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“Understand TDS provisions for buyers and sellers in the sale of property in India by an NRI. Get insights into tax rates, implications, and advice for seamless transactions.”

When a person purchases immovable property from a Non-Resident in India, He or She is liable to deduct TDS on the entire Sale Consideration (on every payment made to the seller, irrespective of the value of the Property) as provided under section 195 of the Indian Income Tax Act, 1961.

Let us first understand who is an NRI for Income Tax Purposes:-

1. If a person has resided in India for less than 182 days in the F.Y.

OR,

  •  If a person has resided in India for less than 60 days in the F.Y. AND less than  365 days in the immediately 4 F.Ys (Both conditions should be fulfilled)
  •  If an Indian citizen who leaves India in any FY for the purposes of employment or who leaves India as a member of the crew of an ‘Indian Ship” has resided in India for less than 182 days in that F.Y. AND less than 365 days in the immediately 4 F.Ys (Both conditions should be fulfilled)
  • If a Citizen of India or POI (Person of India Origin), visiting India in any FY, having a total Indian Income lesser than Rs. 15 Lakh, other than income from foreign sources has resided in India for less than 182 days in that F.Y. AND less than 365 days in the immediately 4 F.Ys (Both conditions should be fulfilled).
  • If a Citizen of India or POI (Person of India Origin), visiting India in any FY, having a total Indian Income of more than Rs. 15 Lakh, other than income from foreign sources has resided in India for less than 120 days in that F.Y. AND less than 365 days in the immediately 4 F.Ys (Both conditions should be fulfilled.
  • It is advisable for every buyer who intends to purchase any Property, to ensure the Tax Residency Status of the Seller as the TDS provisions are totally different for a Resident Indian Seller and an NRI Seller.

In the case of the Resident Indian Seller, the TDS rate is @ 1% on the Sale Consideration above Rs. 50 Lakh, whereas in the case of NRI Seller, the minimum limit of Rs. 50 Lakh is not applicable. All property transaction, irrespective of the Sale consideration, attracts TDS provisions u/s 195 of the Income Tax Act. The TDS rates prescribed by the Govt. of India for payment to an NRI for the acquisition of their property, which is held by the Seller for more than 2 years, come under the purview of Long-Term Capital Gains.  The rate of Long Term Capital Gain Tax, Surcharge, and Education cess is detailed in the following table for ready reference:-

Particulars  Sale Consideration of the Property held by an NRI
Less than Rs.  50 Lakhs Between Rs. 50 Lakhs to Rs. 1 Crores Above Rs. 1 Crores
Long-Term Capital Gains Tax 20% 20% 20%
Surcharge Nil 10% of above 15% of above
Total Tax (Including Surcharge) 20% 22% 23%
Health & Ed. Cess 4% of above 4% of above 4% of above
Effective TDS Rate 20.8% 22.88% 23.92%

Example: If an NRI person held the property for more than 2 years and is selling for a consideration of Rs. 1,50,00,000/-, then the buyer shall deduct TDS at the rate mentioned in the above chart. The same is worked out as under:-

Sale Consideration Rs. 1,50,00,000/-
TDS @ 20% Rs.30,00,000/-
Surcharge @ 15% on Rs. 30,00,000/- Rs. 4,50,000/- 34,50,000/-
Education Cess @4% on 34,50,000/- Rs. 1,38,000/-
Total TDS to be deducted 35,88,000/-/-

Hence the Seller will get only Rs. 1,14,12,000/- out of Rs. 1,50,00,000/- and the balance Rs. 35,88,000/- will be deducted by the buyer to deposit with Income Tax Department as TDS.

Here it is pertinent to mention that whether any Capital Gain Tax liability for the aforesaid transactions comes to the NRI Seller or not, the buyer is dutybound to deduct TDS on the entire sale consideration as per the above-prescribed rates or the rare prescribed in Lower/Nil Deduction Certificate issued by the Income Tax Department.

