kolkata taxation of real estate development 17 dec 2011

INCOME TAX ISSUES ON TRANSACTION OF TRANSACTION OF REAL ESTATE

Nihar [email protected] ih diff [email protected]

EIRC- Kolkata 17 Dec 2011 1

ROAD MAP OF THE CONTENTS

Accounting Aspects of Real Estate

development & Revenue Recognition

Forms of Development

Agreements & Tax Issues

Other Tax Issues Redevelopment


ACCOUNTING ASPECTS

OF REAL ESTATE

DEVELOPMENT & REVENUE

RECOGNITIONRECOGNITION


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITION

Guidance Note by ICAI

Applicable methods Tax Audit

Percentage Completion

Method

Project Completion

Method

Change of method of accounting


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONG id N b ICAIGuidance Note by ICAI

Guidance Note by ICAI

AS 9 - Revenue Recognition

AS 7 - Construction Contracts

Conditions:•Seller has transferred significant risk and reward.•No significant uncertainty b id i

Conditions:•When seller is obliged to perform substantial act after transfer of risk and reward•R h ld b i dabout consideration.

•Not unreasonable to expect ultimate collection

•Revenue should be recognized on proportionate basis applying % of completion method in the manner explained in AS 7


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONApplicable methods of Accounting

Illustration:

Year 1 Total flats 50 flats

Total flats sold 15 flatsTotal flats sold 15 flats

Selling price for 15 flats 15.00

Construction Expenses 7.50

Work completed 30%

Year 2 Further flats sold 20 flatsYear 2 Further flats sold 20 flatsSelling price for 20 flats 25.00


Work completed 70%

Year 3 Remaining flats sold 15 flatsYear 3 Remaining flats sold 15 flats



Work completed 100%EIRC- Kolkata 17 Dec 2011 6

ACCOUNTING ASPECTS OF REAL ESTATE

& REVENUE RECOGNITIONT t t d P t C l ti M th d Ill t tiTreatment under Percentage Completion Method - Illustration

Year 1 Total flats 50 flats

Total flats sold 15 flats


C i E 7 50

Profit & Loss Account (Year 1)

INR INR


Work completed 30%

To Construction expenses 7.50By Income from operations (15*30%) 4.50

By Closing Stock (7.5*35/50) 5.25

To Gross Profit 2.25

Total 9.75 Total 9.75


ACCOUNTING ASPECTS OF REAL

ESTATE & REVENUE RECOGNITIONTreatment under Percentage Completion Method - Illustration

Year 2 Further flats sold 20 flatsSelling price for 20 flats 25.00



INR INR


Work completed 70%

To Opening Stock

To ConstructionExpenses

5.25

13.50

By Income from operation 15*70%25*70%

Less: Offered in Year 1

10.5017.5028.00(4.50) 23.50

B Cl S kBy Closing Stock(21*15/50) 6.30

To Gross Profit 11.05

TOTAL 29.80 TOTAL 29.80EIRC- Kolkata 17 Dec 2011 8

ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONTreatment under Percentage Completion Method - Illustration

Year 3 Remaining flats sold 15 flats


C i E 9 00


INR INR


Work completed 100%

To Opening Stock

To Construction Expenses

6.30

9.00

By SaleYear 1Year 2Year 3

L

15.0025.0019.0059.00

Less: Offered in Year 1 & 2 (28.00) 31.00

By Gross Profit 15.70

TOTAL 31.00 TOTAL 31.00EIRC- Kolkata 17 Dec 2011 9

ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONSummary of Year wise profit under Percentage Completion Method

P fit Rs In croresProfit Rs. In crores

Year 1 2.25

Year 2 11.05

Year 3 15.70

TOTAL 29.00


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONTreatment under Project Completion Method - Illustration

Profit & Loss Account

INR INR

Total Construction cost 30.00 Total Revenue 59.00

Profit 29.00

Total 59.00 Total 59.00


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONTreatment under Percentage Completion Method – Judicial Precedent

CIT Ad C t ti C (P)

It i h ld th t A t t h i ff d fit f t

CIT vs. Advance Construction Co. (P) Ltd. (2005) 275 ITR 30 (Guj)

• It is held that Assessee-contractor having offered profits for tax onthe basis of percentage completion method which is a standardaccounting practice and has been constantly followed by theassessee in subsequent years, the same could not be rejected.


