Profits or gains arising from the transfer of a capital asset made in a previous year is taxable as capital gains under the head "Capital Gains". The important ingredients for capital gains are, therefore, existence of a capital asset, transfer of such capital asset and profits or gains that arise from such transfer.

Capital asset

Capital asset means property of any kind except the following :

a) Stock-in-trade, consumable stores or raw-materials held for the purpose of business or profession.

b) Personal effects like wearing apparel, furniture, motor vehicles etc., held for personal use of the tax payer or any member of his family. However, jewellery, even if it is for personal use, is a capital asset.

c) Agricultural land in India other than the following:

• Land situated in any area within the jurisdiction of muni-cipality, municipal corporation, notified area committee, town area committee, town committee, or a cantonment board which has a population of not less than 10,000 according to the figures published before the first day of the previous year based on the last preceding census.
• Land situated in any area around the above referred bodies upto a distance of 8 kilometers from the local limits of such bodies as notified by the Central Government (Please see Annexure 'A' for the notification).

d) 6 1/2 per cent Gold Bonds, 1977, 7 per cent Gold Bonds, 1980, National Defence Gold Bonds, 1980 and Special Bearer Bonds, 1991 issued by the Central Government.

e) Gold deposit bonds issued under the Gold Deposit Scheme 1999 notified by the Central Government.

Though there is no definition of "property" in the Income-tax Act, it has been judicially held that a property is a bundle of rights which the owner can lawfully exercise to the exclusion of all others and is entitled to use and enjoy as he pleases provided he does not infringe any law of the State. It can be either corporeal or incorporeal. Once something is determined as property it becomes a capital asset unless it figures in the exceptions mentioned above. Something is determined as property it becomes a capital asset unless it figures in the exceptions mentioned above.

Transfer

Transfer includes:

i) Sale, exchange or relinquishement of a capital asset

A sale takes place when title in the property is transferred for a price. The sale need not be voluntary. An involuntary sale like that by a Court of a property of judgement debtor at the instance of a decree holder is also transfer of a capital asset.

An exchange of capital asset takes place when the title in one property is passed in consideration of the title in another property. Relinquishment of a capital asset arises when the owner surrenders his rights in property in favour of another person. For example, the transfer of rights to Subscribe the shares in a company under a 'Right Issue' to a third person.

ii) Extinguishment of any rights in a capital asset

This covers every possible transaction which results in destruction, annihilation extinction, termination, Cessation or cancellation of all or any bundle of rights in a capital asset. For example, termination of a lease or and of a mortgagee interest in a property.

iii) Compulsory acquisition of the capital asset under any law

Acquisition of immovable properties under the Land acquisition Act, acquisition of industrial undertaking under the Industries (Development and Regulation) Act or preemptive purchase of immovable properties by the Income-tax Department are some of the examples of compulsory acquisition of a capital asset.

iv) Conversion of a capital asset into stock-in-trade

Normally, there can be no transfer if the ownership in an asset remains with the same person. However the Income-tax Act provides an exception for the purpose of capital gains. When a person converts any capital asset owned by him into stock-in-trade of a business carried on by him, it is regarded as a transfer. For example, where an investor in shares starts a business of dealing in shares and treats his existing investments as the stock-in-trade of 6 new business, such conversion arises and is regarded as a transfer.

v) Part performance of a contract of sale

Normally transfer of an immovable property worth Rs.100/- or more is not complete without execution and registration of a conveyance deed. However, section 53A of the Transfer of Property Act envisages situations where under a contract for transfer of an immovable property, the purchaser has paid the price and has taken possession of the property, but the conveyance is either not executed or if executed is not registered. In such cases the transferer is debarred from agitating his title to the property against the purchaser.

The act of giving possession of an immovable property in part performance of a contract is treated as "transfer" for the purposes of capital gains. This extended meaning of transfer applies also to cases where possession is already with the purchaser and he is allowed to retain it in part performance of the contract.

vi) Transfer of rights in immovable properties through the medium of co-operative societies, companies etc.

Usually flats in multi-storeyed building and other dwelling units in group housing schemes are registered in the name of a co-operative society formed by the individual allottees. Sometimes companies are floated for his purpose and allottees take shares in such companies. In such cases transfer of rights to use and enjoy the flat is effected by changing the membership of co-operative society or by transferring the shares in the company. Possession and enjoyment of immovable property is also made by what is commonly known as Tower of Attorney' transfers.