The obligation of the Buyer, if buying property from an NRI:- The buyer/s is duty bound to deduct the entire TDS amount as per the rate prescribed above on every occasion of making payment to the Seller (Or as per the rate prescribed in the Lower/NIL deduction Certificate obtained by the Seller from the Income Tax Department, which will be discussed in subsequent para).

The buyer has to apply for TAN (Tax Deduction Account No.) and get TAN in his/her name. If the purchases are made jointly and all persons are investing money from their own sources or by way of joint loans, all the persons have to obtain TAN. If the purchases are made jointly but only one person is making all investments and the names of other persons are included only for the sake of convenience, then TAN has to be applied only by the person, who is making the entire investment.

Once the TAN is obtained, the buyer is required to deduct TDS on every occasion of making payment to the NRI Seller and deposit the TDS amount with the Income Tax Department through e-challan latest by the 7th  day of the next month which the payment is made to the Seller.  After depositing the TDS, the buyer shall file TDS Return in the next quarter. Once the TDS return is filed, the buyer shall download form 16A and handover to the Seller. (It is advisable for the buyer to get the services of a Tax Advisor for proper deduction and payment of TDS).

Implication on the Buyer if the TDS is not deducted as per the prescribed Rate:- Many times the Seller does not disclose their Tax Residency Status to the buyer and completes the property transaction as a Resident Indian. This is illegal and has adverse ramifications for the Buyer. As discussed above, it is the legal responsibility of the buyer to deduct and deposit the TDS as per the prescribed rate or the rate prescribed in the Lower/Nil Deduction Certificate issued by the Income Tax Department. However, in a case, if the buyer did not deduct the TDS as per prescribed rates, the buyer shall be liable for a penalty for the equal amount of TDS, which was not deducted, u/s 271C of the Income Tax Act. The buyer shall also will be liable to pay interest u/s 201 of the Income Tax Act on the default sum.

Example:- Let us assume that the buyer purchases a property from an NRI, who held the property for more than 2 years, for a consideration of Rs. 1,50,00,000/- and deducts TDS @ 1% (As in the case of Resident Indian) i.e. Rs. 1,50,000/- and paid remaining Rs. 1,48,50,000/- to the Seller. However as discussed above, the TDS was to be deducted @ 23.92% i.e. Rs. 35,88,000/-. In this case, the buyer will have to pay the balance of Rs. 34,38,000/- (Rs.35,88,000/- less Rs. 1,50,000/-) by way of penalty to the Income Tax Department over and above the payments made to the Seller. Further interest u/s 201 will be charged on Rs. 34,38,000/- from the date of payment to the seller till the date of payment of Rs. 34,38,000/- to the Govt. account.

Advice to the buyers :- The Buyer is advised to make sure of the Tax Residency of the Seller before entering into the property transaction. If the Seller is Non-Resident, the TDS must be deducted at the prescribed rates on every payment made to the Seller. In case the Seller produces the Nil/Lower Deduction Certificate, deduct the TDS at the rate as given in the certificate.

Implication on the NRI Seller if the TDS is not deducted as per the prescribed Rate:- In most of cases the NRI person sells their property to get the funds abroad for utilisation. In the event of non-deduction of TDS as per rules, the Seller will not be in a position to repatriate the amount of Sale Consideration received to his foreign bank account/NRE account. Further, when the said transaction comes to the notice of the Income-Tax Department, the Seller can be prosecuted for misrepresentation of facts of his/her Tax Residency.

