Resale of under construction Residential Flat partly paid for by Capital Gains

My wife sold a residential plot in February 2010 (AY 2010-11) on full consideration of Rs. 21.00 Lakh approx. (LTCG was Rs. 20.43 lakh). In AY 2010-11 itself i.e. March 2010, she applied for a residential flat with a reputed builder at a total cost of Rs. 49.00 lakh approx. with 50% down payment and rest in instalments. Rs. 24.50 lakh including full consideration of Rs. 21.00 lakh was used for making down payment. Instalments upto 95% of total cost i.e. Rs. 45.00 lakh approx were paid till 2016, when the construction by builder stopped altogether. Technically, the flat is still under construction. Now even after 16 years, since the flat is undeliverable, we want to sell this u/c flat and expected sale price is Rs. 60.00 lakh approx. 

How the taxation/LTCG on this sale to be handled? Whether LTCG is Rs. 60-45= 15 lakh or earlier LTCG is also to be added making total of Rs. 35.43 lakh? Whether any penalty will have to be paid...though not through any fault of ours? Guidance is solicited on the matter. Thanks in anticipation.

Replies (1)

Selling an under-construction flat after 16 years involves two main tax risks: potentially triggering a "withdrawal" of the original 2010 capital gains exemption due to the non-completion of the property, and calculating new long-term capital gains on the difference between the sale price (Rs. 60 lakh) and your total investment in the flat. You should consult a tax professional to evaluate whether the original exemption is still secure before finalizing the sale, as the 16-year delay significantly complicates the standard "three-year lock-in" rule.

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