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Guidelines under section 9B and sub-section (4) of section 45 of the Income-tax Act, 1961
F. No.370142/22/2021-TPL
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes (TPL Division)
Circular No. 14 of 2021
Dated: 02″d July, 2021
Sub.: Guidelines under section 9B and sub-section (4) of section 45 of the Income-tax Act, 1961
– reg.
Finance Act, 2021 inserted a new section 98 in the Income-tax Act 1961 (hereinafter referred
to as “the Act”).
This section mandates that whenever a specified person receives any capital asset or
stock in trade or both from a specified entity, during the previous year, in connection with the
dissolution or reconstitution of such specified entity, then it shall be deemed that the specified entity
have transferred such capital asset or stock in trade or both, as the case may be, to the specified
person (hereinafter referred to as “deemed transfer”). This deemed transfer would be in the year in
which such capital asset or stock in trade or both are received by the specified person. Any profits
and gains arising from such deemed transfer is deemed to be the income of such specified entity of
the previous year in which such capital asset or stock in trade or both were received by the specified
person. Further, it is chargeable to income-tax as income of such specified entity under the head
” Profits and gains of business or profession” or under the head “Capital gains”, in accordance with
the provisions of this Act.
It has also been provided that the fair market value of the capital asset or
stock in trade or both, on the date of its receipt by the specified person, shall be deemed to be the full
value of the consideration received or accruing as a result of such deemed transfer. The definitions of
terms ” reconstitution of the specified entity”, “specified entity” and “specified person” are provided
in section 98 of the Act.
2. Similarly the Finance Act 2021 substituted sub-section (4) of section 45 of the Act. This
newly substituted sub-section (4) now provides that where a specified person receives any money or
capital asset or both from a specified entity, during the previous year, in connection with the
reconstitution of such specified entity, then any profits or gains arising from receipt of such receipt
by the specified person shall be chargeable to income-tax as income of the specified entity under the
head “Capital gains”.
It has been further deemed that this income shall be the income of the specified
entity of the previous year in which such money or capital asset or both were received by the
specified person. A formula to calc ulate such profits and gains has also been prov ided in thi s subsection.
The defin itions of terms ” reconstitution of the spec ified entity”, ” specified entity” and
“specified person” shall be as provided in section 9B of the Act while the terms ” se lf-generated
goodwill” and “self-generated asset” have been defin ed in this sub-sect ion. It has been further
clarified that when a capital asset is recei ved by a specified person from a specified entity in
connection with the reconstitution of such specified entity, the provisions of sub-section (4) of
section 45 of the Act shall operate in addition to the provisions of section 9B of the Act and the
taxation under the said provi sions thereof shall be worked out independently. Both, the new section
9B and substituted sub-section (4) of section 45 are applicable for the assessment year 2021-22 and
subsequent assessment years.
3. Sub-section (4) of section 9B of the Act provides that if any difficulty arises in giving effect
to the provisions of thi s section and sub-section (4) of section 45 of the Act, the Board may, with the
approval of the Central Government, issue guidelines for the purposes of removing the difficulty. For
this purpose, the Central Board of Direct Taxes, with the approval of the Centra l Government, hereby
issues the following guidelines.
Guidelines
4. It is noti ced that the amount taxed under sub-section (4) of section 45 of the Act is required to
be attributed to the remaining capital assets of the specified entity, so that when such capital assets
get transferred in the future, the amount attributed to such capital assets gets reduced from the full
value of the consideration and to that extent the specified entity does not pay tax again on the same
amount. It is further noticed that this attribution is given in the Act only for the purposes of section
48 of the Act. It may be seen that section 48 of the Act only appl ies to capita l assets wh ich are not
forming block of assets.
For capital assets forming block of assets there is sub-c lause (c) of clause (6)
of section 43 of the Act to determ ine written down value of the block of asset and section 50 of the
Act to determine the capital gains ari sing on tran sfer of such assets. However, the Act has not yet
provided that amount taxed under sub-section (4) of secti on 45 of the Act can also be attributed to
capital assets forming part of block of assets and which are covered by these two provi sions. To
remove difficulty, it is clarified that rule 8AB of the Income Tax Rules, 1962 (here inafter referred to
as ” the Rules”) notified vide notification no. 76 dated 02.07.2021 also applies to capital assets
form ing part of block of assets. Wherever the term s capital asset is appear ing in the rule 8AB of the
Rules, it refers to capital asset whose capital ga ins is computed under section 48 of the Act as well as
capital asset forming part of block of assets.
