TAXATION OF REAL ESTATE Some important aspects including Project Completion Method Development & Redevelopment s. 50C and 80IB(10)
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1 TAXATION OF REAL ESTATE Some important aspects including Project Completion Method Development & Redevelopment s. 50C and 80IB(10) Wednesday 20 th October 2010 Walchand Hirachand Hall IMC Bombay Chartered Accountants Society Pradip Kapasi & Co. 1
2 PROJECT COMPLETION METHOD Pradip Kapasi & Co. 2
3 BILAHARI INVESTMENT, 299 ITR 1 (SC) Case of a chit fund CCM acceptable in tax laws Possible for integrated scheme > 12 months Objective assessment of income of contract Revenue neutral New AS not invoked Method accepted in past Onus on AO for change in method Possible to invoke new AS para 21 Pradip Kapasi & Co. 3
4 RECENT DEVELOPMENTS Developments in Accountancy AS 7 Revised EAC, The CA Vol.52 pg.232 Exposure Draft AS I The CA Vol. 54 April, 2005, Guidance Note 23 The CA, Vol. 55 pg June 06 IFRS on Real estate & Investment properties Developments in Taxation Acceptance of Project Completion Method Project completion NOT possible Greater Ashoka LDC. (P) Ltd., 89 TTJ 281 (Del) Growth Techno Projects Ltd., 29 SOT 59(Delhi) New s. 145 and s. 145A Pradip Kapasi & Co. 4
5 ROAD AHEAD IN ACCOUNTING Guidance Note Revenue from real estate sales Enterprise- Builders & Developers Material Aspects Effect of flat sale agreement Performance for buyer- contractor Escalation and such claims Percentage of completion method Reference to AS 7 Examples in para 8 Retention of effective control Disclosure of Accounting policy IFRS Effect Pradip Kapasi & Co. 5
6 INTERNATIONAL PRACTICE IFRS -IAS 11 & 18 & 40 Contractors Percentage of completion method, only Builders Developers Multiple element contracts Fair value accounting Recognition of revenue on passing of property IFRIC 15 Recognition of land revenue for investment property Indian grand stand MCA ICAI NACAS & CBDT ET Report dt Conflicting stands & objectives Pradip Kapasi & Co. 6
7 ROAD AHEAD IN TAXATION New S. 145 & GN of ICAI Relevance of PCM/CCM & deci. cases Post and revised AS 7 Avadhesh Builders, 37 SOT 122 (Mum) Prestige Estates Projects Ltd., 129 TTJ 680 (Bang) Realest Builders Pvt. Ltd. 307 ITR 202(SC) Matching concept, Rajgir Builders, 70 ITD 226 (Mum) New scrutiny guidelines Time for applying AS7 Lurgi India,114 ITD 1(Delhi) Pradip Kapasi & Co. 7
8 CONTRACTORS PERSPECTIVE Continued application of AS7 Revised TKP, PMC also Permissible method PCM only Synchronization with IAS 11 Estimation and basis of estimation Pradip Kapasi & Co. 8
9 SOME CONCERNS Economic benefit to flow Parameters of Reliable measurement Stage of completion Effective control retained or not Recognition of loss Treatment of Land cost Revenue recognition for land Borrowing cost Valuation of stock /land/wip Imp. of Champion Const. 5 ITD 495 (Mum) S. 145 and AS-7 Pradip Kapasi & Co. 9
10 RELATED DEVELOPMENTS Indirect & Finance cost Lokhandwala Construction, 260 ITR 579(Bom) Wallstreet Constructions, 101 ITD 156 (Mum)(SB) K.Raheja,102 ITD 414 (Mum.) Thakkar Developers, 115 TTJ 841(Pune) Time sharing arrangements Club Mahindra (Chennai) (SB) Change from PCM/WIP to CCM Satish H. Patel, 93 TTJ 458 (Pune) Audit Gopalkishan Builders, 92TTJ 215(Luck.) Pradip Kapasi & Co. 10
11 JOINT VENTURE - AOP Pradip Kapasi & Co. 11
12 STATUS OF JV AOP or not Van Ord, 248 ITR 399(AAR) Geo Consult GmbH, 304 ITR 283(AAR) Pradip Kapasi & Co. 12
13 INDIRECT TAXES & ALLIED LAWS Pradip Kapasi & Co. 13
