Thursday 21 March 2013

CAPITAL GAINS


 
CHAPTER VI
CAPITAL GAINS
            Sec 45 provides that any profits or gains arising from the transfer of a capital asset affected in the previous year will be chargeable to income tax under the head capital gains. Such capital gains will be deemed to be the income of the previous year in which the transfer took place.
CAPITAL ASSET
            Capital asset means property of any kind held by an assessee whether or not connected with his business or profession but does not include-
·      Stock in trade, consumable stores or raw materials held for the purpose of business or profession of the assessee.
·       Personal effects i.e. , movable property including wearing apparel and furniture but excluding jewellery held for personal use by the assessee or any member of his family.
·       Rural agricultural land in india
·      6 1/2 % Gold Bonds 1977,7% Gold Bonds 1980, National Defence Gold Bonds 1980 issued by central government.
·      Special Bearer Bonds 1991, issued by Central Government.
·      Gold Deposit bonds issued under Gold deposit scheme 1999
Rural Agricultural Lands
            We can note from above definition that only rural agricultural land in India is ex­cluded from the purview of the term capital asset. Hence urban agricultural lands constitute capital asset. Accordingly, agricultural land situated within the limit of any municipality or cantonment board having a population of 10,000 or more according to the latest census will be considered as capital asset. Further, agricultural land situated in areas lying with in a dis­tance of 8 kilometers from the local limits of such municipality or cantonment board will also be considered as capital asset.
The following items are examples of capital assets
> Share of partner in a firm
> A business or undertaking which is a going concern
> Good will
> Lease hold rights in mines
> Route permits for buses
> Right to subscribe for shares
> Trees standing on agricultural land
>   Right to subscribe right share or any other security.
>   Trade mark or brand name associated with business.
Short term and long term capital assets
         There are two types’ capital assets namely long term and short term capital assets. A short term capital asset means asset held by an assessee for not more than three years imme­diately prior to its date of transfer. In case of shares held in a company, the period will be 12 months instead of 36 months. Capital gain arising from the transfer of long term capital asset is called long term capital gain and that arising from transfer of short term capital asset is called short term capital gain. The following assets are deemed to be long term capital asset if they are not held for exceeding 12 months.
a) Shares in a company
b) Any other security listed in a recognized stock exchange in India.
c) A unit of UTI
d) A unit of Mutual fund specified in Sec 10(23D)
Transfer - Sec 2 (47)
     The Act contains an inclusive definition of the term transfer. Accordingly, transfer in relation to capital asset includes the following types of transaction-
1. The sale, exchange, relinquishment of the asset or
2. The extinguishment of any rights there in or
3. The compulsory acquisition of capital asset under any law. or
4. Owner of a capital asset may convert the same in to the stock in trade of a business carried on by him.( treated as transfer)
5. Part performance of a contract — Some, possession of an immoveable property is given in consideration of part performance of a contract. For example Mr. X enters into an agreement for the sale of the house. The purchaser gives entire sale consideration to X. X hands over complete rights of possession to the purchaser. Under IT Act, the above transaction is considered as transfer
6. Lastly, there are certain types of transaction which have the effect of transferring or
enabling the enjoyment of an immovable property. For example a person may become a member of co-operative society, company or AOP which may be building houses. When he pays an agreed amount, the society etc hands over possession of the house to the person concerned. (for purpose of IT, the above transaction is treated as transfer)                                
Conversion or treatment of Capital asset as stock in trade Sec 45(2)
          A person who is the owner of a capital asset may converted same or treat it as stock in trade of the business carried on by him. As noted above, the above transaction is a transfer. As per Sec 45(2), the profit or gains arising from the above conversion will be changeable to tax as his income of the previous year in which such stock in trade is sold or transferred by him. In order to compute the capital gain, the fair market value of the asset on the date of such conver­sion shall be deemed to be the full value consideration.
Introduction of Capital asset as capital contribution Sec 45(3)
       Where a person transfers a capital asset to a firm, AOP or BOI (not being a company or a co-operative society) in which he is already a partner or it’s become a partner by way of capital contribution or otherwise, the profit or gains arising from such transfer will be charge­able to tax as income of the P. Y in which such transfer take place. For this purpose, the value of consideration will be the amount recorded in the books of account of the firm, AOP or BOI as the value of capital asset.
Distribution of capital asset on firm's dissolution 45 (4)
       The profit or gains arising from transfer of capital asset by way of distribution on the dissolution of the firm or AOP of BOI shall be chargeable to tax as the income of the firm etc of the previous year in which such transfer takes place. For this purpose, the fair market value of the asset on the date of such transfer shall be the consideration.
 
