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Income Tax Appellate Tribunal, VIRTUAL COURT
Before: SHRI C.N. PRASAD, HONBLE & SHRI S. RIFAUR RAHMAN, HONBLEShri B.K. Bagchi
O R D E R PER S. RIFAUR RAHMAN (AM)
1. This appeal is filed by the revenue against order of the Learned Commissioner of Income Tax (Appeals) – 36, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 28.06.2019 for the A.Y.2014-15.
Brief facts of the case are that, assessee filed its return of income on 30.09.2014 declaring total income at ₹.1,70,65,640/-. The return was (A.Y: 2014-15) M/s. Ecohomes Township LLP processed u/s. 143(1) of the Income-tax Act, 1961 (in short “Act”). subsequently, assessee filed revised return of income on 24.09.2015 revising the total income at ₹.NIL. The case was selected for scrutiny under CASS and notice u/s.143(2) and 142(1) of the Act were issued and served on the assessee. In response Ld. AR of the assessee attended and filed the relevant information as called for. The assessee is a developer and has undertaken project of developing the property jointly with TATA Housing Development Company Ltd and a joint development agreement in this regard was entered into by both the parties on 11.11.2010. The income is mainly derived from the income from business and profession. During assessment proceedings Assessing Officer observed from the original return of income that the assessee declared income of ₹.1,70,65,640/- and in the revised return of income, the same was reduced to Nil. The assessee filed letter dated 15.11.2016 with the reasons for revisions of the return of income. Assessing Officer after going through the submissions observed that assessee declared the income from the joint development project and the same was further revised to Nil income. When the assessee was asked to submit why revised return of income has to be considered and what basis computation of revised return of income was made and also asked to justify their claim to accept
(A.Y: 2014-15) M/s. Ecohomes Township LLP the revised return of income in the light of AS-9 and AS-7. In response Ld. AR of the assessee submitted their reply vide letters dated 15.11.2016, 07.12.2016 and 23.12.2016. Further, the AR of the assessee was asked to explain as to why the revised return of income should not be rejected.
After considering the above submissions Assessing Officer observed that the return of income was revised on 24.09.2014 declaring a loss of ₹.2,87,19.393/-. In the revised return the assessee has claimed entire payment of advance tax of ₹.64,50,000/- as refund. Further, he observed that the assessee has filed audited balance sheet and profit and loss account dated 05.09.2014 wherein receipts from TATA Housing which has shown to the tune of ₹.18,89,66152/-. In the said profit and loss account the assessee declared profit before tax of ₹.1,70,03,143/-. Further he observed that assessee has entered into a joint development agreement with TATA Housing wherein the assessee is entitled for 24% of the gross project receipts and TATA Housing is entitled for 76%. In the said development agreement with the TATA Housing, it is also mentioned that the construction cost of Residential House Units (RHU) proportionate will be borne by the assessee and proportionate to TATA Housing and it was stated that TATA Housing will borne the cost of construction only to the extent of ₹.800/- Per Sq.ft any cost of construction exceeds ₹.800/- sq.ft
(A.Y: 2014-15) M/s. Ecohomes Township LLP the excess cost shall be adjusted from the 24% share which TATA Housing will give to the assessee.
Further, Assessing Officer observed that assessee has relied upon the Accounting Standard 9 and Accounting Standard 7 as well as Guidance Note 2012 for the purpose of revised computation of income. However, the Assessing Officer observed that the reliance on the accounting standards as well as guidance note is completely misplaced and has failed to consider the fact that the assessee is not at all responsible for construction of the project and the entire construction is to be done by TATA Housing. Further he observed that it is pertinent to mention that when ₹.18.89,00,000/- is being accounted by the assessee as its share of 24% received from TATA Housing, it means that the sales of the project have taken place and TATA is liable for said amount. When the sales itself has taken place and assessee is accounting only his portion of revenue proportionate to sales then where is the question of project completion as well as construction contract.