All these transactions are regarded as transfer.

vii) Transfer by a person to a firm or other or Body of a person to a Association of Persons (AOP) Individuals (BOI)

Normally, firm/AOP/BOI is not considered a distinct legal entity from its partners or members and so transfer of a capital asset from the partners to the firm/AOP/BOI is not considered as 'Transfer'. However, under the Capital Gains, it is specifically provided that if any capital asset is transferred by a partner to a firm/AOP/BOI by way of capital contribution or otherwise, the same would be construed as transfer.

viii) Distribution of capital assets on Dissolution

Normally, distribution of capital assets on dissolution of a firm/AOP/BOI is also not considered as transfer for file same reasons as mentioned in (vii) above. However, folder the capital gains, this is considered as transfer by the firm/AOP/BOI and therefore gives rise to capital gains .| the case of the firm/AOP/BOI.

ix) Distribution of money or other assets by a Company on liquidation

(i) If a shareholder receives any money or other assets from a Company in liquidation, the shareholder is liable to pay capital gains as the same would have been received in lieu of the shares held by him in the company. However, if the assets of a company are distributed to the shareholders on its liquidation, such distribution shall not be regarded as transfer by the company.

(ii) Transactions not regarded as Transfer

The following, though may fall under the above definition of transfer are to be treated as not transfer for the purpose of computing Capital Gains:

Distribution of capital assets on the total or partial , partition of a Hindu Undivided Family; of a capital asset under a gift or will or an irrevocable trust except transfer under a gift or an irrevocable trust, of shares, debentures or warrants allotted by a company to its employees under  Employee's Stock Option Plan or Scheme;

iii) 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 a subsidiary company,

b) the subsidiary company is an Indian company,

c) the capital asset is not transferred as stock-in- trade,

d) the subsidiary company does not convert such capital asset into stock-in-trade for a period of 8 years from the date of transfer, and

e) the parent company or its nominees continue to hold the whole of the share capital of the subsidiary company for 8 years from the date of transfer.

iv) 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,

b) the holding company is an Indian Company,

c) the capital asset is not transferred as stock-in-trade,

d) the holding company does not convert such capital asset into stock-in-trade for a period of 8 years from the date of transfer, and

e) the holding company or its nominees continue or hold the whole of the share capital of the subsidiary company for 8 years from the date of transfer.

v) in a scheme of amalgamation, transfer of a capital asset by the amalgamating company to the amalgamated company if the amalgamated company is an Indian company.

vi) transfer of shares of an amalgamating company, if:

a) the transfer is made in consideration of the allotment of share or shares in the amalgamated company, and

b) the amalgamated company is an Indian company.

vii) transfer of shares of an Indian Company by an 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.

viii) in a demerger :

a) transfer of a capital asset by the demerged company to the resulting company, if the resulting company is an Indian company;

b) transfer of share or shares held in an Indian company by the demerged foreign company to the resulting foreign company if: i) the shareholders holding not less than three-fourths in value of the shares of the demerged foreign company continue to remain shareholders of the resulting foreign company; and

ii) such transfer does not attract tax on capital gains in the country, in which the demerged foreign company is incorporated.

c) transfer or issue of shares, in consideration of demerger of the undertaking by,the resulting company to the shareholders of the demerged company.

ix) transfer of bonds or Global Depository Receipts, purchased in foreign currency, by a non-resident to another non-resident outside India.

x) transfer of agricultural land in India effected before first of March,'70.

xi) transfer of any work of art, archeological, scientific or art collection, book, manuscriptt,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 notified by the Central Government in the Official Gazette to be of national importance or to be of renown throughout any State or States.

xii) transfer by way of conversion of bonds or debentures, debenture stock or deposit certificate in any form, of a company into shares or debentures of that company.

xiii) transfer of membership of a recognised stock exchange made by a person (other than a company) on or before 31.12.1998, to a company in exchange of shares allotted by that company. However, if the shares of the company are transferred within 3 years of their acquisition, the gains not charged to tax by treating their acquisition as not transfer would be taxed as capital gains in the year of transfer of the shares.

