Can’t tax redevelopment payment to flat owner

ITAT: Can’t tax redevelopment payment to flat owner
Compensation received by a flat owner of a cooperative housing society , from a redeveloper cannot be taxed in his hands, according to a recent order of the Income-tax Appellate Tribunal’s (ITAT) Mumbai bench.

The ITAT noted this compensation was towards the hardship which the flat owner would face owing to the redevelopment. It held such compensation to be in the nature of a “capital receipt“, which “is outside the scope of income that can be chargeable to tax“. In other words, such compensation cannot be subject to income-tax.

This landmark order, whi ch relates to the I-T implications for a flat owner, will help taxpayers facing similar litigation. Management committees of co-operative societies, especially in Mumbai, will also find it easier to persuade their members (flat owners) to agree to undertake redevelopment, as I-T-related anxieties will ease. However, the ITAT held that another sum of money rece ived by the flat owner for payment of rentals while the redevelopment work was ongoing would not be taxed only to the extent it was actually utilised for rent payments. Any surplus would be treated as `income from other sources’.It would be added to the taxable income of the flat owner and the applicable I-T slab rate would apply (for income above Rs 10 lakh, the current rate is 30% plus surcharge and cess).

Jitendra Kumar Soneja had received a sum of Rs 22 lakh as compensation from the redeveloper and also another sum of Rs 8.55 lakh for paying rent as he had to vacate his flat while the redevelopment work was ongoing. Both these amounts were credited to his bank account.

As he was unable to satisfactorily explain the reason for not disclosing this sum of Rs 30.55 lakh in his I-T returns for the concerned financial year 2006-07, the I-T officer treated it as `undisclosed income’ liable to I-T. Having lost the case at the Commissioner of I-T (Ap peals) level, Soneja appealed to the ITAT.

Soneja’s counsel submitted to the ITAT that Rs 22 lakh was received as compensation owing to the hardship caused to the taxpayer on account of redevelopment. It was received as a corpus fund, which was a capital receipt and was not taxable. The ITAT took note of this contention and the fact that the compensation relates to a flat, which is a capital asset.

The ITAT did not agree with the views of the I-T department that such compensation was the flatowner’s share in the profits earned by the redeveloper. “One has to see what is the nature of income in the hands of the receiver and not the payer (redeveloper),“ ITAT held.

Going a step further, ITAT stated that while the compensation was a capital receipt and not taxable, it would be reduced from the cost of acquisition of the flat. This would have a tax impact, in case the flat (or rather the redeveloped flat) was subsequently sold.

Capital gains, on which capital gains tax is levied, is the difference between the sale price and the cost of acquisition (or purchase price).If the cost of acquisition is lower, it would result in a higher capital gains base and thus a higher incidence of capital gains tax.

As Soneji had incurred a rent expenditure of only Rs 6.80 lakh as against Rs 8.55 lakh received for this purpose, the balance of Rs 1.75 lakh was held liable to I-T.

Lubna Kably Mumbai:

Redevelopment Alert # 2. Well-Drafted Agreements Don’t Protect Flat Owners

29th May, 2016, Mumbai: If the Development Agreement is well drafted, then flat-owners are safe, right? Well-drafted contract documents protect the flat-owners if the builders don’t honour the contract, right? NO, WRONG! A well-drafted agreement doesn’t give you automatic protection; it gives you the LEGAL RIGHT TO FIGHT to dismiss or penalize a non-performing builder… but you will definitely have to wage a legal battle, and your society will be your enemy, not your supporter. Why?

 

REASON NO. 1: NO SUO MOTU ENFORCEMENT. Law enforcement agencies and courts are not required to actsuo motu to defend your individual legal rights. Therefore, you have to go to great lengths to convince enforcement agencies and/or courts that (a) you have a certain right under the contractual agreement (b) your right has been violated and (c) you (and not just your society) are a party to the contract. Each of these points have to be proved by you, otherwise your complaint is summarily dismissed. Enforcement agencies and courts are not sympathetic to you; at best, they are indifferent, and at worst, they are biased in favour of builders.

 

REASON NO. 2: FLAT OWNER IS NOT A PARTY IN DEVELOPMENT AGREEMENT. You, the flat-owner, are not the “society” within the meaning of the law. Only the society i.e. the managing committee and more particularly, the office-bearers, have authority to enforce the contract signed with the builder, because the society has signed the contract with the builder.

 

REASON NO. 3: SOCIETY IS THE LEGAL OWNER OF YOUR FLAT. The law does not recognize you as the “owner” of your own flat; the cooperative housing society is the collective owner of the entire building and compound, and you are only enjoying your flat by virtue of being a member. Therefore, in the eyes of the law, you generally have no “right” to go to court for the enforcement of a contract between the society and the builder.

