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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 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 gain is added to the total income 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.
WHAT ALL CAPITAL ASSET INCLUDES :1. 2. 3. 4. 5. 6. 7. 8. 9. Goodwill of a business. Partners share in a firm. Tenancy rights. Actionable claim. Loom hours (Hours for which a worker works in a factory). Patent. Trade-Marks. Lease hold right in mines. License for manufacturing of a commodity.
EXCEPTIONS :The term Capital Asset doesnt 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 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
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.
iii) Compulsory acquisition of the capital asset under any law iv) Conversion of a capital asset into 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
(ii) This clause has been omitted by the Finance Act, 1987 w.e.f 1-4-1988; (iii) Any transfer of a capital asset under a gift or will or an irrevocable trust;
http://www.vakilno1.com/bareacts/incometaxact/s47.htm
(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 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 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 debentures, 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 with 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 the 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.
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.
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.
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.
(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 under 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.
(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 purpose 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 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 purpose 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 Prescribed Other Holding Period for Conditio Period Investment ns/ Incidents
54
Residential House
Individ Exceedin Within 1 year ual or g 3 years. before, or 2 HUF years after the date of transfer (if purchased) or 3 years after the date of transfer (if constructed).
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
54B
Agricultural Land
Individ ual
Capital (STCG)
Gain
54D
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
54EC
u/s. 10(23D) :1 year Others : 3 years 54ED LTCA being Any listed Assess securities or e units 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 exemptio n is available only in respect of the assets transferr ed before 1-4-2006
Capital Gain (LTCG) of the assesse in the year of transfer of the new asset. 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.
54F
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).
54G
Plant and Any Machinery Assess or Land and e Building used for Industrial undertaking in Urban area.
54GA
Plant and Any Machinery Assess or Land and e Building used for Industrial undertaking in Urban area. Foreign Exchange Asset. NonReside nt Indian
115F
Shares, Listed Securitie s, Units of UTI/Mut ual Fund covered u/s. 10(23D) : 1 year Others : 3 years