During the assessment proceedings, Assessing Officer observed that how AS-9 and AS-7 can be the basis of revised return of income filed, which unbelievable and without any basis. If the assessee claims that it
(A.Y: 2014-15) M/s. Ecohomes Township LLP followed AS-9 & AS-7 and consistently following the same method for recognition of revenue, the same cannot changed as per provisions of the Act. Further Assessing Officer observed from the joint development agreement the following points: - “a. As is specifically mentioned in the agreement between TATA and the assessee it has been decided that expenses in respect of residential House Units, proportionate to the assessee will be borne by the assessee and proportionate to TATA Housings will be borne by TATA Housing but only to the extent of Rs.800/- per sq.ft. It is also mentioned in the agreement that in case the construction cost of RHU Units of TATA Housing exceeds Rs.800/- sq.ft. TATA Housing will deduct the excess cost from the 24% share which TATA Housing will give to the assessee. The same has been followed by the assessee in the original return of income. b. It is crystal clear that Rs.18,89,00,000/- has been received from the TATA Housing are final receipts and construction cost of RHU exceeded the limit has already been deducted by TATA. However, in the revised computation assessee has uniformly reduced the said receipts of Rs.18,89,00,000/- to Rs.5,30,90,834/- without there being any counter claim from TATA Housing for excess RHU construction cost. The same is not acceptable without any supporting evidences and documents from the TATA. Till date assessee has neither submitted the details of RHU construction cost of TATA Housing nor submitted the details of total RHU construction cost borne by the assessee. c. As assessee is continuously following AS-9 & AS-7 since the commencement of the project and in original return of income filed for the Asst. Year 2014-15 and while filing the revised return of income the same has been changed which is not as per law and cannot be accepted without any concrete reasons and basis. As per Income Tax Act, if one is following AS-9 & AS-7 and consistently following the same method for reorganization of revenue, the said entity cannot change the same and that after filing the original return of Income for the concerned Asst. Year. In nutshell there cannot be two methods for original return of income and revised return of income.”
(A.Y: 2014-15) M/s. Ecohomes Township LLP With the above observations Assessing Officer rejected the submissions of the assessee and accordingly, rejected the revised return of income and completed the assessment based on the original return of income filed.
Aggrieved assessee preferred an appeal before the Ld.CIT(A), before Ld.CIT(A) assessee filed detailed submissions, for the sake of brevity it is reproduced below: - “During the appellate proceedings the assessee’s AR made submissions. They are summarized as under:
We refer to the hearing held on 21 January 2019, in connection with the subject matter. As requested by your good self appellant submits below details/ explanation
A copy of the joint venture agreement entered between TATA Housing and Ecohomes Township LLP annexed as “Annexure A”.
2. The rectification request letter filed by the appellant with the assessing officer dated 13 January 2017 is annexed as “Annexure B” along with the corresponding refund cheque issued by the assessing officer after deleting the interest charged under section 234B is annexed as “Annexure C”. Hence we withdraw our appeal on this particular matter. being Ground No. 2 of the grounds of appeal filed with your good self.
3. In continuation of our written submissions dated 18 January 2019 filed at your office on 21 January 2019, appellant would like to further submit the following. This is without prejudice to our earlier submissions in this matter. As per guidelines of the ICAI appellant submits that no revenue should be recognized in the financial statements in accordance to the Guidance Note on Real Estate Transaction issued by ICAI dated 11 February 2012 read with (A.Y: 2014-15) M/s. Ecohomes Township LLP Accounting Standard - 7 are Accounting Standard - 9, if cost incurred is less than 25% of the total projected cost.
3.1. Guidelines laid down by the ICAI for recognizing revenue from a construction project following percentage completion method, reads as under:
“Further to the conditions in paragraph 5.2 there is a rebuttable presumption that the outcome of a real estate project can be estimated reliably and that revenue should be recognized under the percentage completion method only when the events in (a) to (d)below are completed.
(a) All critical approvals necessary for commencement of the project have been obtained. These include, wherever applicable: (i) Environmental and other clearances. (ii) Approval of plans, designs, etc. (iii) Title to land or other rights to development construction (iv) Change in land use.
(b) When the stage of completion of the project reaches a reasonable level of development. A reasonable level of development is not achieved if the expenditure incurred on construction and development costs is less than 25% of the construction and development costs as defined in paragraph 2.2(c) read with paragraphs 2.3 to 2.5.
(c) At least 25% of the saleable project area is secured by contracts or agreements with buyers.
