Understanding Capital Gains Taxation
Understanding Capital Gains Taxation
Lesson 4
Part IV – Income from Capital Gains
LESSON OUTLINE
LEARNING OBJECTIVES
– Capital Gains The provisions for computation of Income from
– Capital Asset [Section 2(14)] capital gains are covered under sections 45 to 55
of the Income Tax Act, 1961. Section 2(14) defines
– Short Term & Long Term Assets
the term capital gain and section 45, the charging
– Transfer [Section 2(47)] section lays down basis of charge for taxability of
capital gain/loss arises on transfer of capital asset.
– Mode of Computation
Taxability of capital gain depends upon the nature
– Ascertainment of Cost in Specified
of capital gain i.e., short term capital gain or long
Circumstances [Section 49]
term capital gain. The type of capital gain depends
– Advanced Money Received [Section 51] upon the period for which the capital asset is
– Exemption from Capital Gain Tax held. The taxability of capital gain shall satisfy the
conditions like there should be capital asset, the
– Tax Rates asset is transferred by the assessee, such transfer
– Case Law takes place during the previous year, etc. To give
relief to the assessee, the concept of exemption
– LESSON ROUND UP introduced under section 54, 54B, 54D, 54EC,
– SELF TEST QUESTION 54EE, 54F, 54G, 54GA, 54GB and 54H.
At the end of this lesson, you will learn
– the conditions to be satisfied for income to
be chargeable under this head,
– which assets are classified as capital
asset,
– the year in which the capital gains are
chargeable to tax,
– classification of capital gain into long term
and short term,
– which transactions are not regarded as
transfer,
– what are the exemptions available in
respect of capital gains,
– when can the assessing officer make a
reference to the valuation officer.
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CAPITAL GAINS
Sections 45 to 55A of the Income-tax Act, 1961 deal with capital gains.
Section 45 of the Act, provides that any profits or gains arising from the transfer of a capital asset effected in
the previous year shall, save as otherwise provided in various sections of Sec. 54, 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.
Doubts may arise as to whether “Capital Gains” being a capital receipt can be brought to tax as income. It
may be noted that the ordinary accounting canons of distinctions between a capital receipt and a revenue
receipt are not always followed under the Income-tax Act. Section 2(24)(vi) of the Income-tax Act specifically
provides that “Income” includes “any capital gains chargeable under Section 45(1)”. It may not be out of
place to mention here that in the absence of a specific provision in Section 2(24) capital gains have no
logic to be taxed as income. The constitutional validity of the provisions of the Act relating to capital gains
was challenged in Navin Chandra Mafatlal v. C.I.T. (1955) 27 ITR 245. The Supreme Court while upholding
Lesson 4 n Part IV – Income from Capital Gains 227
the competence of parliament in legislating with regard to capital gains as part of income, observed that
the term income should be given the widest connotation so as to include capital gains within its scope.
However, all capital profits do not necessarily constitute capital gains. For instance, profits on re-issue of
forfeited shares, profits on redemption of debentures, premium on issue of shares, are capital profits and
not capital gains, hence, not liable to tax.
The requisites of a charge to income-tax, of capital gains under Section 45(1) are:
(iii) The transfer must have been effected in the previous year.
(vi) Such capital gain should not be exempt under Sections 54, 54B, 54D, 54EC, 54EE, 54ED, 54F, 54G,
or 54GA
(i) any stock-in-trade(other than securities held by FII mentioned in clause (b) above), consumable stores
or raw-materials held for the purposes of his business or profession;
The exclusion of stock-in-trade from the definition of capital asset is only in respect of sub-clause (a)
above and not sub-clause (b). This implies that even if the nature of such security in the hands of the
Foreign Portfolio Investor is stock in trade, the same would be treated as a capital asset and the profit
on transfer would be taxable as capital gains.
(ii) personal effects that is to say, movable property (including wearing apparel and furniture ) held for
personal use by the assessee or any member of his family dependent on him but excludes
a) jewellery;
b) archaeological collections;
c) drawings;
d) paintings;
e) sculptures; or
f) any work of art
For this purpose, the expression ‘jewellery’ includes the following:
(1) Ornaments made of gold, silver, platinum or any other precious metal or any
alloy containing one or more of such precious metals, whether or not containing
any precious or semi-precious stones and whether or not worked or sewn into any
wearing apparel;
(2) Precious or semi-precious stones, whether or not set in any furniture, utensil or
other article or worked or sewn into any wearing apparel.
