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Agenda
2
S.No Overview
1. Arrangement of sections
2. Provision to Computation of Capital Gains & Key issues
3. Specific provisions relating to certain transactions
4. Union budget amendments
5. International tax
Arrangement of Sections
1 Arrangement of sections
4
• Section 45 - Charging section
• Section 46 – Capital gains on distribution of assets by companies in liquidation
• Section 46A - Capital gains on buyback of shares
• Section 47 – Transactions not regarded as transfer (exceptions)
• Section 47A - Withdrawal of exemption in certain cases
• Section 48 - Mode of computation
• Section 49 - Cost with reference to certain modes of acquisition
• Section 50 - Special provision for computation of capital gains in case of depreciable assets
• Section 50B - Slump Sale
• Section 50C - Defines full value of consideration in certain cases
• Section 50D - Fair market value deemed to be full value of consideration in certain cases
• Section 51 - Advance money received
• Section 54 to 54GA - Exemptions of capital gains in certain cases
• Section 55 - Cost of Acquisition/ Cost of improvement
• Determination of capital gains
• Existence of a capital asset – 2(14)
• Such capital asset must be transferred during the previous year – 2(47)
• Applicability of exemption provisions in section 47, 10
• Nature of asset to be determined – long term/ short term – 2(42A)
• Full value of consideration
• Cost of acquisition – indexation if applicable
• Expenses on transfer
• Capital gains
• Subsequent investment based exemptions
• Rate of tax
• Special provisions – liquidation, buyback, slump sale, specific instances in section 45
Mechanics
1 Arrangement of sections
5
Provision to Computation ofCapital Gains & Key issues
2 Provision to Computation of Capital Gains & Key issues
Important issues in Capital Gains
5
Computation Provisions
2 Provision to Computation of Capital Gains & Key issues
6
• Provision explained – Section 48
- Full value of consideration received or accruing as a result of transfer of capital asset
- To be reduced by i) expenditure incurred wholly & exclusively in connection with transfer and ii) Cost of Acquisition andCost of Improvement
- “Indexed Cost of acquisition” and “Indexed Cost of Improvement” to be used in case of long term capital gain arising fromtransfer of long term capital.
• Key issues
- Taxability of contingent consideration - Ajay Guliya 209 Taxmann 295, Hemal Raju Shete 68 taxmann.com 319
- Indexation benefit for assets covered in section 49(1). – Manjula J Shah 16 Taxman 42
- Benefit of indexation for preference shares carrying fixed rate of dividend – Enam Securities Pvt Ltd. 345 ITR 64
- Taxability of consideration received in kind/where consideration received is not ascertainable – Section 50D.
- Taxability of Capital gains in case where the Computation section fails
Capital Gains on Sale of Depreciable Assets – Section 50
2 Provision to Computation of Capital Gains & Key issues
7
• Provision explained
• Key issues
- Tax rates for gain arising on sale of depreciable assets – LTCG/ STCG. – Smita Conducters 41 taxmann.com514
- Applicability of section 50 to assets on which depreciation was never claimed. - Santosh Structural & Alloys Ltd.20 taxmann.com 501
Consideration Block cease to exist Block exists
Exceeds (WDV+ actual cost of assetacquired during the year+ expenses ontransfer)
Short-term capital gain Short-term capital gain.
WDV of block becomes zero
Is less than (WDV+ actual cost of assetacquired during the year+ expenses ontransfer)
Short-term capital loss Balance left shall be WDV at theend of the year
Slump sale – Section 50B
2 Provision to Computation of Capital Gains & Key issues
8
• Provision explained
- Transfer of one or more undertaking (should constitute a business activity) as a result of sale for a lump sumconsideration without assigning values to individual assets and liabilities on a going concern basis.
- Cost of acquisition - Net worth of the undertaking as on date of transfer
- Net Worth is aggregate value of assets less the book value of liabilities. [Value of assets – Depreciable Assets – WDV ofassets as per Act, non-depreciable assets – book value, Capital assets in respect of which whole of the expenditure has beenallowed or allowable as a deduction under section 35AD – Nil, Other Assets – Nil]
- Benefit of indexation would not be available
• Key issues
- Issuance of share in consideration for business transfer - Slump exchange - Bharat Bijilee Ltd. - 10 taxmann.com 253
- Computation of capital gains when networth in negative. - Summit Securities Ltd 135 ITD 99
- Non transfer of certain assets. - Triune Projects (P.) Ltd TS-642-HC-2016
- Transfer of undertaking by a Holding Company to its wholly owned subsidiary on slump sale
- Applicability of Section 50 to a case where block of assets are transferred under a slump sale - Equinox Solution (P.)Ltd. 80 taxmann.com 277
• Provision explained
- Applicable to transfer of land or building or both.
