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RE Related Laws & New Developments

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  • Re : RE Related Laws & New Developments

    Bengaluru development body amendment act a ploy to shield illegal buildings: PIL

    There was undue haste in amending the BDA Act and declaring that such regularisation is only for buildings constructed 12 years before the Amendment came into effect.
    • TNN
    • January 05, 2021, 16:00 IST
    Image used for representational purpose
    BENGALURU: The high court on Monday ordered notice to the government, BDA, BWSSB and Bescom with regard to a public interest litigation questioning the Bangalore Development Authority (Amendment) Act, 2020.

    A division bench headed by chief justice Abhay Shreeniwas Oka also ordered notice to the advocate-general as constitutional validity of the new amendment has been challenged.

    According to petitioner KB Vijaya Kumar, a city-based RTI activist and advocate, the new amendment gazetted on October 19 is a ploy to protect illegal buildings and structures from the purview of the all-encompassing Supreme Court order in 2009 vis-a-vis demolition of illegal buildings and the recent high court ruling on the same premise.

    He has said implementation of the orders was halted by the advent of Covid-19 and the government is now trying to take advantage of the lull. He claimed BDA has no legal authority to regularise illegal buildings constructed without approval by a competent authority and without permission for construction, as such layouts have been handed over/transferred to BBMP control and only it can sanction building plans and permit construction of such transferred layouts.

    There was undue haste in amending the BDA Act and declaring that such regularisation is only for buildings constructed 12 years before the Amendment came into effect. “The illegal aspect cannot be washed away by bringing it into a time frame. What is illegal can never be legal by payment of paltry penalties,” he added.

    Further, he pointed out that the government/BDA action in trying to regularise illegal possession of government/BDA land and including in its ambit illegally constructed structures will encourage illegal possession of government lands in the hope of regularisation at a later date. This is tantamount to penalising honest citizens who have paid exorbitant prices to purchase land from the open market or even from BDA formulated layouts, he said.








    Bengaluru development body amendment act a ploy to shield illegal buildings: PIL, Real Estate News, ET RealEstate (indiatimes.com)


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    • Re : RE Related Laws & New Developments

      About 50% cases of realty companies undergoing IBC resoution closed in 2020

      Data from IBBI showed that the number of such companies in real estate, renting and business activities admitted for resolution under IBC as on September 30, 2020, was 793, out of which 398 cases have closed and 395 cases are ongoing.
      • IANS
      • January 08, 2021, 09:44 IST

      NEW DELHI: The number of companies in real estate and related activities undergoing resolution under the Insolvency and Bankruptcy Code (IBC) declined by around 50 per cent last year.

      The decline gains significance as realty companies formed a major chunk of bankrupt entities heading for resolution after the introduction of the bankruptcy law.

      Data from the Insolvency and Bankruptcy Board of India showed that the number of such companies in real estate, renting and business activities admitted for resolution under IBC as on September 30, 2020, was 793, out of which 398 cases have closed and 395 cases are ongoing.

      Out of the closed cases, 34 cases have been resolved, settlement has been done in 123 cases, 166 companies have gone for liquidation and 75 cases have been withdrawn under Section 12A of the IBC.

      Shobhit Agarwal, MD & CEO of Anarock Capital, noted that the enactment of the Insolvency and Bankruptcy Code in 2016 (IBC) along with RERA ushered in a new era of regulation for the Indian real estate sector. Both these reforms strengthened the hand of homebuyers, giving them alternate forums to get justice, he added.

      Homebuyers can now file claims before the consumer courts under RERA, and before the National Company Law Tribunal (NCLT) by invoking IBC, he added.

      "The NBFC catastrophe in the second half of 2018 leading to a severe liquidity crisis for the developers added to their woes. The non-availability of the refinance window caused many under-construction real estate projects to be stalled," he said.

      "The IBC thus has been a mature step towards setting up a legal framework to adjudicate matters of financial failure and insolvency. The code attempts to end the regime of debtors who continue to be in possession of the asset and provide control to the creditor," Agarwal noted.










      Real estate bankruptcies in India: About 50% cases of realty companies undergoing IBC resoution closed in 2020, Real Estate News, ET RealEstate (indiatimes.com)

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      • Re : RE Related Laws & New Developments

        ITAT: 10% price-stamp duty variance relief on flat sale applies from 2002-03

        ITAT has held that the benefit of a higher tolerance band of 10% for the difference between the sale price of a flat and the stamp duty valuation will apply with retrospective effect.
        MUMBAI: A recent ruling of the Income-Tax Appellate Tribunal’s (ITAT) Mumbai bench has come as a relief to taxpayers embroiled in litigation on capital gains arising out of sale of their flats due to the sale price being lower than the stamp duty valuation.

