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Presented by:
CA Vijay Kr Agrawal,
JAIPUR
MCOM,FCA,DISA,DIRM,LLB,NDDY,
CCCA, CCFAFD, DAT
Phone: +91 9828149043
Email: catvijay@yahoo.com
Capital gains.
45. (1) Any profits or gains arising from the transfer of a
capital asset effected in the previous year shall be
chargeable to income-tax under the head "Capital gains",
and shall be deemed to be the income of the previous year
in which the transfer took place.
the cost of acquisition of the asset shall be deemed to be the cost for
which the previous owner of the property acquired it, as increased by
the cost of any improvement of the assets incurred or borne by the
previous owner or the assessee, as the case may be.
(5) Where the capital gain arises from the transfer of an asset
declared under the Income Declaration Scheme, 2016, and the
tax etc has been paid on the FMV of the asset, the cost of
acquisition of the asset shall be deemed to be the FMV which
has been taken into account in the said Scheme.
(7) Where the capital gain arises from the transfer of a capital
asset, being share in the project, in the form of land or
building or both, referred to in section 45(5A), the cost of
acquisition of such asset, shall be the amount which is deemed
as full value of consideration in that sub-section.
Special provision for depreciable assets.
50. Where the capital asset is subject to depreciation, the
capital gain shall be calculated as under.
(1) where the full value of the consideration, exceeds the
aggregate of the following amounts, namely :—
- expenditure incurred in connection with such transfer;
- the Opening WDV of the block of assets;
- the actual cost of any asset acquired during the year,
such excess shall be deemed to be the short term capital
gain.
(2) The amount of the net consideration, received by Company for issue of
shares, if not utilised before the due date of furnishing of the return, shall
be deposited in a bank as may be specified and shall be utilised in
accordance with scheme notified by the Central Government may,
Provided that if the amount so deposited is not
utilised, than the capital gain which was exempted
will be taxable in the previous year in which the
period of one year from the date of the subscription in
equity shares by the assessee expires;
(4) If the equity shares of the company or the new
asset acquired by the company are sold or transferred
within five years the amount of capital gain shall be
deemed to be the income of the assessee of the
previous year in which such equity shares or such new
asset are sold/ transferred,
not being more than six kilometres, from the local limits of
any municipality which has a population between 100000 to
1000000
- 6½ per cent Gold Bonds, 1977, or 7 per cent Gold Bonds, 1980, or National
Defence Gold Bonds, 1980, issued by the Central Government;
- Special Bearer Bonds, 1991, issued by the Central Government ;
- Gold Deposit Bonds issued under the Gold Deposit Scheme, 1999 4[or
deposit certificates issued under the Gold Monetisation Scheme, 2015]
notified by the Central Government.
(42A) "short-term capital asset" means a capital asset held by
an assessee for not more than thirty-six months immediately
preceding the date of its transfer :
Higher of
Lower of
Actual Cost
of Acquisition
Fair Market
Actual Sales
Value as on
Consideration
31.01.2018
Scenario 1 – An equity share is acquired on
1st of January, 2017 at Rs. 100, its fair
market value is Rs. 200 on 31st of January,
2018 and it is sold on 1st of April, 2018 at
Rs. 250.
Answer : As the actual cost of acquisition is
less than the fair market value as on 31st
of January, 2018, the fair market value of
Rs. 200 will be taken as the cost of
acquisition and the long-term capital gain
will be Rs. 50 (Rs. 250 – Rs. 200).
Scenario 2 – An equity share is acquired on
1st of January, 2017 at Rs. 100, its fair
market value is Rs. 200 on 31st of January,
2018 and it is sold on 1st of April, 2018 at
Rs. 150.
Answer : In this case, the actual cost of
acquisition is less than the fair market
value as on 31st of January, 2018. However,
the sale value is also less than the fair
market value as on 31st of January, 2018.
Accordingly, the sale value of Rs. 150 will
be taken as the cost of acquisition and the
long-term capital gain will be NIL (Rs. 150 –
Rs. 150).
Scenario 3 – An equity share is acquired on
1st of January, 2017 at Rs. 100, its fair
market value is Rs. 50 on 31st of January,
2018 and it is sold on 1st of April, 2018 at
Rs. 150.
Answer : In this case, the fair market value
as on 31st of January, 2018 is less than the
actual cost of acquisition, and therefore,
the actual cost of Rs. 100 will be taken as
actual cost of acquisition and the long-term
capital gain will be Rs. 50 (Rs. 150 – Rs.
100).
Scenario 4 – An equity share is acquired on
1st of January, 2017 at Rs. 100, its fair
market value is Rs. 200 on 31st of January,
2018 and it is sold on 1st of April, 2018 at
Rs. 50.
