Grandfathering Concept in Relation to Long Term Capital Gain

INTRODUCTION

Gains arising on transfer of a capital asset is charged to tax under the head 'Capital Gains'. Income from capital gains is classified as 'Short Term Capital Gains' and 'Long Term Capital Gains'. In this article, we will be understanding what the 'Grandfathering Concept' is in relation to the Long term Capital Gain.

Before that, let’s understand what Capital gain is-

Any profits or gains arising from transfer of a capital asset are called 'Capital Gains' and are charged to tax under the head 'Income from Capital Gains'.

Now, what is Capital Asset as per Income Tax?

Briefly describing, as per Income Tax, Capital Asset is defined as to include:

(a) Any kind of property held by an assessee, whether or not connected with business or profession of the assessee.

(b) Any securities held by a FII which has invested in such securities in accordance with the regulations made under the SEBI Act, 1992.

However, the following items are excluded from the definition of 'capital asset':-

(i) Any stock-in-trade (other than securities referred to in (b) above), consumable stores or raw materials held for the purposes of his business or profession;

(ii) Personal effects, that is, movable property (including wearing apparel and furniture) held for personal use by the taxpayer or any member of his family dependent on him, but excludes -

(a) jewellery;
(b) archaeological collections;
(c) drawings;
(d) paintings;
(e) sculptures; or
(f) any work of art.

Capital Assets are broadly divided into ‘Long Term Capital Asset’ and ‘Short term Capital Asset’.

Depending upon the type of asset and its holding period, below is a chart summarizing Long Term and Short term Capital Asset

Here, we will be discussing about Long term Capital gain on sale of Equity Shares or Equity oriented Mutual Fund i.e. Stocks/Shares held for more than 12 months.

BACKGROUND

The Finance Act, 2018 introduced a new section 112A by withdrawing Section 10(38). Section 10(38) exempted long-term capital gains (LTCG) arising on sale of equity shares or units of an equity-oriented mutual fund on which Securities Transaction Tax (STT) is paid.

The new section 112A proposed to impose tax on LTCG of the following:

• Equity Shares of a Company,
• Units of an Equity-oriented fund; or
• Unit of a Business trust

The LTCG tax is applicable at a concessional rate of 10% on capital gains exceeding Rupees 1, 00,000 (1 Lakh), and there is no benefit of indexation.

APPLICABILITY

The provisions of this section are applicable from financial year 2018-19, i.e. AY 2019-20. This otherwise means any transfer carried out after 1 April 2018, resulting in LTCG above Rs 1 lakh, will attract tax at the rate of 10%.

Now, what is the Concept of Grandfathering?

The concept of grandfathering in the case of LTCG on sale of equity investments is a method of determining the Cost of Acquisition (COA) of such investments.

The COA of such investments acquired by the taxpayer before February 1, 2018, shall be deemed to be the higher of:

1. The Actual COA of such investments; or
2. The lower of-

(i) Fair Market Value (FMV) of such investments as on January 31, 2018*; or

(ii)The Full Value of Consideration received or accruing as a result of transfer of the capital asset i.e. the Sale Price

* The FMV would be the highest price quoted on the recognized stock exchange on 31 January 2018.

NOTE

• If there is no trading in such shares on January 31, 2018, the highest price of such share on a date immediately preceding January 31, 2018 on which trading happens in that share shall be deemed as its fair market value.
• In case of units which are not listed on recognized stock exchange, the net asset value of such units as on January 31, 2018 shall be deemed to be its FMV.
• In a case where the capital asset is an equity share in a company which is not listed on a recognized stock exchange as on 31-1-2018 but listed on the date of transfer, the cost of unlisted shares as increased by cost inflation index for the financial year 2017-18 shall be deemed to be its FMV.

Thus, it can be concluded that if you had invested in equity mutual funds or shares before 31 January 2018, any gains till that date will be considered as grandfathered and thus will be exempt from tax.

Hence, Capital Gain/Loss = Sale Consideration - Revised CoA as calculated above

Tax implications under Grandfathering rule

EXAMPLES

1. Mr. X bought equity shares on 5th May, 2012 for Rs. 14,000. FMV of the shares was Rs. 20,000 as on 31st Jan, 2018. He sold the shares on 14th Nov, 2018 for Rs. 30,000. What will be the long-term capital gain/ loss?

We will first calculate the CoA, which shall be Higher of -

• a) Original COA i.e. Rs. 14,000; or
• b) Lower of –
• i) FMV as on 31.1.18 i.e. Rs. 20,000; or
• ii) Sale Price i.e. Rs. 30,000

Hence, COA = Higher of (Rs. 14,000 or Rs. 20,000) =Rs. 20,000

Therefore, Capital Gain/ (Loss):

• Sale Consideration Rs. 30,000
• Less: Revised CoA Rs. 20,000

Capital Gain Rs. 10,000

2, Mr. Z bought equity shares on 14th September, 2016 for Rs. 9,000. FMV of the shares was Rs. 11,500 as on 31st Jan, 2018. He sold the shares on 8th December, 2018 for Rs. 7,000. What will be the long-term capital gain/ loss?

We will first calculate the CoA, which shall be Higher of -

• a) Original COA i.e. Rs. 9,000; or
• b) Lower of –
• i) FMV as on 31.1.18 i.e. Rs. 11,500; or
• ii) Sale Price i.e. Rs. 7,000

Hence, COA = Higher of (Rs. 9,000 or Rs. 7,000) =Rs. 9,000

Therefore, Capital Gain/ (Loss):

• Sale Consideration Rs. 7,000
• Less: Revised CoA Rs. 9,000

Capital Gain Rs. (2,000)

HAPPY LEARNING.