION OF THE AVAILA BLE FSI VIS--VIS THE ENTIRE PLOT OF LAND AVAILABLE FOR DEVELOPMENT. FURTHER HE ALSO NOT ICED THAT THE BALANCE FSI AVAILABLE ON THE PLOT OF LAND FOR DEVELOPMENT OF CO NSTRUCTION HAS NOT BEEN UTILIZED FOR THE PURPOSE OF DEVELOPMENT CONSTRUCTION OF THE PROJECT. THE PART OF UNUTILIZED FSI RELATING TO THE APPROVED UNITS WERE NOT CONSTRU CTED OR DEVELOPED BUT WERE BEING SOLD DIRECTLY AS UNRESTRICTED BUNDLE OF RIGHT S ATTACHED WITH THE SALE OF LAND. HE THEREFORE NOTICED THAT THE PROFIT ENSUING FROM T HE ENTIRE PROJECT INCLUDES PROFIT ATTRIBUTABLE TO THE SALE OF UNUTILIZED FSI WHICH CA NNOT BE CONSIDERED AS BEING ELIGIBLE FOR DEDUCTION. HE ACCORDINGLY DENIED THE D EDUCTION U/S. 80IB(10) ON BOTH COUNTS. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CAR RIED THE MATTER BEFORE CIT(A). CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY HOLDING AS UNDER:- 2.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE AUTHOR IZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFICER. THE DECISION OF THE HON'BLE ITAT IN M/S. S HAKTI CORPORATION AND OTHERS AND THE GUIDELINES LAI D DOWN HAVE ALSO BEEN CONSIDERED. THE MATTER WAS REFERRED TO THE ASSESSING OFFICER WH O VIDE REMAND REPORT DATED 08.04.2010 HAS STATED TH AT 'THE LAND IN QUESTION WAS ORIGINALLY BELONGED TO SM T. KASHIBEN GORDHANBHAI PATEL & OTHERS, IN WHOSE NAMES PERMISSION FOR DEVELOPMENT WAS GRANTED BY THE LOCAL AUTHORITY. THE SAID LAND WAS NOT TRANSFERRED IN THE NAME OF THE ASSESSEE FIRM I.E. M/S. DHARA DE VELOPERS. THE ASSESSEE HAS MADE A TOTAL PAYMENT OF RS.22,40,000/- FOR THE SAID LAND ADMEASURING 4270 S Q. MTR. AND MADE A DEVELOPMENT AGREEMENT DATED 14.05.2003 WITH SHANTILAL & PATEL, POWER OF ATTORNE Y HOLDER OF LAND OWNERS FOR DEVELOPMENT OF HOUSING PROJECT. AS PER THE DEVELOPMENT AGREEMENT, THE ASSE SSEE IS RESPONSIBLE FOR THE RISK AND COST INVOLVED IN THE DEVELOPMENT OF PROJECT. IT IS FURTHER NOTICED THAT ALL THE EXPENSES FOR CONSTRUCTION WERE BORNE BY THE ASSESSEE AND ARRANGEMENT FOR SALE OF HOUSING PROJEC T IS ALSO UNDERTAKEN BY THE ASSESSEE. THEREFORE, IT IS OBSERVED THE TERMS AND CONDITIONS OF THE DEVELOPMEN T ARE SIMILAR TO THAT PF DECODED BY THE HON'BLE ITA T IN THE CASE OF ITO & OTHERS VS. M/S. SHAKTI CORPORATIO N, VADODARA & OTHERS IN ITA NO. 1503/AHD/2008 DATED 07.11.2008'. THE ASSESSING OFFICER ALSO VERIF IED THAT THE APPELLANT HAD COMPLETED ITS PROJECT BE FORE 31.03.2008. SINCE THE CONTROL OVER THE LAND, AND THE RISKS AND COSTS OF THE PROJECT ARE OF THE APPELLANT, THE ASSE SSEE IS ENTITLED TO THE DEDUCTION U/S. 80IB(10). THE ASSESS ING OFFICER IS DIRECTED TO COMPUTE THE INCOME ACCORDINGLY. WITH REGARD TO GROUND NO. 2 FOLLOWING THE DECISION OF THE HON'BLE ITAT IN THE CASE OF M/S. RADHE BUILD ERS AND OTHERS (SUPRA) THE ASSESSING OFFICER'S DECISION OF RESTRICTING, THE CLAIM OF 80IB(10) ON ACCOUNT O F UNUTILIZED FSI IS NOT ACCEPTABLE AND IS DIRECTED TO BE DELETED. ITA NO 67/AH D/2 011 . A.Y. 2006- 07 4 6. