We are a family of four, including my parents and my elder brother. My father is planning to sell fives acres of ancestral agricultural land in our native place, a village that is around 2-5km from the nearest municipality and share the proceeds equally among all four of us. What are the tax implications of above sale? In what proportion should the proceeds be divided? My father intends to transfer the proceeds to each of our bank accounts. Are any documents necessary for such bank transfers so that all family members have proper proof to explain the source of this income if this is raised by the income tax department?
—Name withheld on request
Agricultural land in India does not qualify as a capital asset (Section 2(14)), unless it is situated as follows:
a) In any area within the jurisdiction of a municipality/ Cantonment Board, with a population* of 10,000 or more; or
b) In any area (distance measured aerially):
• Within 2km of the local limits of any municipality/ cantonment board with a population of more than 10,000 but within 100,000;
• Within 6km of the local limits of any municipality/ cantonment board with a population of more than 100,000 but within 10,00,000;
• Within 8km of the local limits of any municipality/ cantonment board with a population of more than 10,00,000.
The term population for this purpose means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year.
In case the land referred in your query, qualifies to be an agricultural land in India which is not a capital asset as defined above, any gain/ loss from transfer of such land, shall not be taxable under the income tax Act.
However, in case the land qualifies to be a capital asset, the entire gain/ loss from transfer of such land will be subject to capital gains tax in your father’s hands as he is the owner of the land and all related provisions shall apply. In such a case, since the land is held for more than 24 months, the same shall be considered to be sale of long-term capital asset and any gain shall classify as long-term capital gain (LTCG).
The subsequent transfer of the proceeds received by your father from sale on the land to the family members (being spouse and two children) shall not be taxable in the hands of the recipients, as the same would qualify to be receipts from a ‘relative’, as defined under Section 56 of the Act (irrespective of the proportion of the share).
Documents such as registered purchase deed, registered sale deed, gift deed, copy of bank statements, etc. may be maintained for income-tax purposes. From a legal perspective, it would be advisable to evaluate the requirement separately with an expert legal practitioner.
Parizad Sirwalla is partner and head, global mobility services, tax, KPMG in India.
Updated: 13 Aug 2023, 10:48 PM IST
Source link
