Real Estate Developers and Section 43CA

[Submitted by CA Mohit Mittal,
Delhi]

June 30, 2015

The provision was introduced in order to counter act the various decisions of high courts where it was held that provisions of Section 50C is not applicable when the seller holds the land or building or both as a capital asset. However, there are certain practical issues difficulties that arose due to the section

Relevant extracts of Section 43CA has been reproduced below:

  1. Where the consideration received or accruing as a result of the transfer by an assessee of an asset (other than capital asset), being land or building or both, is less than the value adopted or assessed or assessable by any authority of state government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profit and gains from transfer of such asset, be deemed to be the full value of the consideration received or accruing as a result of such transfer.
     
  2. Where the date of agreement fixing the value of consideration for transfer of asset and date of registration for transfer are not the same , the value referred to in subsection(1) may be taken as the value assessable by stamp duty authority on the date of agreement.
     
  3. The provisions of sub section (3) shall only apply in case where the consideration or part thereof has been received by any mode other than cash on or before date of agreement for transfer of asset.

Salient features of the section are:-

  1. The section is applicable to assessee who held land or building or both as stock in trade and not capital assets. Immovable properties being land or building can be residential flats, commercial flats, industrial building or plots, agricultural lands whether in rural area or urban area.
  2.  The section comes into force when the transferred value is less than the stamp duty value of the immovable property and the receipt is taxable under the head PGBP.
  3.  The assessee has the option to claim before the Assessing officer that the value adopted or assessed or assessable by the stamp valuation officer exceeds the Fair market value as on date of the transfer and refer the valuation to the valuation officer as per the provisions of Section 50C.
  4.  In case the date of agreement fixing consideration and date of registration are different, then for the purposes of determination of value under the section , the value as on the date of agreement shall be considered, provided the consideration or part of consideration is received prior to date of agreement by any mode other than cash.

 

PRACTICAL DIFFICULTIES

I. Double Taxation when the buyer treats the property as stock in trade and seller treats it as capital asset.

To understand the problem let’s take an example:

Suppose Mr. A, holds a commercial flat as capital asset.
Mr. A enters into a sale agreement for sale of flat to Mr. B, real estate developer.
The flat was transferred by Mr. A to Mr. B for  Rs. 60.00 Lacs (Transaction value) and the  Stamp duty value of flat is Rs 100.00 Lacs (SDV) who further sold it for 150.00 Lcs

For Mr. A - Income under the head Capital Gains (As per 50C) = 100 - 60 = 40.00 lacs

For Mr. B - Income under other sources = Nil as Mr. B purchased the flat as stock in trade.

Income under head PGBP (at time of sale) = 150.00 Lacs-60.00 Lacs=90.00 Lacs

Now the sale of flat below SDV will attract the deeming provisions of the section 50 C in the hands of seller Mr. A without giving any benefit to Mr. B by way of enhanced cost of acquisition. This situation results in double taxation, although not on the same assessee but on the same immovable property.

OUR COMMENTS

The government/revenue authorities seem to knowingly doubly tax the income for real estate developers which are both unfair and illogical. There is an immediate need to correct this by permitting the buyer to take the difference between stamp duty value & transaction value as enhanced cost price of the stock in trade.

 

II. Applicability of section on transfer of tenancy rights or booking rights

The section is applicable for only two kind of assets land and building. The section comes into existence when the assessee transfers land or building or both.

The question arises whether the section is applicable only on transfer of actual land and building or also on transfer of tenancy or booking rights.

OUR VIEW
On reading of the section it is clear that the S. 43CA will be applicable on transfer of land & building. The section was introduced to plug the loopholes of S.50C, and thus has the legal intention of the same. Various appellate authorities have confirmed that S. 50 C is not applicable on tenancy or booking rights.

 

III. TRANSFER OF DEVELOPMENT RIGHTS 

Whether transfer of development rights attracts S.43 CA or not, will depend on facts and circumstances of the case. If the transfer of such rights results in transfer of absolute rights in land then the section will most likely be applicable.

When the incidence of capital gain tax arises? The point where the capital gain is deemed to accrue will purely depend on the terms of Joint Development Agreement. Where the agreement is of such nature that possession is given in part performance of a contract, the liability of capital gain tax will arise on the handing over of such possession to the builder. If the possession is not transferred but deferred until the construction is completed, the liability to capital gain tax will arise in the year in which the developer completes the construction.

 

IV. Percentage completion method & S. 43 CA

Real estate developers generally sell the booking rights to under develop properties by way of entering agreement which requires the buyer to make the payments in various installments.

The property comes into existence (or becomes fully developed) after several years. The real estate developer meanwhile books its revenue on the basis of percentage completion method (PCM) as per the guidance note and accounting standards.

Income Tax is also charged by way of PCM. Now the question arises whether 43CA will be applicable on year to year basis in line with revenue recognition or will be applicable at the time of actual transfer of the asset.

OUR  VIEW

One of the cardinal rules of interpretation of tax statute is that a deeming provision has to be interpreted strictly in terms of the words /language used to create the deeming fiction. As per the relevant section, it is imperative that there should be” actual transfer” of land or building or both.

Since the builder/developer can transfer the asset on its existence i.e. on its completion,  43CA can’t be applied on year to year basis and will be applicable on the final transfer of the asset.