Advice to the NRI Seller:- It is advised to hire an Expert Tax Advisor if you are planning to Sell property anywhere in India, before entering into any negotiation, it will help you with proper Tax Planning. Always declare your Tax Residency Status to the prospective buyer and follow the Tax Laws of India. The proper TDS deduction shall in turn help you to repatriate the money seamlessly to your foreign bank account. In many cases, the actual Capital Gain Taxes are minimal or do not arise at all, depending upon the facts of the case. You can always make an application for a Lower/Nil Deduction of TDS with the Income Tax Department. In this scenario, the buyer will deduct the TDS only to the extent of the rate of TDS prescribed in the certificate (which shall save a good amount of liquidity and Taxes). Since obtaining a Lower/NIL deduction certificate is a complex procedure and requires professional expertise, it is advised to seek help from an expert Tax Advisor.

*****

We give consultation to NRIs who intend to Sell property anywhere in India, right from the beginning of the negotiation till the repatriation of funds in their NRE/Foreign Bank account. The Author may be contacted through email- bdconsultantsindia@gmail.com or through WhatsApp #9967745680.

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I am an ex-Income Tax Officer. I worked in the Income Tax Department in Mumbai for 21 years and have vast experience in matters of Direct Taxes. I have a keen academic interest in Personal Income Tax and Corporate Taxes matters. As an Audit Officer of the Department, I was selected as Auditor of the View Full Profile

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38 Comments

  1. Rajiv says:

    Can the TDS return be filed before the end of the quarter? For e.g. if the agreement is made in Apr and TDS deposited, will the return be filed only after June? And why would the parties wait for 3 months for registration of the property?

    1. Deorath Kumar says:

      The TDS return in form 27Q can be filed only in the next quarter. You may put a clause in the Sale agreement about payment of TDS and filing of TDS return by the buyer within due date. Once the TDS is deposited u/s 195 of the Income-tax Act, you may go ahead with the registration. Once the TDS return is filed by the buyer, the TDS amount will reflect in the 26AS statement.

  2. Muralidhar C says:

    We bought a plot from an NRI. We are two buyers and made Advance payment of 10 Lakhs each to the seller in October 2023. We were not aware of the TDS rules and did not have TAN number as well. Now, we registered the property in March 2024 and deducted tds at 20.8% ( Sale consideration is 40L and the seller held the property for close to 20 years). Sellers PAN is inoperative.

    1) Is the deduction rate correct?
    2) should we be paying any interest or penalty for not deducting tds for advance payment?
    3) Advance Payments were made from bank accounts of different people other than we two buyers. Will this have any impact on over all tds payment and filing?

    Please help with the queries and Thanks in advance

  3. vijayan says:

    I have a question. NRI selling property to an resident. Aware that TDS will be 23% but want to apply for lower TDS as the seller wishes to pay of the FULL capital gains tax and not re- invest.
    Here is my question.
    Day 1: Agreement of sale for say 1 cr. Buyer gives 25 Lakh advance. Technically 23% has to be deducted. But he has time upto end following month to remit TDS.
    Day 2. Seller applies to IT for lower TDS stating he wishes to pay full capital gains tax. He says Sale value 1 Crore. Lets say capital gains tax is Rs 7 lakhs ( appx). TDS already deducted Rs 5.75 lakhs. Lower TDS applied is for sale consideration of Rs 1 crore.
    Question. Will the IT calculate for lower TDS on 1 Crore, and approve . say if on 1 cr its 7 Lakhs. and TDS deducted on advance paid is 5,75 and therefore prior to regn the TDS is only differential of 7 lakhs minus 5,75
    OR will IT calculate lower TDS on 1 Crore minus on already advance paid. Keeping in mind that the buyer has time to remit TDS upto end of the succeeding month. Thanks

  4. Anjan S says:

    The buyer is a Resident but the sellers are 3 family members who hold the home jointly, one of them is NRI.
    Buyer is also taking a loan for payments and will pay the down payment 1st with the sale agreement and then the final payment from the bank payment on registration.
    How much and who should deduct the TDS in each payment step?
    Please help, Thank you!

    1. Deorath Kumar says:

      The buyer is duty bound to deduct the TDS. Since you have not provided the details of the transaction, the general opinion is being given. The consideration has to be divided into three parts as equal shares. In the case of the two shares of the resident Indians, TDS @ 1% is to be deducted by the buyers and in the case of NRI, TDS as per the rates prescribed in the article is applicable with relevant surcharge and cess.

