Live Course on Drafting of Appeal and Reply of Penalty Notice by CA Sachin Sinha. Register Now!!

Tds on sale of immovable property

srivani (Article Assistant) (78 Points)

13 December 2016

Hello every one,

One of my client has purchased a house property for a consideration of 1.5Cr, he is being finanaced by a Housing finance company .the housing finance company is paying 1.28 Cr to the Vendor and the remaining is paid by our client.

Here the property is co-owned by 2 members whose shares are as follows

A - 50 Lakhs - Resident

B- 1 Crore - Non REsident

Now the payment terms are as follows

Vendor	A	B
HOUSING FINANCE COMPANY	28 lakhs	100 lakhs
Client	22 lakhs	0

Now as "A" is a resident 1 % (50,00,000*1% = 50,000) can be deducted as TDS on payments maid to him.

Now as "B" is a non- resident 20.6% has to be deducted (1,00,00,000*20.6% = 20,60,000) but payments to B is made by Housing Finance Company.

Can anyone tell the procedure to be adopted for deduction of tds in both the cases.

Reply
Follow
Share

2 Replies

A.Gopal (Partner) (63 Points)
Replied 30 December 2016

Payment made by the Housing finance company to the vendor is for and on behalf of the purchases as these payments represents loan availed for effecting the purchase.

Therefore, the TDS being the oligation of the purchaser, he has to request the Housing Finance Company to effect remittance net of TDS.

Sec 195 r.w. Part II 2 (b) (ix) of Finance act 2016, it is 20.6 % including cess of the gain.

Thereore the purchaser will have an obligation to determine the long term capital gain as the deduction is only on the long term capital gain quantum and not on the non resident's share of sale proceeds.

However, he will not have the cost details of the vendor.

The better course would be to get from the vendor the details of cost particulars and furnish an application to the assessing officer (u/s 195(2) of the Act).for determination of quantum of capital gains.

In the case of the resident also, the Housing Finance would need to effect TDS @ 1% without cess from out of its portion of saleconsideration paid and the purchaser will also need to effect TDS @ 1% on Rs. 22 lakhs.

While 1 % TDS paid to the resident will have to be in Form 26QB and has to be remitted filling with the name of the vendor (not in the name of housing finance company).

TDS in relation to a payment made to a non resident under a regular challan 281.

In both the deductor's name will have to be the purchaser and not the housing fiannce company.

There can be a recital in the sale deed that the consideration is net of TDS mentioning the 1% amount in relation to a resident vendor and the TDS quantum calculated @ 20.6% of the gain to the non resident vendor.

If the purchaser is an individual and if he has no TAN, I do not know how th epurchaser will remit ( as in form 281 TAN is a must).

I am of the view either the purchaser gets a TAN or approaches Income Tax to get clarification on this.