Answer : In this case, the actual cost of
acquisition is less than the fair market
value as on 31st January, 2018. The sale
value is less than the fair market value as
on 31st of January, 2018 and also the
actual cost of acquisition. Therefore, the
actual cost of Rs. 100 will be taken as the
cost of acquisition in this case. Hence, the
long-term capital loss will be Rs. 50 (Rs. 50
– Rs. 100) in this case.
iv) Fair market value mean –
- Where capital asset is listed on any recognized stock
exchange, the highest price quoted 31.01.2018. However,
where there is no trading on 31.01.2018, the highest price
of such asset on a date immediately preceding the
31.01.2018.
- in a case where the capital asset is a unit and is not listed
on stock exchange, the NAV as on 31.01.2018.
v) The benefit of deduction under chapter VIA shall be allowed
from the gross total income as reduced by such capital gains.
Similarly, the rebate under section 87A shall be allowed from
the income tax on the total income as reduced by tax payable
on such capital gains.
These amendments will take effect from 1st April,
2019 and will, accordingly, apply in relation to the
assessment year 2019-20 and subsequent
assessment years.
Tax Planning
Sale your Holding on or Before 31.03.2018,
or otherwise be ready to pay Tax on Long
Term Capital Gain Which Accrue on or after
31.01.2018
10(38) any income arising from the transfer of a long-term
capital asset, being an equity share in a company or a unit of
an equity oriented fund or a unit of a business trust where—
(a) the transaction of sale of such equity share or unit is
entered into on or after the date on which Finance Act, 2004
comes into force; and
(b) such transaction is chargeable to securities transaction tax
under that Chapter :
Following third proviso shall be inserted after the second
proviso to clause (38) of section 10 by the Finance Act,
2017, w.e.f. 1-4-2018 :
Provided also that nothing contained in this clause shall apply to any
income arising from the transfer of a long-term capital asset, being an
equity share in a company, if the transaction of acquisition, other than the
acquisition notified by the Central Government in this behalf, of such
equity share is entered into on or after the 1st day of October, 2004 and
such transaction is not chargeable to securities transaction tax under
Chapter VII of the Finance (No. 2) Act, 2004 (23 of 2004).
Dividend distribution tax on dividend payout by
equity oriented fund
The existing provisions of section 115R, inter alia, provide any
amount of income distributed by a Mutual Fund to its unit
holders shall be chargeable to tax and mutual Fund shall be
liable to pay additional income-tax on such distributed income
at the rate specified in the section. However, in respect of any
income distributed to a unit holder of equity oriented funds is
not chargeable to tax under the said section.
In the wake of new capital gains tax regime for unit holders of
equity oriented funds, it is proposed to amend the said section
to provide that where any income is distributed by a Mutual
Fund being, an equity oriented fund, the mutual fund shall be
liable to pay additional income tax at the rate of ten per cent
on income so distributed. This amendment will take effect
from 1st April, 2018.
Rationalization of section 43CA, section 50C
and section 56.
At present, while taxing income from capital gains (section
50C), business profits (section 43CA) and other sources (section
56) arising out of transactions in immovable property, the sale
consideration or stamp duty value, whichever is higher is
adopted.
It has been pointed out that this variation can occur in respect
of similar properties in the same area because of a variety of
factors, including shape of the plot or location. In order to
minimize hardship in case of genuine transactions in the real
estate sector, it is proposed to provide that no adjustments
shall be made in a case where the variation between stamp
not more than
duty value and the sale consideration is
five percent of the sale consideration.
These amendments will take effect from 1st April, 2019 i.e.
assessment year 2019-20.
Example
An assess sold Land for Rs 500000 however the DLC
rates are
a. 600000
b. 525000
c. 520000
d. 530000
e. 400000
What would be the Sales price to be taken into
account as per the new provisions
f. 600000
g. 500000
h. 500000
i. 530000
j. 500000
43CA. (1) Where the consideration received or
accruing as a result of the transfer by an assessee of
an asset (other than a capital asset), being land or
building or both, is less than the value assessed by any
authority of a State Government for the purpose of
payment of stamp duty, the value so adopted or
assessed or assessable shall, for the purposes of
computing profits and gains from transfer of such
asset, be deemed to be the full value of the
consideration received or accruing as a result of such
transfer.
(2) The provisions of section 50C shall, so far as may
be, apply in relation to determination of the value
assessed under sub-section (1).
Conversion of stock-in-trade into Capital
Asset
These amendments will take effect, from 1st April, 2019 i.e.
assessment year 2019-20.
