Taxation Of Real Estate Development Agreements

In order to minimize the true harshness that the landowner may have to face when paying capital gains tax during the transfer year, it is proposed that a new subsection (5A) be inserted in Section 45 to provide that, in the case of an evaluator who is an individual or Hindu sharing family that enters into a specific agreement on the development of a project, capital gains are taxable as income from the previous year in which the certificate of completion is issued by the competent authority for all or part of the project. The activity of the developer is the adventure in the nature of the trade and for the landowner, it is a simple handover of the land to the developer. Section 45, paragraph 2, is not applicable to the evaluator`s case. The applicable section is read under Section 2 (47)v) of Section 53A of the Transfer of Ownership Act, under which the transfer takes place in the year in which the JDA was registered and where the property rights and development activities to be carried out by the developer must be carried out. Under Section 2 (47) of the Act, the transfer provides for the possibility of taking or retaining possession of land in partial performance of a contract within the meaning of Section 53A of the Transfer of Ownership Act. In the real estate sector, the model of the Development Agreement [DA] or the Joint Development Agreement [JDA] has developed as a popular agreement in which landowners and developers enter into a common development agreement for the development of real estate. As a general rule, under this type of agreement, instead of landowners who abandon their land in favour of the developer by general proxy (GPA), to develop/build the same thing at the developer`s expense and know-how, a financial consideration or not in the form of a lump sum consideration or a certain percentage of the proceeds of the future sale of the project to be developed, or even a certain percentage of the built-up area in the future project or a mixture of it Sometimes the developer would give the landowner a lump sum in the form of a refundable deposit upon JDA`s entry.