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TMI Blog2022 (4) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... man Cooperative Group Housing Society Ltd vs A.K. Murarka Ors. [ 2010 (10) TMI 1233 - DELHI HIGH COURT] 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. 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 flat and is distinguishable from the cost of improvement. Further, the parking spaces can be sold and purchased to and from the members of the society independently - as per the books of the firm in which the assessee is a partner, the car parking spaces were transferred to the assessee in the financial year 2012-13 only. Therefore, in our considered opinion, the capital gain arising from the sale of these two car parking spaces is only Short Term Capital Gain . In this view of the matter, we have to necessarily uphold the finding of the CIT(A) that the parking spaces are independently identifiable asset on different dates, the capital gain arose from sale of these two parking spaces is Short Term Capital Gain . AO has rightly ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paces. Your appellant, therefore, prays that the addition of ₹ 10, 38, 130/- made as short term capital gains on sale of car parking spaces be deleted. 2. Without prejudice, the appellant further submits that the Ld. CIT (A) erred in not considering the appellant's Ground No. 2. 4 (before him) that dealt with the issue of the Ld. AO taking full consideration of ₹ 2,65,00,000/- while computing LTCG of the flat, without deducting there from the amount of ₹ 18, 13,1 30/- being consideration attributed to the car parking spaces, which effectively amounted to double taxation. The appellant, therefore, prays without prejudice, and in alternative, that the sale, consideration of the flat be reduced by ₹ 18, 13, 130/- in computing LTCG. 2. The assessee, an individual, derives income from professional receipts, rent, interest and capital gain. For the assessment year under consideration, assessee filed his return of income on 19/08/2013 declaring total income of ₹ 12, 23,730. In the course of assessment proceedings, the assessing officer noticed that during the year assessee sold residential flat being Flat No.2001, A-Wing, Sky Flama, Dosti Flamingos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 1,29,15,665/- whereas the balance-sheet for the year under consideration reflected it at ₹ 1,23,90,665/-. When enquired, the assessee explained that the difference of ₹ 5, 25,000/- pertains to the cost of two basement car parking sold along with the flat. However, as per the assessee, the partnership firm in which the assessee is a partner debited the amount under the head Car Parking Space at Sewree A/c instead of debiting the account of the assessee. Now, the assessee sold the flat along with the car parking spaces for a consideration of ₹ 2, 65, 00,000/- and claimed exemption under section 54F of the Act. The only dispute of the authorities below is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s long term capital gain which equally applies to the parking space No.176 also. So treating the parking space as distinct from the flat so as to treat the capital gain on sale as short term capital gain is totally unjustified. The objection of the assessing officer that the partnership firm in which the assessee is a partner has, has instead of debiting the account of the assessee, shown the amount under the head Car Parking Space at Sewree A/c has been explained by the assessee that it was an accounting mistake which was subsequently rectified in FY 2012-13. 9. The Hon ble Delhi High Court in The Nav Nirman Cooperative Group Housing Society Ltd vs A.K. Murarka Ors (W(PC) No.588/2009, judgment dated 01/10/2009 held that car parking 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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