Case Law Details
Bharat Agri Fert & Realty Ltd Vs ACIT (ITAT Mumbai)
It is observed that the assessee company has declared income of Rs. 28,80,000/-on sale of car parking and had claimed deduction on the same under section 80IB (10). The AO had rejected the claim of the assessee on the ground that the income earned by sale of car parking cannot be part of business income and the same has to be assessed under the head ‘Income from other sources’. The learned Assessing Officer further to this has relied on the decision of the Apex Court in the case of Nahalchand Laloochand PvT Ltd vs Panchali Cooperative Housing Society (Civil Appeal No. 2544 of 2010) which held that stilt car parking spaces are part of the common amenities and cannot be sold independently as a flat nor appurtenant or attachment to a flat. The AO disallowed the assessee’s claim for deduction under section 80-IB(10) on this proposition of law laid down by the Apex Court. The learned CIT(A) has also reiterated this proposition emphasised by the AO and held that the charges of car parking are inclusive of the total consideration of the flat and had distinguished the facts of the case in M/s Vaman Estate (supra). It is observed that the Tribunal in M/s Vaman Estate (supra) has relied upon the decision of co-ordinate bench in ITA No.3016/Mum/2008 for A.Y. 2004-05 dated 28/10/2009 wherein it was held that car parking spaces are integral part of the housing project and are included for deduction under section 80-IB(10) of the Act. As there is no distinguishing feature brought on record by the Revenue in this present appeal, we are hereby deciding this issue in favour of the assessee. It is also pertinent to point out that the decision by the Apex Court in Nahalchand Laloochand PvT Ltd vs Panchali Cooperative Housing Society (supra), the issue pertains to whether stilt / open parking space can be sold by the promoter as ‘flat’ within the meaning of section 2(a-1) of Maharashtra Apartment Ownership Act, 1970 was the issue before Hon’ble Supreme Court and this decision is distinguishable with the facts of the present appeal as the issue in the present appeal pertains to deduction under section 80-IB(10) of the I.T. Act, 1961.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
This appeal has been filed by the assessee as against the order of the learned Commissioner of Income-tax (Appeals)-6,Mumbai dated 22/01/2018 passed under section 250 of the Income Tax Act pertaining to assessment year 2012-13.
2. The solitary issue involved in this appeal is the disallowance of deduction under section 80IB(10) of the Income tax Act, 1961 from the sale proceeds of car parking by not considering that parking charges are integral part of the housing project and that the same is part and parcel of the housing project which is also liable for deduction under section 80IB(10) of income tax Act 1961.
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