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONTreatment under Project Completion Method – Judicial Precedent

CIT vs. Bilahari Investments (P) Ltd. (2008) 299 ITR 1(SC)

•It is held that Recognition/identification of income under the Act, is attainableby several methods of accounting. It may be noted that the same result could beattained by any one of the accounting methods. Completed contract is one suchmethod. Similarly, percentage of completion is another such method.

•Assessee developer having regularly employed project completion method which

Prestige Estate Projects (P) Ltd. – 33 DTR 514 (Bang)

is an accepted method of accounting, and the Central Government having notnotified AS-7 u/s. 145(2), AO could not reject the accounts u/s. 145(3) on theground that the assessee had not followed the percentage completion method



•The assessee projects were of a longer duration than one particular accounting year.

Nandi Housing (P) Ltd. NTD (2003) 80 TTJ (Bang.) 750

The project may take a few years and actual sale may take place subsequently. TheProject Completion method is a permissible method recognized by the ICAI. This isregularly employed by the assessee and the Department had not found any mistakes.The addition of 8% on WIP was totally uncalled for.

•A Builder followed the Project Completion Method regularly. The AO attempted toadopt 8% of Contract receipts as the income. It was held that this is a recognizedmethod recommended by the ICAI and if the Revenue attempts to tax the income on

H.M. Constructions (2003) 84 ITD 429 (Bang)

method recommended by the ICAI and if the Revenue attempts to tax the income onthe basis of receipts, it could lead to absurd results because receipts may comeearlier and the expenditure would have to be incurred over a period of time. It washeld that Project Completion Method was correct .



Champion Construction Co 5 ITD 495

•The assessee contended that the profit should be taxed only on completion. The ITAT heldthat as the construction was completed and 80% of the flats had been sold, the incomecould be estimated in that year and that substantial completion was what was relevant.

•The issue in this case was whether interest income was to be held as incidental to the RealEstate business or whether it was to be taxable as Income from other Sources. The

Dalmia Promoters Developers (P) Ltd. (2006) 281 ITR 346 (Del)

Judgement however refers to the fact that assessee followed project completion method ofaccounting.



Certain other judgments where Project

•Shree Nirmal Commercial Ltd. 193 ITR 694 (Bom)

Certain other judgments where Project Completion Method has been accepted:

( )

•D.K. Enterprises – 39 ITD 394 (Bom)

•WD Estate (P) Ltd. – 45 ITD 477 (Bom)

•Shapoorji Pallonji & Co. (Rajkot)(P) Ltd. 49 ITD 479 (Bom)


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONREVENUE RECOGNITIONChange of Method of Accounting – Judicial Precedent

Satish H Patel 93 TTJ 458 (Pune)

• It is held that the assessee having changed his method of accounting fromwork-in- progress in original return to project completion method in

Satish H. Patel 93 TTJ 458 (Pune)

revised return, project completion method also followed by assessee insubsequent year and same also accepted by revenue- assessee can changeone system of accounting to another system before assessment iscompletedcompleted.


ACCOUNTING ASPECTS OF REAL ESTATE & REVENUE RECOGNITIONTax Audit – Judicial Precedent

Gopal Krishnan Builders [92 TTJ 215 (Luck)])

• Amount received as advance by builder following project completion method whether tax auditapplicable and penalty under section 271B imposable

• It is held that amounts received as advance by the assessee-builder from customers had anyelement of profit and same were to be adjusted towards the cost of flats booked by eachcustomer and thus, the amounts of advance have to be included in "gross receipts" for thepurpose of s. 44AB; assessee being under obligation to get its accounts audited under s. 44AB.It cannot be contended that the assessee following project completion method would get thebooks of account audited in the last year and not in earlier years when he is debiting theexpenses and other items and showing different types of receipts penalty under s. 271B wasimposable for its failure to get the same done


FORMS OF DEVELOPMENT

AGREEMENTS & TAX

ISSUES


FORMS OF DEVELOPMENT AGREEMENTS & TAX ISSUES

Forms of Development Agreements:Agreements:

(A) Fixed Price Agreement

(B) Sharing of Revenue

(C) Sharing of Profits – AOP

issues

(D) Allotment of space in building

to the Land-owner


FFORMSORMS OFOF DDEVELOPMENTEVELOPMENT AAGREEMENTSGREEMENTS & & TTAXAX IISSUESSSUES

• A Land Owner, enters into a development agreement to sell land for a fixed monetaryconsideration.

