2023 (5) TMI 872 - AT - Income Tax

Determination of correct profits by applying correct principles of percentage completion method - justification of percentage completion method in case of real estate development - HELD THAT - In light of the principle laid down in S.S. Enterprises 2019 (11) TMI 698 - ITAT MUMBAI read alongwith guidelines of the ICAI in its Guidance Note on Accounting for Real Estate Transactions (Revised 2012) we find that in case of real estate projects when a stage is arrived that risk and rewards shift from the developer to buyer irreversibly, then project revenue and project cost associated with the real estate project should be recognised as revenue and expenses by reference to the stage of completion of the project activity at the reporting date. The effect of a change in the estimate of project costs, should be used in determination of the amount of revenue and expenses recognised in the statement of profit and loss in the period in which the change is made and in subsequent periods. Project computed following the percentage completion of method is sustained. Revision of estimated cost of repairs/renovation caused due to delay in project and damage to the building on account of various litigations not being considered by the ld. CIT(A) - HELD THAT - The events behind escalation of Renovation cost have arisen in period subsequent to AY 2011-12, and therefore, any effect of said estimate can t be given in AY 2011-12 and can only be given in subsequent assessment years. Therefore, these grounds are dismissed for AY 2011-12. Valuation of unsold flats at cost not been considered by the ld. CIT(A) - assessee has followed percentage completion method for computation of profits from the project - HELD THAT - Under this method, after working out the profit commensurate with the construction work carried out, further expenses for maintenance of the corporate structure and other administrative and selling expenses for running the business are debited to Profit Loss A/c. and net profit is worked out accordingly. For the purpose of computing profit from the project, the valuation of closing stock has no role to play under this method. Accordingly, the ground challenging the valuation of unsold flats at market value is irrelevant, whether taken at cost or market value. We set aside the finding of the ld. CIT(A) on the issue of dispute for considering valuation of unsold flats at market value Thus, this ground of the assessee is allowed. As profit from the project computed following the percentage completion of method is sustained in the case of the assessee, as worked out above. We accordingly direct so. AO is directed to adopt above profit worked out for AY 2011-12 to AY 2013-14 for the purpose of net profit of the assessee from business or profession.

Issues Involved:
1. Determination of income for the assessment year.
2. Consideration of direct costs as part of the cost of construction.
3. Consideration of revised estimated cost of repairs due to project delays and damage.
4. Allowance of deduction for estimated cost of repairs.
5. Valuation of unsold flats at cost.
6. Applicability of profit calculation method prescribed by ITAT for previous assessment years.
7. Interpretation of ITAT order regarding the revision of construction/repair costs.
8. Reduction of proportionate cost of construction and direct costs.
9. Allowance of deduction under section 80G of the Income-tax Act.

Detailed Analysis:

1. Determination of Income:
The Ld. CIT(A) determined the income for the year at Rs. 9,54,37,931/- against the returned income of Rs. 8,56,08,140/-. The Assessing Officer (AO) had originally determined the total income at Rs. 15,37,06,920/- after applying a 12% profit percentage on the deemed sales consideration of Rs. 23,42,06,400/-, rejecting the books of account, and restating the Capital Work-in-Progress.

2. Consideration of Direct Costs:
The Ld. CIT(A) did not initially consider direct costs such as premium paid to the Municipal Corporation, TDR, etc., as part of the cost of construction. However, it was later agreed that these costs should be included in the total project cost. The direct costs were revised to Rs. 81,77,00,000/-.

3. Revised Estimated Cost of Repairs:
The assessee argued that the estimated cost of repairs had increased due to project delays and damage from litigation. The Ld. CIT(A) initially did not consider this revised estimate. The estimated renovation cost was revised from Rs. 50 crores to Rs. 61,63,16,666/-.

4. Deduction for Estimated Cost of Repairs:
The Ld. CIT(A) did not allow the deduction for the estimated cost of repairs, holding that the construction cost already included in the total cost did not account for repairs. The ground was dismissed for AY 2011-12 but considered for subsequent years.

5. Valuation of Unsold Flats:
The Ld. CIT(A) did not consider the valuation of unsold flats at cost. The percentage completion method was applied, and the valuation of closing stock was deemed irrelevant under this method.

6. Applicability of ITAT Method:
The Ld. CIT(A) followed the ITAT's method from A.Y. 2009-10 for calculating profits using the percentage completion method. However, the assessee argued that due to changes in estimates and circumstances, this method could not be applied for the year under consideration.

7. Interpretation of ITAT Order:
The ITAT had directed that the percentage completion method be applied until project completion. The Ld. CIT(A) recomputed the taxable profits, considering mistakes in earlier orders and revised estimates, resulting in a taxable profit of Rs. 15,28,17,792/-.

8. Reduction of Proportionate Costs:
The Ld. CIT(A) reduced the proportionate cost of construction and direct costs for an area of 15,308 sq. ft., which included a demolished area and an area where development rights were not granted. This issue was covered in the revised profit computation.

9. Deduction under Section 80G:
The Ld. CIT(A) directed the AO to verify the assessee's claim for deduction under section 80G. The AO was instructed to give effect to this finding if not already done.

Conclusion:
The appeals were partly allowed for statistical purposes, with directions to the AO to adopt the revised profit computations for AY 2011-12 to AY 2013-14 and to consider the impact of future events in relevant years. The order was pronounced on 20/02/2023.

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