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TMI Blog2019 (2) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is shown under the column ”Included”. When car parking is not included the said sale is shown under the column “Not included”. The sale of parking has been shown at ₹ 3,13,30,000/- in the books of account. The assessee has also declared sale of car parking in the next year also. We notice that the CIT(A), after the examination of books of accounts, seized material and submission of the assessee, has allowed the claim of the assessee. The facts were not distinguished before us nor any material was placed to contradict the finding given by CIT(A). Therefore, we are of the view that the finding of the CIT(A) on this issue is upheld. - Decided against Revenue - I.T.A. No.6277/Mum/2017, I.T.A. No.6389/Mum/2017 - - - Dated:- 19-12-2018 - Shri B. R. Baskaran, AM And Shri Amarjit Singh, JM For the Assessee : Shri Abhijit Patankar For the Revenue : Shri Vimal Punmiya ORDER PER AMARJIT SINGH, JM: The assessee as well as revenue have filed the above mentioned appeals against the order dated 21.08.2017 passed by the Commissioner of Income Tax (Appeals)-11, Pune [hereinafter referred to as the CIT(A) ] relevant to the A.Y.2012-13. ITA. NO.627 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partnership firm and engaged in business activities of builder Developers in name style M/s. Sonam Builder. In the year, the assessee derived net profit at ₹ 40,41,60,130/-, Income from House property of ₹ 14,63,042/- and interest of ₹ 82,36,389/-. After claiming deduction u/s 80IB(10) of the Act to the tune of ₹ 40,41,60,130/- and u/s 80G of the Act to the tune of ₹ 76,500/-, the assessee declared total income to the tune of ₹ 96,22,931/-. The assessee has claimed deduction u/s 80IB(10) of the Act in respect of project in Golden Nest. Phase wise deduction as under.: - S.N Phase 2012-13 1 Phase VI -66 2 Phase Vii -39,133 3 Phase VIII -14,078 4 Phase IX -2,720 5 Phase X -18,420 6 Phase XI -293,888 7 Phase XI -A 11,712 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the area of the flat in question is less than the 1000 sq.ft., therefore, the assessee is eligible of deduction u/s 80IB(10) of the Act. It was contended that the DVO has taken the area of projections (called flower bed area or Chajjas area) below the floor level also as built up area. The registered valuer appearing along with the Ld A.R also accepted the contentions of Ld A.R. In view of the above contentions, the bench directed the DVO to appear before the bench and explain the report given by him. Since the DVO who had given the report has since been transferred, the incumbend DVO appeared and submitted that he can give his opinion only after carrying out inspection of flats. Accordingly the bench directed the assessee as well as the DVO to carry out joint inspection of the flats and the DVO was directed to give his report thereafter. 6. Accordingly, the DVO has submitted his report, wherein it is mentioned that the area of flats are less than 1000 sq.ft. 7. In view of the above, the Ld A.R contended that the report of Mr. Nitin M. Lele is on the file which is also confirmed by the report of DVO submitted now before Hon ble ITAT. After consideration of the arguments and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, separate addition L this regard may not be warranted. If therefore, hold that cupboard are is not liable to be added separately in the built-up area and wall area will take care of it. d) Service area; Next issue is relating to inclusion of service areas. The service area is in the nature of service pipe duct, which continues from top floor to ground floor and carries service pipes, name, soil pipe, waste water pipe, water mams, etc. During the course of physical inspection of various apartment on 5/6/2014, it was noticed that this area is quite small carries as many as 12- 14 pipes about 4 pipes having 4 diameter, about' j- pipes having 2 diameter, and some pipes having about one inert. No doubt, a slab has been constructed at every floor and a door i- provided in the bathroom to enter into the service area, But this is primarily meant for repair of service pipes and It cannot be used for any other purposes. Further, this service duct is some kind of common area like stair case, flowing from top to bottom, and in case of any blockage of pipes or repair or leakage, etc, the mechanic has to enter this area for repairing the same. Generally speaking, this area, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer, in respect of some of the fists, has added certain area in the nature of window projections. During the course of physical inspection, it was noticed that: these window projections are areas in the nature of ornamental projections done with a view to beautify the building. These areas are situated at window-sill level, about three feet above the floor level, and some kind of projections / extension of the building. In my opinion, these projections cannot be used for any purposes, because the area is highly unsafe and anybody can fall from such area. However, it was noticed that some people are using the area to put Air Conditioner, flowerpots, etc. Considering the facts of the case, I am of the view that this is essentially an elevations feature and has nothing to do with carpet area of the flat Therefore, it cannot form part of BUA. It is like a sill of a window, which is slightly extended and in some cases may be used for protection from sunlight and rain. It is also not the case that the builder has sold this area to various fiat owners. Accordingly, this area is also directed to be excluded. While calculating BUA. I would like to further clarify that this area is ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvert the finding of the CIT(A) on record.: - 9.3 I have considered the details furnished by the appellant before the AO and during the appeal proceedings. The AO has mentioned that a data sheet containing details of safe of parking spaces was found during the course of the search. The appellant explained that the sale of the parking space is duly recorded in the books - in some cases the parking space has been sold along with the flat and the sale consideration received fs included in the overall sales consideration, In other cases the parking space has been sold separately and the consideration is booked as 'safe of amenities' in the P L account. 9.4 The AO has reproduced the relevant details from the seized material on page 96 to 101 of the asst order, it can be seen that the details shows total 280 flat sales out of which in 73 cases either parking is not provided or the flat itself is unsold. Thus details in this sheet show sale of 207 parking spaces. Further it can be seen that in about 81 cases the amount of parking is shown as included. Total of this column comes to 2 50 cr. The appellant explained that no separate charge was made for the parking spac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an amount of ₹ 50.36 lacs till the date and balance to be received was ₹ 2.80 cr. Thus total amount received separately for sale of parking slots would come to 3.35 crs. The appellant has included an amount of ₹ 3,13,30,000/- on account of sale of parking in the sales account in the A.Y. 2013-14. Thus viz a viz the contents of the seized material, there is nothing to hold that the appellant had collected cash outside the books of accounts against sale of parking area. The calculations done by the AO to make the addition are not based on any satisfactory evidence. The addition made by the AO is therefore directed to be deleted. 10. On appraisal of the above mentioned finding, we noticed that the as per the seized documents, parking places have either been sold along with the flats or separately. When the car parking is sold along with the flats, the same is shown under the column Included . When car parking is not included the said sale is shown under the column Not included . The sale of parking has been shown at ₹ 3,13,30,000/- in the books of account. The assessee has also declared sale of car parking in the next year also. We notice that the L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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