Joint Development Agreement Under Income Tax

Schedule-II`s Entry 5 (b) explanatory note made it mandatory to have the meaning of “competent authority” that can issue a graduation certificate or a professional certificate. It provides that, in cases where the certificate is not issued by a government authority, the certificate issued by a chartered architect or engineer or a certified surveyor must be considered a certificate of completion and must therefore take into account the date of issuance of the certificate. It is therefore a specific question of the state/city council/local authority and each state/UT has its own law for issuing such a certificate. But in the real world, it takes years to obtain the certification of completion of the government agency, even if the actual completion of the project goes back a long time. At this time, the apartments are occupied by owners and inhabited by them. In such a situation, without state testimony, it becomes really difficult to determine the exact date on which the project was completed or occupied first. As a general rule, the developer only issues property letters after receiving a certificate of completion from the architect/engineer. Therefore, the date of the “first occupation” will only be after the date of issuance of the “year-end certificate.” This will be the date of the issuance of the “year-end certificate” which will be the decisive date for determining the tax capacity of the units. If it is available or issued by the government (where applicable), then there is no dispute. But the difficulty comes from determining the first real occupation. Nor should we ignore the date of possession of the surrender as the date of the first occupation. The Hon`ble Delhi High Court in the case of J.K.

INDUSTRIES LIMITED VERSUS MOHAN INVESTMENTS ( PROPERTIES PRIVATE LIMITED LIMITED (1991 (4) TMI 458 – DELHI HIGH COURT) found that if the “first occupation” takes place before the issuance of the “certificate of completion”, especially when such a certificate is to be issued by the government authority. In such cases, the date of the first occupation is the reference date, even if the occupation is granted in violation of other laws. The debate above shows that the two statutes are very similar in that they have different contentious issues. Each law has its own people. Under the Income Tax Act, retroactive changes from the past were a distinguishing feature. However, the GST act seems to have followed the same path. The GST law has its strange problem of solving all this only through notifications. In addition, opposing ARAs under the GST also complicate life. On the other hand, income tax law has also left some questions unanswered in newly inserted Section 45 (5A). In such a situation, evaluators and experts face a great dilemma as to what they propose and who to follow. The author believes that if a government communication is manifestly contrary to existing legal principles or contrary to the provisions of the law, only the provision of the law can be safely complied with. But the difficulty arises in a situation where it is not possible to follow such offending communications.

This will lead to litigation. The author firmly believes that a strong judicial system in our country will certainly deal with these vires-challenges. 45 (5A). Notwithstanding the elements in subsection 1, where the capital gain of an appraiser, who is an individual or an undivided Hindu family, from the transfer of an asset, country or building or both, as part of a given agreement, is attributable to the capital income of the previous year in which the project completion certificate is issued by the competent authority for all or part of the project; for the purposes of Section 48, the value of the stamp tax which, on the date of the issuance of the certificate, is considered a property or property, or both in the project, plus the consideration eventually received, as the full value of the consideration it receives or which it is entitled to collect as a result of the transfer of the asset: the regd exported by Assessee.

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