Taxability of corpus received from the Builder

What is the tax liability on Corpus received from the builder in case of re-development examines Adv. R. P. Rathod.

In the Last month the Chairman of a Housing Society in the suburbs approached me on the issue of redevelopment of their society building. The proposal was received from a reputed builder and the package offered by them was very attractive says Adv. R. P. Rathod.

The builder said he would demolish parts of the building and reconstruct with more area. Further he promised the Society that he would pay Rs. 10 Crore to the society as Corpus Fund while the members would be paid Rs. 50 Lakhs individually in lieu of the same he would retain a part of the area as his profit & would construct a separate building and would sell the same.

Though the proposal was very attractive the society approached me on the issue of Taxability of the said sums in the hands of the Society and its members. They were anxious that 30% of this amount should go to the Taxman.

Adv. R. P. Rathod. advised the Chairman that if the offer is genuine & good enough they should go ahead with the deal forgetting about the taxation aspect of the same at the present moment. He rightly asserts that though Tax Planning is essential, people should not fear about taxes, If Ratan Tata would have feared about the taxes, he could not have made such a Big Empire.

Further coming to the solution Adv. R. P. Rathod. explains that the Provisions of the Income-tax Act 1961 & D.C. Regulations 1991 should be examined.

The Regulation 33(7) of the Development Control Regulations 1991 of the Mumbai Municipal Corporation, provide for the grant of additional FSI if an existing building is redeveloped. The said additional FSI can be utilized either for the extension of the existing building or for the construction of a new building or may be sold for a consideration.

Section 2(14) of the Income Tax Act 1961, defines “Capital Asset” to mean “Property of any kind”, held by the assessee whether or not connected with his business or profession, but excluding ‘Stock in trade’. This definition is wide enough to cover development rights within its ambit.

Further Section 45 of the Income Tax Act 1961, states that any profits and gains arising from the transfer of a Capital asset is chargeable to tax and vide Section 48, the profits and gains have to be computed by deducting from the full value of the consideration, the cost of acquisition and cost of improvement of the asset.

Though development rights are a capital asset, the moot question is whether there is a ‘Cost of acquisition’ attached to them.

Adv. R. P. Rathod. further points out to some of the relevant Judgments.

The leading judgments on the issue are that of the Mumbai Bench Tribunal in ITO vs. Lotia Court Co-operative Housing Society Ltd (2008) 12 DTR (Mumbai) (Tribunal) and New Shailaja CHS vs. ITO (ITAT Mumbai)

In Lotia Court Co-operative Housing Society the Society and its members entered into a development agreement with a builder pursuant to which Transferable Development Rights (TDR) entitled to be received under the Development Control Regulations was assigned to the developer for the repairs and redevelopment of the building and the construction of additional floors. The Assessing Officer sought to assess the Society on the ground that it had made Capital Gains. However, the Tribunal held that as the TDRs were owned by the flat owners individually and as no consideration for the transfer of the TDRs was received by the assessee Society nor any area in the constructed portion was allocated to the assessee Society, the Society was not chargeable to tax.

In another case of New Shailaja CHS v/s the ITO, the assessee-Society became entitled by virtue of the Development Control Regulations to Transferable Development Rights (TDR) and the same were sold by it for a price to a builder. On the question of taxability in the hands of the Society, the Tribunal noted that the Supreme Court had laid down the law in B. C. Srinivasa Setty 128 ITR 294 (SC) that if there was an asset for which a cost of acquisition was not determinable, the gains could not be assessed as ‘Capital Gains’. It was accordingly held that though the TDR was a ‘Capital Asset’, there being no ‘Cost of acquisition’ for the same, the consideration could not be taxed.

The said view has also been followed in the case of Om Shanti Co-op Society vs. ITO (ITAT Mumbai). In this case, the assessee Co-op housing Society(CHS) gave permission to the developer to construct 2 floors and 8 flats on the building belonging to the Society by using the TDR/ FSI available to the developer. In consideration, the developer paid Rs. 26 lakhs to the assessee and Rs. 66 lakhs to its members aggregating Rs. 92 lakhs.

The Assessing Officer took the view that the assessee had relinquished its right “to load TDR and construct additional floors” and as there was no cost of acquisition, the entire consideration of Rs. 26 Lakhs was assessable as Long-Term Capital Gains. On appeal, the CIT (A) took the view that even the amounts received by the Members were assessable in the assessee’s hands. He accordingly enhanced the assessment and directed that the consideration be taken at Rs. 92 Lakhs.

However, the Tribunal reversed the AO and CIT (A) on the ground that the assessee and its members had no right to construct additional floors on the existing building as they had exhausted the right available while constructing the flats in the building. The TDR was not obtained by the assessee and sold to the developer. It was held that the assessee had not transferred any existing right to the developer nor any cost was incurred/ suffered prior to permitting the developer to construct the additional floors. The Tribunal held that in the absence of a cost of acquisition, the judgment in B. C. Srinivasa Setty 128 ITR 294 (SC) applied and the consideration was not assessable as Capital Gains.

The taxability in the hands of the members of the Society was considered in Jethalal D. Mehta vs. DCIT (2005) 2 SOT 422 (Mum). There also, following the judgment of Apex Court in CIT vs. B.C. Srinivasa Setty 128 ITR 294 (SC), it was held that as the TDR granted by DCR, 1991 qualifying for equivalent FSI had no cost of acquisition, the sale of the same did not give rise to assessable Capital Gains.

        Adv. R. P. Rathod. thus summarize the aforesaid provisions of the respective laws and the precedents of the Case Laws rests on there not being aCost of Acquisition of the development right/ FSI obtained pursuant to the Development Control Regulations 1991. In respect of the buildings that have been erected after the DC Regulations of 1991 came into force, it is a possible argument in favor of the Taxman that some part of the Cost of the building is attributable to the said Development Right/ FSI and that the principle of B. C. Srinivasa Setty does not apply, but that time is still to arrive, as of now there are very less such buildings built after 1991 which are going into re-development venture.

        Hence, the facts would though vary from case to case, but if no Cost of Acquisition’ is attributable to the development rights, the said precedent will apply and the gains arising on their transfer will not be assessable, either in the hands of the Society or in the hands of the members concludes
Adv. R. P. Rathod.