(iii) Rural agriculture land excludes :
a) any area within the jurisdiction of a municipality or a cantonment board and which has a population
of not less than ten thousand; or
b) any area within the distance, measured aerially from the jurisdiction of a municipality or a
cantonment board –
I. not being more than two kilometres, from the local limits of any municipality or cantonment
board and which has a population of more than ten thousand but not exceeding one lakh
II. not being more than six kilometres, from the local limits of any municipality or cantonment
board and which has a population of more than one lakh but not exceeding ten lakh
III. not being more than eight kilometres, from the local limits of any municipality or cantonment
board and which has a population of more than ten lakh.
(iv) 6 per cent Gold Bonds, 1977 or 7 per cent Gold Bonds, 1980 or National Defence Gold
Bonds, 1980 issued by the Central Government;
(v) Special Bearer Bonds 1991 issued by the Central Govt.
(vi) Gold Deposit Bonds issued under the Gold Deposit Scheme, 1999 or deposit certificates issued under
the Gold Monetisation Scheme, 2015 notified by the Central Government.
The Supreme Court in the case of Vodafone International Holdings B.V vs. Union of India [2012] 204 Taxman
408 held that influence/persuasion of a parent company over its subsidiary could not be construed as a right in
the legal sense.
To supersede this ruling with retrospective effect from 1st April 1962, an Explanation has been inserted to clarify
that “property” includes and shall be deemed to have always included any rights in or in relation to an Indian
company, including rights of management or control or any other rights whatsoever.
than 36 months immediately preceding the date of transfer. Therefore, an asset which is held by the
assessee for period of > 36 months immediately preceding the date of transfer is a long-term capital
asset.
• However, a security (other than a unit) listed in a recognised stock exchange or a unit of an equity
oriented fund, or of UTI or a Zero-Coupon Bond, will be considered as a long-term asset if it is held for
period of > 12 months immediately preceding the date of transfer.
• A share of a company not being a share which is listed on a recognised stock exchange in India or an
immovable property, being land or building or both, would be treated as a short-term capital asset if it
was held by an assessee for not more than 24 months immediately preceding the date of its transfer.
Thus, the period of holding of unlisted shares or an immovable property, being land or building or both,
for being treated as a long-term capital asset would be “more than 24 months” instead of “more than 36
months”.
• Assets other than short-term capital assets are known as ‘long-term capital assets’ and the gains
arising therefrom are known as ‘long-term capital gains’. In the case of other long- term capital assets,
the period of holding is determinable subject to any rules made by CBDT. An asset should be held for
more than 36 months immediately prior to the date of its transfer to become a long term capital asset.
However, where a capital asset, being Immoveable property (land or building or both) is transferred
on or after April 1, 2017, then it will be treated as Long Term Capital Asset if it is held for more than 24
months immediately prior to the date of its transfer.
Period of Holding
STCA, if held for ≤ 12 month • Security (other than unit) listed in a recognized stock exchange
LTCA, if held for > 12 months • Unit of equity oriented fund/ unit of UTI
• Zero Coupon bond
In determining the period for which a capital asset is held by an assessee, the following must be noted:
(i) In the case of shares held in a company in liquidation, the period subsequent to the date on which
the company goes into liquidation shall be excluded;
(ii) In case the asset becomes the property of the assessee under the circumstances mentioned in
Section 49(1) - discussed later in this lesson - the period for which the asset was held by the previous
owner shall be included;
(iii) In the case of the shares in an Indian Company which become the property of the assessee in a
scheme of amalgamation, the period for which the shares in the amalgamating company were held
by the assessee shall be included;
(iv) In the case of a capital asset, being a share or any other security subscribed to by the assessee
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on the basis of his right to subscribe to such financial asset or subscribed to by the person in
whose favour the assessee has renounced his right to subscribe to such financial asset, the
period shall be reckoned from the date of allotment of such financial asset;
(v) In the case of a capital assets, being the right to subscribe to any financial asset, which is renounced
in favour of any other person, the period shall be reckoned from the date of the offer of such right by the
company or institution, as the case may be, making such offer;
(vi) In the case of a capital asset, being a financial asset, allotted without any payment and on the
basis of holding of any other financial asset, the period shall be reckoned from the date of the
allotment of such financial asset;
(vii) In the case of a capital asset, being a share or shares in an Indian company, which becomes the
property of the assessee in consideration of a demerger, there shall be included the period for
which the share or shares held in the demerged company were held by the assessee;
(viii) In the case of a capital asset, being trading or clearing rights of a recognized stock exchange
in India acquired by a person pursuant to demutualisation or corporatisation of the recognized
stock exchange in India as referred to in Clause (xiii) of Section 47, there shall be included the
period for which the person was a member of the recognized stock exchange in India immediately prior
to such demutualisation or corporatisation;
(viiia) In the case of a capital asset, being equity share or shares in a company allotted pursuant to
demutualisation or corporatisation of a recognised stock exchange in India as referred to in
Clause (xiii) of Section 47, there shall be included the period for which the person was a member of
the recognized stock exchange in India immediately prior to such demutualisation or corporatisation;
Where preference shares are converted into equity shares, the period of holding shall be considered from the date
of acquisition of preference shares. Cost of acquisition of preference shares shall be taken as cost of acquisition
of equity shares in the hands of assessee.
