INTRODUCTION A capital gains tax (CGT) is a tax charged on capital gains, the profit realized on the sale of a non-inventory asset that was purchased at a lower price. The most common capital gains are realized from the sale of stocks, bonds, precious metals and property. Not all countries implement a capital gains tax and most have different rates of taxation for individuals and corporations. For equities, an example of a popular and liquid asset, national and state legislation often has a large array of fiscal obligations that must be respected regarding capital gains. Taxes are charged by the state over the transactions, dividends and capital gains on the stock market. However, these fiscal obligations may vary from jurisdiction to jurisdiction because, among other reasons, it could be assumed that taxation is already incorporated into the stock price through the different taxes companies pay to the state, or that tax-free stock market operations are useful to boost economic e conomic growth.
India
As of 2008, equities are considered long term capital if the holding period is one year or more. Long term capital gains from equities are not taxed if shares are sold through recognized stock exchange and STT is paid on the sale . However short term capital gain from equities held for less than one year, is taxed at 15% [7] (w.e.f. 1 April 2009.[8]) (plus surcharge and education cess). This is applicable only for transactions that attract Securities Transaction Tax (STT). Many other capital investments (house, buildings, real estate, bank deposits) are considered long term if the holding period is 3 or more years.[9] Short term capital gains are taxed just as any other income and they can be negated against short term capital loss from the same business.
MEANING OF CAPITAL GAINS :Capital gains means profits or gains arising to the assesse from the transfer of a capital asset. Such capital capital gain is added to the total income of of the previous year in which the transfer of the assets took place. Capital Gains is the fourth head of income. Section 45(1) of the Income Tax Act, 1961 talks about any profits or gains arising from the transfer of a capital asset effected in the previous year. In C.I.T. V. H.H. Maharani Usha Devi case the Supreme Court has made it clear that heirloom jewellery constitutes personal effects under section 2(14) and its sale would not give rise to any taxable capital gains. A.I.R. 1998 S.C. 2309
Thus, the essential elements of capital gains are:(A) Capital Asset. (B) Transfer of Capital Asset, (C) Computation of Capital gain.
Capital Asset [Sec. 2(14)] Capital Asset means property of any kind held by an assessee, whe ther connected with his business, profession or not. Capital Asset may be movable or immovable, tangible or intangible, fixed or floating. A.I.R. 2005 S.C. 796 In C.I.T V. D.P. Sandu Brothers case it was held that the value or income from transfer of capital asset can be taxed only under the head “Capital Gain” and if it cannot be taxed under this head, then it cannot be taxed at all. Such income cannot be taxed under the head he ad “Income from other sources”.
WHAT ALL CAPITAL ASSET INCLUDES :1. Goodwill of a business. 2. Partner’s share in a firm. 3. Tenancy rights. 4. Actionable claim. 5. Loom hours (Hours for which a worker works in a factory). 6. Patent. 7. Trade-Marks. 8. Lease hold right in mines. 9. License for manufacturing of a commodity.
EXCEPTIONS :The term Capital Asset doesn’t include the following :
1. Any stock in trade, consumable stores or raw materials. 2. Movable Assets for personal use i.e. Apparel & furniture but excluding jewellery held for personal use by the assesse or any member of his family family dependent on him. 3. Agricultural Land in India. 4. Gold bonds issued by the Central Government. 5. Special bearer bonds. 6. Gold Deposit bonds. In C.I.T V. B.C Srinivasa Setty case the Supreme Court has made it clear that the goodwill generated in a newly commenced business cannot be described as an “asset” within the meaning of the terms of Section 45
and therefore its transfer is not subject to income tax under the head
“capital gains”. 1981 Tax L.R. 641 (S.C.)
