Capital Gain of an NRI could be Completely Exempt from Income Tax

1. Exemption of Long-Term Capital Gains regarding Residential House Property (Section 54)

2. Exemption of Long-Term Capital Gains from any Capital Asset On Investment In House Property (Section 54F)

3. Exemption of Long-Term Capital Gains On Investment In Bonds of NHAI & REC

4. Exemption to facilitate the Conversion Of Partnership Firm into a Company

5. Exemption from the Levy Of Capital Gains Tax to facilitate Conversion Of Sole Proprietary Concern Into A Company

6. Computation of Capital Gains In Real Estate Transactions

7. Other Important Exemptions Regarding Capital Gains Available to NRI

8. Cost Inflation Index And Computation Of Capital Gains in case of NRI

9. Reduction Of Tax Rate On Long-Term Capital Gains In Regard To Shares And Securities

10. Concessional Rate Of Tax On Income From Certain Global Depository Receipts

11. Tax Treatment Of Capital Gain On Sale Of Shares, Debentures, Etc. Received Under ESOP

12. Provisions Relating To Set-Off Of Long-Term Capital Loss And Carry Forward Thereof Modified— Sections 70 and 74

13. Exemption Of Long-Term Capital Gains On Securities And Lower Tax On Short-Term Capital Gains

14. Issue of Foreign Currency Exchangeable Bonds Scheme, 2008

15. Miscellaneous provisions’ regarding Capital Gains in case of NRI

1. Exemption of Long-Term Capital Gains regarding Residential House Property (Section 54)

2. Exemption of Long-Term Capital Gains from any Capital Asset On Investment In House Property (Section 54F)

3. Exemption of Long-Term Capital Gains On Investment In Bonds of NHAI & REC

With effect from the A.Y. 2001-2002, a new Section 54EC was inserted in the 1.T. Act to provide for exemption in respect of long-term capital gains in the hands of any assessee, whether an NRT or a resident assessee. This exemption is in respect of long-term capital gains of any asset which are invested in select bonds, redeemable after a period of three years issued on or after 1 April 2000 by the National Highways Authority of India (NHAI) and on bonds of Rural Electrification Corporation Ltd., etc. The exemption from income tax on long-term capital gains of the NRI would be to the extent of investment not exceeding Rs. 50 lakh in these bonds. These bonds have a lock-in-period of three years. Interest rate is around five and a half per cent per annum. Any transfer or conversion of bonds into money during the lock-in period would make the amount so converted as deemed capital gains to be taxable in the year of transfer or conversion. Similarly, such deemed capital gains would also arise, if any loan or advance is taken on the security of these bonds.

4. Exemption to facilitate the Conversion Of Partnership Firm into a Company

Full exemption is allowed in respect of capital gains on the conversion of a partnership firm into a company, under Section 47(xiii). Thus, it is provided that 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 assets to the company, the entire capital gains would be exempt from tax provided the following conditions are full field:

1. All the assets and liabilities of the firm relating to business immediately before the succession become the assets and liabilities of the company;

2. 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;

3. 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

The aggregate of the shareholding in the company of partners of the firm is not less than 50% 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 succession. This has been extended to a stock exchange converted into a company, as per SEBI approval for de mutualisation or corporatization where the transaction would not be treated as “transfer” under Section 47(xiiia) from the A.Y. 2004- 2005.

5. Exemption from the Levy Of Capital Gains Tax to facilitate Conversion Of Sole Proprietary Concern Into A Company

Likewise, when a sole proprietary concern is succeeded by a company in business carried on by it as a result of which the sole proprietary concern sells or otherwise transfers any capital asset or intangible assets to the company, the entire amount of capital gains would be fully exempt from tax under Section 47(xiv) from the A.Y. 1999-2000. However, the following conditions are to be fulfilled:

1. 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;

2. The shareholding of the sole proprietor in the company is not less than 50% 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,

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.

