Key Amendments to Capital Gains Provisions under the Finance (No. 2) Act 2024

The Finance (No. 2) Act, 2024 introduced several amendments to the Capital Gains provisions, aimed at streamlining tax regulations and bringing clarity to various exemptions, deductions, and computation methods. Below is the list of key amendments:
– Changes in Tax Rates for Certain Capital Assets
– Introduction of a Higher Threshold for Exemptions
– Changes in the Holding Period for Long-Term Gains
– Rationalization of Exemptions for Sovereign Gold Bonds (SGBs)
– Changes in Indexation Benefits
– Increased Clarity on Capital Gains in Joint Development Agreements (JDAs)
– Clarification on Tax Treatment of Gifted Property
The amendments introduced under the Finance (No. 2) Act, 2024 bring much-needed clarity and reforms to capital gains taxation. While promoting long-term investments in specific asset classes, the amendments also focus on curbing tax evasion in high-value transactions and the rapidly evolving digital asset market.

Table of Contents

1. Overview of Changes in Provisions Relating to Capital Gains
2. Background
3. Change in the Period of Holding for the Classification of Capital Assets into Long-term and Short-term [Section 2(42A)]

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1. Overview of Changes in Provisions Relating to Capital Gains

The Finance (No. 2) Act, 2024 has made the following amendments or insertions in the provisions relating to capital gains:

• Section 2(42A) has been amended to prescribe only two holding periods for determining the nature of capital assets 
• The second proviso to Section 48 has been amended to provide that no indexation benefit shall be available in respect of the long-term capital assets 
• Section 112 has been amended to provide a uniform tax rate of 12.5% on long-term capital gains. However, a grandfathering provision is introduced for land or building in case of resident individual/HUF
• Section 112A has been amended to increase the tax rate on long-term capital gains from 10% to 12.5%. Further, the threshold limit up to which no tax is levied has been increased from Rs. 1,00,000 to Rs. 1,25,000
• Section 111A has been amended to increase the tax rate on short-term capital gains from 15% to 20%
• Sections 115AB, 115AC, 115ACA, 115AD and 115E have been amended to make the corresponding changes pursuant to the amendment made to Sections 111A, 112 and 112A
• Sections 196B and 196C and Part II of the First Schedule have been amended to align the withholding tax rates on capital gains with the amendments made to the capital gain tax rates under substantive provisions
• Section 50AA has been amended to expand its scope to tax the income arising from the transfer, redemption or maturity of the unlisted bonds or debentures
• Explanation (ii) to Section 50AA has been substituted to provide a new definition of the expression “specified mutual funds”
• Clause (iii) of Section 47 has been substituted to provide that any transfer of a capital asset by any person other than an Individual or HUF under a gift, will or irrevocable trust shall be considered a transfer.
• A new item (AA) is inserted in sub-clause (iii) of Clause (a) of the Explanation to Section 55(2)(ac) to provide the method to compute FMV of unlisted equity shares offered for sale under IPO.

2. Background

According to Section 45(1), capital gains are chargeable to tax in the year in which the capital asset is transferred. It is the date of the transfer that determines the previous year in which the capital gain is to be taxed. Where the date of the transfer falls in the previous year 2024-25, it becomes essential to carefully identify the date of transfer because the amendments made by the Finance (No. 2) Act, 2024, with effect from 23-07-2024 could impact the following factors, which are important in computing the capital gains and tax thereon:

• The period of holding of capital assets
• Availability of indexation
• Applicable tax rates

If the transfer is made before July 23, 2024, the old provisions shall continue to apply. But, if the transfer is made on or after July 23, 2024, there shall be the following consequences:

• The new holding periods shall apply to determine the nature of capital gains.
• The tax on short-term capital gains covered under Section 111A shall be 20% instead of 15%.
• A uniform tax rate of 12.5% shall apply to long-term capital gains under Section 112, although a grandfathering provision is introduced for land or building in case of resident individual/HUF.
• The tax on long-term capital gains covered under Section 112A shall be 12.5% instead of 10%.
• No benefit of indexation shall be available on long-term capital gains.
• The tax rate on capital gains arising from non-residents will be higher, in line with changes to Sections 111A, 112 and 112A.
• Withholding tax on capital gains will be aligned with changes to Sections 111A, 112 and 112A.