(d) Atleast 10 % of the total revenue as per the agreements of sale or any other legally enforceable documents are realised at the reporting date in respect of each of the contracts and it is reasonable to expect that the parties to such contracts will comply with the payment terms as defined in the contracts. To illustrate - If there are 10 Agreements of sale and 10 % of gross amount is realised in case of 8 agreements, revenue can be recognised with respect to these 8 agreements.
(A.Y: 2014-15) M/s. Ecohomes Township LLP When the outcome of a real estate project can be estimated reliably end the conditions stipulated in paragraphs 5.2 and 5.3 are satisfied, project revenue and project costs 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. For computation of revenue the stage of completion is arrived at with reference to the entire project costs incurred including land costs, borrowing costs and construction and development costs as defined in paragraph 2.2. while the method of determination of stage of completion with reference to project costs incurred is the preferred method, this Guidance Note does not prohibit other methods of determination of stage of completion, e.g., surveys of work done, technical estimation, etc. However, computation of revenue with reference to other methods of determination of stage of completion should not, in any case, exceed the revenue computed with reference to the ‘project costs incurred’ method. Illustration appended to this Guidance Note clarifies the method of computation of revenue.”
As per guidance note, it states that revenue should not be recognised in a project unless as mentioned at para (b), the stage of completion of project @ 25% is achieved. In other words, unless 25% of the construction & development costs are incurred, the project revenue cannot be reliably estimated. However, we continue our practice of offering revenue to tax, although we have not completed the project upto 25% during the said year.”
In this connection appellant has placed reliance upon the following decisions: -
The Hon'ble ITAT Cuttack Bench in the case of DCIT Circle – 5(1), Bhubaneswar V. M/s. Sri Jagannath Properties & developers ITA.No. 283/CTK/2017.
The Hon'ble ITAT Mumbai Bench in the case of Bhoomi construction Projects V. ACIT, Central circle – 2 in ita 1267
The ITAT Mumbai bench in the case of DDIT (International taxation), 2(1) v. Stork Engineers & Contractors [127 ITD 211]
(A.Y: 2014-15) M/s. Ecohomes Township LLP 7. After considering the detailed submissions of the assessee, Ld.CIT(A) allowed the appeal filed by the assessee with the following observations: - “4.2 On an analysis of the facts of the case and the submission of the appellant, it appears that subsequent to the original return of income filed, the appellant became aware of the requisite compliance to the Accounting Standards 7 & 9 and the Guidance note on real estate transactions issued by the ICAI. As per the Guidance Note issued by the ICAI revenue is to be recognized as per the Percentage Completion Method. It is a matter of fact that the appellant has not been following the Percentage Completion method since the inception of the project but equivalently, there cannot be any estoppel to law. Various judicial precedents relied upon by the assessee depicts that in a stage of construction which has not even reached 25% of the overall project, it is difficult to determine the revenue with certainty due to various factors involved in the project. Even the Income Computation and Disclosure Standards issued by the department requires that the recognition of income shall begin once the stage of 25% or more of the project is completed. Hence, as per the spirit of the Guidance Note (supra) and ICDS, it is a well accepted method to recognize revenue once the stage of completion reaches or crosses 25% of construction. The Hon ITAT Mumbai Bench in the case of Bhoomi construction Projects V. ACIT, Central Circle -2, ITA.No.1267 & DDIT (IT) – 2(1), Mumbai v. Stork Engineers & contractors B.V. 7 (ITR) (T) 365 (Mumbai) held in favour of the appellant. In the latter case, the hon’ble Tribunal held. “As per the above-referred Accounting Standard-7, no profit is to he recognized unless the work on contract has progressed to a reasonable extent. Para 9.8 of the Accounting Standard states that "ordinarily this test is not considered as having been satisfied unless 20 to 25 per cent of the work is completed". It is, therefore, palpable that under the percentage of completion method, which the assessee is following, the income is to be recognized on year-to-year basis as the contract activity progressed based on the stage of completion reached. However, if the work is not completed up to 20 to 25 per cent, till that stage, no income need be identified and offered for taxation.” 4.3 Further, the return of income shall be revised if it is done within the prescribed time limit under the Act. In the present case,
(A.Y: 2014-15) M/s. Ecohomes Township LLP the AO has not pointed out any concerns in so far as the validity of revision of the return of income is concerned. The AO is of the view that the method of recognizing income cannot be changed in the revised return of income. Once the revision of return of income is as per law and the subject matter of revision is in accordance with proper guidelines or law, I find merit in the contention of the AR of the assessee that the revised return ought to have been considered. In view of the above observations, the AO is directed to consider the revised return of income filed by the assessee and compute the income as per the aforesaid discussion. Accordingly, the Ground of appeal no. 1 to 5 is Allowed.”