CLASSIFICATION OF CAPITAL ASSETS:It is divided into 2 categories : A) Short-Term Capital Asset. B) Long-Term Capital Asset
SHORT-TERM CAPITAL ASSETIt means a Capital Asset held by an assesse for not more than 36 months immediately preceeding the date of its transfer: Provided that in the case of a share held in a company or any other security listed in a recognized stock exchange in India or a zero- coupon bond, the provisions of this clause shall have effect as if for the words “36 months”, the words “12 months” had been substituted .
LONG-TERM CAPITAL ASSETAccording to section 2(29-A), it means an asset which is not a short-term capital asset.
TRANSFER [Sec. 2(47)] – Any transaction whereby the ownership of an assessee in a capital asset ceases is transfer according to Sec.2 (47). Transfer includes:
i) Sale, exchange or relinquishment of a capital asset
ii) Extinguishment of any rights in a capital asset
iii) Compulsory acquisition of the capital asset under any law iv) Conversion of a capital asset into in to stock-in-trade v) Part performance of a contract of sale vi) Transfer of rights in immovable properties through the medium of cooperative societies, companies etc. vii) Transfer by a person to a firm or other or Body of a person to a Association of Persons (AOP) Individuals (BOI) viii) Distribution of capital assets on Dissolution ix) Distribution of money or other assets by a Company on liquidation
TRANSACTIONS NOT REGARDED AS TRANSFER (Section 47). Nothing contained in section 45 shall apply to the following transfers: (i)
Any distribution of capital assets on the total or partial partition of a Hindu undivided family;
(ii) This clause has been omitted by the Finance Act, Act, 1987 w.e.f 1-4-1988; (iii) Any transfer of a capital asset under a gift or will or an irrevocable trust;
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(iv) Any transfer of a capital asset by a company to its subsidiary company, if: (a) the parent company or its nominees hold the whole of the share capital of the subsidiary company; and (b) The subsidiary company is an Indian company; (v) Any transfer of a capital asset by a subsidiary company to the holding company, if: (a) The whole of the share capital of the subsidiary company is held by the holding company, and (b) The holding company is an Indian company : Provided that nothing contained in clause (iii) or clause (iv) shall apply to the transfer of a capital asset made after the 29th day of February, 1988, as stock-intrade; (vi) Any transfer, in a scheme of amalgamation, of a capital asset by the amalgamating company to the amalgamated company if the amalgamated company is an Indian company;
(via) Any transfer, in a scheme of amalgamation, of a capital asset being a share or shares held in an Indian company, by the amalgamating foreign company company to the amalgamated foreign company, if - (a) At least twenty-five per cent of the shareholders of the amalgamating foreign company continue to remain shareholders of the amalgamated foreign company, and
(b) Such transfer does not attract tax on capital gains in the country, in which the amalgamating company is incorporated; (vib) 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; (vic) Any transfer in a demerger, of a capital asset, being a share or shares held in an Indian company, by the demerged foreign company to the resulting foreign company, if - (a) At least seventy-five per cent of the shareholders of the demerged foreign company continue to remain shareholders of the resulting foreign company; and (b) Such transfer does not attract tax on capital gains in the country, in which the demerged foreign company is incorporated : Provided that the provisions of sections 391 to 394 of the Companies Act, 1956 (1 of 1956) shall not apply in case of demergers referred to in this clause; (vid) Any transfer or issue of shares by the resulting company, in a scheme of demerger to the shareholders of the demerged demer ged company if the transfer or issue is made in consideration of demerger of the undertaking; (vii) Any transfer by a shareholder, in a scheme of amalgamation, of a capital asset being a share or shares held by him in the amalgamating company, if - (a) The transfer is made in consideration of the allotment to him of any share or shares in the amalgamated company, and (b) The amalgamated company is an Indian company; (viia) Any transfer of capital asset, being bonds or shares referred to in subsection (1) of section 115AC, made outside India by a non-resident to another non-resident; (viii) Any transfer of agricultural land in India effected before the 1st day of March, 1970; (ix) Any transfer of a capital asset, being any work of art, archaeological, scientific or art collection, book, manuscript, drawing, painting, photograph or print, to the Government or a University or the National Museum, National Art Gallery,
