Buyer is required to deduct TDS at the rate 1% if sale consideration is 50 lakhs or above but from 01/04/ 2022, TDS is required to be deducted if stamp duty value of property is also 50 lakhs or more. This means TDS is required to be deducted if stamp duty value of property or sale consideration exceeds 50,00,000.
Section 194 – IA
This section was made applicable from 1.6.2013. Where the ‘immovable property’ was acquired before 1.6.2013 but any installment has been paid on or after 1.6.2013 TDS will have to be deducted subject to satisfaction of other conditions. Any person, being a transferee, responsible for paying (other than the person referred to in section 194LA, relating to compensation in case of compulsory acquisition of property) to a resident transferor any sum by way of consideration for transfer of any immovable property being any land (other than agricultural land) or any building or part of a building shall be liable to deduct tax @ 1% at the time of credit of such sum to the account of the transferor, or at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier.
Amount on which the TDS is to be deducted
TDS @ 1% is to be deducted on all Property Transactions which are above Rs. 50 Lakhs. This TDS is to be deducted on all types of Property Transactions irrespective of whether the property in consideration is a flat or a building or a vacant plot. TDS is to be deducted irrespective of whether it is a Residential Property or Commercial or Industrial Property. TDS is to be deducted on all types of property transactions except Agricultural Land.
This TDS is to be deducted at a flat rate of 1% irrespective of whether any Capital Gains or Capital Loss is arising on the sale of property. Even if the seller intends to claim any Capital Gain Exemptions on Sale of Property, in such cases as well the TDS would be required to be deducted @ 1%.
TDS is to be deducted on the total amount paid to the Seller excluding GST. This can be explained with the help of an example:-
TDS on any sum by way of consideration for transfer of any immovable property is required to be deducted by the transferee on the total amount in case the value of the property sold is more than Rs.50 Lakhs. For example, if the property sold is worth Rs.90 Lakhs, the TDS would be deducted on Rs.90 Lakhs and not on Rs.40 Lakhs. TDS on property in this case @1% would be Rs.90,000. No surcharge or health and education cess shall be added to the above rates. Hence, tax will be deducted at source at the basic rate. The rate of TDS will be 20% in all cases, if PAN is not quoted.
Tax deducted on Property to be deposited with Govt
As per the Income Tax Act, any TDS deducted shall be deposited with the govt on or before the specified due date of deposit of TDS. Moreover, any person deducting TDS shall also apply for a TAN No. under Section 203A. This TAN No. is mandatory required to be quoted at the time of deducting any TDS and also at the time of filing returns and deposit of TDS with the Govt.
The insertion of this new section 194IA for deduction of TDS on Property would have caused unnecessary hardship to the buyer of the property as he would have to apply for a TAN No. before purchasing any property. So as to remove any such hardship, the govt has introduced a new sub-section(3) to Section 194IA which states that a person deducting TDS on Property is not mandatory required to possess a TAN No.
As per Notification No. 30/2016 dated 29th April 2016, the TDS deducted by the buyer at the time of making the payment to the seller has to be deposited within a period of 30 days from the end of the month in which the deduction has been made. For eg: If the TDS has been deducted in the month of April, it should be deposited with the govt before 30th of May. The same applies to all other months as well.
All details regarding the transaction and TDS on Property are required to be furnished in Form 26QB and this Form 26QB is required to be submitted at the time of payment.
the payment of TDS can be done online as well as physically through Bank. After the submission of the Form 26QB – the payer would be given the option to either deposit the TDS online or take a print -out of the furnished Form 26QB and deposit the TDS in the Bank.
After depositing the TDS, the buyer of the property would also be required to issue Form 16B to the Seller of the property in respect of the TDS deducted and deposited with the govt. Form 16B can be downloaded from the website of the centralised processing cell of TDS (CPC-TDS) i.e. www.tdscpc.gov.in after 15 days from the end of month in which the payment has been made.
Procedure for Deposit of TDS on Property with Govt.