Thus, it is essential to understand what constitutes a transfer and when a capital asset is considered to be transferred.

2.1 Meaning of transfer

The Income-tax Act defines ‘transfer’ in Section 2(47) in an inclusive manner in relation to a capital asset. Thus, to determine when a capital asset is considered transferred, it is necessary to consider both the general and inclusive meaning of the term ‘transfer’ as outlined in Section 2(47).

For the general meaning of the term “transfer”, we may refer to Section 5 of the Transfer of Property Act, 1882. It provides that “Transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons”. In other words, “transfer” is a voluntary conveyance of property from one person to another inter vivos as opposed to a testamentary transfer that takes effect on the death of the giver.

Section 2(47) extends the meaning of the term ‘transfer’ by including transactions that would not ordinarily be considered transfers in the generally accepted sense¹. Therefore, to determine whether a transaction constitutes a transfer, it is important to consider not only the general law but also Section 2(47) in relation to capital assets. The term ‘transfer’ defined under Section 2(47) has a much wider connotation than common parlance or the Transfer of Property Act as it includes:

• Sale, exchange, or relinquishment of the asset;
• Extinguishment of any rights therein;
• Compulsory acquisition thereof under any law;
• Conversion of an asset into stock-in-trade;
• Maturity or redemption of a zero-coupon bond;
• Allowing possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act, 1882; or
• Any transaction (whether by becoming a member of, or acquiring shares in, a cooperative society, company, or other association of persons, or by any agreement or arrangement or in any other manner whatsoever) which has the effect of transferring or enabling the enjoyment of any immovable property.

2.2 When a capital asset is considered to be transferred?

The inclusive definition in Section 2(47) often leads to controversies, and there are numerous judgments by the Courts where both the general definition and the definition under Section 2(47) have been interpreted to conclude the date of transfer in specific circumstances or for specific assets. Additionally, the CBDT has issued clarifications regarding certain financial assets. The date of transfer in the below transactions have been discussed in subsequent paras:

• Movable property
• Securities;
• Immovable property;
• Agreement to sell a property;
• Transfer through an unregistered agreement;

2.2a In the case of movable property: As per Section 5 of the Transfer of Property Act, the transfer happens only when the title of the property is transferred from one person to another. In the case of movable property, the title passes with delivery in pursuance of an agreement to sell². Thus, the date of transfer of movable property will be the date when possession of such asset was effected³.

2.2b In the case of securities: The CBDT vide Circular No. 704, dated 28-04-1995, has clarified the following in respect of securities:

• When the securities are transacted through stock exchanges, it is the established procedure that the brokers first enter into contracts for the purchase/sale of securities and, thereafter, follow it up with the delivery of shares. Thus, these transactions are completed on a T+1 basis, meaning one day after the transaction occurs. The CBDT has clarified that the date of the broker’s note should be treated as the date of transfer, provided these transactions are followed by the delivery of shares. Therefore, the date of the broker’s note, not the date of delivery, is regarded as the date of transfer for securities.

Considering this clarification, if a person executes a sale order on or before July 22, 2024, the period of holding for such a case shall be computed according to the old law, even if the delivery of the shares takes place on or after 23rd July, 2024.

• In case the transactions occur directly between the parties and not through stock exchanges, the date of the contract of sale as declared by the parties shall be treated as the date of transfer, provided it is followed up by the actual delivery of shares and the transfer deeds.

2.2c In the case of immovable property: Section 54 of the Transfer of Property Act defines “sale” as a transfer of ownership in exchange for a price paid or promised or part-paid or part promised. It further provides that transfer in case of immovable property of a value of Rs. 100 and above can be made only by a registered instrument. Thus, in the normal case of transfer of ownership of an immovable property, it is the execution of the sale deed and its registration that confers title to the property⁴. Where the transfer is effected by a registered deed, the effective date of transfer is considered to be the date on which the sale deed is signed and not when it is registered⁵. Further, as per Section 47 of the Registration Act, 1908, a registered document takes effect from the date of its execution and not from the date of its registration⁶.