Where units are held by an assessee in the consolidating plan of a mutual fund scheme, made in consideration
of the allotment to him of units, in the consolidated plan of that scheme of mutual fund, then the period of holding
shall also include the period for which the units in consolidating plan of mutual fund scheme were held by him.
Cost of acquisition of units in the consolidated plan of mutual fund scheme referred u/s 47(xix) shall be the cost
of acquisition of units in the consolidating plan of mutual fund scheme.
Where during any assessment year, the assessee has exercised the option to purchase or construct two
residential houses in India, he shall not be subsequently entitled to exercise the option for the same or any
other assessment year.
This implies that if an assessee has availed the option of claiming benefit of section 54 in respect of purchase
of two residential houses in Jaipur and Jodhpur, say, in respect of capital gains of Rs. 1.50 crores arising from
transfer of residential house at Bombay in the P.Y.2019-20 then, he will not be entitled to avail the benefit of
section 54 again in respect of purchase of two residential houses in, say, Pune and Baroda, in respect of capital
gains of Rs. 1.20 crores arising from transfer of residential house in Jaipur in the P.Y.2023-24, even though the
capital gains arising on transfer of the residential house at Jaipur does not exceed Rs. 2 crore.
Amount of Exemption under section 54 will be lower of:
l Long term capital gains arising on transfer of residential house; or
l Amount invested in purchase/construction of new residential house or houses. (including the amount
deposited in CGAS before due date of filing of return
If till the date of filing the return of income, the LTCG on such transfer of the house is not utilised (in whole or
in part) to purchase or construct another house, then the benefit of exemption can be availed by depositing the
unutilised amount into Capital Gains Deposit Account Scheme (CGAS) with any scheduled bank.
If the amount deposited in the Capital Gains Account Scheme in respect of which the assessee has claimed
exemption under section 54 is not utilised within the specified period for purchase/construction of the residential
house, then the unutilised amount (for which exemption is claimed) will be taxed as income by way of long- term
capital gains of the year in which the specified period of 2 years/3 years gets over.
If the new house is also transferred within 3 years from date of acquisition or construction, the cost of new house
would be reduced by the capital gains exempted earlier under section 54.
Illustration 7:
Mr. Khan purchased a residential house in the previous year 2005-06 for Rs. 2 crores. The house property is
sold for Rs. 10 crores in the previous year 2019-20 and the capital gain is invested in two residential house
properties worth Rs. 4 crores each. Can he claim the benefit of section 54 in respect of both houses ?
Solution :
Exemption under section 54 can be claimed in respect of capital gains arising on transfer of capital asset, being
long-term residential house property. With effect from Assessment Year 2020-21, an assessee has an option
to make investment in two residential house properties in India to claim section 54 exemption. This option can
be exercised by the assessee only once in his lifetime provided the amount of long-term capital gain does not
exceed Rs. 2 crores. Since, the gain arising in hands of Mr. Khan is Rs. 5.06 crores which is more than Rs. 2
crore, he cannot claim the benefit of section 54 by making investment in both the house properties. However he
can claim the benefit only in respect of one residential property invested.
Computation of Long Term Capital Gains (LTCG)
No tax on long-term capital gains if investments made in specified bonds [Section 54EC]
Conditions for claiming exemption:
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SUGGESTED READINGS
1. Direct Taxes Law and Practice
Author : Dr. Vinod K. Singhania & Dr. Kapil Singhania
Publisher : Taxmann
Year : 2019
Edition : 2019
2. Direct Taxes Ready Reckoner with Tax Planning
Author : Dr. Girish Ahuja & Dr. Ravi Gupta
Publisher : Wloters Kluwer
Year : 2019
Edition : 20th Edition