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Capital gain on transfers between holding and Subsidiary Company

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Capital gain treatment on transaction between 100% Holding and Subsidiary Indian Company

As per section 47(iv) and 47(v) transfer of capital asset between 100% holding and Subsidiary Indian company is not chargeable to capital gain tax.

COA in case of transferee company is COA in the hands of transferor company by virtue of section 49(1)(c)(iv).

But after withdrawal of exemption as provided u/s 47(iv) and 47(v) on satisfying the conditions given u/s 47A(1), the cost of acquisition of such asset to the transferee-company shall be the cost for which such asset was acquired by it as provided under section 49(3).

COA in case of transfer between 100% holding and subsidiary company after withdrwal of exemption-Section 49(3) Notwithstanding anything contained in section 49(1), where the capital gain arising from the transfer of a capital asset referred to in section 47(iv) or section 47(v) is deemed to be income chargeable under the head “Capital gains” by virtue of the provisions contained in section 47A, the cost of acquisition of such asset to the transferee-company shall be the cost for which such asset was acquired by it.

Transaction between Holding and Subsidiary Company not regarded as transfer

Section 47(iv) Any transfer of a capital asset by a company to its subsidiary company, if—

  • the parent company or its nominees hold the whole of the share capital of the subsidiary company, and
  • the subsidiary company is an Indian company.

Section 47(v) Any transfer of a capital asset by a subsidiary company to the holding company, if—

  • the whole of the share capital of the subsidiary company is held by the holding company, and
  • the holding company is an Indian company
  • Transferee company must be an Indian company.

 

Assessee must be a wholly owned subsidiary of holding company, any other subsidiary can’t claim benefit u/s 47(v). CIT v Sunaero Ltd. (2012) 345 ITR 163 (Del)

Withdrawal of exemption in case of fully Holding and Subsidiary Co.-Section 47A(1)

Where at any time before the expiry of a period of 8 years from the date of the transfer of a capital asset referred to in section 47(iv) or section 47(v)

(i) such capital asset is converted by the transferee company into, or is treated by it as, stock-in-trade of its business; or

(ii) the parent company or its nominees or the holding company ceases or cease to hold the whole of the share capital of the subsidiary company,

the amount of profits or gains arising from the transfer of such capital asset not charged under section 45 by virtue of the provisions contained in section 47(iv) or section 47(v) shall, notwithstanding anything contained in the said clauses, be deemed to be income chargeable under the head “Capital gains” of the previous year in which such transfer took place.

Re-computation of income in the case of transferor company if exemption withdrawn by section 47A-Section 155(7B)

Where in the assessment for any year, the capital gain arising from the transfer of a capital asset is not charged under section 45 by virtue of the provisions of section 47(iv) or, as the case may be, section 47(v), but is deemed under section 47A to be income chargeable under the head “Capital gains” of the previous year in which the transfer took place,

the Assessing Officer may, notwithstanding anything contained in this Act, re-compute the total income of the transferor company for the relevant previous year and make the necessary amendment ;

and the provisions of section 154 shall, so far as may be, apply thereto, the period of four years shall be reckoned from the end of the previous year in which the capital asset was so converted or treated or in which the parent company or its nominees or, as the case may be, the holding company ceased to hold the whole of the share capital of the subsidiary company.

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