The existing restriction in exemption u/s. 54EC is clearly an attempt to prevent home owners from fully enjoying the benefits. The treatment of long-term capital gains (LTCG) has been a contentious issue in recent years. Section 54EC of the Income-tax Act, 1961, exempts from taxation capital gains arising from the transfer of a long term capital asset, provided the assessee invests the whole or part of the capital gains in long term specified assets for three years.
The Finance Act of 2007 restricted the eligible bonds for such investment to those issued by the National Highway Authority of India (NHAI) and the Rural Electrification Corporation (REC). For the first time, the Act also set a limit of Rs. 50 lakh for investment in the long term specified asset by an assessee during any financial year. There is an urgent need to eliminate the uncertainty by making the legislation on exemption permanent for at least the next ten years or so and ensuring the availability of debt instruments so that development activities are not held hostage to the vagaries of annual budgets.
There are good reasons to consider withdrawal of the limit altogether or substantially increase it to permit reinvestment of capital gains in infrastructure and rural development.
The limit of Rs. 50 lakh seems arbitrary and minuscule against the backdrop of soaring property values. Urban land values have increased 12,000 times in the last 44 years from about 83 paise to Rs. 10,000 and more per sq. ft.
The CBDT’s Cost Inflation Index and guideline values starting from 1981 provide for only a partial offset to the land price inflation spiral. Such restriction of exemption is clearly an attempt to prevent home owners from fully enjoying the benefits of exemption. The limit virtually turns off the tap of bonds available for investment.
Infrastructure development has not been keeping pace with private property development. We see the emergence of private castles in the midst of public squalor. Gated communities with the most ultra modern facilities are developing fast with no decent public roads to connect them.
By increasing the scope and size of investments in specified bonds, the Government will help in partially reducing the glaring disparity between urban and rural areas, and facilitate harmonious growth of private lands with adequate infrastructure.
There is a strong incentive to undervalue property transactions, as a market value transaction is subject to LTCG tax at 20 per cent. The buyers encourage undervaluation, as they too escape the stamp duty of 9 per cent payable on registration. Such artificial limits on investment run counter to official attempts to bridge the gap between the market value and registered value of properties. They further help to extend the reach of unaccounted and black money.
The pernicious effect of such restrictions is seen in the sickening display of ostentatious spending, untrammelled luxury imports and unproductive expenditure on gold and jewellery, in turn sustaining and widening the underground economy and the gap between the rich and the poor.
On the positive side, the Government has wisely crafted a transparent capital gains tax exemption scheme via NABARD, REC and NHAI bonds. Despite their inadequacies, one hopes the new Finance Act renews and increases these fiscal policy devices for infrastructure transformation. This is fiscally prudent, encouraging private financing of infrastructure developments, eliminating reliance on direct taxation.
The Rural Electrification Corporation, for example, has already accelerated the growth and enrichment of quality of life of rural and semi-urban population, especially in Gujarat. It has financed projects covering power generation, conservation, transmission and distribution network in the country.
The Government needs to consider a series of infrastructure bonds to cater to the investor appetite in this area. The issuance of bonds for various tenors with appropriate interest rates under the purview of Section 54EC of the Income-tax Act will partially help in the development of a tax exempt bond market with a yield curve stretching from spot to longer term tenors.
Recent Controversy
ACIT vs Shri Raj Kumar Jain & Sons (HUF) (ITAT Jaipur)
S. 54EC investment within 6 months is the investment for that financial year in which transfer has taken place. Hence, subsequent investment is to be considered as part of the investment of financial year in which transfer has taken place.
Shri Aspi Ginwala V/s The Asst. Commissioner of Income (ITAT Ahmedabad)
Where assessee transfers his capital asset after 30th September of the financial year he gets an opportunity to make an investment of Rs.50 lakhs each in two different financial years and is able to claim exemption upto Rs.1 Crore u/s 54EC of the Act. Since the language of the proviso is clear and unambiguous, we have no hesitation in holding that the assessee is entitled to get exemption upto Rs.1 Crore in this case. Since the wording of the proviso to section 54EC is clear, the benefits which are available to the assessee cannot be denied. In view of above, it is hereby held that the assessee is entitled for exemption of Rs.1 crore as six months’ period for investment in eligible investments involved is two financial years.
Conclusion
An assessee who has transferred a capital asset in the second half of FY 2011-12 and who has exhausted the exemption limit of Rs 50 lakhs upto March 2012 can look to invest a further sum of Rs 50 lakhs within 6 months from the date of transfer even if such period spills over into the FY 2012-13.
