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4.3.3. In the case of the appellant, it has been demonstrated that about 32% of plot size in case of tenement cannot be utilized because of height restriction. In the example given by the appellant he has submitted that in case of 1000 Sq. Ft, plot, max. FSI permissible is 1600 Sq. Ft. But max. permissible construction in a tenement is only 1280 (400 GF+ 440FF + 440SF), it means 320 Sq. Ft cannot be utilized i.e. 32% of plot size. There are various other factors which lead to under utilization like size of common plot. In case the size of plot is more, the common plot size will be commensurately higher, which is turn lead to higher % of un- utilized FSI. The appellant has established that he was prevented by sufficient compelling cause in not utilizing FSI fully. As held by the Hon'ble Gujarat High Court decision in case of Moonstar Developers (Supra) and Shreenath Infrastructure (Supra) when the appellant was prevented from utilizing FSI fully, the proportionate deduction cannot be disallowed. In appellant's case even if we exclude this 32% from the permissible FSI, then the ratio of FSI underutilized to the utilized FSI is within the permissible limit as held by the Hon'ble Gujarat High Court's in case of Shreenath Infrastructure (supra). In view of the facts of the present case and ratio of jurisdictional High Court, the appeal of the appellant is allowed and the disallowance made by the AO is deleted. The AO is directed to allow the deduction U/s 80IB(10) of the Act fully as claimed by the appellant."

4. We have heard learned Departmental Representative strongly reiterating Revenue's sole substantive plea seeking to disallow assessee's Section 80IB(10) deduction claim on account of sale of unutilized FSI. There can hardly be any dispute about the hon'ble jurisdictional high court's two decisions in Moonstar Developers and Shreenath Infrastructure (supra) adjudicate the instant issue of the impugned deduction in case of unutilized FSI. Learned CIT(A) himself is very fair in restricting their lordships' ratio in "Moonstar's case" that the instant issue of unutilized FSI; even if involving considerable under utilization has to be adjudicated in view of various special grounds involved i.e. such as height restriction because of special zone passing of high tension electric wires over head or any other similar ground. Their lordships' latter decision in case of Shreenath Infrastructure (supra) upholds minor variation in FSI unutilized in the range of 25 to 30%. It emerges from the case file that learned CIT(A) thereafter observes that assessee's case also falls in the above category since coming under height restriction. He nowhere proves in above extracted portion of the lower appellate order as to how the entire non utilization of FSI can be held to be a case of height restriction. There is no other clarification forthcoming in the case file which could A.Y. 2011-12 -5- indicate cogent material to treat assessee's case as that of a common plot size having relatively higher non utilization of FSI beyond 32% because of height restriction as per the above hon'ble jurisdictional high court's decisions. We therefore restore the impugned addition to the extent it pertains to 68% of the unutilized FSI. The Assessing Officer is directed to frame a consequential computation after affording adequate opportunity to the assessee.