      For personal consultation, please share the documents and amount of consideration to my mail id- bdconsultantsindia@gmail.com or through whatsapp 9967745680.

  5. Shalmali says:

    I am buying a property from NRI, the government valuation of the property is 1.51cr and my sale consideration is 1.01cr in this case TDS should be deducted on 1.51cr or 1.01cr?

    1. Deorath Kumar says:

      The TDS has to be deducted on the stamp duty value i.e. Rs.1.51 Cr. with relevant surcharge and Cess. Further since you are purchasing the property for a value less than 10% of the stamp duty value, you will have to pay taxes on the difference of Rs. 1.51 Cr. and Rs. 1.01 Cr. i.e. Rs. 50 lakh as Income from Other Sources u/s 56(2)(x) of the Income Tax Act, 1961.

      You may refer to my article on the topic of 56(2(x) for more information.

  6. GAGAN GUPTA says:

    If the buyer is taking a home loan while purchasing property from NRI, and payment to the seller is to be made by bank, how can he deduct tax on full rate of lower rate (when seller is able to give a LDC)

    1. Deorath Kumar says:

      This situation arises in most of the cases where purchaser intends to avail housing loan and the banks/financial institutions insist on making payment of TDS by the buyers. Since the amount of TDS on full rate with surcharge and cess is huge, the buyers finds themselves in catch 22 situation in between the deal. In this scenario it will be wise to request the seller to obtain Lower TDS Certificate so that the TDS amount may be minimised.

      Further it is once again advised to all the buyers, who intend to purchase any immovable property from an NRI to pay the Token/Advance payment only after proper deduction of TDS, surcharge and cess irrespective of the fact that whether the seller is obtaining Lower TDS certificate or not.

  7. Sajive Kumar says:

    if there were 2 buyers, but TDS was paid by one buyer’s TAN and the seller has already claimed the entire amount by ITR filing. How can we handle such situations. Can 2nd buyer ask for exception or is there some process.

    1. Deorath Kumar says:

      In case of joint purchase of property, the TDS has to be deducted and paid by the person who is paying the sellers. In many instances, entire payment is made by one person only and the name of other person is added in the purchase document for sake of convenience and security. In this case only the person, who is making entire payment has to deduct and pay TDS from his or her TAN. In case where both the persons are contributing towards purchase consideration and making payments separately to the sellers, both the persons are duty bound to deduct and pay the TDS. The ratio of ownership in the property is reckoned with in proportion of the investment made by each buyer.
      In your question, it is not clear as to who has made payments and the ratio of payment. Since one persons has deducted and paid the entire TDS, and the seller has already claimed it in the return of income, the chain in complete and is difficult to redo the entire process.

  8. janarthanan says:

    For an inherited property the reference start date of CGT is the date of purchase or date of inheritance?
    I am an NRI My local buyer says that he has to deduct @26% is that correct rate for Tamil Nadu.
    What are the maximum other deductions allowed.

    Also this sis the only deduction that they have to make Am I Right ?

    Thanks in advance

    1. Deorath Kumar says:

      In the case of inherited property, the cost is taken either the cost paid by the original owners or the Stamp duty value as on 01.04.2001 and indexation benefits are also available to you. As regards TDS rates, it is not 26%. The detailed TDS rate chart is given in the present article and is the same for all over India. You may opt for a Lower TDS certificate, through which the TDS shall be restricted to the actual tax liability, which saves a good amount of liquidity.

      For personalised consultation, kindly contact on WhatsApp+ 91 9967745680 or through email to bdconsultantsindia@gmail.com.

  9. D Singh says:

    I deducted and paid TDS @ 20% plus cess and surcharge, but I get a notice u/s 200A/206CB, to pay almost 10% more of tax. Could it be more than 20%?

