The ISSUES the buyer may face to implement this TDS provisions – The rate of 1% may increase to 20% if seller does not provide PAN due to overriding provision of section 206AA of ITA.


  • Obtaining TAN number for complying with the provisions;
  • Issuance of TDS certificate to the seller;
  • Filing of TDS return quarterly and mention PAN of the seller;
  • Taxes needs to be deposited within the specified time limit with the Government; and
  • May be scrutinized by the TDS officer

The rate of 1% may increase to 20% if seller does not provide PAN due to overriding provision of section 206AA of ITA.

TDS ON THE SALE OF IMMOVABLE PROPERTIES – DETAILS IN A NUTSHELL


Tax Deduction at Source (TDS) on transfer of certain immovable properties (other than agricultural land) for value  Exceeding Rs.50 Lakh effective from 01-06-2013

The Finance Act 2013 had provided that purchaser of an immovable property (other than agricultural land) worth over Rs 50 lakh is required to pay withholding tax at the rate of 1% from the consideration payable to a resident transferor.  The rate at which tax is to be cut is 1%, but it would go up to as high as 20% if the seller does not disclose his permanent account number.  This amendment is effective from 1st June, 2013.

There is a statutory requirement under section 139A of the Income-tax Act read with rule 114B of the Income-tax Rules, 1962 to quote Permanent Account Number (PAN) in documents pertaining to purchase or sale of immovable property for value of Rs.5 lakh or more. However, the information furnished to the department in Annual Information Returns by the Registrar or Sub-Registrar indicate that a majority of the purchasers or sellers of immovable properties, valued at Rs.30 lakh or more, during the financial year 2011-12 did not quote or quoted invalid PAN in the documents relating to transfer of the property.

Under the existing provisions of the Income-tax Act, tax is required to be deducted at source on certain specified payments made to residents by way of salary, interest, commission, brokerage, professional services, etc. On transfer of immovable property by a non-resident, tax is required to be deducted at source by the transferee. However, there is no such requirement on transfer of immovable property by a resident except in the case of compulsory acquisition of certain immovable properties. In order to have a reporting mechanism of transactions in the real estate sector and also to collect tax at the earliest point of time, it is provided  to insert a new section 194-IAwef 01.06.2013  to provide that every transferee, at the time of making payment or crediting of any sum as consideration for transfer of immovable property (other than agricultural land) to a resident transferor, shall deduct tax, at the rate of 1% of such sum. In order to reduce the compliance burden on the small taxpayers, it was  further provided that no deduction of tax under this provision shall be made where the total amount of consideration for the transfer of an immovable property is less than fifty lakh rupees.

A simple one page challan for payment of TDS would be provided containing details (including PAN) of transferor and transferee and also certain details of the property.

The transferee would not be required to obtain any Tax Deduction and Collection Account Number (TAN) or to furnish any TDS statement as this would be mostly a one time transaction.  

The transferor would get credit of TDS like any other pre-paid taxes on the basis of information furnished by the transferee in the challan of payment of TDS.

The New Payment Challan for TDS requires the Property Purchaser to Furnish following details in the form for payment of TDS :-

  • Permanent Account No. (PAN) of Transferee(Payer/Buyer)
  • Permanent Account No. (PAN) of Transferor (Payee/Seller)
  • Category of PAN of Transferee
  • Category of PAN of Transferor
  • Full Name of the Transferee
  • Full Name of the Transferor
  • Complete Address of the Transferee
  • Complete Address of the Transferor
  • Complete Address of the Property Transferred
  • Details of amount paid/Credited
  • Tax Deposit Details

 

WATCH OUT- BEFORE PAYING THE ADVANCE TOWARDS THE PURCHASE OF PROPERTIES


WATCH OUT!!!

BUYING A PROPERTY?

THE PROPERTY HAS BEEN SELECTED/CHOSEN!!!!

NOW THE NEGOTIATION REGARDING THE PRICE BEGINS!!!!!!!

BOTH BUYER AND SELLER MUTUALLY AGREE FOR THE SALE PRICE & DURATION TO COMPLETE THE SALE TRANSACTION !!!!!!!!!!!!!!!!!!!!!!

