Without being supported by the various positive/unfavourable judgments as above, it is necessary to independently analyze the particular facts and circumstances of each case and to be sufficiently careful in the development of the development agreement and the planning of general cases, so that the evidence is given priority, without the courts leaving to the content of the parties` formal/actual intentions. When the landowner transfers the land as a commercial portfolio under the JDA, instead of certain % of the built-up area (housing, stores, etc.) that must be purchased from the developer and are prepared to sell the same thing as a commercial stock in the future, the applicability of the relevant accounting standards/ICDS must be carefully considered, in addition to the guarantees described above. The stock held in the trade can only be considered transferred during the year in which the notator executed the result of the sale by transferring the stock to the trade, and not if the notator gave the owner a common development stock. As has already been argued in the above cases, the provisions of Section 2, paragraph 47, point v) would apply only to the asset and not to the asset in the trading. In this case, in addition to non-compliance with various JDA clauses, ITAT also ignored the action of the company assessing the conversion of capital into stock into trade in previous valuation years and treated the transfer only as a capital asset. According to Section 45 (5A), the effective date of asset transfer is not relevant to the calculation of capital gains. In this case, the author believes that the holding period should also be calculated by referring to the date on which the capital gain is taxable. Therefore, indexation must be considered accordingly until the date of the closing certificate. 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. Well, based on these facts, if the entry into DA/The surrender of property ownership under DA is the sale of shares in trading to make the expert liable for the return on capital tax under page 45 (2)? 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.
A new section 194IC has been inserted, in which the withholding tax deduction (TDS) is applicable up to 10% at any amount, in return for the individual resident landowner/HUF, in accordance with the agreement covered in Section 45(5A). In addition, there is no threshold, i.e. it applies independently of the payment.