(A) Fixed Price Agreement

• Section 2(47)(v) of the I.Tax Act, 1961 states: Transfer in relation to capital asset includes – Anytransaction involving the allowing of possession of any immovable property to be taken or retained in

Tax Perspective

transaction involving the allowing of possession of any immovable property to be taken or retained inpart performance of contract of the nature referred to in Sec. 53 A of the Transfer of Property Act,1882 ….”

• By entering into a “Development Agreement” and permitting construction to be commenced,the Owner would state that he had merely given a licence to the Developer to enter uponthe Owner would state that he had merely given a licence to the Developer to enter uponthe property for the limited purposes of construction and had not handed over “possession”to the Developer. Hence, he would contend that no capital gains tax was leviable.



•Transfer of property under a development agreement

Chaturbhuj Dwarkadas Kapadia vs. CIT 180 CTR Bom 107

•Arrangements conferring privileges of ownership even without transfer of title fall under s. 2(47)(v)

• In cases of development agreements, the year of chargeability of capital gains is the year in which the contract isexecuted

•Substantial performance of the contract is not relevant

• If the contract, read as a whole, indicates passing of or transferring of complete control over the property inp g g p p p yfavour of the developer, then the date of the contract would be relevant to decide the year of chargeability

•Under the terms of the agreement between the assessee and the developer a limited power of attorney wasintended to be given to the developer to deal with the property

•Hence, the date of contract was the relevant date of transfer under s. 2(47)(v)

•Finding of the Tribunal that the transfer had taken place during the relevant asst yr is also vitiated by mistakes•Finding of the Tribunal that the transfer had taken place during the relevant asst. yr. is also vitiated by mistakesapparent on the face of the record.



• Section 45 ---

Conversion of Capital Asset into Stock-in-trade [Section 45(2)]

• (2) “ Notwithstanding anything contained in sub-section (1), the profits orgains arising from the transfer by way of conversion by the owner of a capitalasset into, or its treatment by him as, stock-in-trade of a business carried on byhim shall be chargeable to income tax as his income of the previous year inhim shall be chargeable to income-tax as his income of the previous year inwhich such stock-in-trade is sold or otherwise transferred by him and, for thepurposes of section 48, the fair market value of the asset on the date of suchconversion or treatment shall be deemed to be the full value of theconsideration received or accruing as a result of the transfer of the capitalasset.”



Shirinbai Kooka 46 ITR 86 (SC)

• Process of conversion –• Get a Valuation Report of the land.• In the case of a Company, pass a resolution to convert the land and follow this

up with a formal declaration or affidavit • The necessary entries must be passed in the books of account.



Stock-in-trade : Certain issues

•What is the date of sale or transfer in the case of stock-in-trade?

•Is it the date on which the Land Owner entered into the Development Agreement?

•Is it the date on which the Developer entered into an agreement to sell a particular flat?

•Is it the dates on which the Developer receives installments of sale proceeds?

•Is it the date on which the Developer hands over possession of a flat?p p

•Is it the date on which the Developer conveys the building to the society?



(B) Sharing of Revenue

• The Owner enters into an agreement in which he is to get a share of top line.Since this consideration is not quantified at the initial stage of development,such a situation would normally result in the receipts by Owner, being treatedas business receipts. If the land had been held until then as a Capital Asset, theOwner may convert the Capital Asset into Stock-in-Trade for clearclassification and treatment of revenues.



(C) Sharing of Profits

• “Land Owner is to get a certain basic price and thereafter a share of profit” The AO maycontend that this is an AOP

• Option 1:

• Formation of an AOP/LLP:Formation of an AOP/LLP:

• Introduction of land into the AOP/LLP at a mutually agreed price [u/s. 45(3)]

• Division of profits between the parties.

• Option 2:

C bi i f fi h i d h i f h h b i h h• Combination of profit sharing and sharing of revenue or other such basis so that theparties are entitled to an independent share in the income.



(D) Allocation of Area

• The Owner enters into an agreement with the Developer under which theDeveloper is to carry on construction at the Developer’s cost. The Ownerreceives a certain percentage of area in returnreceives a certain percentage of area in return.