 Compensation of compulsory acquisition 45 (5)
        Sometimes, a building or other capital asset belonging to a person is taken over by the central government by way of compulsory acquisition. In that case, the consideration for the transfer is determined by the central government. When the central government pays above compensation, capital gain may arise. Such capital gains are chargeable as income of the previous year in which such compensation was first received.
Enhanced compensation
        Many times person whose capital assets have been taken over by central government and who get compensation from the government go to the court of law for enhancement of compensation. If the court awards a compensation which is higher than the original compen­sation, the difference there off will be charged to capital gain in the year in which the same is received from the government. For this purpose, cost of acquisition and cost of improve­ment shall be taken to be nil
Reduction of Enhanced compensation
       Where capital gain has been charged on the compensation received by the assessee for the compulsory acquisition of any capital asset or enhanced compensation received by the assessee and subsequently such compensation is reduced by any court, authority, the assessed capital gain of that year shall be recomputed by taking into consideration the reduced amount.
 
Death of a transferor
      It is possible that the transferor may die before he receives me enhanced Compensa­tion. In that case, the enhanced compensation will be changeable to tax in the hands of who received the same.
Capital gain on Buy back etc of shares Sec 46A
      Any consideration received by a share holder or a holder of other specified securities held by such share holder or holder of other specified securities shall be charged to tax on the difference between the cost of acquisition and the value of consideration received by the holder of securities or by the share holder, as the case may be, as capital gain.
TRANSACTIONS NOT REGARDED AS TRANSFER SEC 47
Sec 47 specifies certain transaction which will not be regarded as transfer for the purpose of capital gain tax.
1) Any distribution of capital asset on the total or partial partition of HUF
2) Any transfer of capital asset under gift or will or an irrevocable trust.
3) Any transfer of capital asset by a company to its subsidiary company
Conditions:-
1.The parent company must hold the whole of the shares of subsidiary company
2.The subsidiary company must be an Indian company.
 
4)Any transfer of capital asset by a subsidiary company to holding company.
 Conditions:-
1.The whole shares of subsidiary company must be held by the holding company.
2.The holding company must be an Indian company.
Exception -The exemption mentioned in 3 and 4 above will not apply if a capital asset transferred after 29-02-1988 as stock in trade.
5) Any transfer in scheme of amalgamation of a capital asset by the amalgamating company to amalgamated company if amalgamated company is an Indian company.
6)     Any transfer in a scheme of amalgamation of shares held in a Indian company by the amalgamating foreign company to the amalgamated foreign company
Conditions: -
1.  At least 25% of share holders of the amalgamating foreign company must continue
to remain share holders of the amalgamated foreign company.
2. Such transfer should not attract capital gain in the country in which the amalgamating company is incorporated.
7)  Any transfer by a share holder in a scheme of amalgamation of shares held by him in the amalgamating company.
Conditions:-
1.  The transferor is made in consideration of the allotment of any shares in the amalgamated company to him.
2. The amalgamated company is an Indian company.
8)    Any transfer in a demerger, of a capital asset by the demerged company to the resulting company, if the resulting company is an Indian company.
9)    Any transfer of demerger, of a capital asset, being a share or shares held in a Indian company, by the demerger foreign company to the resulting foreign company.
10)  Any transfer or issue of shares by the resulting company, in a scheme of demerger to the shareholders of a demerged company, if the transfer or issue is made in consideration of demerger of the undertaking.
11)  Any transfer of bonds or shares referred to in section 115 AC (1)
 Conditions:-
1. The transfer must be made outside India
2. The transfer must be made by the nonresident to another nonresident.
     12) Any transfer of agricultural land effected before 1-03-1970
13)     Any transfer of any following capital asset to government or to the university, or National Museum, National art gallery, National Archives or any other public museum notified by the central government National eminence)
Work of Art, Archaeological, scientific or art collection, book, a manuscript, drawings, paintings, photographs, printings etc.
14.Any transfer by way of conversion of bonds or debentures, debenture stock or deposit certificate any form, of a company into shares of debentures of that company.
15.Transfer by way of exchange of capital asset being membership of recognized stock exchange or shares of company to which such membership is transferred.
Conditions:-
1. Such exchange is effected on or before 31-12-1998
2. Such shares are retained by the transfer of for a period of not less than 3 years from the date of transfer.




