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Capital gains

Shefali Doshi (student) (166 Points)

19 November 2013

what is the exact difference between sec 46(1) n sec 46(2)..? n what is the logic behind the transfer taxable in hands of a shareholder n not d company in sec 46(1). Really confused repl asap.

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5 Replies

Shefali Doshi (student) (166 Points)
Replied 19 November 2013

Someone plzzzz reply

Ankit (CA, CS) (3064 Points)
Replied 19 November 2013

Dear Shefali,

The provision says that, the assets distributed by the company shall not be transfer and as such, the same is not chargeable to tax under Capital Gains

Also, that portion of the value of the assets distributed as far as I relates to Dividend and DDT is paid shall be exempt. But that part on which is not dividend, the same shall be taxable in the hands of the shareholder as consideration received in exchange of the shares held by him in the company.

If you have any further doubt, please feel free to ask

Shefali Doshi (student) (166 Points)
Replied 19 November 2013

Bt i want to knw d exact diff between 46(1) n 46(2) bcoz 46(1) says...the distributn of capital assets in cash or kind at the time of liquidation and 46(2) also refers the same...so by seeing the ques hw we will cum to knw which section is applicable

amitesh (service) (44 Points)
Replied 21 November 2013

Dear Shefali,

In my opinion diff of both section is as follows:

Suppose A ltd distributes asset on liquidation to MR. X.

Now there are two things happening.

There is a transfer of capital asset by co and there is an income to the shareholder receiving asset. Now sec 45 says that whenever any transfer of capital asset takes place then capital gain shall be attracted. So according to this sec co should pay CG tax on asset distribution. Now 46(1) is inserted to exempt the co from sec 45 in liquidation cases. In sec 46(1) the word “notwithstanding any thing contained in sec 45” is mentioned which means sec 46(1) is overriding sec 45 and thus A ltd shall not have to pay CG tax on asset distribution on liquidation. On the other hand it does not mean A ltd is saved from the clutch of income tax. It has to pay tax u/s 2(22)(C ) known as deemed dividend.

Now sec 46(2) applicability: it is not applicable on co. it is applicable on the shareholder only who receives asset from co on liquidation. In our example Mr. X. You cannot tax it as IOS u/s 56 because sec 46(2) is a specific section for these cases. Since 46(2) says that the CG will be charged in the hands of shareholder you need the amount of consideration u/s 48 which is simply the market value of asset less deemed dividend u/s 2(22)(C ).