xiv) transfer of land of a sick industrial company, made under a scheme prepared and sanction 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 and such transfer is made during the period commencing from the previous year in which the said company has become a sick industrial company under section 17(1) 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.

xv) Transfer of a capital asset to a company in the course of corporitisation of a recognised stock exchange in India as a result of which an Association of Persons (AOP) or Body of Individuals (BOI) is succeeded by such company, if:

a) all the liabilities of the AOP or BOI relating to the business immediately before the succession become the assets and liabilities of the company,

b) corporitisation is carried out in accordance with a scheme which is approved by Securities and Exchanges Board of India (SEBI).

(xvi) 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, if:

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 percent of the total voting power in the company and their shareholding continues to be as such for a period of five years from the date of the succession.

If the conditions laid down above are not complied with, then the amount of profits or gains arising from the above transfer would be deemed to be the profits and gains of the successor company for the previous year during which the above conditions are not complied with.

xvii) 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, if:

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 percent 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.

If the conditions laid down above are not complied with, then the amount of profits or gains arising from the above transfer would be deemed to be the profits and gains of the successor company for the previous year during which the above conditions are not complied with.

xviii) transfer in a scheme of lending of any securities under an arrangement subject to the guidelines of Securities and Exchanges Board of India (SEBI).

Profits or Gains

The incidence of tax on Capital Gains depends upon length for which the capital asset transferred was held the transfer. Ordinarily a. capital asset held for 36 or less is called a 'short-term capital asset' and if the period exceeds 36 months, the asset is known as term capital asset'. However, shares of a Company, the of Unit Trust of India or any specified Mutual Fund or security listed in any recognised Stock Exchange are to considered as short term capital assets if held for 12 or less and long term capital assets if held for more 12 months.

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 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)

Short Term Capital Gains is computed as below :

Computation of short - term Capital Gains

1. Find out full value of consideration
2. Deduct the following :
   1. expenditure incurred wholly and exclusively in connection with such transfer
   2. cost of acquisition; and
   3. 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)

Long Term Capital Gains is computed as below :

Computation of long - term Capital Gains

1. Find out full value of consideration
2. Deduct the following :
   1. expenditure incurred wholly and exclusively in connection with such transfer
   2. indexed cost of acquisition; and
   3. 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

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

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

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 anytime 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.

Where shares in an amalgamated Indian company became the property of the assessee in a scheme of amalgamation the cost of acquisition of the shares of the amalgamated company shall be the cost of acquisition of the shares in the amalgamating company.

Where a share or debenture in a company, became the property of the assessee on conversion of bonds on debentures the cost of acquisition of the asset shall be the part of the cost of debenture, debenture stock or deposit certificates in relation to which such asset is acquired by the assessee.

Where shares, debentures or warrants are acquired by the assessee under Employee Stock Option Plan or Scheme and they are taken as perquisites under section 17(2) the cost of acquisition would be the valuation done under section 17(2).

Cost of Acquisition of shares in the resulting company, in a demerger. Net book value of the assets transferred in a demerger Net worth of the demerged company immediately before demerger Cost of acquisition of shares of the demerged company.

The cost of acquisition of the original shares held by the shareholder in the demerged company will be reduced by the above amount.

Where the capital asset is goodwill of a business or a mark or brand name associated with a business, fit to manufacture, produce or process any article or tenancy rights, stage carriage permits or loom hours, cost of acquisition is the purchase price paid by the and in case no such purchase price is paid it is nil.

Where the cost for which the previous owner acquired the property cannot be ascertained the cost of acquisition to ,the previous owner means the fair market value on the on which the capital asset became the property of the owner.

Where share or a stock of a company became the property of the assessee on :

a) the consolidation and division of all or any of the share capital of the company in to shares of larger amount than its existing shares;

b) the conversion of any shares of the company into stock;

c) the reconversion of any stock of the company into shares;

d) the sub-division of any of the shares of the company into shares of smaller amount; or

e) the conversion of one kind of shares of the company into another kind.Cost of acquisition of the share or stock is as calculated from the cost of acquisition of the shares or stock from which it is derived.