        ITAT has held that the benefit of a higher tolerance band of 10% for the difference between the sale price of a flat and the stamp duty valuation will apply with retrospective effect.

        The ITAT bench of vice-president Pramod Kumar and judicial member Saktijit Dey held this benefit would apply retrospectively from financial year 2002-03 (assessment year beginning April 1, 2003) when anti-abuse provisions were introduced in the income-tax Act.

        The ruling will help pending cases from these years when the acceptable variation rate was much lower or no such leeway was available. Tax experts said several such cases are pending at various levels, especially in larger cities such as Mumbai.

        To prevent tax abuse and deter the use of black money in property deals, Section 50C was introduced by the Finance Act, 2002. It provided that if the sale consideration claimed to be received by the seller is less than the stamp duty rate, the latter would be considered for determining capital gains.Thus, the quantum of capital gains would be the “higher” stamp duty valuation minus the “indexed” cost of the flat sold. This would result in higher capital gains and consequently a higher tax outgo. To factor the effects of inflation, the Income-Tax (I-T) Act permits application of a cost inflation index to the original cost of the property being sold.

        To minimise hardships in case of genuine transactions, the Finance Act, 2018, amended Section 50C and provided that no adjustment will be made in cases where the variation between stamp duty value and sale consideration was not more than 5% of the sale consideration. This proviso was further amended by the Finance Act, 2020, and enhanced the acceptable variation rate to 10%.

        I-T authorities submitted to ITAT that the amendment carried out by the Finance Act, 2018, would come into effect only prospectively from financial year 2018-19. Similarly, the enhanced variation rate will apply from financial year 2020-21.

        In the case before ITAT, the year covered by the litigation was 2010-11. The difference between the sale consideration as disclosed by the seller, Maria Fernandes Cheryl, and the stamp duty valuation was Rs 4.9 lakh. This was about 6.6% of the declared sale transaction.

        According to the I-T officer, the tolerance band of 5% and 10% applied only prospectively and did not cover the year under litigation. He accordingly enhanced the capital gains computation. The matter finally reached ITAT.

        ITAT disapproved of this enhancement and provided relief to the taxpayer. According to ITAT, the proviso amending the variation rate to 10% was curative in nature and must relate back to the date of introduction of the section itself.

        “What holds good in 2021 was also good in 2003. If variations up to 10% need to be tolerated and need not be probed further, in 2021 under section 50C, there were no good reasons to probe such variations, in the earlier periods as well,” states the order.

        The I-T department had also submitted to the ITAT that if its submissions of the amendments being prospective in nature are not accepted, the tax tribunal’s order should mention that “relief is being provided as a special case and this decision may not be considered as a precedent.” The ITAT has come down heavily on this plea, terming it as an “antithesis of the principle of equality before all.” It firmly stated that its order will hold good for all other similarly placed litigants as well.











        ITAT: 10% price-stamp duty variance relief on flat sale applies from 2002-03, Real Estate News, ET RealEstate (indiatimes.com)
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        • Re : RE Related Laws & New Developments

          Mutation entries don't confer property title: SC

          The court opined that Karnataka high court had clarified in its June 26, 2019 order that the direction to BBMP for mutation is subject to any other remedies available under the law and it is open to BBMP to establish its title by following due process of law.
          • TNN
          • January 27, 2021, 14:33 IST

          BENGALURU: Reiterating that mutation entries don’t confer the title of a property on anyone and the same has to be established independently in a declaratory suit, the Supreme Court has declined to entertain a special leave petition filed by Bruhat Bengaluru Mahanagara Palike.

          A bench comprising Justices DY Chandrachud, Indira Banerjee and Sanjiv Khanna also declined to grant any interim order injuncting Faraulla Khan and others from creating any third-party interest with regards to a property, which is the subject matter of a pending civil suit.

          The court opined that Karnataka high court had clarified in its June 26, 2019 order that the direction to BBMP for mutation is subject to any other remedies available under the law and it is open to BBMP to establish its title by following due process of law.

          The controversy relates to certain properties situated on Thimmaiah Road and Miller’s Tank Bund area in Bengaluru. BBMP had issued endorsements declining to register khata in the name of those who claimed to be subsequent purchasers. The government claimed the genuineness of the grant vis-a-vis the lands in question is under probe.

          The subsequent purchasers approached the high court. Both the single as well as division bench ruled in their favour.














          Mutation entries don't confer property title: SC, Real Estate News, ET RealEstate (indiatimes.com)
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