THE NEXT STAGE IS SET!!!!!!!!!!!!!!

THE SELLERS NORMALLY DEMANDS EARNEST MONEY DEPOSIT/ADVANCE/SECURITY DEPOSIT, TO HAND OVER THE COPIES OF THE PROPERTY DOCUMENTS.

EXERCISE UTMOST CAUTION:

1). DEAL AND TRANSACT WITH THE ORIGINAL/DIRECT OWNER 

2). ALL THE PAYMENTS MUST BE MADE ONLY THROUGH AN ACCOUNT PAYEE/NON TRANSFERABLE CHEQUE TO THE ORIGINAL OWNER

3). UNDERSTAND THE CONDITIONS and THE APPLICABLE LAWS OF THE SALE AGREEMENT

4). CONDUCT THE ENTIRE TRANSACTION WITH A REPUTED OR A CONCERN WHICH HAS A GOOD REPUTATION

5). DO NOT DEPEND ON BANK LOANS OR BANK APPROVALS. BANK APPROVAL DOES NOT MEAN, CLEAR TITLES.

6). DISCUSS ABOUT THE CONDITIONS OF THE SALE AGREEMENT, DURATION, ADDITIONAL/MISC EXPENSES WITH THE SELLER AND THE FORFEITURE CLAUSE, IN CASE OF DEFAULT

7). DO NOT MAKE ANY PAYMENT OR TAKE DECISION IN A HURRY

8). FINALLY, IF YOU ARE TOTALLY SATISFIED WITH THE PROPERTY, PRICE, DURATION AND THE REPUTATION OF THE SELLER, MAKE THE PAYMENT, AFTER CONSULTING YOUR ADVOCATE/SOLICITOR

 

FORFIETURE OF EARNEST MONEY DEPOSIT/SECURITY DEPOSIT/ADVANCE PAID FOR THE PURCHASE OF PROPERTY


Advance/ Security Deposit/Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance, by the depositor.

It (Advance/earnest money deposit/security deposit)represents the guarantee that the contract (clauses in the sale agreement) would be fulfilled by both the parties.  In other words, ‘earnest’ is given to bind the contract, which is a part of the purchase price when the transaction is carried out and it will be forfeited when the transaction falls through by reason of the default or failure of the purchase.

To justify the forfeiture of advance money being part of ‘earnest money’/ `security deposit` the terms of the contract must be clear and explicit.

If the seller fails to perform the contract the purchaser can also get the double the amount/whatever the amount stated in the agreement, if it is so stipulated.

In case if the payment made is that of part payment of purchase price/consideration, then, it cannot be forfeited unless it is a guarantee for the due performance of the contract.

If the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply. 

 

SERVICE TAX


SERVICE TAX SLABS AND PAYMENT DUE DATES

1   In case of Individuals or Proprietary Concerns and Partnership Firm, service tax is to be paid on a quarterly basis. The due date for payment of service tax is the 5th of the month immediately following the respective quarter (in case of e-payment, by 6th of the month immediately following the respective quarter). For this purpose, quarters are: April to June, July to September, October to December and January to March. However, payment for the last quarter i.e. January to March is required to be made by 31st of March itself.

( Refer Rule 6 (1) of Service Tax Rules, 1994)

2     In case of any other category of service provider other than specified at 6.1 above,  service tax is to be paid on a monthly basis, by the 5th of the following month ( in case of e-payment, by 6th of the month immediately following the respective month). However,  payment for the month of March is required to be made by 31st of March itself.      

( Refer Rule 6 (1) of Service Tax Rules, 1994)

3     Service tax is to be paid to the Central Government in respect of service deemed to be provided as per the rules framed.

( Refer Rule 6 (1) of Service Tax Rules, 1994)

4      The facility of e-payment of service tax has been introduced with effect from 11.05.2005. From 1stApril, 2010 e-payment of service tax has been made mandatory for the assessees who have paid service tax of Rs.10 Lakhs (cash+ cenvat) and above during the last financial year or who have paid service tax of Rs.10 Lakhs (cash + cenvat) and above during the current financial year. The e-payment shall be made only in designated banks by 6th day of the following month.