- If the sale consideration is less than value assessable by any authority of a State Government for the purpose ofpayment of stamp duty in respect of such transfer, the stamp duty valuation would be deemed as the full value of saleconsideration.
- The valuation may be referred to the Valuation officer at the instance of the assessee if:• It is contended that stamp duty valuation is higher than the fair market value on date of transfer and• The stamp duty valuation is not a subject matter of appeal/ revision or reference
― The value determined by the valuation officer cannot exceed the value adopted by stamp valuation authority
• Key issues
- Stamp duty value as on which date should be taken for the purpose of section 50C – Finance Act, 2016amendment
- Applicability to depreciable assets. - United Marine Academy - 130 ITD 113
- Applicability to leasehold right in land or building - Atul G. Puranik - 11 taxmann.com 92
- Notional income levied in the hands of the recipient of immovable property as well – section 56(2)(vii)(b)/56(2)(x) –Dual impact
Computation of Capital Gains in case of sale of land/building – Section 50C
2 Provision to Computation of Capital Gains & Key issues
9
Section 54
2 Provision to Computation of Capital Gains & Key issues
10
• Provision explained
- Exempts gains arising from transfer of Residential House Property if:
- Asset sold is a long term capital asset
- Purchase or construct another Residential House Property within the specified time limit.
- Exemption = Amount invested OR capital gains whichever is less subject to a lock-in period of three years
- Capital gains may be deposited in capital gain deposit account scheme with a nationalized bank and to be utilizedwithin the period specified to claim exemption without investing.
• Key issues
- Purchase or Construct more than one residential house property in India – Finance Act 2014 amendment. Viceversa scenario - Ranjit Vithaldas 137 ITD 267
- Purchase or Construct is one residential house have multiple residential units - Gita Duggal 228 Taxman 62
- Purchase or Construct one residential house property which is used for the purpose of business.
- Purchase and Construct one residential house property – B.B. Sarkar 132 ITR 150
- Consequences of not utilizing the amount invested in capital gain deposit scheme account.
Section 54F
2 Provision to Computation of Capital Gains & Key issues
11
• Provision explained
- Exempts gains arising from transfer of long term capital asset (other than a residential house property) if:
- Purchase or construct one Residential House Property in India within the specified time limit.
- Transferor does not hold more than one residential house property other than the new residential houseproperty for a period of 3 years from date of transfer of original asset.
- Exemption = Amount invested * [capital gains/net sale consideration] subject to a lock-in period of threeyears
- Capital gains may be deposited in capital gain deposit account scheme with a nationalized bank and to be utilizedwithin the period specified.
• Key issues
- Claim of exemption under section 54 & 54F in respect of same capital gain - Venkata Ramana Umareddy 155 TTJ234
- Purchase of new residential house as◦ joint owner and; - Ravindra Kumar Arora – 342 ITR 38◦ In name of wife - Kamal Wahal 351 ITR 1
54EC
2 Provision to Computation of Capital Gains & Key issues
12
• Provision explained
- Available to any person for transfer of long term capital asset.
- Investment within 6 months in bonds of specified bonds which are redeemable after 3 years.
- Specified bonds should not be sold within 3 years of acquisition, otherwise will be treated as a long term capital gain.
- Exemption = Amount Invested OR Capital Gains whichever is Less.
- Capital gain deposit account scheme – Not Applicable
• Key issues
- Claim of exemption when amount invested is > 50 lakhs – Second Proviso to section 54EC
- Claim of exemption when the amount is invested in specified bonds within 6 months from date of transfer of stock intrade under section 45(2) - Circular No.791, dated 2-6-2000
- Bonds to be purchased within 6 months from date of receipt of consideration - Mahesh NemichandraGaneshwade 21 taxmann.com 136
- Claim of exemption in respect capital gains arising on transfer of depreciation asset. – Rajiv Shukla 334 ITR 138
- Bonds may be issued after a period of 6 months from date of transfer. – Hindustan Unilever Ltd – 325 ITR 102
Partnership related
2 Provision to Computation of Capital Gains & Key issues
13
Section 45(3) – Transfer of capital asset by a partner to a firm
Provision explained
- Transfer of capital asset by the partner in lieu of capital contribution to a firm is taxable in year of transfer
- Consideration – Value recorded in the books of firm
Key Issues
- Contribution by non-resident (holding more than 10% interest in the firm) his participating interest in oil block in Indiato a firm. - Canoro Resources Ltd 180 Taxman 220
Section 45(4) – Distribution of assets by a firm on dissolution or otherwise.