Rationalization of the provisions of section 54EC
Section 54EC of the Act provides that capital gain,
arising from the transfer of a long-term capital asset,
invested in the long-term specified asset at any time
within a period of six months after the date of such
transfer, shall not be charged to tax subject to certain
conditions specified in the said section.
The section also provides that “long-term specified
asset” for making any investment under the section on
or after the 1st day of April, 2007 means any bond,
redeemable after three years and issued on or after
the 1st day of April, 2007 by the National Highways
Authority of India or by the Rural Electrification
Corporation Limited; or any other bond notified by the
Central Government in this behalf.
In order to rationalise the provisions of section 54EC
of the Act and to restrict the scope of the section only
to capital gains arising from long-term capital assets,
being land or building or both and to make available
funds at the disposal of eligible bond issuing company
for more than three years, it is proposed to amend the
section 54EC so as to provide that capital gain arising
from the transfer of a long-term capital asset, being
land or building or both, invested in the long-term
specified asset at any time within a period of six
months after the date of such transfer, the capital
gain shall not be charged to tax subject to certain
conditions specified in this section.
It is also proposed to provide that long-term
specified asset, for making any investment
under the section on or after the 1st day of
April, 2018, shall mean any bond, redeemable
after five years and issued on or after 1st day
of April, 2018 by the National Highways
Authority of India or by the Rural
Electrification Corporation Limited or any other
bond notified by the Central Government in
this behalf.
This amendment will take effect, from 1st April, 2019
and will, accordingly, apply in relation to the
assessment year 2019-20 and subsequent assessment
years.
Section 43CB – Computation of income from
construction and service contracts
- Tax Bracket : if you are under tax bracket of 10% than STCG
is better option but if you are in Higher Tax Bracket i.e.30%,
than obviously LTCG will be a better option. (Take care of
Other option available u/s 54 also)
Determination of Consideration:
Considering that the land owner is required to pay the taxes on the date of
execution of JDA, the biggest question is that when the project is just on
the JDA with no real existence, what will be consideration. For this purpose
I would like to draw attention to Section 50D of the Income Tax Act,
1961, which says,
“Where the consideration received or accruing as a result of the transfer
of a capital asset by an assessee is not ascertainable or cannot be
determined, then, for the purpose of computing income chargeable to tax
as capital gains, the fair market value of the said asset on the date of
transfer shall be deemed to be the full value of the consideration received
or accruing as a result of such transfer.”
A few Judicial decisions:
Dwarka Das Kapadia v. CIT [2003]/180CTR
(Bom.)107/260 ITR 491(Bom)/[2003]; Bombay HC
held that if the contract, read as whole, indicates
passing of or transferring of complete control over
the property in favour of developer, then the date of
contract would be relevant to decide the year of
chargeability. Thus the essence of Section 2(47) (v)
may be considered, when there is transfer of
complete control over the asset by the owner to the
developer.
Charanjit Singh Atwal v. ITO Ward-VI(1)
Ludhiyana; it was held that Irrevocable General
Power of Attorney which leads to overall control of
property in hands of developer, even if that does not
involve exclusive possession of developer, would
constitute transfer within the meaning of Section
2(47) (v) . It was held that the possession
contemplated by provisions of Section 2(47) (v) of the
Income tax Act, 1961 does not require handing over
exclusive possession. What is required is that the
transferred by virtue of possession should be able to
exercise from overall intended purposes.
M/s. Binjusaria Properties Pvt. Ltd. Hyderabad versus Asstt.
Commissioner of Income-tax: As on date there was no
developmental activity on the land which is subject matter of
development agreement – The process of construction has not
been even initiated and no approval for the construction of the
building is obtained – Thus, the sale consideration in the form
of developed area has not been received – Mere receipt of
refundable deposit cannot be termed as receipt of
consideration – the AO calculated the capital gain on the entire
land, even though the assessee has retained 38% share to
itself.
General Glass Co. Ltd. Vs DCIT 108 TTJ 854 (Mumbai): Where
payment of balance consideration within stipulated time is
essence of the agreement of sale and such payments are not
made in time by the transferee, such a contract does not
confer any
right on the transferee as envisaged under Section 53A of the
Transfer of Property Act and provisions of Section 2(47)(v)
cannot be applied in such a situation
NOTIFIED COST INFLATION INDEX UNDER SECTION 48, EXPLANATION (V) - FINANCIAL YEAR 2017-18
As per Notification no. So 1790(e)[no. 44/2017 (f. No. 370142/11/2017-tpl)], dated 5-6-2017, following table should be used for the Cost
Inflation Index :-