8. Aggrieved revenue is in appeal before us raising following grounds in its appeal: - 1. “Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) erred in not appreciating the complete fact that the assessee received final receipt of Rs.18.89 Cr from its partner against which the assessee depicted that the percentage of work completed was less than 25% and thus no income is recognized?”. 2. “Whether the facts and circumstances of the case and in law, the Ld.CIT(A) erred in ignoring the fact that the assessee could not produce the supportive evidences for working of revised receipts to Rs.5.30 cr.?” 3. “Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was justified in directing to consider the revised return in spite of the change in the method of recognizing income subsequent to the original return of income was filed?”
At the time of hearing, Ld. DR submitted that assessee has challenged method of accounting as per accounting standard and revised guidance note during the year but after filing the return of income which resulting in reduction of substantial income. He submitted that Assessing Officer has justified the reasons why the revised return of income should be rejected. He submitted that as per joint development agreement
(A.Y: 2014-15) M/s. Ecohomes Township LLP assessee has received ₹.18.89 Crores which is final settlement and it is not the project of the assessee rather it is the project of TATA Housing Development Company Ltd. He prayed that the order of the Assessing Officer may be sustained.
On the other hand, Ld. AR submitted that Assessee firm owned land at Bhiwandi. It entered into a joint development agreement with Tata Housing on 11.11.2010 (Page No. 141 to 150 of the Paper Book). She submitted that Total saleable area in Phase I is 18,56,799 and Phase II is 13,06,541 aggregating 31,61,340 sq.ft. Considering the fact that the Project completed during the year 18.53% and the Project was continued till A.Y.2018-19. The profit accounted from this project for A.Y. 2015-16 till 2018-19 was ₹.44.15 crores. She submitted that JDA cost of construction of Residential Housing Unit (RHU) to be borne by Tata Housing up to ₹.800 per sq.ft and Over and above ₹.800/- was to be borne by the assessee and she also submitted that Revenue sharing percentages between Tata Housing and assessee are 76% and 24% respectively. All these facts were submitted before the Ld.CIT(A) vide letter dated 18.01.2019 which is placed at Page No. 49 of the Paper Book. She submitted that during the year under consideration assessee received ₹.18,89,66,152/- from Tata Housing which was credited in P&L Account.
(A.Y: 2014-15) M/s. Ecohomes Township LLP She submitted that the assessee has declared ₹.1,70,65,643/- in the original return of income filed based on proportionate completion method as per AS-7. After filing the original return, assessee had received a certificate dated 30.03.2015 from Tata Housing according to which the work completed was less than 25%. Therefore, the assessee decided to adopt GN-2012 (copy is filed in Page No. 23 of the Paper Book). Accordingly, based on the audited financial statement of Financial Year 2014-15 the profit was reworked in accordance with GN-2012 and revised the return and filed within prescribed time on 24.09.2015 declaring loss of ₹.2,87,19,393/-. She further submitted that basis of profit working in the original and revised returns with supporting statements were submitted before the Assessing Officer which is placed in Page No. 63 to 66. She brought to our notice Para No. 4.7 of the Assessment Order and Para No. 4.2 of the appellate order and submitted that Assessing Officer has rejected the revised return of income after considering the detailed submissions and justification for revising the return of income. However, Ld.CIT(A) observed that validity of the revised return was not questioned before the Assessing Officer and since the subject matter of revision is in accordance with law Assessing Officer ought to have considered the revised return. She submitted that the Guidance Notes issued by ICAI can
(A.Y: 2014-15) M/s. Ecohomes Township LLP be relied upon and the fair and real income which is liable to tax under the Act can be arrived at after applying the Guidance Note, for that purpose she relied on the following case laws: - (i). CIT v. Punjab Stainless Steel Industries [(2014) 364 ITR 144 (SC)] (ii). CIT v. Virtual Soft Systems Ltd. [(2018) 404 ITR 409 (SC)]. (iii). Bhoomi Construction Projects ITAT (Mum)
Further she relied in the case of CIT v. Bilahari Investment Pvt. Ltd., [(2008) 299 ITR 1)] and submitted that in the case of a chit fund, the attempt of the Dept. to change the method followed by the assessee from completed contract to deferred revenue was rejected since income had been offered in the subsequent year and the exercise was revenue neutral.