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE IS NOW I N APPEAL BEFORE US. 7. BEFORE US, LD. D.R. TOOK US THROUGH THE ORDER OF A .O AND SUPPORTED HIS ORDER. HE ALSO SUBMITTED THAT ASSESSEE HAS NOT FULLY UTILIZED THE FSI AVAILABLE TO IT AND THE UNUTILIZED FSI HAS BEEN SOLD ON WHICH THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB(10). HE FURTHER SUBMITTED THAT IN VIEW OF THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF MOON STAR DEVELOPER (TAX APPEAL NO. 549 OF 2008 DATED 5/11 TH MARCH, 2014), ASSESSEE IS NOT ELIGIBLE FOR DEDUCTI ON ON UNUTILIZED FSI. HE FURTHER SUBMITTED THAT LD. CIT(A) HAS NOT G IVEN ANY FINDING WITH RESPECT TO THE SALE OF UNUTILIZED FSI. HE THEREFORE SUBMITTED THAT THE MATTER MAY BE REMITTED BACK THE LD. CIT(A) FOR DECIDING THE ISSUE OF 80IB( 10). 8. THE LD. A.R. ON THE OTHER HAND SUBMITTED THAT THE ISSUE WITH RESPECT TO DEDUCTION U/S. 80IB(10) WHERE THE ASSESSEE IS NOT THE OWNER O F THE LAND IS NOW WELL SETTLED BY THE DECISION OF HONBLE GUJARAT HIGH COURT IN TH E CASE OF RADHE DEVELOPERS. SHE FURTHER SUBMITTED THAT LD. CIT(A) HAS FOLLOWED THE DECISION IN THE CASE OF SHAKTI CORPORATION WHEREIN THE DECISION OF RADHE DE VELOPERS (SUPRA) HAS BEEN CONSIDERED AND THEREFORE NO INTERFERENCE TO THE ORD ER OF LD. CIT(A) IS CALLED FOR. AS FAR AS DEDUCTION WITH RESPECT TO UNUTILIZED FSI IS CONCERNED, SHE SUBMITTED THAT HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SHREENATH INFRASTRUCTURES (2014) 44 TAXMANN. COM 461 (GUJ) HAS HELD THAT IN EVERY CASE OF MARGINAL UNDER UTILIZING OF FSI WOULD NOT BE A CASE OF DISAL LOWANCE OF DEDUCTION U/S. 80IB(10). SHE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID DECISION. SHE THEREFORE SUBMITTED THAT IN VIEW OF THE AFORESAID D ECISIONS OF HONBLE GUJARAT HIGH COURT, THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION UNDER 80IB(10) AND THEREFORE THE ORDER OF LD. CIT(A) BE UPHELD. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO DISALL OWANCE OF DEDUCTION U/S. 80IB(10). A.O HAD DISALLOWED THE DEDUCTION U/S. 80I B(10) ON MAINLY TWO COUNTS ITA NO 67/AH D/2 011 . A.Y. 2006- 07 5 NAMELY THAT ASSESSEE IS NOT A DEVELOPER BUT IS A CO NTRACTOR AND SECONDLY ASSESSEE HAD NOT FULLY UTILIZED THE FSI AVAILABLE F OR THE CONSTRUCTION OF THE HOUSING PROJECT. AS FAR AS THE ISSUE WITH RESPECT T O 80IB(10) WITH RESPECT TO THE LAND BEING NOT IN THE NAME OF THE ASSESSEE IS CONCE RNED, IT IS NOW SETTLED BY THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF RADHE DEVELOPERS WHERE THE HONBLE GUJARAT HIGH COURT HAS HELD OWNERSHIP O F PROPERTY IS NOT A CONDITION PRECEDENT FOR GRANT OF DEDUCTION BECAUSE THERE IS N OTHING IN SECTION 80IB(10) OF THE ACT REQUIRING THAT THE OWNERSHIP OF LAND MUST V EST IN A DEVELOPER FOR HIM TO BE ABLE TO QUALIFY FOR DEDUCTION. 