2017 (6) TMI 1258 - AT - Income Tax

Computation of long term capital gain - JDA - determining the cost of construction - actual cost of construction reported by the Developer v/s market value of the property as on the date of development agreement - Held that - For the purposes of determining the cost of construction, in identical facts and circumstances of the case, the Hon ble jurisdictional High Court in the case of Ved Prakash Rakhra (2012 (10) TMI 286 - KARNATAKA HIGH COURT), has held that the date of entering into JDA would be the date for the purposes of arriving at the cost of transfer i.e. cost of structure as on the date of agreement would be the cost of transfer instead of cost of actual construction in term of JDA - Decided in favour of assessee.

Summary

Issues involved:
- Determination of consideration for exchange of land in Joint Development Agreement (JDA)
- Applicability of the cost of construction as consideration
- Interpretation of legal precedents regarding consideration in JDA
- Adjudication of appeal against the assessment order for the assessment year 2006-07

Analysis:

1. Determination of consideration for exchange of land in Joint Development Agreement (JDA):
The appellant contested the order of the CIT (A) regarding the determination of consideration for the exchange of land in the JDA. The appellant argued that the consideration should be based on the fair market value (FMV) of the land, not the builder's cost of construction. The appellant emphasized that the FMV as on the date of JDA should be the basis for quantifying the consideration of the land transferred. The AO and CIT (A) relied on the builder's cost of construction, leading to a dispute over the correct method of determining consideration.

2. Applicability of the cost of construction as consideration:
The appellant referenced a legal precedent set by the High Court of Karnataka in the case of Sri. Ved Prakash Rakhra, which established that the cost of construction incurred by the builder cannot be the sole consideration for the exchange of land in a JDA. The appellant argued that the consideration specified in the JDA should represent the market value at the time of agreement, not the actual construction cost. This issue raised a fundamental question regarding the appropriate criteria for determining consideration in JDAs.

3. Interpretation of legal precedents regarding consideration in JDA:
The appellant highlighted the misinterpretation of legal precedents by the CIT (A) in dismissing the appeal. The appellant pointed out that the facts of the case were not significantly different from the precedent case cited, emphasizing that the absence of a specific price in the JDA should not be a basis for differentiation. The appellant sought alignment with the legal principles established in previous judgments to support their argument for considering FMV as the basis for quantifying the consideration.

4. Adjudication of appeal against the assessment order:
The appeal was filed by the assessee against the assessment order for the assessment year 2006-07. The appellate tribunal, after considering the arguments presented by both parties, ruled in favor of the assessee. The tribunal emphasized the importance of following the legal precedent set by the High Court of Karnataka in similar cases. The tribunal allowed the appeal, indicating a discrepancy in the determination of consideration based on the builder's cost of construction, thereby providing relief to the assessee by overturning the assessment order.