The cost of acquisition of rights shares is the amount which is paid by the subscriber to get them. In case a subscriber purchases the right shares on renunciation by an existing share holder, the cost of acquisition would include the amount paid by him to the person who has renounced the rights in his favour and also the amount which he pays to the company for subscribing to the shares. The person who has renounced the rights is liable for capital gains on the rights renounced by him and the cost of acquisition of such rights renounced is nil.

The cost of acquisition of bonus shares is nil.

Where equity share(s) are allotted to a shareholder of a recognised stock exchange in India under a scheme of corporitisation approved by SEBI, the cost of acquisition of the original membership of the exchange is the cost of acquisition of the equity share(s).

Cost of improvement

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.

Cost of transfer

This may include brokerage paid for arranging the deal, legal expenses incurred for preparing conveyance |and other documents, cost of inserting advertisements in newspapers for sale of the asset and commission paid to auctioneer, etc. However, it is necessary that the expenditure should have been incurred wholly and exclusively in connection with the transfer. An expenditure incurred primarily for some other purpose but which has helped in - effecting the transfer does not qualify for deduction.

Besides an expenditure which is eligible for deduction in computing income under any other head of income, cannot be claimed as deduction in computing capital gains. For example, salary of an employee of a business cannot be deducted in computing capital gains though the employee may have helped in facilitating transfer of the capital asset.

Period in holding of certain cases

Normally the period is counted from the date of acquisition to the date of transfer. However, it has the following exceptions.

i) in the case of a share held in a company on liquidation the period subsequent to the date on which the company goes into liquidation would not be considered.

ii) where the cost of acquisition is to be taken as the cost to the previous owner, the period of holding by the previous owner should also be considered.

iii) where the capital asset is the shares of an amalgamated y company acquired in lieu of the shares of the v amalgamating company, the period of holding of the shares of the amalgamating company should also be considered.

iv) where the capital asset is the right to subscribe to a rights offer and it is renounced, the date of offer of the rights should be taken as the date of acquisition.

v) where the capital asset is share(s) in an Indian company which has become the property of the assessee in consideration of a demerger, the period for which the share(s) of the demerged company were held should also be considered.

Long-term capital gains on transfer of listed equity shares

Capital gains is not chargeable to tax if the following conditions are satisfied -

1. The asset, which is transferred, is a long-term capital asset being an eligible equity share in a company.

2. Such shares are purchased on or after March 1, 2003 but before March 1, 2004.

3. Such shares are held by the taxpayer for a period of 12 months or more.

If the aforesaid 3 conditions are satisfied, then the long-term capital gain arising on transfer is not chargeable to tax. Conversely, long-term capital loss arising on transfer cannot be adjusted against any income if the aforesaid conditions are satisfied.

Eligible quity share for the above purpose means, -

a. any equity share in a company being a constituent of BSE-500 Index of the Stock exchange, Mumbai as on March 1, 2003 and the transactions of purchase and sale of such equity share are entered into on a recognised stock exchange in India; or

b. any equity share in a company allotted through a public issue on or after the March 1, 2003 and listed in a recognized stock exchange in India before the March 1, 2004 and the transaction of sale of such share is entered into on a on a recognised stock exchange in India. Generally in case of "public issue" the invitation is for fresh issue of share capital by a company. It is different from "offer for sale" by an existing shareholder.

Long-term capital gain when transaction is covered by the securities transaction tax

A new clause (38) has been inserted with effect from the assessment year 2005-06 in section 10.

The following conditions should be satisfied -

1. Taxpayer is an individual, HUF, firm or company or any other taxpayer.

2. The asset which is transferred is long-term capital asset.

3. Such asset is equity share in a company or units of equity oriented mutual fund. For this purpose "equity oriented fund" means a fund which satisfies the following points -

a. the investible funds are invested by way of equity shares in domestic companies to the extent of more than 50 percent of the total proceeds of such fund ( the percentage of equity share holding of the fund shall be computed with reference to the annual average of the monthly averages of the opening and closing figures ); and

b. the fund has been set up under a scheme of a mutual fund specified section 10(23D).

4. The transaction of sale of such equity share or unit is entered into in a recognized stock exchange in India.

5. Such transaction takes place on or after 1.10.2004

6. The transaction is chargeable to securities transaction tax.

Some Homework left for you in query E) ...............

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