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______________________________________________________________________________

Subject - TORTS

TOPIC

Research Asst. in Law

NAME:
ROLL NO.:
COURSE:

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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I

Contents
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place on record my sincerest thanks to ________________, Assistant Professor in Law, Indian

Institute of Legal Studies, for his/her invaluable guidance, sound advice and affectionate attitude

during the course of my studies.

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I have no hesitation in saying that he/she molded raw clay into whatever I am through his/her

incessant efforts and keen interest shown throughout my academic pursuit. It is due to his/her

patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of information

therein. I also express my regards to the Library staff for cooperating and making available the

books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the

project work.

11Hjkutytyy.

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Date: _____________________

NAME

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TABLE OF CONTENTS
__________________________________________________________

Acknowledgement...2
Research Methodology....4 - 5
A. Aims and Objectives..4
B. Statement of Problem..4
C. Research Hypothesis....4
D. Research Questions....4
E. Methodology of Research..5
F. Scope and Limitations....5
G. Review of Literature...5
H. Mode of Citation...5
Table of Cases..6
Chapter I: Introduction...7
Chapter II: Project Topic
A. Sub Categorizatoin
B. Sub Categorizatoin
C. Sub Categorizatoin
Chapter III: project Topic
Chapter IV: Case Study
A. Provisions of Law
B. Facts of the case
C. Issues Involved
D. Judgments referred by the parties
E. Judgments referred by the Court
F. Maxims Used
G. Judgment
H. Own Observation
I. Conclusion
Chapter V: Conclusion.....23
Bibliography

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RESEARCH METHODOLOGY
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A. AIMS AND OBJECTIVES

The aims and objectives of this project are to understand the concepts of Capital Gains, the purpose
of having provisions which gives inclusive concept of Direct Taxes. One of the aims of the project
is to have a comparative study on the topic, concept of Capital Rains with respect of Direct Taxes
in India.

B. STATEMENT OF PROBLEM

Despite the laws and Acts, the current systems do not give an equal chance to access and flourish.
Though we have various Laws and Statutes yet essential things are missed out and very few
literates know the proper meaning and nature of Capital Gains. As such many of us are still in dark
as to what includes the term Assets on which Capital gains is to be computed and how to compute
the same.

C. RESEARCH HYPOTHESIS

This research work is an attempt to distill lessons from the concept of Capital Gains. It is an attempt
to know the concept of various terminologies within the concept of Capital Gains and how they
are very much needed in our present Taxation system prevailing.

D. RESEARCH QUESTIONS

Based on the statement of problem and research hypothesis aforementioned, the following research
questions have been formulated:
1. What Assets are to be taken into account for computing Capital Gains?
2. How is Income from Capital Gains computed as per Indian Taxation System?
3. How is the Residential status of an assessee determined for computation of income arising from
capital gains?

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E. METHODOLOGY OF RESEARCH

Methodology implies more than simply the methods the researcher used to collect data. It is
often necessary to include a consideration of the concepts and theories which underlie the methods.
The methodology opted for the study on the topic is Doctrinal. Doctrinal research in law field
indicates arranging, ordering and analysis of the legal structure, legal frame work and case laws
by extensive surveying of legal literature but without any field work.

F. SCOPE AND LIMITATIONS

The research work discusses the key points that the Learned Court observed as well as what is
deduced after going through the research work. Capital Gains topic being very vast like ocean, the
work is limited to the project topic.

G. REVIEW OF LITERATURE

The researcher while writing this project has taken recourse to various primary and secondary
sources. Primary sources would include various laws, books and articles. Secondary sources would
include reports and websites.

H. MODE OF CITATION

A uniform Blue Book Mode of citation has been adopted throughout the project.

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TABLE OF CASES

Arunachalam (RM) v. CIT (1997)227 ITR 222(SC)

CIT v B.C Srinivasa Shetty 1981

CIT v Mithlesh Kumari (1973)92ITR(9)Del

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CHAPTER I : INTRODUCTION

"It was only for the good of his subjects that he collected taxes from them, just as the sun draws
moisture from the earth to give it back a thousand fold." Kalidasa.

Taxes in India are levied by the Central Government and the state governments. Some minor
taxes are also levied by the local authorities such as the Municipality. The authority to levy a tax
is derived from the Constitution of India which allocates the power to levy various taxes between
the Central and the State. An important restriction on this power is Article 2652 of the
Constitution. Therefore, each tax levied or collected has to be backed by an accompanying law,
passed either by the Parliament or the State Legislature.

Fiscal Policy is introduced by the Government of India on the last day of the month of February.
It is usually declared after the Economic Survey done by the Government. This fiscal policy is
reflected in the annual financial statement(budget), as per Article 1123 of the Constitution of
India. It lays down the various estimates of revenue and expenditure for a particular assessment
year. In order to meet up with the expenditure government introduces certain Tax ( Direct and
Indirect taxes).

