Joint Development Agreement – If Developer has performed or willing to perform his part of the contract, then the transaction would qualify as ‘transfer’

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1. s kumar says:

   Namaste,
   It is interesting point to be noted.
   1. Neither the revenue officials nor the lower It inquiry officer fix any hearing in regard to the land use of sy no163, the revenue records clearly mention that the land use is agricultural, the assess e was cultivating the lands, the village records in regard to the land use are questionable, since neither the village revenue officer never inspected the lands to record the land use for many years, but have been entering village records without inspecting the lands, the AO failed to inquire through the inquiry of the Village revenue officer, hence relying on the pahanis was not appropriate since the facts are contrary. How can the lands be treated as non agricultural when all the abutting lands are treated agriculture, as per GO.111 of AP govt the swhole village and the particular land is also kept in restriction and should be used only for agriculture only, the Govt has never permitted/converted the lands from agriculture status, so it shows how the AO and CIT have failed to answer these questions.
   2. In regards to the development agreement an interesting aspect the AO, CIT have failed to observe that the lands in the whole village,is notified in GO.111 of govt of AP, as restricted for drinking water catchment areas, hence the developer ventured to do agreement , and took upon them to get the necessary clearances within 1 years with which the development failed to come in force, there is failure in possibility to either get govt clearances or there to sanctity of the development agreement, both the AO and the CIT have failed to observe that the development agreement will come into force upon obtaining the permission from the statutory restrictions. The development agreement has been signed on impossibilities and prohibitive in law, hence the whole issue is questionable ,and the agencies have failed to look into these fundamental facts.
   3. It is a long written order but it is strange to note that at the very out set both the parties agreed that the development agreement was non performable,and speculative to get any sanction hence the developer asked for a time of 1 year(6Mo+6Mo) upon any relaxation from the appropriate authority only the development will into force, hence the development agreement failed to take off.
   4. In regard to the posse ion is only subjective upon the developer to get the necessary clearances from the govt, the Assamese is still having the posseion of the said lands, all these aspects both the AO and the tribunal failed to take note of.
   5.An example can be created to study that a developer takes a private land abutting to the Defense military establisment, the developer crates a confidence to get clearances from govt with all his lobbies and contacts within say 1 year. It is clearly understood that the land owner had failed to obtain any govt relaxations and trusts the developer.
   Naturally the developer fails like in the case of Adarsh scam to get the govt machinary twist and bend the rules.Hence the Developer and the agreement failed, to take off. Where is the question of any development agreement in a prohibited/restriced area, how could both the AO and CIT to note these fundamental performances.

     Reply

   October 5, 2012 at 12:43 pm
2. John paul says:

   Yes the joint development agreement amounts to transfer.

     Reply

   July 20, 2012 at 8:54 pm
3. arjun says:

   Case hear by Tribunal on Capital gains taxation for development agreements.

   Regards, Vijay

     Reply

   April 3, 2012 at 4:23 pm