Provisions explained
- Profits or gains arising on distribution of assets by a firm to its partners on dissolution or otherwise taxable in the year oftransfer
- Consideration – Fair value of the asset as on the date of distribution
Key Issues
- Whether dissolution or otherwise includes ‘dissolution of partnership’ or does it only mean dissolution of firm? - G.K.Enterprises 131 Taxman 181, A.K Naik Associates [2004] 265 ITR 346
MAT Provisions & Capital Gains
2 Provision to Computation of Capital Gains & Key issues
14
• Provision explained
- MAT regime is applicable to every “company” as defined in the Act, unless specifically exempted
- MAT provisions shall apply when tax payable on total income is less than 18.5% of adjusted book profits
- Non Obstante Provision - Provisions of section 115JB shall override all the other provisions of the Act
- “Book Profit” shall be determined by making adjustments to net profit as per P/L Account prepared in accordancewith Part II of Schedule VI to Companies Act, 1956
• Key issues
- Applicability of MAT on gain arising on sale of long term capital asset being listed shares exempt under section10(38).
- Applicability of MAT provisions on capital receipts not falling within income definition. - Shivalik Venture (P.)Ltd. 70 SOT 92
- Availability of indexation benefit to capital gains under section 10(38) for MAT purposes. - Karnataka StateIndustrial Infrastructure Development Corporation Ltd 54 ITR(T) 425
Specific provisions relatingto certain transactions
3 Specific provisions relating to certain transactions
Important issues in Capital Gains
15
• Provisions explained:
• Company - Distribution of assets by a Company at the time of liquidation would not be regarded as transfer – 46(1)
• Shareholder – Full value of consideration on transfer of shares held in company would be – 46(2)
Money received plus market value of other assets received
Less Amount assessed as dividend under section 2(22)(c)
• Issues:
Whether exemption under section 47 be claimed?
Whether distribution of capital asset would only be covered? - N. Bagavathy Ammal (SC)
Determination of consideration when there is no distribution; Full value of consideration must be taken as Nil (or)the provision is not applicable
Liquidation of a Company
3 Specific provisions relating to certain transactions
16
• Section 46A specifically provides for taxation of capital gains on buyback [consideration received less cost ofacquisition]
Covers buyback under section 77A of erstwhile Co Act
Taxation in the hands of the shareholder
Deduction for cost of acquisition
• Post June 1, 2013:
Buyback of unlisted shares under section 77A/ 68 – incidence shifted to the company by introduction of section115QA; Shareholders exempted under section 10(34A).
Other buybacks – section 46A was still applicable; subject to treaty protection
• Post June 1, 2016:
Buybacks of unlisted shares by any means covered under 115QA
• Section 115QA – No cost step up for purchase in secondary market
• Loss on buyback would also be exempt
Buyback of shares
3 Specific provisions relating to certain transactions
17
• Provisions explained:
Gift of a capital asset is non-taxable transfer – 47(iii)
• Issues:
Possibility of corporate gifting?
Applicability of section 50D?
Deemed consideration under the new law – section 50CA
Recipient based taxation – Section 56(2)(x)
Period of holding and cost of acquisition for the donee – Section 2(42A) and 49 refers to original acquisition
Applicability of transfer pricing provisions
Gift of shares
3 Specific provisions relating to certain transactions
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• Illustrative manner of capital reduction
Reduction of paid up value of shares, in cases where shares are not fully paid up
Cancellation of paid up capital – cancellation of shares or amount paid
Pay off the paid up share capital
• Dividend under section 2(22)(d) to the extent of accumulated profits, whether capitalised or not
• Capital gains chargeable to tax under section 45?
Reduction by change in face value without change in shareholding - Bennett Coleman & Co. Ltd [2011] 12 ITR(T) 97(Mum) (SB)
Payment of consideration for reduction of capital - Kartikeya V. Sarabhai [1997] 228 ITR 163 (SC)
Reduction of amount considered as dividend u/s 2(22)(d) – provision similar to section 46(2) absent - G.Narasimhan [1999] 236 ITR 327 (SC)
Capital reduction
3 Specific provisions relating to certain transactions
19
• Transfer of capital assets by Transferor Company in a non-tax neutral merger
Specific exemption under section 47(vi) – would not be applicable
Absence of flow of consideration to the Transferor company
Non-existence of Transferor company
Statutory vesting of assets and liabilities
• Transfer of capital assets by firm / LLP to company in a non-tax neutral conversion – breach of section 47(xiii)
Implications on subsequent non-satisfaction of conditions
Can the argument for non-tax neutral merger be taken?