Mode of computation of Capital Gain Sec 48

1. Computation of Short Term Capital Gain (STCG)

1. Find out full value consideration.

2. Deduct the following:                      

a) Expenditure incurred wholly and exclusively in connection with transfer

b) Cost of acquisition

c) Cost of improvement

           3. From the resulting figure deduct the various exemptions available U/S 54

           4. The balancing figure is short term capital gain

2. Computation of Long Term Capital Gain (LTCG)

1. Find out full value consideration.

2. Deduct the following-

a)  Expenditure incurred wholly and exclusively in connection with transfer

b) Indexed cost of acquisition

c)  Indexed cost of improvement

3. From the resulting figure deduct the various exemptions available U/S 54

4. The balancing figure is long term capital gain.

 

Note: - The provision relating to indexed cost of acquisition and indexed cost of improvement will not apply LTCG arising from the transfer of long term capital asset being bonds or debentures

Full value consideration

            Full value means the whole price without any deduction. In the case of exchange, the fair market value of property granted in the exchange on the date of exchange will have to be ascertaining in order to arrive at the full value consideration.

 

Cost of acquisition

         Cost of acquisition of an asset is the value for which it was acquired by the assessee. Such price may include the price to the vendor, buying expenses transportation charges, and cost of installation of the asset if any. If any loan has been taken for the acquisition of capital asset the interest paid or payable on such loan shall be included in the cost of acquisition.

 

Cost of previous Owner Sec 49(1)

       Cost of previous Owner is deemed to be the cost of acquisition to the assessee in the case where capital asset become the property of the assessee under any mode of transfer

described below

1 On any distribution of asset on the total or partial partition of HUF.

2. under gift or will

3 Succession, Inheritance, devolution

4. On any distribution of asset on the dissolution of firm, BOI, AOP, where such dissolution had taken place at any time before 1/4/1987.

5. On any distribution of any asset on the liquidation of a company.

6. Under a transfer to a revocable or irrevocable trust.

7. on the transfer by a parent company to its Indian 100% subsidiary company or vice versa

8. under any scheme of amalgamation by the amalgamating company to amalgamated company.

9. On throwing individual property into joint family hotchpots after 31- 12 1969

Cost of acquisition of self generated assets

      In the case of self generated assets like Good will, stage right, the cost of acquisition will be taken to be nil. On the other hand if assesse has purchased them from a previous owner, the cost of acquisition means the amount of the amount of purchase person.

Cost of improvement Sec 55

     Cost of improvement in relation to good will of a business »taken to be rot. Cost of

improvement in relation to any other asset.

1. Where the capital asset become the property of the assessee before 1 -4-1981, means
expenditure of capital nature incurred making any addition or alteration to the capital

asset on or after April 1st 1981 by the assessee

2. In other cases, means all the expenses of capital nature incurred in making any addition to the capital asset by the assessee

                 Cost of improvement includes all expenditure of capital nature incurred after 31-3-1981 by an assessee in making any additions to capital asset after the date of acquisition (ignore improvement before 1-4-1981.)

 

Indexed cost of acquisition

     Indexed cost of acquisition means an amount which bears to the cost of acquisition, the same proportion as cost inflation index for the year in which the asset is transferred bears the cost inflation index for the first year in which asset was held by assesse or for the year beginning on April 1st 1981, whichever is earlier

Indexed cost of acquisition = Cost X C II for the year in which the asset is sold

                                                C II for the first year in which asset was held or  

                                                C I I on l-4-198l, whichever is later

 

     Indexed cost of Improvement

Indexed cost of improvement= cost of improvement X C I I for the year which the asset is sold

                                                  C11 for the year in which improvement took place

Cost Inflation Index       (CII)

      It means index as the central government may, having regard to 75% the consumer price index for urban, non urban employees for the immediate preceding previous year, notify in this behalf.

 Financial year                     CII                          Financial Year     CII

1981-82                             100                             1992-93              223

1982-83                             109                             1994-95              259

1983-84                             116                            1995-96              281

1984-85                              125                            1996-97              305

1985-86                              133                           1997-98               331

1986-87                               140                           1998-99               351

1987-88                               150                           1999-2000           389

1988-89                               161                           2000-01               406

1989-90                               172                           2001-02                426

1990-91                               182                           2002-03               447

1991-92                               199                           2003-04                463

1993-94                              244                           2004-05                480

2006-06                              497                            2006-07                519

2007-08                              551                            2008-09                582

2009-10                                                                                             632

2010-11                                                                                             711

Financial Assets

   Many times person who own shares or other securities become entitled to sub­scribe to any additional shares or securities. Further, they are also allotted additional shares or securities without any payment Such shares or securities are referred to as financial asset in IT Act Sec. 55 provides the basis for ascertain cost of acquisition of such financial asset.