She submitted that, since the single project undertaken jointly with Tata Housing was ongoing and spread across several assessment years and the working of profit/loss by the assessee in accordance with accounting standards has been accepted in the subsequent years by the Dept., the rejection of the revised return by the Assessing Officer is unwarranted. The assessee has offered to tax the aggregate sum ₹.44.15 crores from the same project in subsequent years worked out in (A.Y: 2014-15) M/s. Ecohomes Township LLP accordance with GN-2012 which has been assessed in the A.Y.2015-16 to 2018-19.
Considered the rival submissions and material placed on record, we observe from the record that assessee finalized the balance sheet by following the method of proportionate completion method as per AS-7, subsequent to finalization of the balance sheet assessee has filed original return of income by declaring the profit as per audited balance sheet. Subsequently assessee received a certificate of status/statement from TATA Housing Development Company Ltd. as per which project was completed less than 25% of the total project. As per the guidelines given in GN-2012 the revenue shall not be recognized in a project unless the stage of completion of the project reaches 25%. In order to follow GN-2012 assessee filed the revised return of income by following the method prescribed in GN-2012. In this case, in original return, assessee declared profit of ₹.1.7 crores and as per revised return of income assessee declared loss of ₹.2.87 Crores. Since assessee has revised the return of income after filing the original return of income, Assessing Officer rejected the same and further observed that assessee has to account for revenue and expenses in accordance with accounting
(A.Y: 2014-15) M/s. Ecohomes Township LLP principles and accounting standards that had been laid down under the law. If assessee has followed AS-7 and AS-9 consistently the same method, for reorganization of revenue, the same cannot be changed. Assessee rebutted before the Assessing Officer by submitting that assessee has adopted a good and recommended policy for offering revenue for the projects exceeding duration of 12 months and assessee has followed subsequently this method of accounting for declaring the revenue and accordingly followed consistently in subsequent Assessment Years.
We have considered the submissions of both the counsels and we observe that the assessee has declared its significant accounting policies in the notes forming part of accounts which for the sake of convenience we are reproducing here: - “5. All expenditures incurred by the LLP (Land and land development cost, administrative cost, selling and distribution cost and finance cost us debited to Work In Progress account. The LLP has entered into an agreement with Tata Housing Development Company Limited in which Tata Housing Development Company Limited will develop the land into housing project at their own cost and the LLP would bring in the a portion of land which is being owned. In consideration of the portion of the land being brought in by the LLP, it would received consideration @ 24% of the gross sales effected by Tata Housing Development Company Limited. The said receipts would be received by the LLP on a quarterly basis after completion of 21 days from the end of each quarter. The LLP would consider its income as and when the same is received from Tata
(A.Y: 2014-15) M/s. Ecohomes Township LLP Housing Development Company Limited and is due. The cost incurred by the LLP for development of the said portion of land along with the administrative, selling and distribution and finance overheads is transferred to Profit and Loss Account on proportionate basis against the receipts that would be received from Tata Housing Development Company Limited on sale of Flats effected by them. Further, during the year, the LLP has made a provision for cast in respect of construction of Rental Housing Units to be build by the LLP jointly with Tata Housing. Its share in the construction cost has been debited in the profit and loss account to the extent of the stage of completion of the overall project and the percentage of receipts received by the LLP. Also, provision has been made for construction of bridge connecting the said project. The construction cost in the ratio of the stage of completion of the project and the percentage of receipts received by LLP is debited to Profit & Loss Account.”