10. AS FAR AS THE ISSUE WITH RESPECT TO THE SALE OF UN UTILIZED FSI IS CONCERNED, WE FIND THAT HONBLE GUJARAT HIGH COURT IN THE CASE OF MOON DEVELOPERS (SUPRA) HAS NOTED AS UNDER:- 31. IT IS TRUE THAT SECTION 80IB(10) OF THE ACT DOE S NOT PROVIDE THAT FOR DEDUCTION, THE UNDERTAKING M UST UTILIZE 100% OF THE FSI AVAILABLE. THE QUESTION HOW EVER IS, CAN AN UNDERTAKING UTILIZE ONLY A SMALL PORTION OF THE AVAILABLE AREA FOR CONSTRUCTION, SEL L THE PROPERTY LEAVING AMPLE SCOPE FOR THE PURCHASE R TO CARRY ON FURTHER CONSTRUCTION ON HIS OWN AND CLA IM FULL DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE PROFIT EARNED ON SALE OF THE PROPERTY? IF TH IS CONCEPT IS ACCEPTED, IN A GIVEN CASE, AN ASSESSE E MAY PUT UP CONSTRUCTION OF ONLY 100 SQ. FT. ON THE ENTIRE AREA OF ONE ACRE OF PLOT AND SELL THE SAME T O A SINGLE PURCHASER AND CLAIM FULL DEDUCTION ON THE PR OFIT ARISING OUT OF SUCH SALE UNDER SECTION 80IB(10 ) OF THE ACT. SURELY, THIS CANNOT BE STATED TO BE DEV ELOPMENT OF A HOUSING PROJECT QUALIFYING FOR DEDUCT ION UNDER SECTION 80IB(10) OF THE ACT. THIS IS NOT TO S UGGEST THAT FOR CLAIMING DEDUCTION UNDER SECTION 80 IB (10) OF THE ACT, INVARIABLY IN ALL CASES, THE ASSES SEE MUST UTILIZE THE FULL FSI AND ANY SHORTAGE IN S UCH UTILIZATION WOULD INVITE WRATH OF THE CLAIM UNDER S ECTION 80IB(10), BEING REJECTED. THE QUESTION IS WHERE DOES ONE DRAW THE LINE. IN OUR OPINION, THE I SSUE HAS TO BE SEEN FROM CASE TO CASE BASIS. MARGINAL UNDER-UTILIZATION OF FSI CERTAINLY CANNOT BE A GROUND FOR REJECTING THE CLAIM UNDER SECTION 80IB(10) OF THE ACT. EVEN IF THERE HAS BEEN CONSIDE RABLE UNDER-UTILIZATION, IF THE ASSESSEE CAN POINT OUT ANY SPECIAL GROUNDS WHY THE FSI COULD NOT BE FULLY UTILIZED, SUCH AS, HEIGHT RESTRICTION BECAUSE OF SPECIAL ZONE, PASSING OF HIGH TENSION ELECTRIC WIRE S OVERHEAD, OR ANY SUCH SIMILAR GROUNDS TO JUSTIFY UNDER UTILIZATION, THE CASE MAY STAND ON A DIFFEREN T FOOTING. HOWEVER, IN CASES WHERE THE UTILIZATION OF FSI IS WAY SHORT OF THE PERMISSIBLE AREA OF CONSTRU CTION, LOOKING TO THE SCHEME OF SECTION 80IB(10) OF THE ACT AND THE PURPOSE OF GRANTING DEDUCTION ON TH E INCOME FROM DEVELOPMENT OF HOUSING PROJECTS ENVISAGED THEREUNDER, BIFURCATION OF SUCH PROFITS A RISING OUT OF SUCH ACTIVITY AND THAT ARISING OUT OF THE NET SELL OF FSI MUST BE RESORTED TO. IN THE PRESENT CASE, NONE OF THE ASSESSEES HAVE MADE ANY SPECIAL GROUND FOR NON-UTILIZATION OF THE FSI. 32. THE CONTENTION OF THE COUNSEL FOR THE ASSESSEE THAT AS LONG AS THERE HAS BEEN 100% UTILIZATION OF THE MAXIMUM PERMISSIBLE AREA ON THE GROUND FLOOR, DEDUC TION UNDER SECTION 80IB(10) OF THE ACT CANNOT BE DECLINED, CANNOT BE ACCEPTED. AS NOTED EARLIER, IN CASE OF M/S. MOON STAR DEVELOPERS AND MANY OTHER ASSESSES, SUCH FULL UTILIZATION OF THE GROUND FLOOR AREA AVAILABLE FOR CONSTRUCTION RESULTED INTO BARE LY 20% TO 25% OF THE FSI BEING USED, REMAINING MORE TH AN 75% BEING LEFT UNUSED. 