National Archives or any such other public museum or institution as may be notified 753 by the Central Government in the Official Gazette to be of national importance or to be of renown throughout any State or States. (x) Any transfer by way of conversion of bonds or de bentures, debenture-stock or deposit certificates in any form, of a company into shares or debentures of that company. (xi) Any transfer made on or before the 753ca 31st day of December, 1998, 753ca by a person (not being a company) of a capital asset being membership of a recognised stock exchange to a company in exchange for shares allotted by that company to the transferor. (xii) Any transfer of a capital asset, being land of a sick industrial company, made under a scheme prepared and sanctioned under section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) where such sick industrial company is being managed by its workers' co-operative : Provided that such transfer is made during the period commencing from the previous year in which the said company has become a sick industrial company under sub-section (1) of section 17 of that Act and ending wi th the previous year during which the entire net worth of such company becomes equal to or exceeds the accumulated losses. (xiii) Where a firm is succeeded by a company in the business carried on by it as a result of which the firm sells or otherwise transfers any capital asset or intangible asset to the company: Provided that – (a) All the assets and liabilities of the firm relating to the business immediately before the succession become the assets and liabilities of the company; (b) All the partners of the firm immediately before the succession become the shareholders of the company in the same proportion in which their capital accounts stood in the books of the firm on the date of succession;
(c) The partners of the firm do not receive any consideration or benefit, directly or indirectly, in any form or manner, other than by way of allotment of shares in the company; and (d) The aggregate of the shareholding in the company of the partners of the firm is not less than fifty per cent of the total voting power in the company and their share holding continues to be as such for a period of five years from the date of the succession; (xiv) Where a sole proprietary concern is succeeded by a company in the business carried on by it as a result of which the sole proprietary concern sells or otherwise transfers any capital asset or intangible asset to the company : Provided that – (a) All the assets and liabilities of the sole proprietary concern relating to the business immediately before the succession become the assets and liabilities of the company; (b) The shareholding of the sole proprietor in the company is not less than fifty per cent of the total voting power in the company and his shareholding continues to so remain as such for a period of five years from the date of t he succession; and (c) The sole proprietor does not receive any consideration or benefit, directly or indirectly, in any form or manner, other than by way of allotment of shares in the company; (xv) Any transfer in a scheme for lending of any securities under an agreement or arrangement, which the assessee has entered into with the borrower of such securities and which is subject to the guidelines issued by the Securities and Exchange Board of India, established under section 3 of the Securities and Exchange Board of India Act, 1992 (15 of 1992), in this regard.
COMPUTATION OF CAPITAL GAINS (Section 48). Transfer of a short term capital asset gives rise to "Short Term Capital Gains' (STCG) and transfer of a long capital asset gives rise to 'Long Term Capital Gains' LTCG). Identifying gains as STCG and LTCG is a very ve ry important step in computing the income under the head Gains as method of computation of gains and tax on the gains is different for STCG and LTCG.
Short Term Capital Gains (STCG) Computation of short - term Capital Gains: 1. Find out full value of consideration 2. Deduct the following : a. expenditure incurred wholly and exclusively in connection with such transfer b. cost of acquisition; and c. cost of improvement 3. From the resulting sum deduct the exemption provided by sections 54B, 54D, 54G 4. 4. The balancing amount is short-term capital gain
Long Term Capital Gains (LTCG) Computation of long - term Capital Gains: 1. Find out full value of consideration 2. Deduct the following: a. expenditure incurred wholly and exclusively in connection with such transfer b. indexed cost of acquisition; and c. indexed cost of improvement 3. From the resulting sum deduct the exemption provided by sections 54, 54B, 54D, 54EC, 54ED, 54F and 54G 4. The balancing amount is long-term capital gain
Full value of consideration (Section 50-C). This is the amount for which a capital asset is transferred. It may be in money or money's worth or a combination of both. Where the transfer is by way of exchange of one asset for another, fair market value of the asset received is the full value of consideration. Where the consideration for the transfer is partly in cash and partly in kind Fair market value of the kind portion and cash consideration together constitute full value of consideration.