    1. Deorath Kumar says:

      Have you verified the holding period of the property by your seller? If its less than 2 years, then the capital gains shall be Short-Term and attract 30% TDS. For personalised consultation, please send property documents, TDS challan and notice received either on WhatsApp+ 91 9967745680 or through email to bdconsultantsindia@gmail.com.

    2. nikhil says:

      is your query solved, that why you received intimation/notice u/s 200 despite deducting tds @20%. if yes, plz reply. I also received same kind of notice?
      if possible plz reply on whatsapp 999 98 87 199

      1. Deorath Kumar says:

        The reason is not proper selection of head while filing the 27Q TDS return. The correct head is Long Term Capital Gains(others). But in my opinion you must have selected other payments. The remedy is to file correction statement through your TRACES portal. For personalised consultancy please contact on +91 9967745680 or bdconsultantsindia@gmail.com

        Regards

    3. Deorath Kumar says:

      The other reason may be not proper selection of head while filing the 27Q TDS return. The correct head is Long Term Capital Gains(others). But in my opinion you must have selected other payments. The remedy is to file correction statement through your TRACES portal. For personalised consultancy please contact on +91 9967745680 or bdconsultantsindia@gmail.com

  10. Nishith Dhruva says:

    Pl guide if both buyer and seller are NRI residing in same country and want to get / pay consideration amount in that country’s currency though making sale deed in India ?

    1. Deorath Kumar says:

      Since the property is situated in India, the law of the land is applicable regarding taxation. The Sale proceeds should be transferred to the NRO account of the Seller and yes the TDS and taxation provisions are applicable to him.

  11. biswarup gupta says:

    Property is in joint names and husband is an NRI but wife is resident indian. The credit of sales proceed would go in the accounts of husband & wife as 50/50. What would be the TDS rate in this case ?

    1. Deorath Kumar says:

      TDS is applicable on payment. For NRI, there is no cap on the minimum amount, so irrespective of amounts, TDS will be deductible from the consideration payable to the NRI husband. As regards the wife, who is a resident Indian, If the amount of consideration payable to her is more than Rs. 50 Lakh, then 1% TDS will be deductible from the amounts payable to her.

  12. Preeti says:

    Property is in joint names and both owners are NRIs (Husband and wife). Wife requested for credit of sales proceed in the single account of Husband. She gave written consent for that. Can TDS Return be generated for single name (Husband’s name) or it must be 50% each. Please reply.

    1. Deorath Kumar says:

      It is advisable to pay an equal amount of 50% to both the owners and deduct TDS accordingly. If the 100% ownership is with the husband and the wife has given undertaking, please incorporate the same in the Sale deed and deduct the TDS in the hands of the husband.

    1. Deorath Kumar says:

      While purchasing any property, the buyer must exercise due diligence and enquire about the seller as the burden of deduction of correct TDS is on the buyers.

  13. JASMIN says:

    Any NRI Person Sales A Property To Resident Person The Propery Is Agriculture land In rular Area in India Then Tds Applicable Or Not

    1. Deorath Kumar says:

      If all conditions as laid down in the Income-Tax Act for identification of Rural Agriculture land is satisfied, then the same does not come under the purview of the asset and in turn the income arising out of the transaction is not taxable, hence No TDS is applicable. However, it is advisable for the prospective buyers to verify the land revenue records and whether Agriculture activities are being carried out on the said land or not.

  14. KV Sreenivas says:

    Explained in a Short n Crispy way. It’s a very good information for taxpayers especially NRIs.As many Indians move out of India when they get good opportunities in the form of employment n settle down there.But when they sell their earned assets in India they will face problems w.r.t. Capital gains.
    Hence for such Assessees it’s a very useful

  15. Deorath Kumar says:

    Thank you everyone for the overwhelming response to my first article on the Tax Guru, Please stay tuned for many more interesting articles.

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