14 INDIRECT TAXATION Service Tax on sale of flats Harekrishna Developers AIT (AAR) Magus Constructions P.Ltd TIOL-321(Gau) Controversy rested by circular dt Amendment of 2010 Stay by Bombay high court Consumer Protection Act Fakirchand Gulati v. Uppal,(SC), ITAT Online VAT on sale of flats Review of K.Raheja s decision by larger bench of SC in L&T s case Amendment of 2006 w.e.f and stay for MCHI Trade circular dt Amendment of 2010 and stay for MCHI Completed flats Stamp duty Development agreements and tenancy transfers Pradip Kapasi & Co. 14
15 DEVELOPMENT AGREEMENTS & REDEVELOPMENT Pradip Kapasi & Co. 15
16 DEV. AGREEMENT AND TRANSFER Typical agreement Permission License Power Profits No transfer 26 TTD 477 (Del), 70 ITD 9 (Mum), 80 ITD 58 (Cal), 272 ITR 264 (Del) Transfer Chatrabhuj Dwarkadas, 260 ITR 491 (Bom) Date of substantial compliance and possession not relevant Objectives of s. 2(47(v) and (vi) Disguised sale - Date of contract relevant Pradip Kapasi & Co. 16
17 POSSIBLE ALTERNATIVES Conversion and contract S. 45(2) Ashok Kapur (HUF), 213 CTR 241(Del) Piecemeal transfer Partial retention Pending approvals, Gandhi & Co., 13 SOT 82(Mum.) Willingness to perform, General Glass (P) Ltd., 14 SOT 32(Mum.) Possession deferred, Pending approvals Geetadevi Pasari, 14 SOT 63, Aug.08 I T Review 32 (Bom.) 12 DTR 1(Delhi), Veermanna Reddy,114 TTJ 246(Ban). Written agreement G.Saroja, 301 ITR 124(Mad.) Pradip Kapasi & Co. 17
18 TENANTED PROPERTY Landlord Sale * Part retention * Development Tenant Tenancy to tenancy Wagle Process Studio, June, 2003 AIFTP Journal 18 Milan A. Patel, ITA No.2167/M/02 dt Tenancy to ownership J.C.Chandiok, 69 ITD 75(Del),G.D. Thirani, 70 ITD 148(Cal.) Benefit of s. 54/54F for residential premises Subsequent transfer Period of holding & Cost of acquisition Dr. Modi, 218 ITR 1(Karn), Dr. Irani, 234 ITR 850(Bom). Other receipts * Rent * Compensation* Corpus Slum Dwellers/Occupiers Pradip Kapasi & Co. 18
19 SOCIETY PROPERTY Consideration based on TDR Om Shanti CHS Ltd., 41-B, BCAJ 265 (Mum) Jethalal D. Mehta, 2 SOT 422(Mum.) Shakti Insulated Wires Ltd. 87 ITD 56(Mum.) Incidence of taxation Members or society or both Legal Status, DC Rules and Revenue records ITAT cases Auroville CHS Ltd. & W.Tax circular Dual taxation approach Members premises & taxation Transfer or No transfer Other receipts * Rent * Compensation* Corpus Pradip Kapasi & Co. 19
20 S. 50 C Pradip Kapasi & Co. 20
21 GENERAL Constitutional K. Palanisamy, 306 ITR 61(Mad.) Bhatia Nagar Premises CHS Ltd. dt (Bom.) Efficacy of Stamp duty valuation, Jai Marwar,79 TTJ 178(Jd), U.P.Jal Nigam, AIR 1996 SC 1170, Raja Narendra, 123 Taxation 63(Raj) Acceptable margin a break through Rahul Construction, 38 DTR 19 (Pune) 21
22 SCOPE Assets Land & Bldg. Immovable property Whole or part Purposive interpretation Land & Building and right therein Kishori S. Gaitonde, 41-B, BCAJ 5321 (Mum) Capital asset u/s 2(14) Thiruvengadam Investments, 320 ITR 346 (Mad) Inderlok Hotels, 122 TTJ 145 (Mum) Excellent Land Dev. (P) Ltd., 1 ITR (Trib) 563 (Delhi) S. 50C and s. 69B Chandni Bhuchar, 323 ITR 510 (P&H) Jayashankar S. Vaid, 35 SOT 46 (Ahd) Optic Disc Mfg., 11 DTR 264(Chd.) 22
23 VALUATION Failure to apply Ambattur Clothing Co., 221 CTR 196 (Mad) Need to refer to DVO Meghraj Baid, 114 TTJ 841(Jd.), Manju Rani Jain, 24 SOT 24(Delhi) Effect of DVO s valuation Less than SAV Ravi Kant, 110 TTJ 297(Del) Higher than SAV, Jitendra Saxena, 117 TTJ 974(Luck.) Lower valuation by DVO R. V. Singh, 26 DTR 129 (Lucknow) SVA value can not be challenged by AO Punjab Poly Jute, 120 ITD 233(Asr.) Valuation of a let - out property Wakf Attar Aulad, 37 SOT 58 (Delhi) Valaution of Tenant s share Acceptable margin Rahul Construction, 38 DTR 19 (Pune) C. B. Gautam s case 199 ITR 530 (SC) 23
