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Business News/ Opinion / Online-views/  Examine paperwork to verify the date of sale of an asset
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Examine paperwork to verify the date of sale of an asset

If asset is held for less than 36 months from date of purchase, gains from sale is termed as STCG.

Shyamal Banerjee/MintPremium
Shyamal Banerjee/Mint

My wife and I have booked a flat in Pune with my wife as the primary owner. Its registration was done on 19 June 2010, the agreement is dated 14 May 2010 and the booking amount date was 28 January 2010. While the flat is ready for possession, I am yet to take possession. If I sell it in January or February 2013, what will be the tax implications? Are there any saving avenues? If I sell the property after three years from the agreement date (without taking possession till that date) then will long-term capital gains be applicable?

—Anil Bilawala

Determining the date of purchase of an under-construction property has been a matter of debate, particularly in the light of various real estate arrangements prevalent in the market. There are conflicting views on the subject. One view possible is that the date of purchase of property shall be the date of issue of letter of allotment (presumably 28 January 2010 in your case) for the under-construction property. But this would happen only if the said letter specifies the details about allotment of flat in the proposed building, which means if the said letter in a way irrevocably binds you as the purchaser of the property or gives you an unconditional right to dispose the property.

However, there are contrary judicial precedents, which have held that the date of executing the purchase agreement with the builder (in your case, 14 May 2010) could be construed from the date of execution of the said agreement and subsequent date of registration or possession is not relevant.

Even if your wife is the primary owner, if the apartment has been entirely funded by you, then the gains, if any, shall be taxable in your hands. However, if the apartment was funded by both of you, then the gains would be considered as income in your and your wife’s hand proportionately.

The actual paperwork needs to be examined to verify if the sale of the asset is that of the “flat" or “the right to secure a flat". A crystallized right to receive an asset is also an asset for the purpose of calculating capital gains tax. Accordingly, the period of holding has to be calculated.

If the asset is held by you for less than 36 months from the date of acquisition, the same shall be termed as short-term capital asset and gains arising from the sale of the asset shall be termed as short-term capital gains (STCG). Since there is no mechanism whereby an exemption from STCG could be availed, the entire STCG shall be taxable as per the applicable tax slab rate.

If the asset is held for more than 36 months from the date of acquisition, it shall be classified as a long-term capital asset and the gains shall be termed as long-term capital gains (LTCG). Exemption from LTCG tax could be availed by reinvesting LTGC into a new residential apartment as per section 54 of the Income-tax Act (in case the asset transferred is a flat).

The investment in a new apartment should be made either within one year prior to the sale date or two years from the sale date or within three years for an under-construction property. If you propose to invest the entire LTCG in a new residential apartment for tax exemption but are unable to invest before the due date (31 July) of filing tax returns, you could deposit the unutilized LTCG amount into the Capital Gains Account Scheme (CGAS) as per the provisions of the Act and claim exemption in the year of the asset’s sale. However, you should invest the amount deposited into CGAS towards purchase or construction of a new residential apartment within the aforesaid investment time frames (within two years if the new property is acquired or within three years if the property is constructed).

If the asset transferred is a “right to secure a flat", then the exemption from LTCG tax could be availed by re-investing the net sales proceeds into a new residential apartment as per provisions of section 54F of the Act subject to prescribed conditions. One of the condition categorically requires that at the time of claiming an exemption under section 54F, you should not own more than one house (other than the new house/apartment) on the date of sale. Further, the aforesaid time frames in respect of re-investment shall also be applicable.

Alternatively, you could invest the LTCG arising from sale of asset in specified bonds issued by the National Highways Authority of India or Rural Electric Corp. Ltd within a period of six months from the date of transfer of old asset up to 50 lakh per fiscal.

Please note that if the new apartment purchased/constructed as per the provisions of section 54 or 54F is sold or the investment in bonds made as per section 54EC are converted into cash within three years, the exemption claimed from LTCG in respect of the old asset (the flat or right to secure a flat) shall be revoked.

The amount invested in a new residential apartment or specified bonds as per the aforesaid provisions of the Act shall be claimed as exempt from tax and the balance amount, if any, should be offered to tax at 20.6% (including education cess). While calculating the LTCG, the cost of acquisition and improvement, if any, should be inflated/adjusted by applying the cost inflation index notified by the tax authorities.

In case you own more than two residential properties, the income-tax and wealth tax implications will need to be separately examined.

Queries and views at mintmoney@livemint.com

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Published: 30 Jan 2013, 07:29 PM IST
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