The purchaser of immovable property has to deduct tax at source while paying the seller if the value of the transaction is Rs 50 lakhs or more.
While a buyer has to pay several taxes while purchasing a property, tax liabilities also arise for the seller. Apart from the capital gains tax, the seller is also liable to pay TDS or tax deducted at the source at the time of the sale.
Any person, being a transferee, responsible for paying to a resident transferor any sum by way of consideration, for transfer of any immovable property (other than agricultural land), shall, 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 the issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to 1% of such sum as income-tax thereon, says Section 194-IA.
What is TDS?
The concept of TDS or tax deducted at source was introduced, with an aim to collect tax from the very source of the income. As per this concept, a person (deductor) who is liable to make payment of specified nature to any other person (deductee) shall deduct tax at source and remit the same into the account of the central government. The deductee from whose income the tax has been deducted at source would be entitled to get a credit of the amount so deducted on the basis of Form 26AS or a TDS certificate issued by the deductor.
Interestingly, under the existing laws, the responsibility to deduct this TDS amount and submit it to the government lies on the buyer and not on the seller. In case they fail to discharge this duty, they will be liable to pay a penalty for the same. In fact, in case of the buyer’s failure to deduct the due TDS and submit it with the authorities, penal action can be initiated against the buyer for the fault.
In order to check the rampant use of unaccounted money in immovable property transactions, the government of India has introduced a law, wherein, the purchaser of a property has to deduct tax at source, while paying the seller for his property.
Properties that are covered
“Any person, being a transferee, responsible for paying to a resident transferor any sum by way of consideration, for the transfer of any immovable property (other than agricultural land), shall, 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 the issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to 1% of such sum as income-tax thereon,” reads Section 194IA of the Income Tax Act. This section requires a buyer to deduct tax at the rate of 1% of the sale consideration if the value of the transaction is Rs 50 lakhs or more. This section covers residential property, commercial property, as well as land. However, transactions pertaining to the purchase of agricultural land, are not covered under this provision.
Also, in TDS matters, the treatment of properties that are being sold by an NRI would be different, since the government also deducts the capital gains tax from NRIs along with the TDS. That is why the rate of TDS is much higher in such cases.
When to deduct the TDS and how to pay it
The purchaser of the property has to deduct the TDS, either at the time of executing the conveyance deed or at the time of payment of advance in case any advance is being paid before the execution of the conveyance deed. The buyer has to deposit the TDS amount to the credit of the central government, within 30 days from the end of the month in which the tax is so deducted. For payment of the TDS and furnishing other particulars, you have to fill in Form-cum-challan No 26QB. If a property has more than one buyer and/or seller, you need to fill in separate Form 26QB for each set of buyer and seller. The details of all buyers and sellers, have to be submitted in each Form 26QB.
Form-cum-challan No 26QB
It is the buyer who has to comply with the requirement of deducting TDS and paying the amount to the central government. Detailed instructions for filling up the form and payment of tax can be found at the following link: http://www.incometaxindia.gov.in/Pages/tds-sale-of-immovable-property.aspx
Generally, every person who is responsible for deducting TDS has to obtain a TAN (tax deduction account number). However, in the case of TDS on immovable property, the buyer does not have to obtain the TAN. You need to provide details like name, address, PAN, mobile number, and email id of the seller as well as buyer, in Form 26QB. You also need to provide the complete address of the property, along with the date of the agreement, the total value of consideration, date of payment, etc.
The buyer should ensure that the PAN of the seller is correct. Otherwise, the seller will not be able to get the credit for tax deducted by the buyer, as the credit shall flow on the basis of PAN card details furnished in Form 26QB.
The TDS can be paid online or deposited offline, by tendering the physical challan to an authorized bank. The bank will then update the details on the income tax department’s website. Once the TDS has been deposited, the buyer has to download the TDS certificate in Form No 16B, from the website of the Income Tax Department and furnish it to the seller within 15 days.
Lower deduction or nil deduction of TDS
Some TDS provisions provide for the payee to either approach the income tax officer for the issue of a certificate, so that the payer shall deduct tax at a lower rate or nil rate, or in some cases, the payee can just furnish a declaration for nil TDS. However, there is no such provision for TDS on immovable property. The buyer has to mandatorily deduct tax at source, where the consideration exceeds Rs 50 lakhs, in respect of each set of buyer and seller.
What is the due date for depositing the TDS to the government?
After the buyer deducts the TDS (tax deducted at source), they must deposit it with the government by the 7th of the following month. This means that the TDS deducted in the month of March must be paid to the government by April 7.
Consequences of non-payment of TDS
Under the provisions of the law, the buyer is expected to deduct the applicable TDS from the transaction value and duly submit it to the government. Buyers can use their PAN details in the documents, as having a TAN is not mandatory in their case. Buyers who fail to pay the TDS to the government within the stipulated time period can be made to pay a penalty in the form of interest or sentenced to rigorous imprisonment of up to seven years. Do note here that even though the seller may be forced to make the payment, it is the buyer who would face the penalty.
Key things to remember about TDS
- Buyers have to deduct and pay TDS to the government on property valued over Rs 50 lakhs.
- The responsibility to deduct and submit the TDS lies on the buyers and not on the seller. In case of any misappropriation in this regard, the buyer will be answerable to the authorities. Buyers have to fill Form 26QB, to credit the TDS. In case there are multiple buyers or sellers involved in the transaction, separate forms have to be filled for each party.