Profits resulting from the sale or transfer of capital assets are considered as income under the capital gains heading. Section 48 of Income Tax Act, 1961 accounts for the expenses involved in the acquisition, repair and maintenance of such capital assets. 

Features of Section 48 of the Income Tax Act, 1961

As mentioned above, the Section 48 of the Income Tax Act is aimed at computing the real capital gain upon the sale of capital assets. You can arrive at the real capital gain by accounting for the cost spent by the seller in acquiring said capital asset, sales consideration costs and costs associated with making improvements to the capital asset. These are the kinds of expenses that are allowed under Section 48 of the Income Tax Act: 

  • Expenditure incurred wholly and exclusively in connection with such transfer

  • The cost of acquisition of the asset and the cost of any improvement

Applicability of the First Proviso to Section 48

The 1st Proviso to Section 48 of the Income Tax Act is applicable for non-resident Indians only. Sec 48 of the Income Tax Act becomes applicable when a non-resident buys an asset like a share or debenture with foreign currency, which is then converted into the INR as the security that is being purchased is to be paid for in INR.

 

When such a share or debenture is sold, it is sold to the seller in INR. According to the First Proviso to Section 48, this amount is to be reconverted into the original foreign currency. Thus, the first Proviso to Section 48 of Income Tax Act helps non-resident Indians to neutralise the exchange rate fluctuation and navigate the currency conversion rates while accounting for long term capital gains. Taxpayers can arrive at their final consideration value by following provisions of Rule 115A.

Benefits of 1st Proviso to Section 48

Here are some of the benefits of the First Proviso to Section 48 of the Income Tax Act in line with Rule 115A:

  • The consideration of sales and expenses in connection with the transfer in INR should be converted into the currencies that were initially used to purchase the investment. This can be done by taking the average of the TTSR (Telegraphic Transfer Buying Rate) and the TTBR (Telegraphic Transfer Selling rate) on the date of transfer.

  • Similarly, the cost of acquisition should also be converted using the average rate on the day of acquisition. 

  • If there are any resultant capital gains, they should also be converted using the TTBR rate on the date of transfer. 

Second Proviso of Section 48 of Income Tax Act

The Second Proviso of Section 48 of Income Tax Act offers indexation benefits to taxpayers who have realised long term capital gains upon sale or transfer of any long term capital asset (LTCA). Unlike the First Proviso, the Second Proviso is not applicable to non-resident Indians. 

 

Resident individuals can calculate their total income that’s taxable under the heading - capital gains by accounting for indexed cost of the improvement and indexed acquisition cost. The cost incurred while making improvements and  modifications to the asset can be claimed as a deduction.

Third Proviso under Section 48 of Income Tax Act

The Third Proviso under Section 48 of Income Tax Act states that the First and Second Proviso will not be applicable when Rule 112A is being taken into account. 

Fourth Proviso of Section 48 of Income Tax Act

According to the Fourth Proviso of Section 48 of Income Tax Act, the Second Proviso will not be applicable in the event that the capital gains arise from the sale or transfer of long-term capital assets when such assets are debentures or bonds except in the case of:

  • Capital indexed bonds that are issued by the government 

  • SGBs which are issued by the RBI under the Sovereign Gold Scheme 2015

Fifth Proviso under Section 48 of IT Act

The Fifth Proviso under Section 48 of IT Act is applicable to eligible non-resident assessees. In the event that capital gains arise as a result of depreciation of foreign currency or appreciation of INR against any given foreign currency at the time of maturity of INR-denominated bonds, taxpayers can safely ignore these capital gains while calculating their total consideration value.

Sixth Proviso under Section 48 of Income Tax Act

In case of transfer of debentures and shares as indicated in Section 47(iii) of the Income Tax Act happens in the form of a present or a gift, then the Sixth Proviso will come into force. As a taxpayer, you can safely consider the market value of these debentures and/or shares on the date of the transfer as their total consideration value.

Seventh Proviso of Section 48 of Income Tax Act

Taxpayers can’t claim deductions under the Section 48 of Income Tax Act while calculating their total taxable income under capital gains if the Securities Transaction Tax (STT) is applicable on the given transactions. 

Conclusion

Section 48 of Income Tax Act offers taxpayers an avenue to compute their capital gains after accounting for improvement expenses and cost of acquisition. This helps taxpayers arrive at the true profit that they may have realised from their capital gains. 

FAQs on Section 48 of the Income Tax Act

What is Section 112 of the Income Tax Act?

Section 112 of the Income Tax Act states that assesses must pay tax at the rate of 10% prior to indexation and post indexation, the tax rate will become 20%. These rates are applicable to LTCG that the taxpayer may have realised from capital assets as indicated in Section 2(29A) of the Income tax Act.

Can non-resident Indians take advantage of the indexation benefits?

Yes, indexation benefits are available to both resident Indians and non-resident Indians, provided that they are indexing their long-term capital gains.

What is indexation of capital gains?

Indexation is a method through which investors can account for inflation in their long-term capital gains, this helps them arrive at the true profit.

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