The income received by the owner of the land, either as a percentage of the area built in built real estate, or in monetary return, is taxable under the capital gain of head in his hands. Two important concepts related to capital gains are «capital» and «transfer». To generate taxable capital gains, there must be a «capital value», a transfer of capital, and any profit or profit results from such a transfer. F. Section 54/54F benefit from long-term capital gains resulting from the transfer of land/buildings under JDA, applicable to JDAs registered on or after 1-4-2017. Transfer In accordance with Article 45 of the Income Tax Act, the capital gain is taxable in the year in which the «transfer» takes place, except in certain cases. According to the judgments of several High Courts, the point at which capital gains are considered to be striking depends exclusively on the terms of the joint development agreement. Liability for the deduction of TDS Therefore, a new section 194-IC has also been added in order to deduct the Finance Act until 2017 in order to deduct TDS on the monetary consideration. This section terminates the provisions of Section 194-IA of the Act, which provides for the deduction of TDS @ 1% for the transfer of real estate if the consideration rs is greater than 50 Lakhs. According to Section 194-IC, if, under a joint development agreement, a developer pays an amount to the owner of the land in addition to the share of the project, that developer must deduct TDS @ 10% of that payment. In order to minimise the true harshness with which the landowner may be faced in paying capital gains tax in the year of the transfer, it is proposed to insert in section 45 a new subsection (5A) to provide that, in the case of a single unmeversed Hindu family or family that has entered into a special agreement on the development of a project, capital gains 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, to income tax. Maintaining legal ownership with the owners who will be transferred to the Developer at an early date does not affect the applicability of Section 2(47)(v) in accordance with the above grounds. The buyer was indisputably willing to fulfill his part of the contract and, under these conditions, we must assume that there is a u/s transfer u/s 2 (47) (v) of the law.
Therefore, the possession and control of the land is already on the assignee and the offending development contract has not been terminated properly and is still in service, it must be decided that there is a transfer u / s 2 (47) (v) of the law. We must see the real intention of the parties. According to the known canon of document construction, intention generally prevails over the obvious and ordinary meaning of the words used and that such construction, based on the word in a document, best corresponds to the intention of the parties. Therefore, to be considered a «transfer» of an asset under Section 2(47)(v), there must be a «contract» that can be legally enforced under Section 53A of the Transfer of Ownership Act. In the case of a developer, the type of income would be the income of the companies. The property would represent for him a stock in the trade. Overall, its income consists of the sales revenue it receives from the purchasers of the land being exploited and the costs would include expenses related to the development of the land. In addition, the mystery of the «transfer» of assets to the JDA, which forced Parliament to introduce Section 45 (5A), will persist in the following circumstances: proposals relating to Article 22 of the Finance Act 2017 – § 45 (5A) – Special provision for the calculation of capital gains in the event of a Joint Development Agreement (JDA) – Some concerns need to be raised and extended Another interesting aspect is: that the Supreme Court distinguishes between the transfer of ownership for limited development purposes and the partial execution of an agreement to sell real estate. . . .