Sale of Immovable Property

How Capital Gains on sale of Immovable Property computed and what are the rates of taxation?

Ans.

Capital Gains on Sale of Immovable Property in India generally refers to the difference between the sale consideration received and purchase price paid for acquisition of the property (subject to other conditions and exemptions available). Capital Gains may be classified as ‘Short Term Capital Gains’ (STCG) or ‘Long Term Capital Gains’ (LTCG) based on provisions of the Act.

Classification of Capital Gains

Capital Gains on sale of an asset may be classified into LTCG and STCG based on the period of holding as follows:

Capital Asset

Short Term

Long Term

Immovable property including rights and interest in Immovable Property

If held for a period not exceeding 24 months from the date of acquisition

 

If held for a period exceeding 24 months

Tax Rates applicable

As per applicable slab rates – Highest slab being 30%*

 

20%*

Tax to be deducted by the buyer, where seller is NR

30%*

20%*


* Plus applicable Surcharge and Health and Education cess on Income Tax

Manner of Computation of Capital Gains

Illustrative Computation of Taxable Capital Gains in case of Sale of Immovable Property is as follows:

Particulars

Amount

(in Rs.)

Amount

(in Rs.)

Full value of sale consideration

 

100

Less: Expenditure incurred wholly and exclusively in connection with such transfer (e.g. Transfer Fees, Brokerage, Society Charges, etc.)

 

(5)

Net Sale Consideration

 

95

Less: Cost of Acquisition

35

 

Less: Cost of Improvement (E.g. Renovation, painting, addition of floor, etc.)

15

(50)

Capital Gains

 

45


What is Cost of acquisition and Indexed Cost of acquisition for computation of Capital Gains?

Ans.

Cost of acquisition generally refers to consideration paid for purchase of property. Cost of improvement generally refers to any capital expenditure incurred in making any additions or alterations to the Immovable Property. 

Property held prior to April 1, 2001:
Where property has been acquired by a person before April 1, 2001 or where the property was acquired through gift or inheritance from the person who acquired the property before April 1, 2001, then the cost of acquisition is the higher of:

i. actual cost of acquisition of the property or;

ii. fair market value as on April 1, 2001.

Inheritance / Gift:
In case of inheritance/ gift, the aforesaid cost of acquisition/ improvement shall be the actual cost of acquisition/ improvement of the person from whom the asset is received. The period of holding will be considered from date of original acquisition till the date of sale.

However, there is difference of opinion regarding whether the benefit of Indexation will be given from the date of Inheritance/ Gift or from date of acquisition of the person from whom the asset is received. The said issue is litigative and pending before Court of Law.

Stamp Duty valuation:
In case of the transfer of an Immovable Property, the Act provides that the actual sale consideration should be compared with the stamp duty value assessed at time of registration of the sale of the property with the Registration Authority of the State Government in India and higher of the two values should be taken as sale consideration while calculating Capital Gains.

As per Finance Act, 2018, if the value assessed at time of registration of the sale property with the Registration Authority exceeds the actual sale consideration by not more than 5% of the said consideration, then in such case while calculating Capital Gains, actual sale consideration shall be considered for computing the Capital Gains.

Indexation: is a process by which the cost of acquisition/ improvement of a capital asset is adjusted against inflationary rise in the value of asset.

A NRI is selling his residential house in India to a resident Indian. What are the tax obligations of the resident Indian purchasing property from a NRI?

Ans.

The resident Indian is liable to deduct tax at 30% on STCG or 20% on LTCG arising to NRI from the consideration payable for purchase of Immovable Property and the failure to deduct tax attracts penalty and interest.

He should request NRI to arrange for a TEC from the Tax Officer directing the amount of tax to be deducted and withheld from the sale consideration and deposit the same with the Tax Department.

It takes about 2 weeks to 6 weeks to obtain such certificate from the Tax Department but that protects the purchaser from any liability.