Once all the details are furnished, the form will ask for the preference for deposit of tds on property with the income tax department. You can either pay the TDS on Property online through net banking and if this option is chosen, this Form 26QB will automatically direct you to the e-payment gateway.
Alternatively, the buyer also has the option of depositing the TDS Deducted on Property offline through Banks as well. If the buyer intends to deposit the TDS on Property offline through Banks, he would be required to select this option in Form 26QB, then take a print out of this Form 26QB and submit the same along with the payment to the authorised bank branches. The list of banks wherein TDS on Property can be deposited is mentioned in this link.
It should be noted that there is no option for furnishing details in Form 26QB manually and all these details are required to be furnished in the online Form 26QB and the buyer can then take a print out of the same and submit this Form 26QB along with the payment to the Bank.
It is also important to note here that this Form 26QB can only be used if the seller is a Resident Indian. If the seller is an NRI, then this Form 26QB cannot be used and Form 27Q would be required to be filed in this case by the buyer
TDS on Amount paid in Installments
As per Section 194IA, TDS is to be deducted at the time of payment. The date of transfer is not relevant as TDS is not required to be deducted at the time of transfer but is required to be deducted at the time of payment.
Therefore, irrespective of the date of transfer, the TDS is required to be deducted at the time of payment. So even if advance payment is being made, TDS would be required to be deducted. Moreover, in case the payment is being made in Installments to the Seller, the TDS would be deducted at the time of paying each installment.
This TDS is required to be deducted when the installment payment is made to the developer (either by the buyer or by the bank) and not when the EMI is paid to the Bank. If the bank has made the payment to the builder, this payment has been made by the bank to the developer on behalf of the buyer. Therefore, in such cases – it is the responsibility of the buyer to deduct the TDS and not the responsibility of the bank.
Penalty for Non-Deduction/ Deposit of TDS on Property
Interest on Late Deposit of TDS on Property – In case the TDS has not been deducted, the buyer would be required to pay 1% interest per month on the amount not deducted. In case, the TDS has been deducted but has not been paid, Interest @ 1.5% per month would be applicable in such a case.
Penalty for Late Deposit of TDS on Property – The Income Tax Officer may also levy a penalty of upto Rs. 1 Lakhs for Late Deposit of TDS on Property.
Penalty for Late Filing of Form 26QB : In case of late filing of TDS Return, a penalty of Rs. 200 per day would be levied. However, the Penalty should not exceed the amount of TDS for which this Form has not been filed.
Other Relevant Points regarding TDS on Sale of Property
- In case of more than 1 buyer/ 1 seller, Form 26QB has to be filled in separately for each buyer-seller combination. Eg: In case of 1 buyer and 2 sellers – 2 forms have to be submitted, and in case of 2 buyers and 2 sellers – 4 forms have to be submitted for their respective property share.
- The PAN Card of the Seller as well as the Buyer should be mandatory furnished in the Form 26QB for furnishing information regarding the tds on property and the sale transaction. If the Seller does not have a PAN Card, then TDS would be deducted @ 20% of the Total Transaction Value.
- The above provisions are applicable for TDS on Purchase of Property only. These provisions won’t be applicable on payment made as Rent for Property. The provisions of Section 194I are applicable for TDS on Rent and TDS @ 10% is deducted in such a case.
- It is important for both the buyer and the seller to file an Income Tax Return in the year of purchase. Although, this is not mandatory but if return is not filed, it may lead to generation of an auto-generated query by the income tax department.
- It is always advisable to mention the details of the TDS Deducted in the Sale Agreement as well as the Sale Deed.
- In case of any mistake incurred in filing the Form 26QB, the same can be also rectified online. Refer: Procedure for Online Correction of Form 26QB.
The above article mainly talks about TDS Deduction for purchase of property from Resident Indian only. Here is a short video explaining the manner in which TDS would be deducted on purchase of property. In the following video, the author talks on NDTV on How TDS would be deducted for purchase of property from both Resident as well as Non Resident Indian (NRI)