24 REGISTRATION Not applicable where registration not required Navneet Kumar Thakkar,112 TTJ76(Jd) Carlton Hotels,122TTJ 515, Vijayalaxmi Dhadda, 20 DTR 365(Jp) Morgardshammar India Ltd., 1999(1) SCC 108, Effect of Amendments of 2009 S. 50 C and s. 56(2) Effective date 24
25 REVISION & PENALTY Possibility of revision where s. 50C ignored AKG Consultants (P) Ltd., 17 SOT 592(Luck.) Penalty for concelment N. Meenaxi, 125 TTJ 856 (Chennai) Prakash Chand Nahar, 110 TTJ 886 (Jodhpur) Balkrishna Waghere & Ors. July/Aug., 2010, PCAJ 3 (Pune) 25
26 EFFECTIVE DATE Chapter XXC & Conveyance Neville D Nooranha, 115 TTJ 390(Kol) Agreement and conveyance Mr. Sivaparvathi, 129 TTJ 463 (Visakha) 26
27 PARALLEL FICTIONS Deeming Transfers& Fictions - FMV or SV S. 45(2)(3)(4), 47, 50 and 50B, Shahzada Nand & Sons, 60 ITR 392(SC) Carlton Hotels, 122 TTJ 515( Luck.) S. 50C and s. 50 Panchiram Nahata, 127 TTJ 128 (Kol) Mrs. Munira S. Bootwala, ITA No. 7468/M/07 for A.Y dt Overriding effect of s. 54F Mohammed Shoib, 29 DTR 306 (Luck.) 27
28 ASSESSMENT Assessment not stayed for indefinite period Rajni Venugopal, 16 DTR 319 (Mad) Assessment order pending DVO s report N. Meenaxi, 30 DTR 1 (Mad) Effect of s. 155(3)(ii) Seller s power under Stamp duty laws 28
29 PARTNERSHIP & REAL ESTATE Introduction of Stock-in-trade DLF Universal Ltd., 128 TTJ 121 (Delhi) Introduction and revaluation D. B. Shah, 1 UTR (Trib) 536 (Ahd) Transfer of converted asset Wipro Ltd., 34 DTR 493 (Bang) Reorganisation and s.45(4) Gurunath Talkies. 214 Taxation 729 (Karn) Retirement and distribution Puryyankar Ind., 188 Taxman 34 (Karn) R
30 HOUSING PROJECTS Pradip Kapasi & Co. 30
31 Housing projects s. 80IB(10) Amendments Approval up to Completion period extended for some Size of commercial establishments 3% or 5000 sq.ft. Another flat in project Circulars & Notifications Effective date of amendment Surrounding area, common area Percentage completion method Slum Rehabilitation Brahma s propositions, 122 TTJ 433(Pune) (SB) Amendment of 2004 not retrospective Deduction possible for mixed project - limit of 10% for CE Pro-rata deduction not possible Deduction possible on stand alone basis Scope of Decision restricted to old law Pradip Kapasi & Co. 31
32 Housing projects -s. 80IB(10) Land - size acquisition and ownership Ownership of land, Size of plot of land, Two projects on one land Approvals In stages Amendment anticipates Commencement Extension of pending projects, Commencement date for saleable area, One Wing and project, Pre commencement work, Built Up Area flat size Balcony, Common area, Club house, Niche, Dry area, Terrace, garden, lounge, porsche, projections, Adjoining flats Pradip Kapasi & Co. 32
33 Housing projects -s. 80IB(10) Income Profit on sale of amenities, Interest on deposits, Unconsumed FSI, Sale of plot, Allocation of expenses, Pro rata deduction Method of Accounting Percentage completion Method, Prospective a retroactive Other Conditions s. 80IB(2) MAT 33
34 Housing projects s. 80IB(10) Brahma Associates, 122 TTJ 433(Pune) (SB) AIR Developers, 123 TTJ 959(Nag.) Saroj Sales, 3 DTR 494(Mum) Radhe Developers, 113 TTJ 300(Ahd), Shakti Corporation, 32 SOT 438 (Hyd), Smt. Saroj Kapoor, 38 DTR 475(Indore) Om Engg. & Builders, 109 ITD 235(Pune) Ansals Property & Ind.22 SOT 45(Delhi) Sheth Developers 33 SOT 277(Mum), SJR Builders, 3 ITR (Trib) 569 (Bang) Vandana Properties, 31 SOT 392(Mum.) Vimal Builders, 41 A BCAJ 45(Mum) Lok Holdings, 189 Taxman 452 (Mum) B. Nagi Reddy, 2 ITR (Trib) 730 (Chennai) Brigade Enterprises, 119 TTJ 269(Bang.) G.V. Corporation, 38 SOT 173(Mum.) Bengal Ambuja(Cal. HC) B. T. Pate Ent. 28 DTR 451(Pune), Paarth Corporation, 23 SOT 368 (Mum) Ganesh Housing Corporation Ltd. 32 SOT 207(Ahd.) 34
35 THANK YOU & GOOD LUCK Pradip Kapasi & Co. 35
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