Thus, it is the date of execution of the sale deed, which is considered as the date of transfer of immovable property under normal circumstances. However, to address practices where sellers conferred ownership rights and privileges without formal conveyance to avoid capital gains tax, sub-clauses (v) and (vi) were added to Section 2(47). As per Section 2(47)(v), ‘transfer’ includes any transaction involving the allowing of possession of any immovable property to be taken or retained in part performance of a contract as referred to in Section 53A of the Transfer of Property Act, 1882.

Section 53A of the Transfer of Property Act protects the transferee’s rights under a contract for the sale of immovable property, provided certain conditions are met, such as:

• The contract must be in writing and signed by the transferor.
• The transferee has taken possession of the property or continues in possession if already in possession.
• The transferee has performed or is willing to perform his part of the contract.
• The contract should be registered if it is executed on or after 24-09-2001.

Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The expression ‘enabling the enjoyment of’ takes colour from the earlier expression ‘transferring’, so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyed as a purported owner thereof. The idea is to bring the transactions where, though title may not be transferred in law, there is, in substance, a transfer of title in fact within the tax net⁷.

In such scenarios, the transaction is treated as a transfer for tax purposes, even if a formal sale deed is not executed or registered. This provision ensures that capital gains tax cannot be avoided by merely delaying or avoiding the registration of the transfer deed.

The effect of section 2(47)(v) is that a transaction in which possession of the immovable property is given to the transferee in part of the performance of the contract could be treated as a transfer in the year of giving possession.

Meaning of possession

‘Possession’ is a word of open texture. It is an abstract notion. It implies a right to enjoy, which is attached to the right to property. It is not purely a legal concept but is a matter of fact. The issue of ownership depends on the rule of law, whereas possession is a question dependent upon fact without reference to law. To put it differently, ownership is strictly a legal concept, and possession is legal, non-legal, or pre-legal. The test for determining whether any person is in possession of anything is to see whether it is under his general control. He should actually be holding, using, and enjoying it without interference from others⁸.

The possession of the immovable property should be de jure and not merely de facto. Merely because de facto possession of the land is made over to a mason or a civil engineer for the purpose of making a construction thereon, it would not imply that possession is made over to the mason or the civil engineer for their enjoyment of the property. Such persons would be in de facto possession under the de jure possession of the owner and only for the purpose of undertaking the construction at the land in question⁹.

Where a license was given to another upon the land for the purpose of developing the land into flats and selling the same, such license cannot be said to be ‘possession’ within the meaning of Section 53A of the Transfer of Property Act, which is a legal concept that denotes control over the land and not actual physical occupation of the land¹⁰.

In the following cases, the Courts have held that there is a transfer when the transferee is allowed possession in part performance or the transferee begins enjoyment of the property:

• Chaturbhuj Dwarkadas Kapadia of Bombay v. CIT [2003] 129 Taxman 497 (Bom.)
• CIT v. Dr. T.K. Dayalu [2011] 14 taxmann.com 120 (Kar.)
• Potla Nageswara Rao v. Deputy CIT [2014] 365 ITR 249 (AP)
• CIT v. Harbour View [2018] 409 ITR 599 (Ker.)
• Jasbir Singh Sarkaria, In re [2007] 164 Taxman 108 (AAR – New Delhi)
• Asstt. CIT v. Akkineni Nagarjuna Rao [2012] 22 taxmann.com 69 (Hyd.)
• Asstt. CIT v. A. Ram Reddy [2012] 23 taxmann.com 59 (Hyd. – Trib.)
• Krishna Kumar D. Shah (HUF) v. Dy. CIT [2012] 23 taxmann.com 111 (Hyd. – Trib.)
• Durdana Khatoon v. Asstt. CIT [2013] 33 taxmann.com 311 (Hyd. – Trib.)

2.2d In the case of an agreement to sell a property: An agreement to sell an immovable property is a bilateral contract under which the two parties, i.e., the buyer and the seller, agree to certain terms and conditions, subject to which the seller transfers the property to the buyer for a decided sale consideration. The terms and conditions of an agreement to sell are bound to differ in each case.