Cost of acquisition (Section 55(2)). Cost of acquisition of an asset is the sum total of amount spent for acquiring the asset. Where the asset was purchased, the cost of acquisition is the price paid. Where the asset was acquired by way of exchange for another asset, the cost of .acquisition is the fair market value of that other asset as on the date of exchange. Any expenditure incurred in connection with such; purchase, exchange or other transaction e.g. brokerage paid, registration charges and legal expenses also forms I part of cost of acquisition.
Sometimes advance is received against agreement to transfer a particular asset. Later on, if the advance is retained by the tax payer or forfeited for other party's failure to complete the transaction, such advance is to be deducted from the cost of acquisition.
Cost of acquisition with reference to certain modes or acquisition (Section 49(1)). Where the capital asset became the property of the assessee: a) on any distribution of assets on the total or partial partition of a Hindu undivided family; b) under a gift or will c) by succession, inheritance or devolution; d) on any distribution of assets on the dissolution of a 'firm, body of individuals, or other association of persons, where such dissolution had taken place at any time before 01.04.1987; e) on any distribution of assets on the liquidation of a company; f) under a transfer to a revocable or an irrevocable trust; g) by transfer in a scheme of amalgamation;
h) by an individual member of a Hindu Undivided Family living his separate property to the assessee HUF any time after 31.12.1969. The cost of acquisition of the asset shall be the cost for which the previous owner of the property acquired it, as increased by the cost of any improvement of the asset incurred or borne by the previous owner or the assessee, as the case may be, till the date of acquisition of the asset by the assessee. If the previous owner had also acquired the capital asset by any of the modes above, then the cost to that previous owner who had acquired it by mode of acquisition other than the above, should be taken as cost of acquisition.
Cost of improvement (Section 55(1) (b) ) The cost of improvement means all expenditure of a capital nature incurred in making additions or alternations to the capital asset. However, any expenditure which is deductible in computing the income under the heads Income from House Property, Profits and Gains from Business or Profession or Income from Other Sources (Interest on Securities) would not be taken as cost of improvement. Cost of improvement for goodwill of a business, right to manufacture, produce or process any article or thing is NIL.
CAPITAL GAINS EXEMPTED FROM TAX Long Term Capital Gain from the Transfer of Residential House Proper (Section 54) The exemption under the Section 54 is available only to an individual or a HUF who transfers (or sells) a residential house/property that results in a long-term capital gain, and then invests the amount of gain in acquiring a new residential house. This exemption is available subject to fulfillment of the following requirements: (i) The transferor shall be an individual or the HUF, (ii) The asset to be transferred must be of long-term capital asset, being buildings or lands appurtenant thereto, being a residential house, (iii) The income from such residential house shall be assessable under the head "Income from House Property", (iv) The transferor assessee should purchase a residential house in India within a period of one year before or two years from the date of transfer or construct a residential house within three years from the date of the transfer of the original house. (Construction must be completed within these 3 years.), and
(v) The new house property purchased or constructed has not been transferred within a period of three years from the date of purchase or construction. Amount of Exemption. The amount of exemption under section 54 is
Equal to the amount of the capital gain if cost of new house property is more than the capital gain, or Equal to the cost of the new house property if the cost is less than the capital gain.