6. Computation of Capital Gains In Real Estate Transactions

The Finance Act, 2002 had, with effect from the A.Y. 2003-2004 inserted a new Section 50C in the Income Tax Act, 1961, to make a special provision for determining the full value of consideration in cases of transfer of immovable property. This provided that where the consideration declared to be received or accruing as a result of the transfer of land or building or both is less than the value adopted or assessed by any authority of the State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed would be deemed to be the full value of the consideration, and the capital gains would be computed accordingly under Section 48 of the I.T. Act. It was further provided that where the assessee claims that the value adopted or assessed for stamp duty purposes exceeds the fair market value of the property as on the date of transfer and he has not disputed the value so adopted or assessed in any appeal or revision or reference before any authority or Court, the Assessing Officer may refer the valuation of the relevant asset to a Valuation Officer in accordance with Section 55A of the Income Tax Act. If the fair market value determined by the Valuation Officer is less than the value adopted for stamp duty purposes, the Assessing Officer may take such fair market value to be the full value of consideration. However, if the fair market determined by the Valuation Officer is more than the value adopted or assessed for stamp duty purposes, the Assessing Officer would not adopt such fair market value and would take the full value of consideration to be the value adopted or assessed for stamp duty purposes. It was also provided that if the value adopted or assessed for stamp duty purposes is revised in any appeal, revision or reference, the assessment made would be amended to recompute the capital gains by taking the revised value as the full value of consideration.

7. Other Important Exemptions Regarding Capital Gains Available to NRI

The following are some of the important exemptions regarding capital gains available to an NRI under different sections of the Income Tax Act:

1. Gains as a result of distribution of the capital asset of a company in liquidation (Section 46).

2. Gains arising on the distribution of capital assets on the partition of a Hindu undivided family (Section 47(i)).

3. Gains arising on the transfer of capital asset under a gift, or will or an irrevocable trust (Section 47(iii)). This is not applicable for shares received by an employee under ESOP and gifted or transferred under an irrevocable trust.

4. Gains arising on the transfer by a parent company of its capital assets to a wholly-owned Indian subsidiary company which is resident in India (Section 47(iv)).

5. Gains as a result of transfer of a capital asset by a 100% subsidiary company to its Indian holding company (Section 47(v)). However, this and Section 47(iv) will not be applicable to the transfer of a capital asset after 29.2.88 as stock-in-trade.

6. Gains arising out of any transfer of a capital asset by the amalgamating company to the amalgamated Indian company, in a scheme of amalgamation (Section 47(vi)).

7. Gains arising out of any transfer in a scheme of amalgamation of shares held in an Indian company subject to certain conditions (Section 47(via)).

8. Gains arising out of 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 (Section 47(vib)).

9. Gains arising of 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 shall not apply in case of demergers referred to in this clause (Section 47(vic)).

10. Gains arising out of 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 (Section 47(vid)).

11. Gains arising out of 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 he transfer is made in consideration of the allotment to him of any share or shares in the amalgamated Indian Company (Section 47(vii)).

12. Gains arising out of transfer of bonds or shares as referred to in Section 11 5AC(1) made outside India by a non-resident to another non-resident (Section 47(viia)).

13. Gains arising from the transfer of a capital asset, being any work of art, archaeological, scientific or art collection, book, manuscript, drawing, painting, photograph or print in cases where such asset is transferred by the assessee to the Government or a University or the National Museum, National Art Gallery. National Archives or any such other notified public museum or institution (Section 47(ix)). In certain cases before the expiry of 8 years from the date of transfer of capital asset under Section 47(iv) or if it is converted into stock-in-trade, the gains would be taxable in the year of first transfer as per Section 47A.

14. Gains arising as a result of any transfer by way of conversion of bonds (FCEBS) into shares or debentures of any company w.e.f. the A .Y. 2008-2009 (Section 47(xa).

15. Transfer involved in a scheme for lending of any securities under an agreement or arrangement subject to the guidelines issued by the SEBI in this r’egard, which the assessee has entered with the borrower of such securities, so that it is not treated as a transfer in order to attract the levy of capital gains tax, as per Section 47(xv).

16. Capital gains arising from the transfer of an agricultural land which was used by the assessee or a parent of his for agricultural purposes, and invested in the purchase of any other agricultural land for agricultural purposes within the next two years. This would enable the assessee to have complete exemption from income-tax on capital gains if the amount of capital gains is equal to or less than the cost of the new asset, as per Section 54B.

17. Capital gains out of any transfer of a capital asset in a transaction of reverse mortgage as notified by Central Government as per new Section 47 (xvi) from the A.Y. 2008-2009.

18. Capital Gains on conversion of Partnership firm to LLP and conversion of a private limited company to LLP.

The Finance Act, 2001, had, w.e.f. the A.Y. 2002-2003 provided that the long-term capital gains on transfer of listed securities or units of a mutual fund or the UTI would be exempt from tax to the extent such capital gain is invested in equity shares forming part of an eligible issue made by a public company, and offered for subscription to public. There would be a lock-in-period of one year and if the newly acquired shares are sold or transferred during this period, the capital gains from the original asset would be charged to tax in the year of sale of transfer. Where the cost of the new equity shares has been taken into account for the purposes of this section, a deduction from the amount of income tax with reference to such cost would not be allowed under Section 88.

