Gift (Receipt without Consideration) to Persons other than Individuals & Hindu Undivided Family

*What is Gift?

In Layman’s language, gift is transfer of goods or property (movable or immovable) from one person to another without consideration. As per Income Tax Act, Receipt without consideration or Receipt with inadequate consideration, by individuals and Hindu Undivided Family is chargeable to Income Tax. Section 56(2)(vii) of Income Tax Act, deals with Taxation of Gift for Individual and Hindu Undivided Family.

*Is Taxability of Subsidy same as Taxability of Gift?

Subsidy is also a kind of receipt without consideration. Subsidy is aid (help) given by Central or State Government in Cash or in Kind or through Tax reductions or Tax Holidays to persons or group of persons. So should we start taxing all kind of subsidies or help or grant (by whatever name called) given by government as gift u/s 56(2)(vii)? As it is clear that subsidy can be received by any person (as defined u/s 2(31) of Income Tax Act) and the motive behind its conferment is welfare of society, it cannot be restricted to section 56(2)(vii).  Finance Bill, 2015, has expanded the definition of income (u/s 2(24) of Income Tax Act), that is taxable under the Income Tax Act, 1961, by inserting a sub-clause on subsidies, grant, and cash incentive and duty drawback.  According to the amendments to the Finance Bill, the income shall include "assistance in form of a subsidy or grant or cash incentive or duty drawback or waiver or concession or reimbursement by the central government or state government or any authority or body or agency in cash or kind to the assessee other than the subsidy or grant or reimbursement which is taken into account for determination of the actual cost of the asset". As per various decisions of High court and Supreme Court, Subsidy is taxable only if it a Revenue Receipt i.e Subsidy in form of Capital receipt is not taxable. E.g. Subsidy for purchase of Land will be deducted from the cost of asset (Section 43(1) of Income Tax Act) and will not be taxed. Taxability of Subsidy can be concluded from the ratio of following Court Decisions:

1. Sahney Steel and Press Works Ltd. v CIT (1997) 228 ITR 253 (SC)
2. Mepco Industries Ltd. v CIT (2009) 319 ITR 208 (SC)
3. CIT v Udupi Builders P. Ltd. (2009) 319 ITR 440 (Kar)

*Gift-Capital Receipt or Revenue Receipt?

The general rule under the Income tax Act is that, all revenue receipt are taxable unless a receipt is specifically exempted (as specified u/s 10 of Income Tax Act) and all capital receipts are exempt from taxation unless there is a provision to tax it (Capital Gains are taxable u/s45 of Income Tax Act  ). Gift, Financial Assistance, Loan etc. are Capital receipts. Receipt without consideration or Receipt with inadequate consideration, by individuals and Hindu Undivided Family is chargeable to Income Tax u/s 56(2)(vii) of Income Tax Act (Specifically Mentioned in the law). But what if gift is received by Person other than individual or Hindu Undivided Family? Will it be taxed? How will be the tax calculated?

*Taxability of Gift to Persons other than Individual or Hindu Undivided Family (say a company): Can a Director gift to his/her company on its First Anniversary? Can a parent company gift to its subsidiary company on its incorporation? Is this receipt without consideration taxable under Income Tax Act?

Why not!!! A company (Non Living, but enjoying the right of separate legal entity in the eyes of law) and its director are two separate legal entities in the eyes of law. Both of them are covered in the definition of Person u/s 2(31) of Income Tax Act. A Contract entered between the two (company and director) is valid as per Indian Contract Act, 1872. Then surely director can gift his/her company.

E.g. Director of XLtd. gifts Rs.10,00,000 to XLtd. on its first anniversary. Will Rs.10,00,000 be taxable in the hands of XLtd.?  Accounting Entry will be-

Cash A/c     Dr.                  10,00,000
To Gift From Directors A/c   1,00,000

It is not taxable u/s 56(2)(vii) as the recipient is not individual or Hindu Undivided Family. Capital receipt is not taxable unless there is specific provision to tax it. It is apparent that the receipt of cash of Rs.10,00,000 is capital receipt. Thus, Entire Rs.10,00,000 will not be taxable.

E.g.  Director of Xltd. Machine worth Rs.10,00,000 to XLtd. on its first anniversary. Will Machine be taxable in the hands of XLtd.?  Accounting Entry will be-

Machine A/c    Dr.              10,00,000
To Gift From Directors A/c   10,00,000

It is not taxable u/s 56(2)(vii) as the recipient is not individual or Hindu Undivided Family. Capital receipt is not taxable unless there is specific provision to tax it. It is apparent that the receipt is capital receipt (Capital Asset). Thus, receipt of Machine without consideration is not taxable.

Can we claim depreciation on the machine received as gift? As per Section 43(1) in The Income- Tax Act, 1995" actual cost" means the actual cost of the assets to the assessee, reduced by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority. Thus, depreciation can be claimed on assets purchased by the company. There shall be actual cash outlay by the company. Thus, Income Tax Act does not allow dual benefit.  No depreciation can be claimed on such asset.

Thus, taxability of Capital receipts in the form of gift received by Persons other than individuals and Hindu Undivided Family is still out of the purview of Income Tax Act!!!!

Note: The views expressed in the Article may not match with the views of others. Before accepting & applying, take the expert opinion.