 

REASON NO. 4: POLITICS IS NECESSARY. You can only derive your “legal right” with the support of the society. Therefore, you should earn a “political right” to speak and argue. If you are alone or in a tiny minority, or if you are easily silenced, then you have no political right, even if what you say is 100% true. To get justice, you must gather support from other members. If the society’s office-bearers are unwilling to impose penalties, invoke the bank guarantee, or cancel the builder’s contract, then you, the ordinary members, are mostly powerless. Getting the builder dismissed by the society is a political battle rather than just a judicial battle. This battle has to be fought in general-body meetings, and in the minds and hearts of the office-bearers and general body members.

 

REASON NO. 5: REDEVELOPMENT IS INHERENTLY UNSAFE. A housing society entering redevelopment is like an out-of-control passenger bus with an alcholic driver drinking vodka. Even if everything is perfect at the start of the journey, things can go rapidly downhill at any turn. As a passenger, you may clearly see things going wrong, but you are not in a position to turn the steering wheel or press the brakes.

 

THE CASE OF KUNDAN APARTMENT, JOGESHWARI EAST

 

There are many lessons to be learned from the experience of Kundan Apartment, a small building with 15 members in Jogeshwari East, stuck since 2010 due to non-performance of Tanna Developers. Tanna Developers (or Tanna Realtors as per this website) is a partnership firm headed by managing partner Pathik Tanna and represented by Chartered Accountant Jignesh Tanna.

 

Without verification of Tanna Developers’ credentials or following 79A Guidelines, the society appointed Tanna Developers in 2010. Tanna applied to MCGM’s Building Proposal Department and got the IOD (Intimation Of Disapproval) in October 2010. And after that, the builder just froze. No actions whatsoever. Zero. So, five of the 15 flat owners, in view of the builders’ continuous non-performance over six years, want to oust them. 

 

Redevelopment is inherently painful, like getting your teeth pulled without anesthesia!

 

 

CLAUSES FAVOURABLE TO FLAT-OWNERS

 

1) Kundan Apartment’ LOI says: “redevelopment work shall be completed within 18 months from the date of IOD/Commencement Certificate. On failure the Letter Of Intent shall stand withdrawn and the developer shall not be entitled to claim anything from the society.” Another clause says, “TDR shall be purchased in the name of the society, and upon termination of the Development Agreement/MOU, the said TDR shall be the property of the society”. Read para h of LOI:

 

2) Stamped and registered DA upholds these clauses. DA confirms that terms and conditions are “more particularly recorded in the Letter Of Intent and the Memorandum Of Understanding”. Read para Y of DA .

 

3) DA says that “Society… will hand over vacant and peaceful possession of all their respective tenements to the developers… within 15 days from the date of Commencement Certificate.” Read para 3A of DA.

 

4) Bank guarantee mentioned in DA is Rs 50 lakhs – less than market price of even one flat. DA says that bank guarantee can be invoked by society “on demand without demur and enforceable on the certificate of the said society to the concerned bankers that the developers have not completed the construction within the total period of 24 months…” Read para 23 of DA.

 

WHY THIS IS GOOD FOR FLAT-OWNERS

 

a) The society has the upper hand and the contract is subject to a tight deadline. The clauses clarify that Tanna may suffer major losses due to dismissal, forfeiting the cost of TDR, permissions, sanctioned plans, incomplete construction etc. Tanna will not be entitled to claim anything from the society.

 

b) The 18-month deadline for redevelopment is repeatedly stressed. The bank guarantee can be revoked if the builder does not complete the building in 24 months.

 

c) DA specifies that society members will give vacant possession only after the Commencement Certificate (CC) is received.So flat owners are still in possession of their own houses – a huge relief.

 

LOOPHOLES FAVOURING THE BUILDER

 

a) Development Agreement defines the deadline as 18 months from the date of “IOD-CC”. The loophole is that IOD-CC is not a single certificate of permission, IOD (Intimation Of Disapproval) and CC (Commencement Certificate) are two separate permissions. The builder is required to fulfill dozens of conditions specified in the IOD in order to get CC. Tanna Developers, who failed to perform the necessary actions to procure the commencement certificate, can argue that because they did not get CC, the 18-month clock has not started ticking till date.

Counter-argument no. 1: Whose duty is it to fulfill the IOD conditions and procure the CC? The builder’s. The builders’ non-performance has resulted in their not getting CC… and therefore, they cannot use non-arrival of CC as an excuse.

Counter-argument no. 2: The validity period of the IOD is two years. Tanna Developers was supposed to get CC before the IOD expired on 18th October 2012. He did not get CC, but if we take the last date of IOD validity, and count 18 months from there, the deadline for completing the redevelopment would expires in April 2014. Since they hadn’t even commenced redevelopment on that date, they breached the contract, and LOI automatically stands withdrawn.