Further, wherever reference is made for the purposes of
secti on 48 of the Act, such reference may be deemed to in c lude reference for the purposes of subclause
(c) of c lause (6) of sect ion 43 of the Act and secti on 50 of the Act.
5. For the removal of doubt it is further c larified that in case the capital asset remaining with the
specified entity is forming part of a block of asset, the amount attributed to such capital asset under
rule 8AB of the Rules shall be red uced from the full va lue of the consideration received or accruing
as a result of subsequent transfer of such asset by the specified entity, and the net value of such
consideration shall be considered for reducti on from the written down va lue of such block under subc
lause (c) of clause (6) of section 43 of the Act or for calcu lation of capital ga ins, as the case may be,
under section 50 of the Act.
6. For the purposes of understanding and for removing difficulties, if any, the appli cation of
section 9B of the Act and sub-section (4) of secti on 45 of the Act is explained with the help of the
following exampl es:
Example 1: There are three partners “A”, ‘;8″ and “e” in a finn “FR”, having one third share each.
Each partner has a capital balance of ~ I 0 lakh in the firm. There are three pieces of lands “S”, “T”
and “u” in that firm and there is no other capital asset in that firm. Book value of each of the land is
~IO lakh. All these three lands were acquired by the firm more than two years ago.
Partner “A” wishes to ex it. The firm revalu es its lands based on valuation report from a registered
va lu er, as defi ned in rule II U of the Rules, and as per that va luation report fair market value of lands
“s” and “T” is Rs 70 lakh each, while fair market value of land “u” is ~50 lakh. On the exit of
paltner “A”, the firm decides to give him ~ II lakh of money and land “u” to settle his capital
balance.
In accordance with the provisions of section 9B of the Act, it would be deemed that the firm ” FR”
has transferred land “u” to the partner “A” at its fair market value of ~50 lakh. Let us assume that the
indexed cost of acquisition of land “u” is ~15Iakh.
Now on account of the deeming provi sions of section 9B of the Act, it is deemed that the firm ” FR”
has transferred land “u” to partner ” A” . Thus, an amount of ~50 lakh less ~ 15 lakh would be charged
to tax in the hands of firm ” FR” under the head “Capital gain s”. For partner “A”, the cost of
acquis ition of this land would be ~50 lakh . I-Ience, the amount of ~ 35 lakh is charged to long term capital gains and let us assume that the tax is ~7 lakh(assume no surcharge or cess just for ease of
calculation and illustration purposes).
This, net book profit after tax of ~33 lakh (capita l gains of ~40 lakh without indexation less tax of ~7
lakh) is to be credited in the capital accou nt of each of the three partners, i.e. { II lakh each. Thus
partner “A” capital account wou ld increase to n I lakh. This exercise is required to be carried out
since section 9B of the Act mandates that it is to be deemed that the finn ” FR” has tran sferred the
land “U” to partner “A” and the long term capital gains of {35 lakh is chargeable to tax in the hands
of the firm “FR”.
As aga inst capital balance of {2-1, lakh, partner “A” has received {61 lakh (~ II lakh of money plus
land “U” of fair market value of {50 lakh). Thus {40 lakh is required to be charged to tax under subsect
ion (4) of section 45 of the Act. This sha ll be in addition to an amount of{35 lakh charged to tax
under section 9B of the Act.
On account of clause (ii i) of section 48 of the Act, read with rule 8AB of the Rules, this ~4 0 lakh is to
be attributed to the remaining assets of the firm “FR” on the basis of increase in their value due to
revaluation based on the valuation report of registered va luer. In this case as per reva luat ion there are
only two capital assets remaining; lands “S” and “T”. In both cases the va lue has increased by {60
lakh each. Thus, out of {40 lakh, {20 lakh shall be attributed to land “S” and {20 lakh to land “T”.
When either of these lands gets sold, this amount attributed to them would be reduced from sa les
consideration under clause
(iii) of section 48 of the Act.
The amount of {40 lakh which is cha rged to tax under sub-secti on (4) of section 45 of the Act shall
be charged as long term capital ga ins in view of sub-rule (5) of rule 8AA of the Rules, since the
amount of {40 lakh is attributed to land “S” and land “T” whi ch are both long term capital assets at
the time of taxation of{40 lakh under sub-section (4) of secti on 45 of the Act.