Upon execution of the agreement to sell, the intending purchaser gets a certain right to insist that the title of the property be transferred if he performs his part of the obligation arising out of the agreement. If the seller is unwilling to do so, the intending purchaser may also successfully bring a suit for specific performance by demonstrating that he was and had always been ready and willing to perform his part of the obligations arising out of the agreement. Thus, the seller binds himself to do or not to do certain things in reciprocation of the purchaser performing his part of the obligations. Correspondingly, it may be stated that the seller’s right to freely deal in the property gets curtailed. However, the common thread would be the commitment of the owner of the property to convey to the purchaser the right, title and interest in such property upon the purchaser paying the agreed consideration in agreed manner.

The right, title, and interest in the property are transferred only when these bilateral obligations are fulfilled, and the sale deed is executed and registered.

The following judicial rulings clarified that the date of agreement to sell without handing over the possession cannot be treated as the date of transfer for the purpose of computing capital gains:

• Smt. Shail Moti Lal v. CIT [2013] 35 taxmann.com 46 (Punj. & Har)
• Ushaben Jayantilal Sodhan v. ITO [2018] 93 taxmann.com 453 (Gujarat)
• Ratna Trayi Reality Service (P.) Ltd. v. ITO [2013] 34 taxmann.com 122 (Guj.)
• Godha Realtors (P.) Ltd. v. Asstt. CIT [2022] 135 taxmann.com 24 (Bang. – Trib.)
• Bhagvat Singh v. ITO [2023] 147 taxmann.com 55 (Delhi – Trib.)

However, in the following cases, it has been held that the date of agreement to sell is considered to be the date of transfer, considering the facts of the case:

• The Supreme Court, in the case of Sanjeev Lal v. CIT [2014] 46 taxmann.com 300 (SC), held that where a sale deed could not be executed due to an order passed by a competent court, a valid transfer did take place within the meaning of Section 2(47) by even executing an agreement to sell.
• The Kerala High Court of Kerala, in the case of CIT v. Harbour View [2019] 102 taxmann.com 185 (Kerala), held that where pursuant to agreement to sell, possession of land was handed over by assessee and sale consideration was received, provisions of Section 2(47) would apply and mere fact that contract was subsequently terminated by mutual consent, would not improve case of assessee to wriggle out of purview of section 2(47).

2.2e In the case of transfer through an unregistered agreement?: An agreement of sale that fulfilled the ingredients of Section 53A of the Transfer of Property Act was not required to be executed through a registered instrument prior to amendments to Section 53A of the Transfer of Property Act and Sections 17 and 49 of the Indian Registration Act by the Registration and Other Related Laws (Amendment) Act, 2001. By the aforesaid amendment, the words ‘the contract, though required to be registered, has not been registered, or’ in Section 53A have been omitted. Simultaneously, Sections 17 and 49 of the Indian Registration Act have been amended, clarifying that unless the document containing the contract to transfer for consideration any immovable property (for the purpose of section 53A of the Transfer of Property Act) is registered, it shall not have any effect in law, other than being received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by a registered instrument.

The effect of the aforesaid amendment is that, on and after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, if an agreement is not registered, then it shall have no effect in law for the purposes of Section 53A. In short, there is no agreement in the eyes of the law that can be enforced under Section 53A of the Transfer of Property Act. Thus, in order to qualify as a ‘transfer’ of a capital asset under Section 2(47)(v), there must be a ‘contract’ which can be enforced in law under Section 53A of the Transfer of Property Act¹¹.

3. Change in the Period of Holding for the Classification of Capital Assets into Long-term and Short-term [Section 2(42A)]

For the purpose of computing capital gains, capital assets are classified into short-term and long-term assets. This distinction is based on the holding period of the asset before transfer. A capital asset is treated as a long-term capital asset if it is not classified as a short-term capital asset.

3.1 Pre-amended provision

The term ‘short-term capital asset’ is defined under Clause (42A) of Section 2 of the Income-tax Act. The general holding period for a capital asset to be considered short-term is 36 months or less. Clause (42A) also includes three provisos specifying different holding periods for certain types of assets:

3.1a First Proviso: The first proviso to Section 2(42A) specifies the holding period for securities (other than units) listed on a recognised stock exchange in India, units of the Unit Trust of India, units of an equity-oriented fund, and zero-coupon bonds. For these assets, the period of holding of 36 months is substituted with 12 months.

