Vastukar Township Pvt. Ltd vs. DCIT (ITAT Jaipur)- 29 Jan 2018
1- From the terms and condition of the plot buyer agreement, it is clear that income has accrued/ arisen to the assessee in lieu of the sale of plots to the customer. The customer is very much bound by the payment schedule and the assessee is entitled to receive the payments as per the agreement. Once the booking amount is received by the assessee, the said plot is booked in the name of customer and the assessee is obliged to receive the payment as per the payment schedule and the customer also is obliged to honour the payments in installments (if any). So, both the parties are bound by the contract and the income is said to have accrued to the assessee and hence chargeable to tax.
2- It is immaterial as to how the assessee has shown a particular receipt in the books of account. Even if assessee has shown the receipt to be in form of advance that does not bind the AO to examine the actual nature of receipt in light of surrounding circumstances and referred to the decision of the Hon’ble Supreme Court in case of Sutlej Cotton Mills 116 ITR 01 for the proposition that the way the entries are made by the assessee in the books of accounts is not determinative of the question whether the assessee has earned any profit or suffers any loss.,
3- The Ld. CIT(A) stated that it is clear from the Guidance Note issued by ICAI that the revenue is to be recognised when the seller of the goods has transferred to the buyer the legal title in the plots, however, if the seller is obliged to perform any substantial acts after the transfer of all significant risks and rewards of ownership or title of plots, revenue is to be recognised by applying Percentage Completion Method as explained in AS-7, Construction Contracts,
4- .... However, as per the guidance note, revenue is to be recognized with reference to the entire amount of sales consideration for which plot buyer’s agreement were executed as the significant risks and rewards of ownership has been transferred to the buyer at the time of executing the agreement...
5- AO considered the entire amount where the sale deed is executed as revenue. In doing so, he failed to consider para 4 of the Guidance Note which provide that in case the seller is obliged to perform any substantial acts after the transfer of all significant risks and rewards of ownership, revenue is recognized by applying the percentage of completion method in the manner explained in AS-7, Construction Contracts. As per para 24 of AS-7, where percentage of completion of method is to be applied, contract revenue is required to be matched with the contract costs incurred in reaching the stage of completion, resulting in the reporting of revenue, expenses and profit which can be attributed to the proportion of work completed,
6- In case of advance received from customers, revenue, as per Para 3 of the Guidance Note issued by ICAI, can be recognised when all significant risk and reward of ownership is transferred. In case of agreement for sale, all significant risk and reward of ownership is considered to be transferred where there is no price risk and the buyer has a legal right to sale or transfer his interest in the property without any condition or subject to only such condition which do not materially affect his right to the benefits in the property.,
7- This is evident from Para 7-10 of the plot buyers agreement where it is categorically provided that if the buyer default in depositing the instalment amount maximum two times, the assessee shall have the right to cancel the agreement and forfeit the earnest money, interest on delayed payment, etc. and the amount paid over and above the earnest money shall be refunded to the buyer only after realising such amount from resale of the plot.
8-In the instant case, in respect of transactions where sale deeds for plots of land have been duly executed and registered with the relevant authorities, there is no dispute that the assessee has transferred to the buyer all significant risk and rewards of ownership and the assessee retains no effective control of the real estate to a degree usually associated with ownership, and no significant uncertainty exists regarding the amount of the consideration and its collection as the same has been fully recovered prior to signing of the sale deed....
9- At the same time, what is equally relevant to consider is the economic substance of the transaction. As we have noted above, in terms of plot buyers agreement, the buyer agrees to purchase a plot of specified size and location and the agreed price covers development of internal services such as roads, electricity, water and drainage system within the peripheral limits of township.
10 - With regards to advance money-On cumulative reading of all these clauses in the agreement which have been mutually agreed and consented to by the assessee and the plot buyer, it is crystal clear that the price risk which is one of the significant risk in relation to real estate has been fully transferred by the assessee to the buyer,........ it is clear that the significant risk relating to the real estate namely price risk as well as any external regulatory risk relating to acquisition, requisition or taking over area in which plot is located by the State Government or any other local authority has been transferred by the assessee to the buyer.