Direct taxes are those taxes which are charged directly on the total income on the individuals, HUF
or as the case maybe. Such taxes may vary as the government introduces tax slabs for every year.
Indirect taxes are those taxes which are charged indirectly other than the income of a person. Such
taxes maybe Excise and Customs, VAT etc. Income Tax is a Direct Tax that is directly imposed
on the Assessee and are collected directly from the Tax payers. `Income from Capital Gain`
constitutes one of the` five sources of income`. A Capital Gain is a profit that results from a
disposition of a Capital Asset, where the amount realized on disposition exceeds the purchase
price. The gain is between difference of lower purchase price and higher selling price.

2 Article 265 of the Constitution of India - "No tax shall be levied or collected except by the authority of law".
3 Article 112 of the Constitution of India - Annual financial statement - The President shall in respect of
every financial year cause to be laid before both the Houses of Parliament a statement of the estimated
receipts and expenditure of the Government of India for that year, in this Part referred to as the annual
financial statement.

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CHAPTER II : BASIS OF CHARGE OF CAPITAL GAINS

When we buy any kind of property for a lower price and then subsequently sell it at a higher price,
we make a gain. The gain on the sale of Capital Assets is called Capital Gain. This gain is not a
regular income like salary, or house rent. It is one time gain, in other words, the Capital gain is not
recurring, i.e., it does not occur again and again periodically.

A capital gain arises only when a Capital Asset is transferred. Profits or gains arising in previous
year in which the transfer took place shall be considered as the income of the previous year and
chargeable to income tax under the head of Capital gains. The following are the essential elements
of Capital Gains as per Section 45:

There must be a Capital Asset.

The capital asset is transferred by the assessee.

Such transfer takes place during previous year.

There must be profit or gains from such transfers.

A. CAPITAL ASSET (SECTION 2(14))

It means property of any kind held by an assessee, whether connected with his business or not.
Capital Asset may be moveable or immoveable, but does not include:

Any stock in trade.

Personal effects, e.g. moveable property held for personal use by the assessee or any
member of his family dependent on him, but excludes jewellery, drawings, paintings,
sculptures or any work of art.

Agricultural land in India, which is not an urban agricultural land.

Gold deposit fund issued under the Gold Deposit Scheme,1999.

CHAPTER III : CAPITAL GAINS

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As discussed in the earlier chapter, any profits or gains arising from the transfer of a capital asset
affected in the previous year, shall be chargeable to income tax under the head `Capital Gain` and
shall be deemed to be the income of the previous year in which the transfer took place unless such
capital gain is exempt under the Act.

Hence, capital gain arises only when there is a transfer of a capital asset. Out of the types of Capital
Gain there is a need to make distinction i.e., short term capital gains like any other income is
chargeable under normal rates of income-tax, whereas, long-term capital gain is taxed at a
concessional rate.

Section 2(47) of the Income Tax Act,1961 refers to term `transfer` in relation to capital asset which
includes:

the sale, exchange or relinquishment of the asset, or

the extinguishment of any rights therein, or
the compulsory acquisition thereof under the law, or
a case where the asset is converted by the owner into stock in trade of a business carried
on by him, or
the maturity or redemption of Zero Coupon Bonds now repealed.
any transaction involving the allowing of the possession of any immoveable property to be
taken or retained in part performance of contract of the nature referred to in section 53A of
the Transfer of Property Act, 1882, or
any transaction which has the effect of transferring the enjoyment of any immoveable
property.

However, if there is any transaction which is not regarded, there will not be any Capital Gain.

The transactions not regarded as transfer are discussed elaborately under Section 46 and 47 of the
Income Tax Act, 1961. Although there is transfer but these are not considered to be transfer for
the purposes of Capital Gains.

CHAPTER IV : CASE STUDY

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AIR 2016 SC 2016

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Judges:

- Justice ___________

- Justice ___________

Case decided on date: 1st January, 2016

CHAPTER VI : CONCLUSION

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After going through the research work, finally I can conclude by stating that any gain arising on
the transfer except such transfers as are given in Section 46 and 47 of a capital asset is chargeable
to tax under Section 45, if it is not eligible for exemption under the various sections as discussed
aforesaid above.

Another important point to be noted is that the incidence of tax on capital gains, however, depends
upon whether capital gain is a short term capital gain or a long term capital gain.

Any profit origin arising from transfer of capital asset held as investments are chargeable
to tax under the head capital gains. The gain can be on account or short- and long-term gains. A
capital gain arises only when a capital asset is transferred.

A capital gain is a profit that results from a disposition of a capital asset, such as stock, bond or
real estate, where the amount realized on the disposition exceeds the purchase price. The gain is
the difference between a higher selling price and a lower purchase price.

Conversely, a capital loss arises if the proceeds from the sale of a capital asset are less than the
purchase price. Capital gains may refer to investment income that arises in relation to real assets,
such as property; financial assets, such as shares/stocks or bonds; and intangible assets.

However, in order to overcome the other lacunas and loopholes of law, the legislatures need to
frame laws so that laws are applicable equally to everyone in uniform process.

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