In the case under consideration, the issue is regarding applicability of section 43CA. Section 43CA speaks of 'transfer of asset other than capital asset'. This term is not defined in the Act. Further section 2(47) deals with transfer of capital asset. Therefore, reliance can be placed on section 54 and 53A of TOPA. Sec 54 speaks of registration whereas section 53A speaks of possession in case where registration is pending. In the case under consideration both section 54 and 53A will attract only in or after Sept 13, therefore one can say that even though agreement has been entered into prior to April 2013, however, transfer takes place when either the agreement is registered or possession has been given.
Once this conclusion has been arrived at, section 43CA(1) will come into picture, the Stamp Duty value needs to be taken into consideration for determining the profits. For the purpose of Stamp Duty, one may rely upon 43CA(3) and can take the stamp duty value as on the date of the agreement. However, in my view it will be false to conclude that 43CA(3) can restrict the application of section 43CA(1) in so far as, since the agreement is entered into prior to April 2013.
One more controversy is that, whether 43CA is applicable on transfer of asset or on booking of profits. Since, one following Project Completion Method may enter into agreement and register the same prior to April 2013 in which case transfer gets completed prior to that date. However, it may book profit only later when the project is completed which may take place after April 2013. In the case under consideration, neither the transfer has taken place nor profits on the same has been booked prior to April 2013. So, according to me, section 43CA should get attracted.
Once this conclusion has been arrived at, section 43CA(1) will come into picture, the Stamp Duty value needs to be taken into consideration for determining the profits. For the purpose of Stamp Duty, one may rely upon 43CA(3) and can take the stamp duty value as on the date of the agreement. However, in my view it will be false to conclude that 43CA(3) can restrict the application of section 43CA(1) in so far as, since the agreement is entered into prior to April 2013.
One more controversy is that, whether 43CA is applicable on transfer of asset or on booking of profits. Since, one following Project Completion Method may enter into agreement and register the same prior to April 2013 in which case transfer gets completed prior to that date. However, it may book profit only later when the project is completed which may take place after April 2013. In the case under consideration, neither the transfer has taken place nor profits on the same has been booked prior to April 2013. So, according to me, section 43CA should get attracted.