3-1b Second Proviso: The second proviso to Section 2(42A) specifies the holding period for shares of unlisted companies or units of a Mutual Fund transferred between April 1, 2014, and July 10, 2014. For these assets, the 36 month period of holding is substituted with 12 months.

3.1c Third Proviso: The third proviso to Section 2(42A) specifies the holding period for shares of unlisted companies and immovable property, including land and buildings. For these assets, the 36 month period of holding is substituted with 24 months.

3.2 Amendments by Finance (No. 2) Act, 2024

The Finance (No. 2) Act, 2024, has made the following amendments to Clause (42A) of Section 2, effective from 23-07-2024:

3.2a General provision: The upper limit of the holding period for a capital asset to be considered short-term is reduced from 36 months to 24 months. The 36 month holding period has been substituted with 24 months for all provisions with the following exceptions.

3.2b Amendment in First Proviso: In the first proviso to Section 2(42A), the brackets and words “(other than a unit)” have been omitted, and the reference to “36 months” is substituted with “24 months”. In other words, the period of holding for the following assets shall be 12 months with effect from 23-07-2024:

• Listed securities.
• Units of the Unit Trust of India.
• Units of an equity-oriented fund.
• Zero-coupon bonds.

3.2c Amendment in Second Proviso: The second proviso is amended to specify that it would apply as per the provisions as they stood immediately prior to the commencement of the Finance (No. 2) Act, 2024.

3.2d Amendment in Third Proviso: The third proviso has been omitted because it will have no relevance after reducing the holding period of 24 months for all capital assets, including immovable property and unlisted shares, except for the securities covered in the first proviso.

3.3 Period of holding of different class of assets

Before the amendment, there were three holding periods to determine whether an asset was a short-term or long-term capital asset:

• 12 months: For listed¹² securities (other than units), units of UTI, units of equity-oriented funds, and zero-coupon bonds.
• 24 months: For unlisted shares and immovable property.
• 36 months: For all other capital assets.

With the amendments to Clause (42A) of Section 2 by the Finance (No. 2) Act, 2024, there are now only two holding periods (hereinafter referred to as ‘new holding periods’):

• 12 months: For listed securities, units of UTI, units of equity-oriented funds, and zero-coupon bonds.
• 24 months: For all other capital assets.

The Finance (No. 2) Act, 2024 prescribes a 12-month holding period for all listed securities. Previously, units were excluded from the listed securities category, and specific entries were made for units of UTI and units of equity-oriented funds, which have a 12-month holding period. Units of UTI and equity-oriented funds are considered short-term capital assets if held for 12 months or less, regardless of whether they are listed or not. For all other units, the general holding period of 36 months was applied.

With the omission of the words “other than unit” from the listed securities category under the first proviso, the 12 month holding period now applies even to units (other than units of UTI and equity-oriented funds) as long as they are listed on a recognised stock exchange in India. Consequently, the categorisation for units is now as follows:

• Units of UTI or equity-oriented fund, whether listed or unlisted: 12 months
• Other listed units: 12 months
• Other non-listed units: 24 months

This change simplifies the tax treatment of listed units and aligns it with the treatment of other listed securities. Thus, the 12-month holding period now applies to units of debt-oriented or hybrid funds, AIFs, REITs, InVITs, gold ETFs, etc., provided they are listed on a recognised stock exchange in India. ETFs listed outside India, like the NASDAQ ETF and Bitcoin ETF, shall be considered long-term capital assets if held for more than 24 months.

3.4 Period of holding of capital assets covered under Section 50AA

Section 50AA contains special provisions for computing capital gains arising from the transfer, redemption, or maturity of the following capital assets:

• Market Linked Debentures (MLD)
• Specified Mutual Funds (SMF) acquired on or after April 1, 2023

The Finance (No. 2) Act, 2024 has extended the applicability of Section 50AA to unlisted bonds and unlisted debentures that are transferred, redeemed, or matured on or after July 23, 2024.