Cost of Bonus shares

   The cost of bonus shares or security which is received by the assessee without any payment on the basis of his holding any financial asset will be as under:-

a) Where bonus shares or securities were received prior 1 -4-1981, the cost of acquisition will be taken as fair market value on 1-4-1981.

b) In any other case Nil

Taxation of right shares

 l. Cost of right entitlement in the hands of original share holder will be deemed to be nil.

2. The cost of right shares acquired by the original share holder is the price actually paid by him for acquiring the right shares.

3. Where right shares purchased by a person in whose favor the rights entitlement has been renounced. The cost of acquisition will be purchase price paid to the renouncer of rights entitlement plus amount paid to the company which was allotted to the right shares.

 

Computation of capital gain in case of depreciable asset (WDV) Sec 5O  

       The capital gain on depreciable asset shall be computed as under:

1. Find out the WDV on the first day of the P. Y of all those depreciable assets on which the depreciation is allowed at the same rate. All such assets are known as 'block of assets'

2. If any new asset of the same block is purchased during the year the cost of such asset should be included in (1)

3. IF any assets are sold out such block during the P.Y, the consideration should be de from the balance under (2)

4. On the balance under (3) compute the depreciation at the prescribed rate and deducted from the balance under (3)

5. The balance under (4) shall be the WDV of the block of asset for the next year.

        It means if the net consideration of an asset out of the block is less than balance under (2), there would be no capital gain. IF the not consideration of an asset is more than the balance under (2), the excess shall be deemed to be STCG. If all the assets of the block are sold during the P.Y and the net consideration is less than the balance (2), the loss shall be deemed to be short term capital loss.

CAPITAL GAIN EXEMPT FROM TAX

1. Capital gain arising from transfer of property used for residence sec 54. 

Capital gain arising from the transfer of long term capital asset being building or land appurtenant there to owned by an individual or HUF and being residential house shall be exempted if the assessee has invested the amount of capital gain by purchasing a residential house within a period of one year before or within a period of 2 years after the date of transfer, or has constructed a residential house within a period of 3 years after the date of transfer. If the amount of capital gain is greater than the cost of new house property the excess capital gain is chargeable to tax. If the new house is transferred within three years, the amount of capital gain arising there from together with the amount of capital gain exempted earlier will be chargeable to tax in the year of sale of new house property as STCG. Where the amount of capital is not appropriated or utilized by the assessee for purchase or construction of new house before the date of furnishing the return of income, it shall be deposited by him in the deposit account in any branch except rural branch of public sector bank in accordance with capital gain accounts scheme 1988 the amount already utilized for purchase or construction of the new house together with amounts of deposited shall be deemed to be the amount utilized for the purchase of new house, if the amount depos­ited is not utilized fully for purchase or construction of new house within the stipulated pe­riod, the amount not utilized shall be treated as LTCG of the P.Y in which the period of 3 years from the date of transfer original assset expires. In such case the assessee shall be entitled to withdraw such amount in accordance with aforesaid scheme.

2.Capital gain arising from transfer of land used for agricultual purposes Sec 54 B

Capital gains arising from the transfer of land used by the assessee or his parents for agricultural purposes for a period of two years are exempt from tax if the assessee has purchased another land for agricultural purposes within a period of two years from the date of such transfer/ The exemption is available to the extent of capital gains used for purchasing further agricultural lands. If the new agricultural land is transferred within a period of 3 years from the date of its purchase the amount of capital gain arising there from together with the amount of capital gain exempted earlier will be chargeable to tax as STCG in the year of sale. The capital gain deposit scheme 1988 is also applicable in this case. If the deposit amount is not utilized fully for the purchase of agricultural land within the stipulated period of 2 years, the unutilized amount is capital gain taxable in the P.Y in which the period is expired.

         W.e.f A.Y 2005-06, Capital gain on transfer of agricultural land situated in urban area shall be exempted if the following conditions are satisfied

 (i)  The owner of Agricultural land is an individual or a HUF

(ii)  It was, in the two years immediately preceding the date of transfer, being
used by the HUF or individual or his parent.

(iii) Transfer of land by way of compulsory acquisition under any law or a transfer the consideration for which determined by the central government or RBI

 

3. Capital gain on compulsory acquisition of land and buildings. Sec 54D

         Capital gains arising from the compulsory acquisition of land and building form­ing part of industrial undertaking is exempt provided the following conditions.

