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Deduction under section 24(b) and computation of capital gains under section 48 of the Act are altogether covered by different heads of income i.e., income from ‘house property’ and ‘capital gains’. Further, a perusal of both the provisions makes it unambiguous that none of them excludes operative of the other.
Notification No. 44/2012-Income Tax In exercise of the powers conferred by sub-section (2) of section 54, sub-section (2) of section 54B sub-section (2) of section 54D sub-section (4) of section 54F sub-section (2) of section 54G and sub-section (2) of section 54GB of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby makes the following Scheme to amend the Capital Gains Account Scheme, 1988, namely:-
Honourable Madras High Court in case of A.S. Jayakumar (supra) has held that unless there is a proof for extra consideration paid by the purchaser over and above what is stated in the sale deed, section 52(2) of the I T Act cannot be invoked.
It is clear from the provisions of Sec. 45(1) , being a deeming provision any gain which has arisen during the year has to be taken for consideration irrespective of the fact that the transferor may receive the sale consideration in subsequent years. Further, the observation of the Ld. CIT(A) that in family members cases, for the capital gains arising out of the transfer of shares, the return of income have been accepted by the department under scrutiny assessment, cannot be accepted under the principles of consistency as we are not bound to follow the decisions of the authorities which are inconsistent with the provisions of section 45(1) of the Act.
In the instant case, the assessee has made several transactions of purchase of shares during the relevant year. If there high volume, frequency and regularly of the activity carried on by the assessee is in a systematic manner, it would partake the character of business activities carried on by the assessee in shares, and it cannot be said that the assessee has merely made investment in shares.
Apex Court held that till the amendment in 1995, the compensation received on surrendering the tenancy rights could not be assessed to capital gains. Thus, on the fact position as found by the Tribunal and which form the very basis of the order under Section 263 that the assessee was treated as tenants as per the document dated 25.02.1994, the genuineness of which was never questioned by the Revenue, we have no hesitation in confirming the order of the Tribunal. In the above circumstances, we reject the questions raised by the Revenue.
It is to be noted that in the instant case what has been transferred by the assessee is the tenancy right which is very much part of the capital asset as envisaged in sub-section (2)(a) of section 55. Sub-section (2)(a) of section 55 stipulates that cost of acquisition in relation to asset, inter alia, tenancy rights not falling under sub-clause (1)(iv) of sub-section (1) of section 49 shall be taken to be nil.
It is thus clear that ‘willingness to perform’ for the purposes of Section 53A is something more than a statement of intent; it is the unqualified and unconditional willingness on the part of the vendee to perform its obligations. Unless the party has performed or is willing to perform its obligations under the contract, and in the same sequence in which these are to be performed,
The E-Book written by CA Agarwal Sanjay ‘Voice of CA’ deals with almost all issues in Capital Gain Taxation. E-Book Mainly deals with following sections :- Section 45(1) – Charging Section, Section 2(14) – Capital Asset, Section 2(47) – Transfer, Section 47 Transaction Not regarded as Transfer, Section 48 Method of Computation of Capital Gain,
The reasoning of the Tribunal is premised upon the fact that capital assets were transferred on a particular date the assessee passed on the execution of the agreement. There is no material on the record or in the agreement suggesting that even if the entire consideration or part is not paid the title to the shares will revert to the seller. In that sense the controlling expression of ‘transfer’ in the instant case is conclusive as to the true nature of the transaction.
