Capital Gains
Computing Capital Gains in Exceptional Cases

Transfer of equity shares/units of an equity oriented fund

In the case of short term capital gains arising from transfer of equity shares in a company or units of an equity oriented fund, the tax payable by the assessee shall be @10% on such short term capital gains provided that such a transaction is chargeable to securities transactions tax. As per the Finance Act 2008, this rate would be 15% w.e.f 1-4-2009. Notably, no deduction is available u/s 80C to 80U from above short term capital gains. In case of LTCG on transfer of equity shares or units of equity oriented mutual funds, provided the transaction has been subject to securities transaction tax, the LTCG is not chargeable to tax at all. If the transaction has not been subjected to securities transaction tax, the LTCG will be taxed @ 10% if no indexing is claimed and @ 20% if cost of acquisition is indexed. The taxpayer has an option to choose from either of the above.In case the shares / securities are transferred in demat' form, for computing capital gain chargeable to tax, the cost of acquisition and period of holding of any security shall be determined on First in - First - out or FIFO basis.

Insurance received

If any person receives any money or other assets under an insurance from an insurer on account of damage to or destruction of any capital asset as a result of

1. flood, typhoon, hurricane, cyclone, earthquake or other convulsion of nature or
2. riot or civil disturbance or
3. accidental fire or explosion or
4. action by an enemy or action taken in combating an enemy (whether with or without a declaration of war)

then, the value of money and/ or the fair market value of assets received would be treated as full value of consideration and income under Capital Gains is calculated accordingly, for the previous year in which such money and/ or other asset was received.

Conversion of a Capital Asset into Stock-in-trade

Conversion of a Capital Asset into Stock-in-trade is considered a transfer and leads to capital gains. In such cases, the fair market value of the asset on the date of such conversion is to be taken as the full value of consideration arising out of the transfer.

Transfer of Capital assets by a partner to a firm or by a member to Association of Persons, etc.

Though under the general law, firm does not have a distinct legal identity apart from its partners, under the Income-tax Act, transfer of a capital asset by the partner to a firm or by a Member of Association of Persons to the Association of Persons (AOP) by way of capital contribution or otherwise is chargeable to tax as capital gains of the previous year in which such transfer takes place. The amount recorded as the value of the capital asset in the books of account of the firm, AOP or Body of Individuals (BOI) will be deemed to be the full value of the consideration.

Transfer of Shares or Debentures of an Indian Company by Non-Residents

In cases where shares or debentures of Indian Companies are purchased by Non-residents in foreign currency, the entire computation of capital gains is done by converting the relevant figures of full value of consideration, cost of acquisition etc. into the same foreign currency. The capital gains is also determined in that foreign currency. The capital gains thus determined in the foreign currency is then converted into Indian rupees for the purpose of determining the capital gains liability. In computing the Capital Gains, even if it is LTCG, no indexation will be given for cost of acquisition or cost of improvement.

Compulsory Acquisition of Assets under any Law

Transfer includes compulsory acquisition of a property under any Law. In such cases, settlement of the amount of compensation usually takes a long time. The compensation is initially fixed by the Land Acquisition Officer and is subject to appeal and re-determination by courts.The compensation amount may vary as the case progresses from one authority to another. The transferor may get paid in installments- as and when a higher authority awards further compensation.In cases of compulsory acquisition of an asset, the Capital Gains is determined on the actual receipt of compensation and not on the accrual basis. The Capital Gains is computed by taking the compensation received in the first instance as the full value of consideration. As and when any further compensation is received, the same would be brought to tax as capital gains of the year in which such further compensation is received.As the deductions in computing the capital gains are considered while computing the capital gains in the initial year, no further deductions are allowed in the subsequent calculations on account of cost of acquisition etc.In case the compensation is reduced subsequently, the Capital Gains for the relevant year would be recomputed taking reduced compensation as the full value of consideration.The time period for making investments in a house, in shares, etc. eligible for deduction from LTCG would be counted from the date of receipt of the compensation.

Transfer of Depreciable Assets

Depreciable assets are assets owned by the tax payer and used in his business.Whatever be the period for which a depreciable asset was held by the transferor, the capital gain arising from the transfer is always short term capital gains. Capital Gains is calculated with reference to the block of assets of the transferred asset(s).Excess of full value of consideration for transferred asset(s) over (expenditure for transfer(s) + Written Down Value (WDV) of the block of assets at the beginning of the Previous Year + Actual Cost of any asset falling within the block of assets and acquired during the previous year) will be the short term Capital Gains.

Slump Sale

Slump sale means transfer of one or more undertakings as a result of the sale for a lumpsum consideration without values being assigned to the individual assets and liabilities in such sale. Undertaking includes any part of the undertaking or a unit or division of the undertaking or a business activity as a whole but does not include individual assets or liabilities or any combination thereof not constituting a business activity.Any profit arising from slump sale shall be chargeable to LTCG if the undertaking(s) is/are owned or held by an assessee for more than 36 months and as STCG if they are held for not more than 36 months.The net wealth of the undertaking (aggregate value of the total assets of the undertaking minus the value of the liabilities as appearing in books of accounts) shall be deemed to be the cost of acquisition and the cost of improvement for the purpose of computation of capital gains. No indexation would be given even in the case of LTCG.A report of an Accountant has to be furnished along with the return of income indicating the computation of net worth of the undertaking and certifying that the net worth has been correctly arrived at.

Capital Gains on purchase of its own shares or other specified securities by a Company

Purchase of its own shares or specified securities by a company leads to Capital Gains in the hands of the share holder or holder of the specified securities. The Capital Gains has to be computed in the same manner as transfer of shares or specified securities. However, no deduction towards cost of transfer would be allowed.

Fair Market Value

While dealing with the computation of capital gains we come across certain situations where fair market value of an asset has to be taken. Fair Market Value is the price that the capital asset would ordinarily fetch on sale in the open market on the relevant date and where such price is not ascertainable the price as may be determined in accordance with the rules made under the I.T. Act. For the purpose of determining the fair market value the assessing officer may refer the valuation of a capital asset to a valuation officer.