(i) The land and building was used by the assessee for the purpose of industrial undertaking
for a period of at least 2 years preceding the date of compulsory acquisition.

(ii)   Assessee has purchased any other land or building within a period of 3 years or constructed building within such period.

(iii)The newly acquired L & B should be used for the purpose of shifting or reestablishing all the industrial undertaking or setting up of another industrial undertaking,

(iv) Exemption is available to the extent of capital gain invested for the above purpose.

         If the new L & B are sold within 3 years from date of acquisition the gain arising there from together with exemption availed earlier is taxable as STCG in the year of sale. Capital gain deposit scheme 1988 is applicable in this case also.

4. Capital gain not to be charged on investment in certain bonds Sec. 54EC

       This section provides that the capital gain arising from transfer of a long-term capital asset shall be exempt from tax is such capital gain is invested in a long-tem specified asset within 6 months after the date of such transfer. If part of the capital gain is so invested, proportionate exemption will be available, such that so much of the capital gain as bears to the whole capital gain the same proportion as the cost of the long-tem specified asset bears to the whole of the capital gains, shall not be charged under section 45 for this purpose,      " long term specified assets" means any bond redeemable after Three years and

 (i)   Issued on or after 1st April 2007

(ii)   The National Highways Authority of India (NHA1) or

(Hi) issued on or after 1st April, 2007 by the Rural Electrification Corporation Limited

Note: - The Investment made in the long term specified asset by an assessee during any finan­cial year shall not exceed 50 lakhs

5. Capital gates on transfer of long term capital asset other than house property Sec 54F

The above exemption is available subjected to the following conditions.

(i)    Assessee is an individual or HUF

(ii)   Assets transferred should be long term asset other than residential house.

(iii) Assessee has purchased within one year before or two years after the date of transfer or constructed within three years from the date of transfer, a residential house.

(iv)The assessee shoud not sell the new house within three years from the date of acquisition,

 (v) The assessee should not own a residential house other than the new house. He should not ith in a period of two years or construct within a period of three years a residen-her than the new house.

       If the cost of newly acquired house is not less than the net consideration ( full value consideration expenses of transfer) in respect of asset transferred the entire capital gain is exempt. If the cost of acquisition of new house is less than net consideration exemp­tion is available proportionately on the basis of investment of net consideration in the new house.

 

 

 

           If the new house is sold within a period of 3 years or purchased another house within a period of two years or construct within a period of three years, the capital gains arising from the transfer of original asset which was not chargeable to tax will be deemed to be income by way of long term capital gain of the year in which the new house is sold or another house is purchased or constructed.

The capital gain deposit scheme 1988 is applicable in this case also.

 

Exempted amount =   Capital gain            X   cost of new house

                                Net consideration

6. Capital gains for shifting of industrial undertaking from urban areas Sec 54G

            Sec 54G exempts capital gains arising on transfer of long term capital assets in the nature of machinery, plant, building, land used for the purposes of business of the indus­trial undertaking situated in an urban area to a non-urban area. Accordingly, capital gains arising in such cases will be exempt to the extent they are utilized within a period of 1 year before or 3 years after the date of transfer, for the purchase of new machinery or plant or acquiring land and building etc for the purpose of the business in the area to which the under­taking is shifted or incurs expenses on shifting the original asset and transferring the estab­lishment of the undertaking to such area and incurs expenses as may be specified.

Sub sec 2 of Sec 54G provides for investment in Capital Gains Account scheme 1988, pending utilization of the amount for the specified purpose.

 

7. Excemption of Capital gains on shifting industrial undertaking from urban area to

any special economic zone 54GA

 

8. Tax on Short term Capital gains on transfer of Equity shares in a company or units of an equity oriented fund. (Sec 111A)

         Where the total income of an assessee includes short term capital gain arising the transfer of equity shares in a company or units of an equity oriented fund, on such short term capital gain tax will be charged @ 15% + surcharge, if any + education cess @ 3% on the amount of the Income Tax and surcharge if the following conditions are satisfied.

(i)   The equity shares in a company or units of an equity oriented fund are short term capital asset

(ii)  Transaction of sale of such asset is entered into on or after the date on which security transaction tax come into force.

(iii) Such transaction is chargeable to Securities Transaction Tax

In respect of Income other than aforesaid short term capital gains, income tax shall be charged as per normal provisions of the Act, assuming the other income only to be the total income.

 

 

 

 

 

 

 

 

 

 

 

 

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