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TMI Blog2020 (11) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax Act, 1961, invalid and therefore liable to be quashed. 2. The Learned Commissioner of Income Tax, Appeal was not justified in not considering the following payments amounting to Rs.10,22,492/- made by the assessee for acquisition of the property before arriving Long Term Capital Gain. Particulars Amount (Rs.) Amenities 9,38,250 Furniture & Fixture 84,242 Total 10,22,492 3. Brief facts of the case are as under that during the course of assessment proceeding under section 143(3) of the Act, 1961, the AO observed that the assessee had sold flat being Flat No.604/B, ETERNIA Hiranandani Gardens, Powai for sale consideration of Rs. 46,60,000/- and claimed long term capital loss. From the working of long term capital loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,250/- should be considered as cost of acquisition/ improvement to the said property. However, the explanation furnished by the assessee was not accepted by the Assessing Officer as it was observed that construction of fiat which in fact are fully covered by the purchase deed of the said flat. It was further observed that as per the amenities agreement the amount of Rs.9,38,250/- was required to be paid on or before 30.04.1994, however, assessee did not disclose the details of payment, mode of payment with date and supporting evidences. It was stated by the Assessing Officer that as per the purchase deed the assessee has purchased a completely constructed flat for Rs.7,29,750/ with all amenities which indicates that a completely constructed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, when such fact was brought to the notice of the Assessing Officer, it was incumbent on his part to make enquiry and find out whether similar agreement was entered into by other flat owners. In that event, it would have been proved that the flat purchased by the assessee was in a semi-finished condition and was not complete in all respect as certain work was to be done as per the amenities agreement. Therefore, in our view, if it is found that all other flat owners have entered into similar amenities agreement with the builders/ developers, no adverse view can be taken in respect of the assessee and the amenities charges paid by the assessee has to be treated as part of the cost of acquisition for the purpose of indexation. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. calling for details of sale agreements entered by the builder with other flat owners in the society Eternia CHS Ltd., Hiranandani Gardens, Powai. However, only one copy of agreement entered into by the Builder with one buyer was provided. As regards details called from the society, there was no compliance from the society. Therefore, reminder letters dated 12.12.2017 were issued to the builder and the Secretary, Eternia CHS calling for further details of flat owners who have entered into Amenities agreement. A letter was also issued to M/s Lake View Developers, a group concern of Hiranandani Lake Gardens. In reply, the builder Hiranandani Lake Gardens and its group concern M/s. Lake View Developers, vide letter dated 19.12.2017 submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of payment, mode of payment with date, supporting evidences in respect of such payments. In view of the above, long term capital gain determined as per order under section 250 of the I.T. Act of Rs.25,13,902/- is charged to tax. 4. Upon assessee's appeal learned CIT(A) confirmed the Assessing Officer's action by interalia observing as under: - "7.3.1 Taking into consideration the information with a pinch of salt, that only 33 flat owners have entered into amenities agreement since copy of the said documents have not been made available either by the builder, society or the appellant, out of 128 flats in the said society building strongly indicates that there was no mandatory splitting of the purchase/ sale agreements into two parts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racity of the claim was already established by the agreement already submitted by the assessee earlier which the ITAT has accepted. The matter was only remanded to find out the position of other flat owners. From the enquiry of the authorities below it came to light that 33 other flatters had entered into similar amenity agreement. In such circumstances in our considered opinion the authorities below should have followed the ITAT order and allowed the assessee's claim of amenities charges as part of cost of the position. This position is further fortified that the amenity charges had already been paid and the same was appearing in the balance sheet of the assessee. Accordingly, in our considered opinion the denial of the assessee's claim to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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