Tuesday, May 21, 2024

Guide on Capital Gains Tax Exemptions and Holding Periods for Under-Construction Property


Investing in property is a significant decision involving not only financial considerations but also emotional ones. It requires substantial time, thought, and money. Capital gains on the sale of property are a contentious aspect of income tax, often sparking debates and resulting in varying court judgments. This guide aims to provide a thorough understanding of capital gains tax, exemptions, and holding periods, with insights from key legal precedents and tax planning strategies.

Capital Gains Tax Overview

Classification of Capital Gains

Type of GainDuration of HoldingTax Rate
Short-term Capital Gain (STCG)Less than 2 years (for immovable property)Ordinary income tax rates
Long-term Capital Gain (LTCG)More than 2 years (for immovable property)20% plus cess and surcharge

Importance of Holding Period

The holding period is crucial for determining the classification of capital gains, affecting the applicable tax rate. For under-construction properties, calculating the holding period can be complex.

Calculation of Holding Period for Under-Construction Property

The calculation of the holding period for under-construction properties has been clarified through several court rulings, which generally consider the date of allotment as the start of the holding period.

Key Legal Precedents

The following table provides a comparative overview of key legal cases relevant to the holding period and capital gains exemptions for under-construction properties:

Commissioner of Income Tax vs. Sardarmal and Shanthilal Kothari (2008)The Kotharis invested in a residential property and claimed a deduction under Section 54F. The property was incomplete after three years.The ITAT ruled in favor of the Kotharis, stating completion and occupancy are not prerequisites for claiming Section 54F benefits.
PCIT vs. Vembu Vaidyanathan (2019)The assessee argued that the acquisition date was the allotment date.The Bombay High Court confirmed that the holding period begins from the allotment date.
ACIT vs. Keyur Hemant Shah (2019)Shah sold an apartment and claimed LTCG based on the allotment date. The officer considered the registered agreement date, resulting in STCG.The ITAT Mumbai ruled in favor of Shah, stating that the holding period starts from the allotment date.
Vinod Kumar Jain vs. CIT (344 ITR 501)The assessee held a DDA flat and claimed LTCG based on the allotment date.The Punjab and Haryana High Court ruled that the holding period for DDA flats starts from the allotment date.

Exemption on Capital Gains Tax if House Construction is not Completed in 3 Years

Eligibility for Exemptions

SectionExemption CriteriaInvestment Time Frame
Section 54Investment in up to two new residential properties1 year before or 2 years after sale
Section 54FInvestment in a new residential property (applicable to various long-term assets)1 year before or 2 years after sale
Section 54ECInvestment in specified government bondsWithin 6 months of the sale

Purpose of Sections 54 and 54F

Sections 54 and 54F aim to encourage individuals to reinvest capital gains in residential properties. However, if the new property is under construction, it must be completed within three years from the investment date to qualify for the exemption.

Relevant Legal Cases

Commissioner of Income Tax vs. Sardarmal and Shanthilal Kothari (2008)

  • Facts: The respondents invested their long-term capital gains in a residential property but the construction was incomplete after three years.
  • Judgment: The Tribunal ruled in favor of the respondents, stating that as long as the entire net consideration was invested within the stipulated period, the exemption under Section 54F applies, even if the house is not fully constructed.

Rajneet Sandhu vs. DCIT (2010)

  • Facts: The assessee faced denial of Section 54F benefits because the house was not completed within three years.
  • Judgment: The Tribunal emphasized the importance of investing the entire capital gains within three years, irrespective of construction completion.

Pradeep Kumar Chowdhry vs. DCIT

  • Judgment: The Tribunal ruled that the exemption applies if the capital gains are invested within the stipulated period, even if construction delays occur due to the builder's fault.

CBDT Circular No. 471 (1986):

  • This circular affirmed that for properties under self-financing schemes like those of the Delhi Development Authority (DDA), the cost of construction is considered the cost of the new asset. Payments made in installments also qualify for exemptions under Sections 54 and 54F.

Tax Planning Strategies and Caution Points


  1. Maximizing Exemptions:
    • Utilize Sections 54 and 54F to reinvest capital gains in new residential properties to claim exemptions.
  2. Timing Considerations:
    • Sell under-construction properties before taking possession if holding period conditions are met to qualify for long-term capital gains treatment.

Caution Points:

  1. Legal Ambiguity:
    • Be aware of potential disputes over holding period calculations.
    • Keep detailed records of all transactions and allotment dates.
  2. Adherence to Tax Laws:
    • Ensure compliance with tax laws and guidelines to avoid penalties.
    • Consult tax professionals for personalized advice and stay updated on legal changes.

Calculation Example and Tax Treatment

Holding Period from Allotment Date

If the allotment date is used, the holding period starts from that date, benefiting from long-term capital gains tax treatment.

Indexed Cost Calculation

Use the Cost Inflation Index (CII) to calculate the indexed cost of acquisition.

Example: Calculation of Capital Gains on Sale of Under-Construction Property


Mr. Kumar acquired an under-construction property for Rs. 40 lakhs on June 18, 2016. He received possession on September 2, 2017, and sold it on February 15, 2019, for Rs. 80 lakhs, incurring Rs. 65,000 in transfer expenses.

Sale ConsiderationRs. 80,00,000
Less: Selling ExpensesRs. 65,000
Net ConsiderationRs. 79,35,000
Less: Indexed Cost of AcquisitionRs. 42,42,424Rs. 40,00,000 x (280/264)
Long Term Capital GainsRs. 36,92,576

Final Tips to Avoid Difficulties

  1. Document Everything:
    • Maintain comprehensive records of all transactions, including allotment letters and payment receipts.
  2. Professional Guidance:
    • Regularly consult with tax advisors to ensure compliance and optimize tax liabilities.
  3. Stay Informed:
    • Keep abreast of changes in tax laws and judicial rulings affecting real estate investments.

By following these guidelines and understanding the nuances of tax laws and legal precedents, property owners can make informed decisions and effectively manage their tax liabilities.