TAX ISSUES

•FINANCE COST, INDIRECT

COST & COMPOUNDING

CHARGESCHARGES

•50C•PROPERTY VS. BUSINESS

INCOMEINCOME

•80-IB(10)


TAX ISSUESFinance Cost, Indirect Cost & Compounding Charges

•It is held that construction project undertaken by the assessee-builder constituted its stock-in-trade

CIT vs. Lokhandwala Construction, (2003) 260 ITR 579 (Bom)

and the assessee was entitled to deduction under s. 36(1)(iii) in respect of interest on loan obtainedfor execution of said project.

Wall street Constructions Ltd. & Anr. Vs. JCIT 2006 101 ITD 156 (Mum) (SB)

•It is held that the assessee following project-completion method of accounting, the interest identifiablewith that project should be allowed only in the year when the project is completed and the incomefrom that project is offered for taxation. The same cannot be deducted as period cost from year to

J ( ) ( )

year. True profits in such a case can be determined only when entire cost of the project, direct orindirect, including finance cost is added to the value of work-in progress



• It is held that even though assessee was following competed contract method for returning

JCIT vs. Raheja (P) Ltd. (2006) 102 ITD 414 (Mum.)

its income, its claim of finance cost as a period cost in nature of interest was allowable in theyear in which it was incurred or accrued, in accordance with AS – 7 issued by the ICAI.

Income Tax Officer vs. Panchvati Developers [115 TTJ 139 (Mum)]

• It is held that Assessee following project completion method, and advertisement expenses ofthe two projects being allocable to individual project, such advertisement expenses have tobe capitalized as work – in – progress to be allowed deduction in the year of completion of

p [ J ( )]

project.



Mamta Enterprises – [135 Taxman 393 (Karnataka.)]

• In this case it was held in the order passed by a competent authority of Town Planning inunmistakable terms stated that he had permitted the payment of compounding charges byerring builders to regularize the infirmity in the building construction. There could not beany doubt that what had been done was to permit the assessee to compound the offencey p pcommitted by it putting up an unauthorized construction.

• Explanation to Sec. 37(1) defines that any expenditure incurred for any purpose which is anoffence or which is prohibited by law is not entitled to deduction. Hence compounding ofthe offence under Corporation Act cannot take away the rigour of explanation to sec 37p y g pand the deduction is not available.


TAX ISSUESSection 50C

A li bl •capital asset and not to business assets•CIT Vs. Thiruvengadam Investment Pvt Ltd 320 ITR 345

•Inderlok Hotels Pvt Ltd [4376/Mum/2008 ]

Applicable to

•in respect of transfer of tenancy rights•Kishori Sharad Gaitonde [ ITA No.1561/Mum/2009]

Not applicable

•Stamp duty authority accepted consideration then no question of once again referring to DVO u/s 50CP j b P l J C [120 ITD 233]

Stamp duty

•Punjab Poly Jute Corpn [120 ITD 233]


TAX ISSUESSection 50C

• cases in which the transfer property is not the subject matter of registration and the questionof valuation for stamp duty purpose has not a reason

Does not apply to

p y p p

• Navneet KumarThakkar [112TTJ 76 ]

Note :

• Explanation to Sec.50C (2) is added w.e.f 1/10/2009 stating that the expression assessablemeans the price the stamp duty authority would have adopted or assessed if it were referredto such authority for the purpose of payment of stamp duty


TAX ISSUESProperty V/s Business Income

• In this case assessee was letting out furnished premises on monthly rent to various parties along with furniture, fixture,A.C., etc. for being used as “table space". Entire cost of property already recovered by way of interest free advance byassessee. Only intention was to let out a portion of premises to respective occupant. It was held that income derived from

Shambhu Investment Private Ltd v/s CIT [263 ITR 143 (SC)]

letting rightly held as income from property and not business income.

• It was held that the fact that Apex court held that income earned by Shambhu Investment Pvt Ltd is assessable as propertyincome has no relevance in the facts and circumstances of the present case because in that case the fact showed that the

PFH Mall & Retail Management Ltd v/s ITO [110 ITD 337(Kol)]

main intention was to earn rental income. That was why the entire cost of property was recovered from tenant by way ofinterest free advance. In the instant case the assessee has taken bank loan to finance his projects like any other businessman. Every action of the present assessee appears to be the sole object of commercial exploitation of the premises

CIT v/s Sarabhai Pvt Ltd [263 ITR 197(Guj)]

• When property has been let out not only as property but with services which is complex letting, the income cannot be saidto be derived from mere ownership of house property but may be assessable as income from business.


