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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 ..... osition 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 towards amenities charges paid as part of cost of acquisition is not sustainable. Accordingly set aside the orders of authorities below on this issue and decide the issue in favour of assessee. - ITA No. 3166/Mum/2019 - - - Dated:- 26-11-2020 - SRI SHAMIM YAHYA, AM AND SRI RAM LAL NEGI, JM Appellant by : Shri Satya Prakash Singh, AR Respondent by : Shri Jeetendra Kumar, DR ORDER PER SHAMIM YAHYA, AM: This appeal by the assessee is directed against order of learned CIT(A)-38, Mumbai dated 20.03.2019 and pertains to Assessment Year 2010-11. 2. The grounds of appeal read as under: - 1. The ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has submitted that the amount of ₹9,38,250/- was paid to the builder towards amenities charges on the flat and this amount was regularly shown in the balance sheet since the year 1995. Further, the assessee also contended that the amount of ₹ 9,38,250/- 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 ₹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 ₹7,29,750/ with all amenities which indicates that a completely constructed flat was purchased by the assessee hence, any further claim towards amenities was not acceptable. Accordingly, the AO reduced the indexed purchase price of ₹18,44,879/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the assessee. The Assessing Officer issued notice under section 142(1) of the I.T. Act, 1961 dated 01.09.2017 to the assessee. In response to the same, the assessee vide letter dated 04.09.2017 reiterated the submission made by the assessee at the time of assessment proceedings. (i) The assessee has already filed the copy of Purchase Agreement as well as Amenities Agreement at the time of assessment proceedings. (ii) The assessee has also filed all her earlier year balance sheets up to Assessment Year 2010-11 showing the payments made by her for purchasing the property and the amenities (iii) It was confirmed that while purchasing the above flat it was regular practice of the builder to divide purchase agreement into 2 parts i.e. purchase Agreement as well as Amenities Agreement. (iv) The similar agreement in all other properties sold by the builder during the time of purchase of property. In view of ITAT s direction to ascertain whether all other flat owners of Eternia CHS have entered into similar amenities agreement letters dated 15.11.2017 were issued to the Builder, M/s. Hiranandani Lake Gardens and to the Secretary, Eternia Co-operative Housing Societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined as per order under section 250 of the I.T. Act of ₹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 as wrongly contended by the appellant vide letter dated 14.09.2017. This also proves the fact that the builder had handed over fully completed and constructed flat to the flat buyers because majority of other flat owners have not entered into any such amenities agreement with builder. I also find that the said amenities agreement is also not with the builder but the group concern, M/s. Lakeview Developers. Therefore, the appellant failed to establish correlation between the two agreements entered with two different entities. Against the above order assessee is in appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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