9911796707
TMI Blog2022 (4) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... )"] u/s 250 of the Income-tax Act, 1961 ("Act"), your appellant prefers this appeal, among others, on the following grounds of appeal, each of which is without prejudice to, and independent of, the other: 1.1 On the facts and in the circumstances of the case, and in law, the Ld. CIT (A) erred in confirming the Ld. AO's action of treating the car parking spaces as separate, distinct and independent assets de hors the residential flat, and thereby holding the same as short term capital asset, even though the residential flat, to which the same are related, is admittedly long term capital asset, which has been accepted by the Ld. AO. Your appellant submits that the car parking spaces be treated as an integral part of the flat, being the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residential flat being Flat No.2001, A-Wing, Sky Flama, Dosti Flamingos, Parel, Sewri, Mumbai (hereinafter called "the flat") for a consideration of Rs. 2,65,00,000/- along with three car parking spaces. The said flat was acquired by the assessee in the year 2007, and thus, admittedly, it is a long term capital asset about which there is no dispute. Further, the assessee had purchased three car parking spaces from the developer, M/s Dosti Corporation; one podium parking was purchased on 15th July, 2010 for Rs. 2,50,000/- and two basement parking spaces were purchased on 5th July, 2011 for Rs. 5,25,000/-. The payment of Rs. 5, 25,000/- is, reportedly, made from the partnership firm, M/s Brown Skin, in which the assessee is a partner. The par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the flat in the society, therefore, should not be considered separately for computation of exemption under section 54F. 5. The Ld. DR, on the other hand put heavy reliance on the orders of authorities below and submitted that the assessee parking spaces under consideration were purchased by a separate instrument. Therefore, it is not right to say that the parking spaces in question are attached with the flat in the society. He prayed that the order of the authorities below may be upheld. 6. We have considered the rival submissions and perused the materials placed on record. The undisputed fact in the present case is that the assessee bought a flat in question was purchased for Rs. 1,29,15,665/- whereas the balance-sheet for the year u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 15th July, 2010 with M/s Dosti Corporation from whom the assessee purchased flat at Lawrence & Mayo House, 1st Floor, 276, Dr D.N. Road, Mumbai-400 001. The clauses (A) & (B) in the agreement read as below:- (A) WHEREAS by a Registered Agreement for Sale dated 20.02.2007 ("the said Agreement"), the Purchaser/s has / have agreed to purchase one flat bearing No., 2001 on the 20th floor in the building called Sky Flama (hereinafter referred to as "the said flat") in "Dosti Flamingos" Project at Sewree, Mumbai at or for the price upon the terms and subject to the conditions more particularly set out in the said Agreement. (B) AND WHEREAS The Flat Purchasers are desirous of getting the facility of One Car Parking space as facility atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... space is incidental to the flat and not independent thereof. The Hon'ble Court also held that enjoyment of the garage can only be an owner / occupant of the flat and not by any third party. 10. Therefore, respectfully following the judgment of the Hon'ble Delhi High Court in the case of The Nav Nirman Cooperative Group Housing Society Ltd vs A.K. Murarka & Ors (supra), we hold that the capital gain arose on sale of parking space No.176 is a long term capital gain in the form of improvement of asset. 11. However, in respect of the other two car parking areas, we find that the assessing officer has recorded a clear finding that the assessee himself has accounted the assets in different entities; therefore, the assets are independent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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