ACIT v. Shrey Sharma Guleri (ITAT Mumbai)
The argument of the learned D.R. is that the basement in the house cannot be termed as a residential house within the provisions of section 54 of the Act. On the other hand, the ld. counsel for the assessee defended the conclusion drawn in the impugned order. It was pleaded that basement is part and parcel of the residential unit, therefore, it cannot be termed as a separate unit.
We have considered the rival submissions and perused the material available on record. We have already discussed the facts in the earlier para of this order. The only issue which requires adjudication whether the basement is part and parcel of a residential unit. We find that when a sanction is approved by the Municipal Authorities / competent authorities, naturally such approval is granted with the basement and even today above certain limit stealth parking has been made mandatory, keeping in view the traffic problem in the bigger city like Delhi. Normally, the basement is used as a residential unit and if there is any violation there is a separate provision of taking action by the Municipal Authorities. Even if it is used as a residential unit by the domestic helps or used as a play ground like Table Tennis, it cannot loose its character as a residential unit. There is uncontroverted finding in Para-4.3 of the impugned order that there was evidence on record to show that the basement referred as “A-2 / 30” of Sufdarjang Enclave as a habitable unit. The assessee produced the photographs of the basement clearly revealing, independent entry gate, stair case, living room, bed room, dining, wash basin, toilet, kitchen and mini-drawing room. If the Assessing Officer was apprehensive of some mala-fide nothing prevented to visit actual site / building and should have examined the factual matrix. The assessee also produced the evidences like property tax bill and electricity bills issued by BSES / Rajdhani Power Ltd. evidencing that the basement was merely used as a residential unit. Thus, such evidences cannot ignored.