Under Section 50AA, irrespective of the holding period, capital gains arising from the transfer, redemption, or maturity of the specified capital assets are deemed to be the capital gains arising from the transfer of a short-term capital asset. Like Section 50AA, Section 50 also contains a deeming provision that treats capital gains from transferring depreciable assets as short-term.

However, the courts¹³ have held that the legal fiction created in Section 50 to deem the resultant capital gains as short-term does not reclassify the asset itself as a short-term capital asset. Thus, Section 50 does not convert long-term capital assets into short-term capital assets. Applying the same principles to assets covered under Section 50AA, it can be inferred that the new holding periods (12 months or 24 months) should apply for classification purposes even though the resultant capital gain is deemed short-term.

3.5 Gift of capital asset by a person other than an Individual or HUF

The Finance (No. 2) Act, 2024, has amended clause (iii) of Section 47 to include that any transfer of a capital asset under a gift, will, or irrevocable trust by a person other than an individual or Hindu Undivided Family (HUF) will not be excluded from the meaning of ‘transfer’. This amendment is effective from the Assessment Year 2025-26, meaning any such transaction occurring after April 1, 2024, will attract capital gains tax.

It is to be noted that the Finance (No. 2) Act, 2024, has amended Section 2(42A) and tax rates with effect from 23-07-2024, and clause (iii) of Section 47 is amended with effect from Assessment Year 2025-26. Therefore, any transfer of a capital asset under a gift, will, or irrevocable trust by a person other than an individual or HUF made before 23-07-2024 will be subject to capital gain tax as per the old provisions. Transfers made on or after 23-07-2024 will be subject to amended provisions.

3.6 Period of holding in special cases

The period of holding of a capital asset is calculated from the date of its purchase or acquisition till the date immediately preceding the date of its transfer. However, in certain cases, the period of holding is determined according to special provisions as outlined in Explanation 1 to Section 2(42A). The Finance (No. 2) Act, 2024, has not made any amendments to this Explanation. Therefore, the special cases mentioned in Explanation 1 will continue to apply to determine the new holding periods of 12 or 24 months.

For instance, where an assessee does not purchase a capital asset but acquires it by way of operation of law in the circumstance specified in Section 49(1), inter-alia, under a will. In such cases, the period of holding is reckoned from the date of holding of the asset by its last previous owner, who acquired the asset by way of purchase. In other words, the period of holding of the last previous owner is also included in determining the period of holding for the assessee.

1. CIT v. Mohanbhai Pamabhai [1973] 91 ITR 393 (Guj.) affirmed by SC [1987] 165 ITR 166 (SC)
2. Alapati v. Venkataramiah v. CIT [1965] 57 ITR 185 (SC)
3. Nagpur Electric Light & Power Co. Ltd. v. CIT [1987] 33 Taxman 14 (Bombay)
4. CIT v. C.P. Lonappan & Sons [2004] 134 Taxman 757 (Kerala)
5. CIT v. Hormasji Mancharji Vaid [2001] 118 Taxman 276 (Gujarat)
6. CIT v. Ghaziabad Engg. Co. (P.) Ltd. [2001] 116 Taxman 268 (Delhi)
7. CIT v. Balbir Singh Maini [2017] 86 taxmann.com 94 (SC)
8. C.S. Atwal v. CIT [2015] 59 taxmann.com 359 (Punjab & Haryana
9. PCIT v. Infinity Infotech Parks Ltd. [2018] 96 taxmann.com 274 (Calcutta)
10. Seshasayee Steels (P.) Ltd. v. ACIT [2020] 115 taxmann.com 5 (SC)
11. CIT v. Balbir Singh Maini [2017] 86 taxmann.com 94 (SC)
12. Listed securities refer to securities that are listed on a recognized stock exchange in India. Securities listed on a stock exchange that is either not recognized in India or located outside India are treated as unlisted.
13. CIT v. ACE Builders (P.) Ltd. [2005] 144 Taxman 855 (Bombay), Shrawan kumar G. Jain v. ITO [2018] 99 taxmann.com 88 (Ahmedabad – Trib.) and CIT v. Aditya Medisales Ltd. [2013] 38 taxmann.com 244 (Gujarat)