What is Stamp duty Value and what if the Stamp duty Value of the Immovable Property sold is greater than the sale consideration?

Ans.

Refer answer to 2nd FAQ above

What are the options available to NRI to ensure minimum deduction of tax on sale of his Immovable Property?

Ans.

The normal rate of tax deduction is at the rate of 30%* on STCG or 20%* on LTCG, depending upon the period of holding of the Immovable Property. 

However, NRI may be liable to tax at much lower or nil rate on account of: 
i. Tax exemption for reinvestment in a residential house or specified Bonds or in CGAS (Capital Gains Account Scheme)

ii. There may not be taxable gain on account of benefit of CII or benefit of step up to market value as on April 2001 as cost. 

In such situation he has two options:
i. He can apply for TEC to Tax officer and direct the Buyer to deduct tax at the amount specified in the TEC.

ii. File ROI and claim refund of excess TDS withheld and deposited to Tax Department by the buyer.

* Plus applicable Surcharge and Health and education cess on Income Tax

NRI has sold a residential house on September 1, 2016 after holding it for a period of ten years, and intends to claim exemption of tax on Capital Gains arising on sale of the said house. What are the options available with him to claim exemption? What are the timelines to claim such exemptions?

Ans.

NRI has the following options to claim exemption of LTCG tax on sale of residential house which is held for more than two years.


i. Reinvest in a residential house:


• NRI can avail the exemption if a new residential house was purchased one year before the date of sale of the old residential house or purchases a new residential house within a period of two years from the date of sale of the old residential house (i.e. before August 31, 2018), or, construct a new residential house within a period of three years from the date of sale of the old residential house (i.e. on or before August 31, 2019).


• If NRI has not purchased/constructed the new residential house before July 31, 2017 (i.e. due-date for filing tax return for the year in which the old residential house is sold), and he would like to claim tax exemption then he has the option to open a banking a/c under the ‘Capital Gains Account Scheme’ with a Nationalized Bank and deposit the amount of Capital Gains and utilize the said deposits for purchasing/construction of the new residential house within the time lines prescribed above.


• Having obtained the tax exemption as above he must hold the new residential house for at least a period of 3 years from the date of its purchase/construction as otherwise he may lose the Tax exemption. If the same is sold before 3 years, while computing Capital Gains from sale of the said new residential house, the cost of acquisition of the new residential house shall be reduced by the amount of exemption claimed.


ii. Invest in Specified bonds:


• NRI can reinvest the amount of LTCG arising on sale of residential house in specified bonds (carrying interest at around 5%) within 6 months from the date of sale of the property.


• The investment in specified bonds should not exceed Rs. 50 lakhs and he is required to hold the specified bonds for a period of five years.


iii. Investment in equity shares of a new eligible Indian company:


• NRI will be eligible to claim exemption in proportion of amount reinvested in equity shares of a new eligible Indian company or eligible start-up (as defined in Section 54GB of the Act) to the sales proceeds received on sale of residential house.• There are conditions to be complied with in order to claim this reinvestment exemption.


iv. Investment in units of specified fund:


• Recently the Government has provided for an additional amount of exemption of Rs. 50 lakhs that may be invested in the units of specified fund. However, no such specified fund has been notified till date.


Whether the reinvestment options change if NRI sells a Capital Asset other than residential house?

Ans.

i. Reinvest in a residential house:

If a NRI sells any Long Term Capital Asset, other than residential house, he is eligible to avail exemption from Capital Gains tax as explained in FAQ 6 (i). However, following additional conditions shall be applicable:

• If he invests the entire Capital Gains, he shall get total exemption of Capital Gains tax however if he invests partial Capital Gains then the exemption shall be available in the same proportion as the proportion of amount reinvested in the residential house bears to the sales proceeds received on sale of the old Capital Asset:

Amount of exemption of Capital Gains

=

Amount of Capital Gains on old asset

X

Amount reinvested in house

Net sale consideration of old asset


• NRI should not hold more than one residential house (other than the new residential house) on the date of sale of the old asset.