(Refer Rule 6 (1) & (2) of Service Tax Rules, 1994) {List of Banks, authorized to accept e-payment is given in para 12)

5   The assessee is required to deposit the amount of service tax in the designated banks through GAR-7challan.

(Refer Rule 6 (2) of Service Tax Rules, 1994)

 ( Assessees may contact jurisdictional office for details of the designated banks.)

6     While depositing the service tax, the appropriate ‘account head’ pertaining to the particular service category should be mentioned on the challan. The correct accounting heads have been given in the table showing the ‘List of Services’ in para 1.3.

7      If the assessee deposits the amount of tax liable to be paid, by cheque, then the date of presentation of the cheque to the designated bank would be treated as the date of payment of service tax.

(Refer Rule 6 (2A) of Service Tax Rules, 1994)

8       Where an assessee has issued an invoice, or received any payment, against a service to be provided which is not so provided by him either wholly or partially for any reason, or where the amount of invoice is renegotiated due to deficient provision of service, or any terms contained in a contract the assessee may take credit of such excess service tax paid by him, if the assessee:-

          a) has refunded the payment or part thereof, so received for the service provided to the person from whom it was received or

          b) has issued a credit note for the value of the service not so provided to the person to whom such an invoice has been issued

( Refer Rule 6 (3) of Service Tax Rules, 1994)

9     The assessee can opt for provisional payment of service tax in case he is not able to correctly estimate the tax liability. In such a situation he may request in writing to the jurisdictional Assistant / Deputy Commissioner for the same.

( Refer Rule 6 (4) of Service Tax Rules, 1994).

10    Service tax ( including interest, penalty, refund) is to be rounded off to the nearest rupee. 50 paise or more should be rounded off to the next rupee and less than 50 paise should be ignored.

( Refer Board’s Circular No.53/1/2003 dated 11.03.2003)

11    Any person who has collected any sum on account of service tax, is under obligation to pay the same to the Government. He cannot retain the sum so collected with him by contending that service taxis not payable.

( Refer section 73A of the Finance Act, 1994.)

12. Any person providing taxable service to any person shall pay service tax at the rate specified in Sec.66 in such a manner and within such period as may be prescribed.

(Sec.68 of the Finance Act, 1994)

The table below shows the rate of service tax applicable at the relevant period of time.

Sr.No. Period Rate ofService Tax Rate of Education Cess Rate of  Secondary & Higher Education Cess
1. Till 13.05.2003 5% Nil Nil
2. 14.05.2003 to 09.09.2004 8% Nil Nil
3. 10.09.2004 to 17.04.2006 10% 2% of the S.T. Nil
4. 18.04.2006 to 31.05.2007 12% 2% of the S.T. Nil
5. 01.06.2007 to 23.02.2009 12% 2% of S.T. 1% of S.T.
6. From 24.02.2009 10% 2% of S.T. 1% of S.T.

 

Pre closure/foreclosure charges for home loans – Government Directions –


Government, in May 2010, advised Public Sector Banks, Indian Banks’ Association and National Housing Bank that no pre-payment charges may be levied by the lending institutions when the loan amount is paid by the borrowers out of their own funds; and if any pre-payment charges are to be imposed on housing loans, the same need to be reasonable and transparent and not out of line with the average cost of providing these services. 
The Public Sector Banks (PSBs) have reported that by and large they do not levy any pre-payment charges when the amount is paid by the borrowers from their own sources. 

In general, own funds means funds generated through ‘own sources’ and not through borrowings by any lender. Prepayment of loan by a borrower can take place on account of (i) takeover of his / her loan by other lender, and (ii) out of their own sources. In the first case, the borrower often gets their existing loan refinanced by other lender, if the interest rate offered by other lending institution in the market was lower and attractive. 

In terms of RBI guidelines, in the context of granting greater functional autonomy to banks, freedom has been given to scheduled commercial banks, including public sector banks, private sector banks and foreign banks, on all operational matters pertaining to banking transactions.