Arvind Rao | Aug 27, 2016 09:56 PM IST | Business Standard

Flexible payment schemes offered for under-construction property can lead to tax issues when the owner sells it. It’s not clear in the Income-Tax Act whether the seller should take the indexation benefit from the date of getting possession of the house or if it can be calculated based on each instalment paid after registration.

The flexible payment started with 80:20 scheme, where a buyer pays 80 per cent of the home value upfront either from his own funds or through a loan. The remaining is paid on possession. At present, there are many complicated variants of it such as 5:10:30:25:20:10 to help buyers to pay for a house without taking a home loan. In most cases, the agreement for the flat is registered on payment of one or two instalments that establishes the buyer as a legitimate owner and prevents the developer from selling the house to another buyer when the rates go up.

But when the owner sells the property bought through the flexible payment scheme, calculation of capital gains tax can get complicated if a person holds the property for more than three years, which makes it a long-term capital asset.

The Income Tax Act says that in case of computation of long-term capital gains, the tax payer can index the cost of acquisition of the property since the date of acquisition to the date on which it has been sold.

Indexation is done with the help of a Cost Inflation Index, which is notified every year by the tax authorities. The first year when such an index was notified was in 1981-82 at a base value of 100 and the index notified for 2016-17 is 1,125. If an individual purchases a house for Rs 20 lakh and sells it at Rs 50 lakh, he is liable to pay capital gains tax on the profit made, which is Rs 30 lakh in the example. But the buyer can reduce this liability by using Cost Inflation Index. The longer one holds the property; the lower would be the tax outgo.

The complication

The correct method of calculating capital gains came up before the Mumbai Income Tax Tribunal, which was pronounced in July 2016. The taxpayer had declared long term capital gains on sale of property at Rs 29,02,270 after considering the indexation benefit of Rs 19,93,232.

The tax payer had become a member of a housing society in 1993 and was later allotted a flat in 1994. The housing society constructed and allotted flats to all the members. The taxpayer claimed that he had been paying proportionate cost of construction on various occasions from 1994 to 2006, as and when called upon by the society. While calculating the indexed cost of acquisition, the tax payer adopted the cost inflation index, corresponding to each year of payment.

The tax officer however held a different view. He argued that the property tax assessment bill issued by the municipal corporation showed that the said flat was assessed to property tax from January 1, 2007 and therefore the date of acquisition of the property was to be taken as January 1, 2007.

Accordingly, the tax officer’s cost indexation calculation was determined by adopting the said date, thereby increasing the tax burden on the seller. The officer calculated the taxpayer’s additional liability at Rs 4,71,074. The officer added this amount to the tax payer’s income. At the first level of appeal, the appellate authority confirmed the tax officer’s view and decided the case against the taxpayer.

Tribunal favours the taxpayer

At the Tribunal, the tax payer put forth his case that the benefit of indexation of cost should be granted to him right from 1994 when he started making payments and not from January 1, 2007 when the house was first subjected to property assessment.

The tax officer argued that a property can be said to be acquired only after its possession is handed over to the buyer, and therefore adoption of date as the one he considered is justified.

On considering the merits of the case, the tribunal observed that the society in question was allotted land by Maharashtra Housing and Development Authority or Mhada and the conveyance deed was made in favour of the society in 1994. Being a member of the society, the tax payer was allotted a flat and was issued the share certificate in 1994. It was also observed that an allotment letter for the specific flat was also issued to the tax payer in 1995.

The Tribunal was of the opinion that it is not necessary that the taxpayer must become an owner by way of conveyance deed for the purpose of computing capital gains. As the tax payer had acquired the right to obtain a specific flat in the society in 1994 itself, the indexation of the cost of acquisition of the flat has to be granted with respect to the initial date of 1994, subject to the fact that the indexation be applied to each instalment as and when the same was paid. The case, therefore, was decided in the favour of the tax payer.

Implications

The case provides an extremely useful tax planning measure for those who plan to purchase an under-construction house. They must register the property as soon as possible and become the legal owners. If they sell the property after holding it for more than three years after completion, they will get the indexation benefit even for the instalments paid.

A registered agreement provides definitive details of the property such as flat number, floor, size of the flat, etc. On the contrary, merely having allotment letter, which do not define the flat, will not be helpful. In the past taxpayers with allotment letters did not get any relief in similar cases.

The case in question had stronger facts: A society already existed and the taxpayer held share certificates. These principles should equally apply to buyers in under-construction projects who would become society members post completion.

• TAX RELIEF
  Calculating capital gains on property bought in flexible payments scheme can be complicated when the owner sells it
• Income-Tax Act lacks clarity on whether the seller can calculate capital gains from the date of property registration or from the date of possession
• Mumbai I-T Tribunal has ruled that date of possession is not necessary
• Buyers should therefore register property as early as possible, which establishes them as legal owners
• Buyers with allotment letters, which do not define the flat, have failed to get relief from tax authorities in the past

The writer is a chartered accountant and financial planner

Source: http://goo.gl/aEWUPj