Deposit Scheme under Section 54 . Where the amount of capital gain is not so utilized for the purchase or construction of a new residential house before the due date of furnishing of the return of income, it shall be deposited by him on or before the due date in an account with a public sector bank in accordance with the Capital Gain Account Scheme, 1988. The amount already utilized on the new house together with the amount deposited shall be deemed to be the amount utilized for the purchase of new house under section 54. If the amount deposited is not utilized for the purpose of purchase or construction of new house within the stipulated period, then the amount not so utilized will be treated as long term capital gain of the previous year in which the period of three years expires. In such case the assessee is entitled to withdraw the amount from the bank. Consequences of Selling the New House Before 3-years . If the new house property is transferred within a period of three years from the date of the purchase or construction, the amount of capital gains arising therefrom, together with the amount of gains exempted earlier, will be chargeable to tax in the year of sale of the house property. To attain this, the amount of exemption unde r section 54 shall be reduced from the cost of acquisition to the new house, while calculating shortterm capital gains on the transfer of the new asset.
Capital Gain on the Transfer of Agricultural Land (Section 54B) Capital gains arising on the transfer of land used by an individual or his parents for agricultural purposes for a period of two years immediately preceding the date of transfer is exempt form the tax if the individual assessee has purchased another agricultural land within a period of two years from the date of such transfer
(subject to the requirements). (Not covered: Amount of exemption, scheme of deposit and consequences on not meeting the requirements).
Capital Gain on Compulsory Acquisition of Land and Building of an Industrial Undertaking (Section 54D) Capital gains arising on the compulsory acquisition of any land or building forming a part of an industrial undertaking is exempt subject to the following requirements:
Such land or building was used by the assessee for the purpose of industrial undertaking for two years preceding the date of compulsory acquisition, The assessee has purchased any land or building or constructed a building within 3 years from the date of the receipt of the compensation, and Newly acquired land or building should be used for the purpose of shifting or reestablishing the said undertaking or setting up another industrial undertaking.
(Not covered: Amount of exemption, scheme of deposit and consequences on not meeting the requirements).
Long Term Capital Gain Exemption for Investment in Certain Bonds (Section 54EC) This exemption is available to an individual, HUF, company or any other person who invests the long term capital gain, within 6 months of a the transfer of the capital asset, in any of the specified bond (issued on or after April 1, 2006) redeemable after 3 years:
National Highway Authority of India (NHAI), or Rural Electrification Corporation Ltd. (REC)
There is a limit of Rs. 50 lakh on the investments on or after April 1, 2007. The face value of a bond is generally Rs. 10,000 and the rate of return correctly
averages about 5.5 to 5.75 per cent. This return is taxable income.
Long Term Capital Gain from the Transfer of a Capital Asset other than Residential House Property (Section 54F) The exemption is available only to an individual or a HUF who transfers (or sells) a capital asset that results in a long-term capital gain, and then invests the amount of gain in acquiring a new residential house. This exemption is available subject to fulfillment of the following requirements: (i) The transferor assessee should purchase or a residential house in India within a period of one year before or two years from the date of transfer or construct a residential house within three years from the date of the transfer of the original house. (Construction must be completed within these 3 years.), and (ii) The new house property purchased or constructed has not been transferred within a period of three years from the date of purchase or construction. (Not covered: Amount of exemption, scheme of deposit and consequences on not meeting the requirements).
Capital Gain on Transfer of Capital assets in Case of Shifting of Industrial Undertaking from Urban Area (Section 54G) This exemption is available to an individual, HUF, company or any other person who transfers the capital assets (being plant, machinery, land or building or any right in the land or building) being used for the purpose of industrial undertaking situated in an urban area to any area other than urban area. The assessee purchases within one year before or 3 years after the date of transfer: (i) Purchases plant or machinery for the purpose of business of industrial undertaking in the area to which the said undertaking has shifted, (ii) Acquires building or land or constructed building for the pur pose of his business in the said area, (iii) Shifts the original asset and transferred the establishment in the said area, and (iv) Incurs expenses on such other purpose as may be specified in a scheme framed by Central Government for the purpose of this section. (Not covered: Amount of exemption, and consequences on not meeting the
requirements).