TAX ISSUESSection 80-IB(10) – Some recent judicial precedents

•Where the local authority does not grant approvals to “housing projects” but instead grantsapprovals to “residential and residential cum commercial projects”, one will have to adopt

Bhrama Associates vs. JCIT (ITAT Pune Special Bench) ITA No. 1417/PN/06

the doctrine of purposive interpretation to draw a “lakshman rekha” and ensure that thebasic character of the project continues to remain in harmony with the object of the taxincentive i.e. augmenting affordable dwelling units. Applying the said doctrine of purposiveinterpretation, cases where commercial built up area does not exceed 10% of the totalarea are eligible for the benefit as such projects are predominantly residential in naturearea are eligible for the benefit as such projects are predominantly residential in nature

•Cases where the commercial area is more than 10% will not be eligible for deduction unlessit can be shown that income from the residential dwelling units can be worked outseparately and even after excluding the commercial use of plot, the project satisfies all therequirements of section 80-IB (10)

•On the question as to the extent to which commercial use in a “housing project” ispermissible, the approval by the local authority of a project as a “housing project” isconclusive and no further enquiry is required



• In this case the assessee entered in to an agreement with the lessee of a plot, on principal to principal basis for co-i l i d id i l l h b i i d h i h d l ll

KZK Developers (2010) 130 TTJ 57 (Cuttack) (UO)

constructing a multi–storeyed residential complex whereby it was assigned the right to use, develop, construct, sell ortransfer the saleable area, it was not a contractor at all. Assessee had the right to select its own design, development planand customers. Notwithstanding the fact that the approval for developing the housing project was given by the competentauthority in favour of the co-venturer, the deduction under section 80IB(10) was still made available to the assessee

• Assessee undertaking engaged in development of housing projects could not be denied deduction under section 80IB, onthe ground that it failed to fulfill all conditions of “industrial undertaking”, as prescribed by sub section (2) of section 80IB.P i i f 80IB(2) h li i f l i i d d i / 80IB(10) d h h di i h h h

G. V. Corporation (2010) 133 TTJ 178 (Mum.) (Trib)

Provisions of sec.80IB(2) has no application for claiming deduction u/s.80IB(10) and thus, the condition that the assessee hasto be an industrial undertaking does not apply for claiming deduction u/s.80IB(10)



• In this case the assessee was granted Commencement certificate for 4 Buildings and building 5plan got approved on the same plot Since the commencement certificate was granted it could

Vandana Properties (2009) 31 SOT 392(Mum)

plan got approved on the same plot. Since the commencement certificate was granted, it couldbe said that the building 5 was a separate and independent housing project. Thus Housing projectdoes not mean that there should be a group of buildings and that housing project wouldinclude construction of any building and thus the assessee can claim deduction u/s 80 IB(10) inrespect of building 5 independently

• In this case the assessee developing a housing project and fulfilling all other requirements ofsection 80-IB(10) was allowed to adopt ‘percentage completion method’ to arrive at the eligible

B.K Enterprise (2009) 125 TTJ 974 (Pune)

section 80 IB(10) was allowed to adopt percentage completion method to arrive at the eligibleprofits for claiming deduction under the said section. Deduction cannot be postponed to a lateryear; i.e., on completion of project.


TAX ISSUESSection 80-IB(10) – Some recent notifications & instructions

• Slum Rehabilitation was required to be notified to be eligible to the benefitsof the deduction as stipulated under section 80IB(10) Hence according to

Slum rehabilitation scheme recognized u/s 80IB- Notification 67/2010 dated 3rd August, 2010

of the deduction as stipulated under section 80IB(10). Hence, according toCBDT circular any scheme of Slum Rehabilitation would be eligible forclaiming deduction under the said section of the Act provided all the otherconditions are fulfilled

• Clarification regarding claiming of Section 80IB(10) if the assessee follows

Deduction in respect of undertakings of developing housing projects: Instruction No. 4/2009, dated 30th June, 2009

percentage completion method of accounting and offer proportionateprofit on qualifying project on year on year basis


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