Example 2: There are three partners “A”, “B” and “C” in a firm ” FR”, hav ing one third share each.
Each partner has a capital balance of {I 0 lakh in the firm . There are three pieces of lands “S”, “T”
and “U” in that firm and there is no other capital asset in that finn . All these three lands were
acquired by the finn more than two years ago.
Book value of each of the land is ~10 lakh. Partner “A” wishes to exit. The firm sells land “U” for its
fair market value of~ 50 lakh.
Let us assume that the indexed cost of acquisition ofland “U” is ~15
lakh. Thus, an amount of ~50 lakh less ~15 lakh would be charged to tax in the hands of firm “FR”
under the head “Capital gains” . Hence, the amount of ~ 35 lakh is charged to long term capital gains
and let us assume that the tax is n lakh(assume no surcharge or cess just for ease of calculation and
illustration purposes).
This, net book profit after tax of ~33 lakh (capital gains of ~40 lakh without indexation less tax of n
lakh) is to be credited in the capital account of each of the three partners, i.e. ~ II lakh each. Thus
paliner “A” capital account would increase to ~21 lakh.
Partner “A” decides to exit the finn ” FR”.
The firm revalue its lands ” S” and “T” based on valuation
repOlt from a regi stered va luer, as defined in rule II U of the Rules, and as per that valuation report
fair market value of lands “S” and “T” is no lakh each On the exit of partner “A”, the firm decides
to give him ~ 61 lakh of money to settle his capital balance. Thus, as against capital balance of ~21
lakh, partner “A” has received ~61 lakh of money. Thus ~40 lakh is required to be charged to tax
under sub-section (4) of section 45 of the Act. This will be in addition to ~35 lakh already charged to
capital gains.
On account of clause
(iii) of section 48 of the Act, read with rule 8AB of the Rules, this ~40 lakh is to
be attributed to the remaining assets of the finn “FR” on the basis of increase in their va lue due to
revaluation based on the va luation report of registered valuer. In this case as per revaluation there are
only two capital assets remaining; lands “S” and “T”.
In both cases the value has increased by ~60
lakh each. Thus, out of ~40 lakh, ~20 lakh shall be attributed to land “S” and ~20 Lakh to land ”T”.
When either of these lands gets sold, this amount attributed to them would be reduced from sales
consideration under clause
(iii) of section 48 of the Act.
The amount of~40 lakh which is charged to tax under sub-section (4) of section 45 of the Act shall
be charged as long term capital gains in view of sub-rule (5) of rule 8AA of the Rules, since the
amount of ~40 lakh is attributed to land “S” and land “T” which are both long term capital assets at
the time of taxation oP40 lakh under sub-section (4) of section 45 of the Act.
Note: The final result in both example I and 2 is same due to the operation of section 9B of the Act.
Example 3:
There are three partne rs “A”, “B” and “C” in a finn “FR”, having one th ird share each. Each partner
has a capital balance onlOO lakh in the finn. There is a piece of land “S” of book value of ‘OO lakh .
There is patent “T” of written down va lue of ~4 5 lakh . And there is cash of ~225 lakh. The land was
acquired by the finn more th an two years ago. The patent was acquired/developed/ registered one year
back.
Partner “A” wishes to exit. The finn reval ue its land and patent based on va luat ion report from a
registered valuer, as defined in rule II U of the Rules,
and as per that va luati on report fair market
value of land “s” is ~4 5 lakh and fa ir market value of patent “T” is ~6 0 lakh. As per the va luation
report there is also se lf-generated goodwill of ~3 0 lakh. On the exit of partner “A”, the fi rm dec ides
to give him ~7 5 lakh in money and land “s” to settle his capital ba lance.
In accordance with the provi sions of section 9B of the Act, it would be deemed that the finn ” FR”
has transferred land “S” to the partner “A” at its fair market va lue of ~45 lakh. Let us assume that the
indexed cost of acqu is ition of land “S” is ~45 lakh .
Now on account of the deeming provisions of secti on 9B of the Act, it is deemed that the firm ” FR”
has transferred land “S” to partner “A”. However, since the sale consideration is equal to indexed
cost of acquisition, there will not be any capital ga ins tax. For pa rtner “A”, the cost of acqui sition of
this land would be ~4 5 lakh .