Conversion of Company to LLP?
Conversion of a firm to LLP?
Entity restructuring related
3 Specific provisions relating to certain transactions
20
• Introduction of new provision for JDA taxation – section 45(5A):
- Applicable to individuals and HUF
- CG arising on transfer of land/ building/ both pursuant to JDA
- Deferred to obtaining certificate of completion of the project from competent authority– partly/ wholly
- Consideration = stamp value as on date of the certificate of land / building / both in the project + Cash received
- If assessee’s share transferred before obtained completion certificate – sec 45(5A) would be inapplicable – normalprovisions would apply
• Key issues
− Only registered agreements are covered
− CG incidence is postponed; not the date of transfer – time period for investment exemption?
− Determination of consideration
Joint development agreement related
4 Union budget amendments
22
• Section 50CA - Provision explained
- Applicable to all Assessees on sale of unquoted shares – shares quoted in recognised stock exchange based on currenttransactions in ordinary course is excluded
- If consideration received or accruing is less than fair market value (FMV), FMV would be deemed as the full value ofsale consideration
• Draft rule notified for computation of FMV – book value adjusted for specific assets
• Key issues:
- Applicability to all assessees, including unrelated parties
- Interplay with 56(2)(x) – possibility of double taxation
- Existence of consideration, a prerequisite?
- Applicability of TP provisions, other deeming provisions?
Deemed consideration
4 Union budget amendments
23
• Anti-abuse provision
• Capital gains exemption on transfer of listed equity shares to be available for shares acquired after October 2004 only ifSTT was paid on acquisition
- Exceptions for genuine transactions proposed
• Draft rules for the above purpose introduced:
− Acquisition of infrequently traded equity shares listed in recognised stock exchange through preferential issue
− Listed equity shares purchased through off the market transactions – block deals
− Acquisition of equity shares between delisting and listing
LTCG on listed equity shares
4 Union budget amendments
24
• Exemption for conversion of preference shares into equity shares; Cost of acquisition and period of holding of equityshares linked to original purchase of preference shares
- Earlier there was divergent views and jurisprudence on the issue
- Conversion of equity to preference not covered
• NR to NR transfer of Rupee Denominated Bonds - exempted
• Base year for indexation of cost of acquisition shifted from 1981 to 2001
• 10 percent beneficial rate for non residents on sale of shares of a private company made applicable retrospectively fromFY 2012-13
• Period of holding for long term capital gains for land and building reduced to 24 months from 36 months
Others
4 Union budget amendments
25
• Treaties with Mauritius, Singapore, Korea and Cyprus renegotiated:
Investments in shares made from the above jurisdictions till March 31, 2017 grandfathered
W.r.t investments in shares made after March 31, 2017 (from Mauritius and Singapore):
Transfers till March 31, 2019 - Taxable in India at 50 percent of the normal rates, subject to satisfaction of LoBconditions
Transfers after March 31, 2019 – Taxable in India at normal rates
• Key issues:
Shares received after March 31, 2017 from convertible instruments acquired before March 31, 2017
Applicability of bonus and rights shares
Indirect transfers
Treaty amendments - shares
5 International tax
27
• Existence of three elements – non-resident transferor, share of a foreign company and assets inIndia; Applicability of indirect transfer tax provisions in light of relevant tax treaty provisions
• India-USA DTAA – “Except as provided in Article 8 (Shipping and Air Transport) of thisConvention, each Contracting State may tax capital gains in accordance with the provisions ofits domestic law.”
• India-Mauritius DTAA – “3A. Gains from the alienation of shares acquired on or after 1st April2017 in a company which is resident of a Contracting State may be taxed in thatState.”
• India-Ireland DTAA – “4. Gains from the alienation of shares of the capital stock of a companythe property of which consists directly or indirectly principally of immovableproperty situated in a Contracting State may be taxed in that State.”
Indirect transfer – interplay with treaty provisions
5 International tax
28
US/ Mauritius/Ireland CO
(non-residenttransferor)
IntermediaryCO
(F Co Shares)
India Co(Indian assets)