Where do provisions of s.50D stand

[Pritesh Jain]

1.   In the context of entering into JDA if we are unable to determine the exact / approximate amount of 'Revenue' to be received vide JDA can it be said that consideration is "not ascertainable or cannot be determined"? Further will the consideration still be "not ascertainable or cannot be determined" in case of JDA's having conditions such as
(i)   Cancellation of JDA due to non-performance / Short-performance of Developer
(ii)   Substitution of Revenue to Area sharing Model, and / or Substitution of Area sharing Model to Revenue Model, due to failure to sell flats by Builder after construction or any other reason, irrespective of the fact that the estimated built-up area / amount to be received from the project is derivable due to future events like plan sanction, Launch price, any other reason etc and not @ time of entering into of JDA

2.   Will the provisions of this section survive  (i.e. can it be said that consideration is not determinate / not ascertainable) on account of the following future event(s), which may / may not take place in the year in which JDA is entered into
(a)   Getting Approved Plan sanction
(b)   Getting Modified Plan sanction
(c)   Getting Final Plan sanction
(d)   Fixing of prices for each unit of apartment
(e)   Built-up area is ready
(f)   Agreement is entered into with flat-owners
(g)   Actual amount is received
(h)   Final conveyance is made in favour of flat owners

3.   How will the Fair Market Value of the asset to be transferred be derived under the act, on the date of entering into JDA?

4.   What are the implications under the act if the amount actually accruing / to be received on a future date is not equal to the Fair market value of land transferred, considering the following cases

(i)   Actual consideration received / accruing as the result of transfer is lesser than the FMV of asset transferred / asset received

(ii)   Actual consideration received / accruing as the result of transfer is greater than the FMV of asset transferred / asset received

In case (i) can the assessees challenge such difference and pay tax only on the actual amount received or accrued. Ignoring the fiction created by law deeming FMV as consideration accrued or receiving as a result of transfer. If so under which provisions. i.e. Defeating the very purpose of the section

In case (ii) can the Department challenge such difference and levy tax only on the actual amount received or accrued. Ignoring the fiction created by law deeming FMV as consideration accrued or receiving as a result of transfer. If so under which provisions. i.e. Defeating the very purpose of the section

Is this position the same under the following provisions. If so considering (i) and (ii), what is the current status in light of following provisions
•   4th Proviso to Sec. 48
•   Section 45(1A)
•   Section 45(2)
•   Section 45(3)
•   Section 45(4)
•   Section 46(2)

5.   What will be the position, if any retrospective / clarificatory amendments / explanations are being made incorporating cases (i) and / or (ii) referred to in 4?