8. Cost Inflation Index And Computation Of Capital Gains in case of NRI

The following deductions from the value of the consideration for which the sale, etc. is made are allowed in computing the amount of taxable long-term capital gains:

1. expenditure incurred wholly and exclusively in connection with such transfer; and

2. the cost of acquisition of the asset and the cost of any improvement thereon.

In respect of a long-term capital asset acquired before 1 April, 1981, the assessee is allowed the option to substitute its market value on 1 April, 1981 in place of the cost of acquisition. Further, such cost of acquisition is to be substituted by the “Indexed cost of Acquisition” based on the notified Cost Inflation Index for the year of transfer and the year of acquisition or 1 April 1981, whichever is later. However, from A.Y. 1998-99, as per the new 3rd proviso in Section 48, this facility of Cost Inflation Index is not available on bonds and debentures. The notified Cost Inflation Index for the financial years 1981-82 to 2010- 2011 is 100, 109, 116, 125, 133, 140, 150, 161, 172, 182, 199,223,244, 259, 281, 305, 331, 351, 389, 406, 426, 447, 463, 480, 497, 519, 551, 582, 632 and 711 respectively. Similarly, the cost of improvement can also be indexed by the Cost Inflation Index.
In the case of a capital asset received under a gift or will, etc. the cost to the previous owner is to be considered. The cost of acquisition in case of goodwill, bonus shares, tenancy rights, trade marks, brand names, etc. under Section 55 would be deemed to be nil.
A special facility is allowed to a non-resident. It is provided by the first proviso to Section 48 that in the case of a non-resident assessee, capital gains arising from the transfer of a capital asset being shares in or debentures of Indian companies shall be computed by converting the cost of acquisition, expenditure incurred wholly and exclusively in connection with such transfer and the full value of the consideration received or accruing as a result of the transfer of the capital asset into the same foreign currency as was initially utilised in the purchase of the shares or debentures. The capital gains so computed in such foreign currency, would then be reconverted into Indian currency, so however, that the aforesaid manner of computation of capital gains would be applicable in respect of capital gains accruing or arising from every reinvestment thereafter, in, and sale of, shares in, or debentures of an Indian company.

As mentioned earlier, it is also provided that the provisions of Cost Inflation Index will not be applicable to the NRIs in the above case. Likewise, the advantage of Cost Inflation Index is also not available in respect of computation of long-term capital gains relating to bonds or debentures other than Capital Index Bonds issued by the Government. Under the fourth proviso to Section 48 from the A.Y. 200 1-2002, it was provided that where shares, debentures or warrant referred to in the proviso to clause (iii) of Section 47 are transferred under a gift, or will or an irrevocable trust, the market value on the date of such transfer would be deemed to be the full value of consideration received or accruing as a result of transfer for the purposes of Section 48.

9. Reduction Of Tax Rate On Long-Term Capital Gains In Regard To Shares And Securities

10. Concessional Rate Of Tax On Income From Certain Global Depository Receipts

The Finance Act. 1999 had, with effect from the A.Y. 2000-2001, inserted a new Section 115ACA relating to tax on income from Global Depository Receipts (GDR) purchased in foreign currency or capital gains arising from transfer. Thus, it is provided that on the income by way of dividends or long-term capital gains in respect of GDRs of an Indian company purchased by a resident employee of such company in accordance with the notified employee’s stock option scheme, the income tax payable would be at the rate of 10%. This concessional rate of 10% would only apply to the income from investment in GDRs of a resident employee of a domestic company engaged in information technology software and information technology services. Of course, no other deduction in respect of such dividend income and long-term capital gains would be allowed in the case of such resident employee. The first and the second provisos to Section 48(1) would also not apply while computing the long-term capital gains in such a case. The scope of this concession has been widened by the Finance Act, 2001.

11.Tax Treatment Of Capital Gain On Sale Of Shares, Debentures, Etc. Received Under ESOP

The Finance Act, 2000 had amended the definition of Section 47 relating to transaction not regarded as transfer. It was provided in Section 47 that any transfer of a capital asset under gift or an irrevocable trust is not a transfer and hence not liable to tax on capital gains. The new amendment to this provision by the Finance Act, 2000 provided that this clause would not be applicable to transfer under a gift or an irrevocable trust of the capital asset being shares, debentures or warrant allotted by the company directly or indirectly to its employees under the employees stock option plan or scheme. The effect of this new amendment is that the shares, debentures, etc. received under ESOP would be treated as a transfer when the same are gifted by the employee. Thus, if the employee receives any share or debenture, etc. from his employer without any cost or at a concessional price and makes a gift of such shares, debentures, etc. to some other person, then it will be treated as a transfer and would be subject to tax on capital gains. Section 48 was amended to provide the mode of computation of capital gain in respect of gift, etc. of the shares, debentures, etc. received under ESOP. It was also provided as per amendment by the Finance Act, 2000 that if the shares, debentures, etc. which are received by an employee under employees stock option plan are transferred through gift, etc., then the value on the date of such transfer would be deemed to be the full value of the consideration received or accruing as a result of the transfer for the purposes of this section and thus, there will be a liability to capital gain in the situation where the shares, debentures, etc. received under ESOP are gifted away. This is effective from the A.Y. 200 1-2002. The value of ESOP will be liable to FBT for the company. At a later date when the employee sells such shares, etc., received in ESOP and if Capital Gain arises from the transfer of such shares, etc. then from the sale price would be deducted the value of Fringe Benefits which have been taxed in the hands of the employer. The Central Board of Direct Taxes will prescribe the mode of determination of the fair market value. The Fringe Benefit Tax on the entire value on the date of vesting would be payable @ 30% plus surcharge land cesses.

12.Provisions Relating To Set-Off Of Long-Term Capital Loss And Carry Forward Thereof Modified— Sections 70 and 74

The Finance Act, 2002 had, with effect from the A.Y. 2003-2004, amended Section 70 of the I.T. Act, 1961, to provide that while losses from transfer of short-term capital assets can be set off against any capital gains, whether short-term or long-term, losses arising from transfer of long-term capital assets would be allowed to be set off only against long-term capital gains. Through an amendment of Section 74 of the I.T. Act, 1961, it is further provided that a long-term capital loss would be carried forward separately for eight assessment years to be set off only against long-term capital gains. However, a short-term capital loss may be carried forward and set off against any income under the head “Capital gains”.

13. Exemption Of Long-Term Capital Gains On Securities And Lower Tax On Short-Term Capital Gains

As a result of insertion of Section 10 (38) by the Finance (No.2) Act, 2004 the income arising from the transfer of a long-term capital asset being equity shares as also units of equity-oriented mutual funds would be exempted from the purview of long-term capital gains.

This exemption is, however, not applicable on capital gains arising on sale of any type of equity share. It is very clearly mentioned that the exemption from tax in respect of such long-term capital gains would be available only when the transaction relating to sale of equity share or units of equity-oriented is entered into on or after 1-10-2004, the date on which Chapter VII of the Finance (No. 2) Act, 2004 came into force. Another condition to avail this exemption is that such transaction is chargeable to Securities Transaction Tax (STT). If a person sells shares of a listed company directly to a friend without routing it through a stock broker, then the benefits of exemption of long-term capital gains on such sale of equity shares would not be available.

Similarly, if the shares of a private limited company are sold after holding them for more than 12 months, then the above mentioned benefits would not be available because such shares are not sold through the stock broker and thus the transaction is not subjected to STT. Therefore, in view of the fact that the shares of a Private Limited Company are not chargeable to STT’, the same would not enjoy any tax benefits.

If the sale of units of an equity-oriented fund results into a long-term capital gains, it would also be tax free if the said transaction is chargeable to STT.

It has been clarified that “equity-oriented fund” would mean a fund where the investible funds are invested in equity shares of domestic companies to the extent of more than 65% of total corpus of the fund. Moreover, such a fund should have been set up as a scheme of a mutual fund in terms of Section 23D of the Income-tax Act, 1961. It has also clarified that the percentage of equity share holding of the fund shall be computed as the annual average of its average monthly holding of equity based on opening and closing figures. Thus, where a mutual fund has exposure to equity investment of, say, only 45% to 50%, then the above mentioned benefit would not be available.
As a result of new Section IIIA the tax on income arising to. all categories of tax payers on transfer of a short-term capital asset being an equity share in a company or unit of an equity-oriented mutual fund would be only 10% for the A.Y. 2008-2009 and 15% from the A.Y. 2009-10.

However, this provision would not be applicable to all transactions of shares and units of equity mutual fund resulting in short-term capital gains but is limited only to:

• Transactions entered on or after 1-10-2004, i.e., the date on which the Chapter VII of the Finance (No. 2) Act, 2004 came into force, and

• That such transaction is chargeable to STT.

Only when both these conditions are fulfilled is the special 10% tax on such short-term capital gains applicable. It is, therefore, clear that when a short-term capital gain arises- on selling equity shares or units of equity fund which does not attract STT, then the concessional rate of income tax of just 10% or 15% on short-term capital gains would not be applicable and tax would be payable on the short-term capital gains, like an other income as per applicable slab rates.

It is further provided that in the case of an individual or a Hindu undivided family, being a resident, where the total income as reduced by such short-term capital gains is below the exemption limit, then such short-term capital gains shall be reduced by the amount by which the total income, as so reduced, falls short of the maximum amount which is not chargeable to income-tax and the tax on the balance of such short-term capital gains shall be computed at the rate of 10%. A person having short-term capital gains and other incomes, the deduction under Chapter VIA as well as the tax rebate would be allowed after reducing the said short-term capital gains.

14. Issue of Foreign Currency Exchangeable Bonds Scheme, 2008

The Central Government has notified vide Notification No. G.S.R. 89 (E) dated 15.2.2008 a scheme entitled “Issue of Foreign Currency Exchangeable Bonds Scheme, 2008”. As per this Scheme, this Bond would be expressed in foreign currency, the principal interest in respect of which is payable in foreign currency issued by an Issuing Company and subscribed to by a person who is a resident outside India in foreign currency and exchangeable into equity share of another Company, to be called the offered Company, in any manner, either wholly, or partly or on the basis of any equity related warrants attached to debt instruments. The “Issuing Company” would mean an Indian Company which is eligible to issue Foreign Currency Exchangeable Bond. “Offered Company” would mean an Indian company whose equity share I shares would be offered in exchange of the Foreign Currency Exchangeable Bond (FCEB). As per this Scheme interest payment on the Bonds until the exchange option is exercised would be subject to TDS as per Section 11 5AC (I). Exchange of Foreign Currency Exchangeable Bonds into shares would not give rise to any capital gains liable to tax in India. Likewise, it is provided that transfer of foreign currency exchangeable Bonds outside India by an investor who is a person resident outside India to another investor who is also a person resident outside India would not give rise to any capital gains liable to tax in India

15. Miscellaneous provisions’ regarding Capital Gains in case of NRI

An NRI, as permitted under FEMA may invest in the immovable property or in shares, securities or units of Mutual Funds, etc. Different provisions relating to the complete exemption from income tax particularly the one under Section 54EC applicable to long-term capital gains upto `. 50 lakh only in respect of all types of assets would be of special benefit for the NRJs in particular. We have not discussed the provisions regarding the computation of capital gains in the case of slump sales or on the shifting of industrial undertakings or compulsory acquisition of land and building, etc. NRIs would be able to save substantial money in respect of income tax on capital gains.

• APPEALS & REVISIONS - Direct Taxes
• ASSESSMENT - Direct Taxes
• BUSINESS OR PROFESSION - Direct Taxes
• SET OFF or CARRY FORWARD and SET OFF of LOSSES - Direct Taxes
• DEDUCTIONS [Section 80A to 80U Chapter VIA]- Direct Taxes
• CAPITAL GAINS - Direct Taxes
• HOUSE PROPERTY INCOME- Direct Taxes
• INCOME FROM OTHER SOURCES- Direct Taxes
• SALARY INCOME - Direct Taxes
• INCOME TAX BASIC - Direct Taxes
• PENALTIES & PROSECUTIONS - Direct Taxes
• RETURN of INCOMES and PROCEDURE of ASSESSMENT- Direct Taxes
• TDS & TCS - Direct Taxes

• APPEALS & REVISIONS - Direct Taxes
• ASSESSMENT - Direct Taxes
• BUSINESS OR PROFESSION - Direct Taxes
• SET OFF or CARRY FORWARD and SET OFF of LOSSES - Direct Taxes
• DEDUCTIONS [Section 80A to 80U Chapter VIA]- Direct Taxes
• CAPITAL GAINS - Direct Taxes
• HOUSE PROPERTY INCOME- Direct Taxes
• INCOME FROM OTHER SOURCES- Direct Taxes
• SALARY INCOME - Direct Taxes
• INCOME TAX BASIC - Direct Taxes
• PENALTIES & PROSECUTIONS - Direct Taxes
• RETURN of INCOMES and PROCEDURE of ASSESSMENT- Direct Taxes
• TDS & TCS - Direct Taxes