As per the above accounting policy, assessee has declared the revenue based on the joint development agreement that assessee would receive consideration @ 24% of the gross sales effected by Tata Housing Development Company Limited. The receipts would be received by the LLP on a quarterly basis after completion of 21 days from the end of each quarter. The assessee would consider its income as and when the same is received from TATA Housing Development Company Ltd. and is due. The above accounting policy based on which the assessee has drawn balance sheet which assessee never revised when it decided to change the method of accounting based on GN-2012. It is worth to understand that the accounting standards are adopted to present the financial statement reliably. Therefore, even to change the accounting standard,
(A.Y: 2014-15) M/s. Ecohomes Township LLP the assessee has to declare the impact of change in such accounting standard/policy in the financial statements. Assessee decided to change the policy based on the status of the project it has to first modify the balance sheet and declare the impact. But in this case assessee preferred only to file revised return of income. In our considered view assessee and the TATA Housing Development Company Ltd. jointly developed the project and as per the joint development agreement assessee has brought proportionate land for the project and as per the joint development agreement assessee would receive the sale consideration based on the gross sales effected by the TATA Housing Development Company Ltd., and not based on the stage of project completion. Therefore, the gross revenue and the related cost for the project will depend upon the receipt of gross consideration from the TATA Housing Development Company Ltd., not depends upon stage of completion of the project. Therefore, merely because assessee has received a certificate of statement from the TATA Housing Development Company Ltd. that the project completed is less than 25% it does not mean that assessee has to modify the method of accounting or the revenue from the project. The joint development agreement remains same and the compensation to the assessee remains same, the assessee has received 24% of the gross sales effected by TATA
(A.Y: 2014-15) M/s. Ecohomes Township LLP Housing Development Company Ltd. Therefore, the change of method proposed by the assessee in order to revise the return of income is not as per the fact brought on record.
Further the case laws relied by the assessee is proper and justified if the assessee intend to follow the revised method of accounting and accordingly revised the financial statement to back the revised return of income. In the given case assessee has only revised the return of income claiming that the method proposed to be followed is as per law but the accounting policy adopted is different and revenue recognized by the assessee based on Joint Development Agreement. The GN–2012 is applicable in the long term construction projects and it proposes how to recognize the revenue. Only when it reaches 25% of the total project then only assessee can recognize. In the given case assessee has completed less than 25%. Assessee has the option to change the accounting policy provided the financial statement has to be modified. As stated earlier the Accounting standards and guidance notes are applied to present the financial statement reliably and for consistency. Certainly not for filing return of income. In the given case assessee is an LLP and no doubt accounting standard and guidance note is applicable to the assessee, however, the revenue sharing method and revenue declared by (A.Y: 2014-15) M/s. Ecohomes Township LLP the assessee as per JDA are not based upon the project completion rather it depends upon the gross sales effected by the TATA Housing Development Company Ltd. Therefore, as per the facts on record the GN–2012 has no application to the case of the assessee.
Ld.CIT(A) observed that the spirit of guidance note and ICDS is well accepted method to recognize the revenue once stage of completion reaches or crosses 25% of the construction and Ld.CIT(A) also observed that the Assessing Officer has not pointed out any concerns in so far as the validity of revision of the return of income is concerned. In our considered view if the return of income is revised within the prescribed time it does not mean that revised return of income has to be accepted without there being proper reasons for the revision and its acceptability. In the given case assessee has not revised the balance sheet and Profit and Loss Account based on the change of method of accounting adopted by the assessee but only filed the revised return of income. It is immaterial whether assessee followed the revised method of account in the subsequent assessment year, what is relevant is whether the assessee has followed the proper method of accounting to declare the revenue for this assessment year. In this assessment year assessee has revised return of income just because JV partner has certified that the project completed
(A.Y: 2014-15) M/s. Ecohomes Township LLP is less than 25% but it has to follow the revenue sharing method prescribed in the joint development agreement based upon which the financial statement was finalized/prepared. As discussed above the consideration received by the assessee is not based on the stage of completion of the project. It is only depends upon the gross sales effected by the TATA Housing Development Company Ltd. Therefore, we are in agreement with the findings of the Assessing Officer and we sustain the addition proposed by the Assessing Officer. Accordingly, the appeal filed by the Revenue is allowed.
In the result, appeal filed by the Revenue is allowed.
Order pronounced on 07.02.2022 as per Rule 34(4) of ITAT Rules by placing the pronouncement list in the notice board.