Capital Gain on Transfer of Capital assets in Case of Shifting of Industrial Undertaking from Urban Area to any an y SEZ (Section 54GA) This exemption is available to an individual, HUF, company or any other person who transfers the capital assets (being plant, machinery, land or building or any right in the land or building) being used for the purpose of industrial undertaking situated in an urban area to a special economic zone (SEZ). The assessee purchases within one year before or 3 years after the date of transfer: (i) Purchases plant or machinery for the purpose of business of industrial undertaking in the area to which the said undertaking has shifted, (ii) Acquires building or land or constructed building for the pur pose of his business in the said area, (iii) Shifts the original asset and transferred the establishment in the said area, and (iv) Incurs expenses on such other purpose as may be specified in a scheme framed by Central Government for the purpose of this section.
Section
Asset Transferred
Who Entitle d
Use or Holding Period
Prescribed Period for Investment
Other Conditio ns/ Incidents
Sales of New Asset
54
Residential House
Individ ual or HUF
Exceedin g 3 years.
Within 1 year before, or 2 years after the date of transfer (if purchased) or 3 years after the date of transfer (if constructed).
54B
Agricultural Land
Individ ual
Use for 2 years
Within 2 years after the date of transfer.
If sold within 3 years from the date of purchase / construction, capital gains claimed as exempt assessable to tax together with additional capital gains in the year of transfer of new asset as Short Term Capital Gain (STCG) Must have been used by assessee or his parents for agricultur al purposes See Notes 1, 2 and 10
If sold within 3 years from the date of purchase / construction, capital gains claimed as exempt assessable to tax together with additional capital gains in the year of transfer of new asset as Short Term
Capital (STCG)
54D
Land or Building for Industrial undertaking .
Any Assess e
Use for 2 years
Within 3 years after the date of transfer.
54EC
Any Longterm Capital Asset (LTCA)
Any Assess e
Shares, Listed Securitie s, Units of UTI/Mut ual Fund covered
Within 6 months of transfer of original asset.
Must have been compulso rily acquired
Gain
If sold within 3 years from the date of purchase / construction, capital gains claimed as exempt assessable to tax together with additional capital gains in the year of transfer of new asset as Short Term Capital Gain (STCG) If sold within 3 years, exempted capital gain will be deemed to be income from Long Term
u/s. 10(23D) :1 year Others : 3 years
Capital Gain (LTCG) of the assesse in the year of transfer of the new asset.
54ED
LTCA being listed securities or units
Any Assess e
Listed Securitie s or units of UTI/Mut ual Fund covered u/s. 10(23D) : 1 year
Within six months from the date of transfer in acquiring eligible issue of capital
54F
Any Asset other than residential house.
Individ ual or HUF
Shares, Listed, Securitie s, Units of UTI/Mut ual Fund covered u/s. 10(23D) : 1 year Others : 3 years
Within 1 year before, or 2 years after the date of transfer (if purchased), or 3 years after the date of transfer (if constructed).
exemptio n is available only in respect of the assets transferr ed before 1-4-2006
If sold within 3 years, exempted capital gain will be deemed to be income from Long Term Capital Gain (LTCG) of the assesse in the year of transfer of the new asset. Same as for Sections 54, 54B, 54D except that under section 54F it will be taxed as LTCG.
54G
Plant and Machinery or Land and Building used for Industrial undertaking in Urban area.
Any Assess e
May be L.T.C.A or S.T.C.A
Within 1 year before, or 3 years after the date of transfer.
Same as for Sections 54, 54B and 54D.
54GA
Plant and Machinery or Land and Building used for Industrial undertaking in Urban area.
Any Assess e
May be L.T.C.A or S.T.C.A
Within 1 year before or 3 years after the date of transfer.
Same as for Sections 54, 54B and 54D.
115F
‘Foreign Exchange Asset’.
NonReside nt Indian
Shares, Listed Securitie s, Units of UTI/Mut ual Fund covered u/s. 10(23D) : 1 year Others : 3 years
Within 6 months after the date of transfer.
Same as u/s. 54F above.
