Capital Gains on Share Transfer

Share transfer of a private limited company will result in capital gains income under the Income Tax Regulations. Investors in startup private limited companies often exit by transferring their equity shares to a new investor. The resulting income will be taxed as capital gains in the hands of the seller. The rate of tax depends on if the income is classified as long-term capital gains or short-term capital gains. In this article, we look at the procedure for computing capital gains on share transfer in India.

Short-term vs Long-term Capital Gains

Under Section 2(42A) of the Income Tax Act, unlisted shares of companies are treated as short-term capital assets if held for 24 months or less. Unlisted shares will be treated as long-term assets if held for more than 24 months. Sale of short term capital assets will give rise to short-term capital gains wile transfer of long-term capital assets will give rise to long-term capital gains.

Computing Value of Consideration

Section 50CA of the Income Tax deals with provisions for computing full value of consideration for the transfer of unlisted/unquoted shares. Under Section 50CA, if the consideration received by an assessee for shares of a company that is unlisted is less than fair market value, the fair market value would be deemed to be the full value of the consideration received. This means that while computing capital gains, the amount of consideration would be greater of the actual consideration received by the seller or fair market value of the shares. The fair market value of the shares would be determined under Rule 11UAA of Income-tax Rules in such instance.

Short-term Capital Gains Rates

Short-term capital gains would be treated like any other income for the assessee as there is no special rate. Therefore, short-term capital gains from unlisted shares would be taxed at the applicable rate in the case of individual investors. Also if the total income of the assessee is Rs.2 crores to Rs.5 crores, surcharge at 25% rate would be applicable - making the effective tax rate 39%. If the total income of the assessee is more than Rs.5 crores, the surcharge is 37% giving rise to an effective tax rate of 42.74%. For NRI Investors, the applicable rate is 10% + surcharge + 4% health and education cess.

Long-term Capital Gains Rates

In case of long-term capital gains, the applicable tax rate is 20%. If the total income of the assessee is Rs.2 crores to Rs.5 crores, surcharge at 25% rate would be applicable - making the effective tax rate 26%. If income exceeds Rs.5 crores, the applicable surcharge is 37% resulting in an effective tax rate of 28.49%.

Lock-in Period for Section 54GB Benefits

If an assessee had sold his/her residential property and invested the proceeds in equity shares and claimed Section 54GB benefits - a lock-in period would be applicable for the transfer. Section 54GB provides for lock-in period of 5 years in respect of equity shares purchased in a startup company as well as new assets acquired by the startup from the equity funds. If the new assets are computer or software, then a lock-in period of 3 years is applicable. In case the equity shares or assets are transferred by an assessee during the lock-in period after availing benefits under Section 54GB, long-term capital gains earlier exempted would become taxable in the hands of the transferor.

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