But only five of the society’s 15 members are speaking up against the builders. As a whole, the society has no political will to hold the builders accountable!

 

b) The society cannot invoke the bank guarantee because Tanna Developers have not furnished the bank guarantee till date, six years after signing the agreement. Far from telling him to furnish the amount, the managing committee held a meeting in 2015 where it agreed to the builder’s demand to reduce the bank guarantee to Rs 21 lakhs! Unless the society i.e. managing committee, certifies that the builder has failed to meet contractual deadlines, nobody else has the full legal authority to say so. Thus, the Tanna Developers may go on delaying with the managing committee’s blessings!

 

BUILDER HAS HIJACKED SOCIETY’S RECORDS!

 

Kundan Apartment has a huge problem. With the connivance of the elected managing committee, the builder has seized control of the society’s entire records from 1978 till date — bank account books, minutes books, share register, nomination register etc, society registration certificate, bye-laws… the whole bundle! Therefore, unable to submit the society’s records for inspection, the managing committee was dismissed by the Deputy Registrar of Cooperation in February 2015, and an administrator was appointed. The dismissed managing committee still did not hand over its documents to the administrator. In July 2015, the Deputy Registrar passed orders for search-and-seizure of the documents from the managing committee members, and requested police force for this. In October, the managing committee handed over a tiny fraction of the records and the administrator wrote to Jogeshwari Police Station that their assistance was not required. Then the Deputy Registrar developed amnesia. In response to correspondence from the dissenting society members, he started asking, “What documents? In whose custody?”

 

Three of the five members opposing the builder were briefly appointed by the Deputy Registrar as the Authorized Committee. Despite their best efforts, the missing papers did not emerge. Within three months, elections were ordered to be held, and the former managing committee is back in the driver’s saddle on current date. So, without the society’s essential records, how to go to court? The society and its members are handicapped.

 

CURRENT STATUS

 

While they were in the Authorized Committee, the dissenting members served Tanna Developers a Legal Notice that pointed out that as per the clauses of the DA, LOI etc, their contract automatically lapsed in April 2014, upon expiry of the maximum allowable period within which the construction was to be completed. It can of course be argued that the Authorized Committee is not the elected managing committee of the society, and cannot serve such a notice. But it can be argued on the other side that the words “On failure, the Letter Of Intent stand withdrawn and the Developer shall not be entitled to claim anything from Society” have an automatic effect, and therefore, no fresh resolution or even legal notice of the society was needed to give effect to these words.

 

At present, neither side is talking to the other. In this atmosphere of mistrust and vengefulness, the residents of Kundan Apartment are anxiously awaiting another monsoon that will drench its cracked RCC beams, columns and plaster. The elected managing committee, which covers the structure with tarpaulin in some monsoons, seems inclined to allow the building to get thoroughly soaked this year, as if to say, “If you don’t want Tanna Developers, we can all go to hell”.

 

The sad story of Kundan Apartment will not end until the society pulls itself from the grip of this builder, unites its 15 members and calls for fresh tenders from its redevelopment.

 

ISSUED IN PUBLIC INTEREST

By Krishnaraj Rao

9821588114

krish.kkphoto@gmail.com


Legal Awareness Seminar – Redevelopment, Tenanted Properties & Deemed Conveyance

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Implications of VAT/Service Tax on Redevelopment

Whether all receipts in the hands of the Society/ its individual members shall be net of Vat and Service Tax Responsibility/ liability of Society/Its Members towards the same for services rendered to it by professionals/consultants.

Ans. As Society is not providing any Services to the Developer, the Society is not liable to pay Service Tax or VAT on any of the payments receipt by the Society in the form of reimbursements or Corpus Money or Compensations, etc. If the Society is making any payment of Fees to the Professionals or Contractors, then the Society is liable to pay Service Tax @10.3% to the Professionals and Service Tax or Vat to Contractors on such a payment. The professionals and the Contractors would in turn pay the same to the respective Central Government or State Government as applicable.

Responsibility/ Liability towards stamp duty.
Responsibility/Liability of the Society/its individual members towards Stamp Duty, if any, in transition from surrender of existing premises to the Develop to the occupation and registration of the Redevelopedpremises
Ans. Normally, in the cases of Redevelopment, the Stamp Duty and the Registration Charges on surrender of the existing premises to the Developer for the purpose of Redevelopment would be paid by the Developer. Whereas, when the Individual Members receives the Redeveloped Premises from the Developer, he is liable to pay Stamp Duty and Registration Charges on the same. The Stamp Duty payable would be on the cost of construction of the present area of the Premises and on the market value for the extra area received as per the Ready Reckoner Value published by the Government of Maharashtra every year on 1st January.