33. WHAT IS AVAILABLE FOR DEDUCTION UNDER SECTION 8 0IB(10) OF THE ACT IS THE PROFIT OF AN UNDERTAKING DERIVED FROM DEVELOPING AND BUILDING A HOUSING PROJ ECT. MERE SALE OF OPEN LAND OR UNUSED FSI AS PART OF THE HOUSING PROJECT WHERE UTILIZATION OF THE FSI IS WAY SHORT OF PERMISSIBLE LIMITS CANNOT BE SAID TO HAVE BEEN DERIVED FROM SUCH HOUSING PROJECT. ITA NO 67/AH D/2 011 . A.Y. 2006- 07 6 11. IN THE PRESENT CASE, WE FIND THAT CIT(A) WHILE ALL OWING THE CLAIM OF DEDUCTION ON THE ISSUE THAT THE ASSESSEE IS NOT THE OWNER OF LAN D IS CONCERNED, HE RELYING ON THE DECISION OF THE CO-ORDINATE BENCH OF TRIBUNAL I N THE CASE OF SHAKTI DEVELOPERS (SUPRA) AND AFTER CONSIDERING THE DEVELO PMENT AGREEMENT HAS GIVEN A FINDING THAT ASSESSEE IS RESPONSIBLE FOR THE RISK AND COST INVOLVED IN THE DEVELOPMENT OF PROJECT AND THEREFORE ELIGIBLE OF DE DUCTION U/S. 80IB(10). AS FAR AS THE ISSUE WITH RESPECT TO UNUTILIZED FSI IS CONCERN ED, WE FIND THAT ASSESSING OFFICER WHILE DENYING THE DEDUCTION U/S. 80IB(10) H AS NOTED THAT OUT OF THE TOTAL FSI OF 8000.27 S.Q. MTS AVAILABLE WITH ASSESSEE, TH E FSI THAT HAS BEEN CONSUMED IS TO THE EXTENT OF 1310.02 SQ. MTS (WHICH WORKS OUT TO AROUND 17% OF THE TOTAL FSI) AND THE FSI UNUTILIZED IS TO THE EX TENT OF 6690.25 SQ. MTS. WE FURTHER FIND THAT IN THE DECISION OF HOBBLE GUJARA T HIGH COURT IN THE CASE OF SHREENATH INFRASTRUCTURE, THE UNDERUTILIZATION OF F SI AS NOTED BY HONBLE GUJARAT HIGH COURT WAS IN THE RANGE OF 25 TO 30 % AND THERE FORE THE RATIO OF DECISION IN THE CASE OF SHREENATH INFRASTRUCTURE, WHICH HAS BEE N RELIED BY LD. A.R. WOULD NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE FURTHER FIND THAT WHILE DENYING THE ISSUE, LD. CIT(A) HAS GIVEN NO FINDING WITH RES PECT TO THE UNUTILIZED FSI. WE THEREFORE FEEL THAT THE ISSUE OF UNUTILIZED FSI AND THEREBY THE DEDUCTION U/S. 80IB (10) ON THE UNUTILIZED FSI NEEDS TO BE RE-EXAMINED AT THE END OF CIT(A) IN VIEW OF THE DECISION OF HONBLE GUJARAT HIGH COURT IN TH E CASE OF MOON DEVELOPERS (SUPRA). WE THEREFORE REMIT THE ISSUE TO THE FILE OF CIT(A) TO DECIDE THE ISSUE AFRESH AS PER LAW AND AFTER GIVING ADEQUATE OPPORTU NITY OF HEARING TO BOTH THE PARTIES. THE ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THE REQUIRED DETAILS CALLED FOR PROMPTLY. THUS THE GROUND OF REVENUE IS ALLOWED FO R STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 14 - 08 - 2014. SD/- SD/- (MUKUL KR. SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD.