Hi Abhishek,
Yes, Amreshji, he meant me. I know it because he sent a copy of thismail to my personal ID as well. He forgot to address it to theparticular person while posting it on the group.Anyway, Abhishek, this issue is not free from doubt. This questionis one of the most frequently asked ones in newspaper tax-advisecolumns. And the experts give an ambivalent answer saying thejudicial opinion is divided on this. But it's important to determinethe precise moment, in terms of Section 2(42A), when the capitalgain clock starts ticking because STCG and LTCG aren't taxed at thesame rates.One school of thought is that the right of possession is a biggerright than the right that gets established when the assessee isissued an allotment letter. Although allotment letter vesting in youthe right to buy a flat also constitutes a capital asset, it isargued that this minor right gets merged into the major right, whichyou exercise when you actually get the possession of the flat. Sothe period of holding would once again commence from the date ofpossession of the flat. The courts have upheld this reasoning incases of Ravi Kumar Narula v. CIT [2001] 249 ITR 480/118 Taxman 641(Delhi) and CIT v. D.A. Irani [1998] 234 ITR 850.Another school of thought builds its case around the right toenforce specific performance of a contract. This right has been heldto be a capital asset. But to calculate the age of the capital assetfrom the date of the allotment letter or the share certificate, thisright has to be of a transferable nature. Now in your case, thisright was never exercised; it seems your client never had the optionto opt out of the scheme. It was only after the possession of theflat that Mr A sold it. So I think the case laws quoted above wouldprevail here; the actual possession of the flat, constituting alarger right to own the property, would usurp the smaller right thatwas granted to Mr A when he got the share certificate.Hypothetically, if for some reason, the society hadn't given Mr Athe physical possession of the flat till May 2007 (when 3 yearsexpired since the share certificate was issued) and Mr A sold thisshare certificate (right to own the flat) to someone else afterthat, then I think it would've constituted LTCG.But facts as they are now, I believe this capital gain to be an STCG.Thanks,CA Sanjeev Bedi---Computation of Capital Gains (Sanjeev sir, please reply)
Hi Mr Aggarwal,Here come Sanjeev Bedi's fifteen rupees:First of all, why did the assessee change his name from Mr A to Mr X?What we need to determine is: Did Mr A hold a "capital asset" asenvisaged u/s 2(14) of the I T Act? If he did, the giving up of suchan asset would lead to a capital gains transaction. Mr A does seemto have had a right to claim specific performance of the contractagainst the promoters of the building complex. And this right toclaim specific performance has been held to be a capital assetsusceptible to capital gains in the event of the right being givenup. Consider the following Chennai HC case law:The facts were: the assessee had initially paid advance under anagreement for the purchase of a property, reserving right tospecific performance of the agreement, and later receivedconsideration under another agreement under which the earlieragreement was cancelled and the vendor was allowed to sell theproperty to any person at any price.The Court held that the assessee had a right to insist on specificperformance, gave up the right readily and received a sum of Rs 6lacs. There can be no doubt that by termination of the earlieragreement and by allowing the vendor to sell the said property toany person at any price, the assessee had given up or relinquishedhis right of specific performance and as consideration forrelinquishing that right, the assessee was paid a sum of Rs.6,00,000. The right, title and interest acquired under the agreementof sale clearly fall within the definition of `capital asset'(section 2(14). Instead of assigning the right to thirdparty/parties, the assessee relinquished those rights. We havealready seen that the definition of `transfer' in section 2(47) iswide enough to include relinquishment of an asset.- K.R. Srinath v.Asstt. CIT [2004] 141 Taxman 268 (Mad.).All those celebrated judgments of Vania Silk Mills, BC SrinivasaShetty, Rasiklal Maneklal were brought up and discussed. The ChennaiHC gave this decision in the light of those judgements. The courtthought that the definitions of "capital asset" and "transfer" inthe Act are wide enough to embrace such transactions.So in my opinion, your client would be subject to capital gains taxon this receipt. And it will be an LTCG since 3 years will haveexpired in February 2008 when this right is relinquished.Thanks,CA Sanjeev Bedi--- In ICAI_CIRC_MEERUT_CA@yahoogroups.com, "Naresh Agarwal" wrote:>> Sanjeeviji>>>>>> Please throw some light on this issue as I have to give my opinionto my client .>>Shri Pramod Goenka,>>>> I am not aware of law presently applicable in relation toagreement to sale between developer and purchaser of rights inproperty.>>>> Is an agreement to purchase/sale of a property not registered withregistry is enforceable in a court of law if developer backs outfrom agreement?>>>> Regards,>>>> Sitaram Agarwal, B.Com., LL.B., LL. M.(Bristol, England), FICWA,FCS> Tel: (145) 2441412 (R)> (145) 2695220 (O)> (145) 2695218 (F)>Look at the issue from another angle. At the time of entering intoan agreement for purchase/sale with the developer, the buyer gets aright to nominate someone in his lieu. This right to nominate is acapital asset. Exercising this right to nominate, Mr A is nominatingsome third party for a valuable consideration. If the right tonominate is a long terms capital asset, then all the benefitsattendent to it will accrue to Mr. A. The cost of right to nominatewill be the amount that has been paid to the developer.