The net book profit of ~ 15 lakh (capital ga ins of ~ 15 lakh without indexation) is to be credited in the
capital account of each of the three partners, i.e. ~5 lakh each. T
hus partner “A” capi tal account
would increase to ~ I 05 lakh. This exercise is required to be carried out s ince section 9B of the Act
mandates that it is to be deemed that the firm ” FR” has transferred the land “S” to partner “A”. Thus,
any gain in the books is to be apporti oned to partners’ capital accounts.
As against capital ba lance of ~ I 05 lakh, partner “A” has rece ived ~ 120 lakh (money of n 5 Lakh plus
land “S” of fai r ma rket va lue of ~45 lakh). Thus ~ 15 Lakh is requ ired to be charged to tax under subsection
(4) of secti on 45 of the Act.
On account of clause
(iii) of section 48 of the Act, read with rule 8AB of the Rules and this guidance
note, this ~ 15 lakh is to be attributed to the remaining capital assets of the finn ” FR” on the basis of increase in the value due to revaluation of existing capital assets, or due to recognition of the value of
se lf-generated goodwill,
based on the valuation report of registered valuer. In this case as per this
repOlt the value of patent ‘T ” has increased by ‘t IS lakh and the self-generated goodwill value has
been recognised at ‘t30 lakh.
Thus one third on IS lakh (i.e. ‘tS lakh) wou ld be attributed to patent
“T”, wh ile two third of ‘tIS lakh (i.e. ‘t10 lakh) wou ld be attributed to self-generated goodwi ll. ‘tS
lakh attributed to patent “T” shall not be added to the block of the assets and no depreciation sha ll be
ava ilable on the same. When patent “T” gets transferred subsequently,
this ‘tS Lakh attributed shall
be reduced from the fu ll va lue of the consideration received or accruing as a result of transfer of
patent “T” by the firm ” FR”, and the net value shall be considered for reduction from the written
down va lue of the intangible block under sub-clause ( c) of clause (6) of section 43 of the Act or for
calculation of capital gains, as the case may be, under section SO of the Act.(Refer guidance in
paragraph S of this circular). Let us say that Patent T is sold for ‘t25 lakh. ‘tS lakh shall be reduced
from ‘t25 lakh and only net amount of no lakh shall be considered for reduction trom the written
down va lue of the intangible block under sub-clause (c) of clause
(6) of section 43 of the Act or for calcu lation of capital gains, as the case may be, under section 50 of the Act. Similarly when goodwill gets sold subsequently, ‘t10 lakh would be reduced from its sales consideration under clause
(iii) of section 48.
The amount oPI5 lakh which is charged to tax under sub-section (4) of section 4S of the Act shall
be charged as short term capital gains, as ‘tS lakh is attributed to the Patent “T” which is part of block
of assets and ‘t 10 lakh is attributed to self-generated goodwill. In accordance with sub-rule (5) of
Rule 8AA of the Rules, both of these are to be characterised as short term capital gains.
Note: For the purpose of calculation of depreciation under section 32 of the Act, the written down
value of the block of asset ” intangible” of wh ich Patent “T” is pM, would remain i!’45 lakh and
would not be increased to ‘t60 lakh due to revaluation during the year. In this regard it may be
highlighted that the following provisions are relevant in determining the amount on wh ich
depreciation is allowable under the Act:
• Explanation 2 of sub-section (I) of section 32 of the Act provides that the term “written down
value of the block of assets” shall have the same meaning as in clause (c) of sub-section (6) of section 43 of the Act.7
• Clause (c) of sub-section (6) of section 43 of the Act, with respect to block of assets, interalia, provides that the aggregate of the written down va lues of all the assets falling within that block of assets at the begi nning of the previous year is to be increased by the actua l cost of any asset falling within that block, acq uired during the previous year. This clau se does not allow any increase on accou nt of revaluation .
• Sub-sect ion ( I) of section 43 of the Act wh ich defines “Actual cost” as actual cost of the assets to the assessee. In revaluation, there is no actual cost to the assessee Further, section 32 of the Act does not a llow depreciation on goodwill. If in the given example “selfgenerated goodwi ll” is replaced by “se lf-generated asset”, even then the depreciation will not be adm iss ible on the amount of ~30 lakh recognised in va luati on. In this regard it may be highlighted that the above mentioned provi sions, in the immediate preceding paragrap h, are also appl icable to “self-generated asset” and s ince there is no actual cost to assessee in case of ” se lf-generated asset”, depreciation is not allowable under section 32 of the Act on an asset whose actual cost is nil.
Under Secretary to the Gov!. of India
Team Edu-visor