• NRI should not purchase another residential house within a period of 2 years from the date of sale of old asset or construct a residential house within a period of 3 years from the date of sale of old asset.

ii. Invest in Specified bonds:

• NRI can reinvest an amount of Rs. 50 lakhs of LTCG arising on sale of Immovable Property in specified bonds (carrying interest at around 5%) within 6 months from the date of sale of the property.

iii. Investment in units of specified fund:

• Similar to exemption mentioned in FAQ 6 (iv) above, an additional amount of Rs. 50 lakhs that may be invested in the units of specified fund can be claimed as exemption from tax on Capital Gains arising from sale of any Long Term Capital Asset.

A NRI sold his residential house and earned LTCG on such sale. He invested the said Capital Gains in another residential house situated in Dubai. Can he claim exemption from LTCG?

Ans.

Exemptions mentioned in FAQ 6 (i) and 7 (i) above are available if a new residential house is purchased in India. Hence, in above case, NRI shall not be eligible for claiming exemption from LTCG.

A NRI sold his residential house and earned LTCG of Rs. 65 lakhs on such sale. From the said Capital Gains, he purchased two residential houses of Rs. 35 lakhs and Rs. 30 lakhs in Mumbai and Bangalore respectively. Can he claim exemption from LTCG?

Ans.

Even though both the new residential houses are situated in India, the exemptions mentioned in FAQ 6 (i) above are available only in case of purchase of 1 residential house. Accordingly, in above case the NRI shall be eligible for claiming exemption from LTCG only up to investment made in any one residential house.

Is filing of ROI compulsory for claiming the various exemptions from Capital Gains on sale of Immovable Property?

Ans.

Yes, the NRI has to file the ROI by prescribed due date for claiming the exemptions.

What if the whole or any part of amount invested in Capital Gain Account Scheme is not utilized for purchase of new property within 2 year or construction of the new property within 3 years, as the case may be?

Ans.

Amount which is not invested in the new property would be subject to the LTCG tax in the year in which the period of 3 years expires from the date of sale of old property.

NRI is the owner of a residential house, which was purchased by him in November, 2002. He died in the December, 2012, leaving behind this house to his son. His son intends to sell this property in December, 2016. When, how and in whose hands will the Capital Gains be taxed?

Ans.

• At the time of inheritance:

There shall be no Capital Gains tax in the hands of NRI or his son at the time of inheritance, i.e. on the death of NRI.

• At the time of Sale by son:

At the time of sale of the inherited house, the son shall be subject to Capital Gains tax on such sale. The Capital Gains shall be computed as follows:

Cost

The cost of acquisition of property for son shall be the cost of acquisition of the father

    Period of Holding:

The period of holding of the asset for the son shall be from the year 2002, the date on which father acquired the property.


Further, since period of holding is more than 24 months, the Capital Asset shall qualify as Long Term Capital Asset and shall be eligible for indexed cost of acquisition for the period 2002 till the year in which the property is sold by son.

However, there is legal uncertainty and a possible litigation regarding whether the son will be allowed the benefit of indexation from the year in which the father bought the property (i.e. 2002) or the year of inheritance i.e. upon death of the father (i.e. 2012).

A NRI received advance money/ earnest money for the sale of an Immovable Property. Subsequently, the sale of property transaction was cancelled. However, the NRI retained the advance money/ earnest money as per the agreement. What will be the tax liability on such advance money/ earnest money retained?

Ans.

Advance money/ earnest money retained by NRI received by him on or after April 1, 2014, shall be taxable under the head ‘Income from Other Sources’. NRI shall be required to pay appropriate taxes on the said income.

Is there any Capital Gain tax implication in case where property is compulsorily acquired by the Government authorities?

Ans.

Compulsory acquisition of the property by any Government Authority is regarded as ‘transfer’ and/or ‘sale’ and is subject to capital gains tax.