>> Since there is no possession/transfer of the flat, there is nopurchase of the property so far and therefore, it cannot be sold -the issue of transfer of the flat does not arise at all.>> That is my view. If there is any flaw in it, please point out.>> Thanks;>> CA. Pramod Goenka>>> Dear Deepak,>>>> As per the case law suggested by you the transfer will take placeonly after possession is handed over.>>>> However as per my view ,â€Tranfer†includes reliquenshmint ofright. In the present case Mr “ A†is transferring his right inthe property which he gained through his agreement with thepromoter. Thus in my opinion capital gains shall arise on suchtransfer and indexation shall be available as per the schedule ofpayments made by Mr “Xâ€.>>>> Please correct me if I am wrong.>>>> Naresh>>>>>>> Dear Friends>>>> refer to the decision of Hon'ble BBY HC in - as per the ratio laidout in the same the transfer wl take place only at the time ofhanding over possession.>>>> Regards>>>> CA Deepak Gadgil>> Solapur, Maharashtra>> [2003] 129 TAxman 497 (bom.)>> HIGH COURT OF BOMBAY>> Chaturbhuj Dwarkadas Kapadia of Bombay>> v.>> Commissioner of Income-tax>> S.H. Kapadia and J.P. Devadhar, JJ.>> Income Tax Appeal No. 24 of 2003>> February 13, 200>> VIJAY KAPUR wrote:>> Dear Friend,>> Mr A has created interest in property by entering into agreementto sell with the developer. Any capital gain, if long term, can beinvested in residential property under section 57F. However, A hasto comply other conditions of that section.>>>> Regards>>>> CA Vijay Kapur>>> Dear Friends>>>> Please put forward your views on the following issue.>>>> Q1) Mr.A has booked a flat in the year 2005 (January) in a bigcomplex. The agreement was made between MrX and the Promoters Jan’05. Till date the project is under construction and will becompleted in June’08.>> The promoters have neither given any possession nor there is anyregistration of the property, since 10 % is to be given atpossession.>>>> Now the question arises that Mr X wishes to dispose the propertyand invest in some other residential property as he is getting 100%return on the existing Investment.>>>> Whether the transaction will be treated as Transfer under IncomeTax Act?>>>> If it is considered as transfer than what shall be the nature ofcapital Gains if he transfers in Feb’08. Will the acquisitiondate be taken from the agreement date ?>>>> Please give your valuable views on the issue.>>>> Naresh Agarwal
Hi Mr Aggarwal,Here come Sanjeev Bedi's fifteen rupees:First of all, why did the assessee change his name from Mr A to Mr X?What we need to determine is: Did Mr A hold a "capital asset" asenvisaged u/s 2(14) of the I T Act? If he did, the giving up of suchan asset would lead to a capital gains transaction. Mr A does seemto have had a right to claim specific performance of the contractagainst the promoters of the building complex. And this right toclaim specific performance has been held to be a capital assetsusceptible to capital gains in the event of the right being givenup. Consider the following Chennai HC case law:The facts were: the assessee had initially paid advance under anagreement for the purchase of a property, reserving right tospecific performance of the agreement, and later receivedconsideration under another agreement under which the earlieragreement was cancelled and the vendor was allowed to sell theproperty to any person at any price.The Court held that the assessee had a right to insist on specificperformance, gave up the right readily and received a sum of Rs 6lacs. There can be no doubt that by termination of the earlieragreement and by allowing the vendor to sell the said property toany person at any price, the assessee had given up or relinquishedhis right of specific performance and as consideration forrelinquishing that right, the assessee was paid a sum of Rs.6,00,000. The right, title and interest acquired under the agreementof sale clearly fall within the definition of `capital asset'(section 2(14). Instead of assigning the right to thirdparty/parties, the assessee relinquished those rights. We havealready seen that the definition of `transfer' in section 2(47) iswide enough to include relinquishment of an asset.- K.R. Srinath v.Asstt. CIT [2004] 141 Taxman 268 (Mad.).All those celebrated judgments of Vania Silk Mills, BC SrinivasaShetty, Rasiklal Maneklal were brought up and discussed. The ChennaiHC gave this decision in the light of those judgements. The courtthought that the definitions of "capital asset" and "transfer" inthe Act are wide enough to embrace such transactions.So in my opinion, your client would be subject to capital gains taxon this receipt. And it will be an LTCG since 3 years will haveexpired in February 2008 when this right is relinquished.Thanks,CA Sanjeev Bedi--- In ICAI_CIRC_MEERUT_CA@yahoogroups.com, "Naresh Agarwal"
In http://finance.groups.yahoo.com/group/ICAI_CIRC_MEERUT_CA/post?postID=hTBx525w0vY1-QMEOpGINFrFnvbHNwLrkir1w1Y84cLszArtzXN8YXCY7J7Pk01MLDlGNNT1wWD0aTYuj-xifm_fR0qA7QbF59JG, "CA. Abhishek Jain" wrote:>> Dear Sir,> you are one of the highly respected and sought after member ofthis group.> And the way you answer the queries is superb.>> I have one query on Capital Gain Tax.> Mr. A applied for a Flat in a co-operative housing society in2000 the allotment letter of which recd in May, 2002 stating theexpected completion date July 2004.> Mr A made payment of Rs. 10 Lacs till March 2004 in variousinstalment.> In May, 2004 Mr. A recd a share certificate in May 2004 statingthe allotment of a share in society.> Finally, he recd the possesion of Flat in July 2005.>> He sold this flat in April 2007.>> My query is whether capital gain arising out is long term orshort term.>> Thanking you>> With warm regards>>>>>>> Regards>> CA. Abhishek Jain>> +91-9350271751>> +91-11-22485133>> e-Mail- ca.abhishekjain@...>> abhishekjain_ca@...
No comments:
Post a Comment