Click Here for the original story from Accommodation Times


Income Tax Exemption on Tenants under Redevelopment

Where a tenant is provided accommodation in the new building on ownership basis, the value of accommodation for the purpose of determining the capital gains shall be the fair market value of the tenancy rights transferred and the cost of acquisition being ‘Nil’, the entire value will be subject to capital gains. However, since the tenancy rights are exchanged for the ownership of a flat, it can be considered as purchase of a residential house by investing the full value of consideration received on surrender of tenancy rights and the tenant would be entitled to claim the reinvestment benefit available under section 54F, subject to compliance of the certain conditions stipulated therein. However, serious difficulties may arise where new premises received in lieu of surrender of tenanted premises are commercial premises, since in such cases the tenant shall not be able to claim the reinvestment benefit available under section 54F as the reinvestment is in a property, other than a residential house. Hence, extreme care should be taken while drafting the agreements so as to ensure that the tenant does not end paying huge capital gains tax on the basis of market value of the tenanted premises upon surrender of tenanted premises for the commercial premises. In such a situation, it is advisable for the tenant to pay nominal consideration to the landlord i.e 120 month’s rent for acquiring ownership rights in the commercial premises.

Click Here for the detailed explanation

Latest Judgements on Income Tax related matters in Redevelopment process


Tenants of buildings under redevelopment are consumers

CONSUMER AS KING – Tenants of buildings under redevelopment are consumers

More and more old and dilapidated buildings are going in for redevelopment. The builder makes money by selling flats to new purchasers, but considers it onerous to provide accommodation to the existing tenants without charging money . Since free services are excluded from the purview of the Consumer Protection Act, would the tenants be entitled to file a consumer complaint for deficiency in service against a builder?

The national commission allowed Jagdishbhai’s case, holding that he was a consumer, entitled to file a complaint against the builder for deficiency in service.

Jehangir B Gai

Click Here for full details of the case


Buildings cannot be legally demolished without a commencement certificate

Under the current redevelopment scheme, buildings cannot be legally demolished without a commencement certificate. Dated: May 19, 2014.

http://indianexpress.com/article/cities/mumbai/civic-body-suggests-new-conditions-for-redevelopment/

TO prevent loss of life and to encourage residents of privately-owned highly dilapidated structures to vacate their dangerous premises, the BMC, in its proposed guidelines to the Bombay High Court (HC), has introduced new conditions for redevelopment of such structures.

Under the current redevelopment scheme, buildings cannot be legally demolished without a commencement certificate (CC), which mandates an agreement between occupiers/tenants and landowners/developers.
However considering the urgency in demolishing highly dilapidated and dangerous (C-1 category) structures, the BMC is willing to allow demolition without the CC, and to stall fresh construction on the site till residents/occupiers reach an agreement with landowners/developers.

The corporation has proposed imposing these conditions in the initial sanction — the Intimation of Disapproval (IOD) — granted for proposals pertaining to redevelopment of C-1 buildings, which may be demolished by the civic body as part of its preventive disaster management action.

Only after such an agreement, which suitably compensates and accommodates occupants elsewhere, is filed with the civic body, will commencement certificates (CCs) be issued for these redevelopment projects under section 45 of the Maharashtra Regional and Town Planning Act, 1996.

Last week, in its petition to the HC, the corporation had submitted these draft guidelines for tackling evictions/evacuation of residents from ‘C-1’ category dilapidated buildings (highly dangerous and in need of immediate evacuation), which are privately-owned, municipal-owned or cessed structures.

As reported by Newsline, the corporation has proposed to forcibly evict residents from these premises irrespective of their ownership and demolish the dangerous structures under section 354 of the Mumbai Municipal Corporation Act of 1888. Currently under this legal provision, the

BMC can only serve notices, but no follow-up action is possible.

For civic-owned and cessed structures maintained by MHADA, the BMC has proposed that alternate accommodation will be provided by the civic body and MHADA itself until the building is reconstructed.
BMC’s lawyers E P Bharucha, S U Kamdar and advocate JJ Xavier suggested these conditions be put in place to safeguard the rights of tenants and occupants unwilling to vacate C-1 structures.

“In case privately owned buildings are demolished by the corporation in exercise of power under section 354, then the corporation shall, while granting sanction of redevelopment, impose a condition in IOD that no CC will be issued unless and until an agreement either providing a

permanent alternate accommodation in a newly constructed building

or settlement is arrived at by and between the tenants and/or occupier and the landlord in respect of the said demolished premises is, filed with the corporation,” says the draft guidelines submitted to the HC.

As per data, there are approximately 593 C-1 structures under various ownerships across Mumbai. The tally is likely to increase as more structural audits of buildings aged over 30 years, are being carried out.

The state has told the HC that it is currently in the process of deliberating on the guidelines and the matter has been adjourned to June.

alison.saldanha@expressindia.com

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J.B.Patel (Jeby)
Housing Societies’ Activist
Mobile:9820538570
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