Saturday, July 9, 2011

Model byelaws don't have to be adopted as they are

Under the model byelaws, our society is entitled to have five members. However, the general body has elected seven committee members. Is this legal?
Model byelaws prescribing number of committee members should be taken as minimum in the spirit of co-operation. In fact, the model byelaws should not have been drafted in such a rigid manner. Nonetheless, if the general body so desires and more members come forward to participate in the decision-making process and have taken up responsibility by executing the prescribed bond paper, no illegality is committed by the same as such a step only promotes more participation in the management of the co-operative society, which ultimately benefits the society with prejudice to none. It is not necessary to adopt the model byelaws as it is, within the framework of the MCS Act and the MCS Rules, the society is entitled to amend the same before adoption or even thereafter.
I have booked a flat in a redevelopment project. The project has been delayed due to litigations between the society members and the developer. I have paid around 30% of the price on the basis of unstamped letter of allotment. The developer is not entering into an agreement for sale as the commencement certificate has not come for the particular floor.
You certainly have a strong case against the developer. Litigation between the society members and the developer cannot prejudice your rights as a flat purchaser. Before sale of the flat to you, the developer is required to give you inspection of documents of title, which in this case will include development agreement executed between the society and the developer, and your rights will be subject to such development agreement. By law, the developer cannot collect above 20% of the price of the flat without entering into a registered sale agreement with you. Letter of allotment even though unstamped is not an invalid document, but is only defective and the defect can be removed by you by paying proper stamp duty with interest to make it an enforceable document. 


In a redevelopment project in favour of our company, we have taken another company in joint venture and the profits will be shared in the ratio of 70% and 30%. What will be the tax implications?
The impugned joint venture will be taxed in the status of an Association of Persons (AOP). In this case, since both the parties to the joint venture are limited companies the tax rates applicable to the limited companies, being either equal to maximum marginal rate or higher depending upon quantum of total income of the respective companies, will apply to the share of profit attributable to each company. However, the taxable entity will be the joint venture in the status of AOP. The tax will be payable by the AOP itself. Since, in this case, the AOP will attract tax at maximum marginal rate or at a higher rate as applicable to the limited company; therefore, the companies will not be liable to separate tax in their individual cases. However, the share of profit coming in the hands of each company will be added in its computation only for rate purposes.

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