For reading full text of the case please refer link- http://itatonline.org/archives/vastukar-township-pvt-ltd-vs-dcit-itat-jaipur-s-1452-law-on-how-revenue-should-be-recognized-by-a-developer-of-property-under-the-percentage-completion-method-in-the-light-of-acc/vastukar-township-pcm-method-revenue-recognition/
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Some important pointers of the case for easy reference-
1- From the terms and condition of the plot buyer agreement, it is clear that income has accrued/ arisen to the assessee in lieu of the sale of plots to the customer. The customer is very much bound by the payment schedule and the assessee is entitled to receive the payments as per the agreement. Once the booking amount is received by the assessee, the said plot is booked in the name of customer and the assessee is obliged to receive the payment as per the payment schedule and the customer also is obliged to honour the payments in installments (if any). So, both the parties are bound by the contract and the income is said to have accrued to the assessee and hence chargeable to tax.
2- It is immaterial as to how the assessee has shown a particular receipt in the books of account. Even if assessee has shown the receipt to be in form of advance that does not bind the AO to examine the actual nature of receipt in light of surrounding circumstances and referred to the decision of the Hon’ble Supreme Court in case of Sutlej Cotton Mills 116 ITR 01 for the proposition that the way the entries are made by the assessee in the books of accounts is not determinative of the question whether the assessee has earned any profit or suffers any loss.,
3- The Ld. CIT(A) stated that it is clear from the Guidance Note issued by ICAI that the revenue is to be recognised when the seller of the goods has transferred to the buyer the legal title in the plots, however, if the seller is obliged to perform any substantial acts after the transfer of all significant risks and rewards of ownership or title of plots, revenue is to be recognised by applying Percentage Completion Method as explained in AS-7, Construction Contracts,
4- .... However, as per the guidance note, revenue is to be recognized with reference to the entire amount of sales consideration for which plot buyer’s agreement were executed as the significant risks and rewards of ownership has been transferred to the buyer at the time of executing the agreement...
5- AO considered the entire amount where the sale deed is executed as revenue. In doing so, he failed to consider para 4 of the Guidance Note which provide that in case the seller is obliged to perform any substantial acts after the transfer of all significant risks and rewards of ownership, revenue is recognized by applying the percentage of completion method in the manner explained in AS-7, Construction Contracts. As per para 24 of AS-7, where percentage of completion of method is to be applied, contract revenue is required to be matched with the contract costs incurred in reaching the stage of completion, resulting in the reporting of revenue, expenses and profit which can be attributed to the proportion of work completed,
6- In case of advance received from customers, revenue, as per Para 3 of the Guidance Note issued by ICAI, can be recognised when all significant risk and reward of ownership is transferred. In case of agreement for sale, all significant risk and reward of ownership is considered to be transferred where there is no price risk and the buyer has a legal right to sale or transfer his interest in the property without any condition or subject to only such condition which do not materially affect his right to the benefits in the property.,
7- This is evident from Para 7-10 of the plot buyers agreement where it is categorically provided that if the buyer default in depositing the instalment amount maximum two times, the assessee shall have the right to cancel the agreement and forfeit the earnest money, interest on delayed payment, etc. and the amount paid over and above the earnest money shall be refunded to the buyer only after realising such amount from resale of the plot.
8-In the instant case, in respect of transactions where sale deeds for plots of land have been duly executed and registered with the relevant authorities, there is no dispute that the assessee has transferred to the buyer all significant risk and rewards of ownership and the assessee retains no effective control of the real estate to a degree usually associated with ownership, and no significant uncertainty exists regarding the amount of the consideration and its collection as the same has been fully recovered prior to signing of the sale deed....
9- At the same time, what is equally relevant to consider is the economic substance of the transaction. As we have noted above, in terms of plot buyers agreement, the buyer agrees to purchase a plot of specified size and location and the agreed price covers development of internal services such as roads, electricity, water and drainage system within the peripheral limits of township.
10 - With regards to advance money-On cumulative reading of all these clauses in the agreement which have been mutually agreed and consented to by the assessee and the plot buyer, it is crystal clear that the price risk which is one of the significant risk in relation to real estate has been fully transferred by the assessee to the buyer,........ it is clear that the significant risk relating to the real estate namely price risk as well as any external regulatory risk relating to acquisition, requisition or taking over area in which plot is located by the State Government or any other local authority has been transferred by the assessee to the buyer.
For reading full text of the case please refer link- http://itatonline.org/archives/vastukar-township-pvt-ltd-vs-dcit-itat-jaipur-s-1452-law-on-how-revenue-should-be-recognized-by-a-developer-of-property-under-the-percentage-completion-method-in-the-light-of-acc/vastukar-township-pcm-method-revenue-recognition/
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