TDS on transfer of Immovable property u/s 194IA by CA Bikash Bogi


Concept of TDS for Real Estate Industry:

Vide Finance Act 2013; concept of TDS on Real estate transactions was introduced in India. As per Newly inserted section 194IA, Any person, who purchases any immovable property (other than agricultural land) for a consideration, shall require to deduct tax at source @1% of the amount paid to resident seller; provided the consideration is INR 50 lakh or more. 

Coverage on Section 194IA
  • Immovable property for this section means any land (other than agricultural land) or any building or part of a building. 
  • Further, this section puts burden on every buyer including non-residents who are purchasing the property from the resident sellers. 
  • Further, property transaction between the real estate developers and individual assessee’s is also comes under the purview of this section i.e. the section will also apply on stock in trade. 
  • The section does not apply to for consideration received under the compulsory acquisition of the property as mentioned in section 194LA. 
  • Further this section does not apply in case the seller is the non- resident, as the same is covered by section 195 of the Income Tax Act. 

TDS on real estate transaction (section 194LAA) was earlier proposed by Finance bill 2012, which was subsequently withdrawn for the reasons best known to the finance ministry. In comparison to earlier proposal, the scope of the newly inserted section has been diluted to a certain extent. The thrash hold exemption of INR 20 lakh for property situated in other than urban areas has not been incorporated in section 194IA; rather an exemption of INR 50 lakh for property situated in all areas has been provided. Due to this proposal, properties located in areas other than urban areas may be out of purview of this section. Further, proof of deposit of TDS which was mandatory for registration of property, as proposed in Finance bill 2012, has been ignored in section 194-IA. 

Procedural Requirements: 

Buyer of the property is required to deduct tax, at the time of credit of the consideration to the account of the seller or at the time of payment of such sum in cash, cheque, draft or any other mode. A simple, one pager, Form 26QB has been introduced for compliance of this section. Buyer of the property is not required to obtain TAN no. Buyer is required to furnish information as prescribed in Form 26QB which includes

  • -- Full Name, Address & PAN of Buyer and seller
  • -- Address of the property
  • -- Value of property, Date of agreement / booking 
  • -- Amount paid / Credited, payment in installments or lumpsum
  • -- TDS etc. 
Subsequently, Buyer can make the payment online or offline, within 7 days from the end of the month in which deduction is made. TDS certificate [Form 16B] will be issued by the buyer to the seller within 15 days from the due date of payment of taxes. The same needs to be generated from www.

Income Tax Department has issued “Frequently Asked Questions” [FAQ] on TDS of immovable property. A brief reading of the FAQ will give a brief idea about procedural requirement. 

Penal Provisions for non compliances: 

As per section 201, In case assessee fails to comply with the procedural guidelines of TDS provisions [deduction or payment], then the assessee will be treated as an assessee in default. 

As per section 201(1A), in case of failure to deduct Tax or short deduction of TDS, interest @1% will be levied for every month or part of the month, on the amount of tax, from the date on which tax was deductible to the date on which the same is deducted. 

Further, when the buyer has failed to deposit wholly or partly tax so deducted, Interest @1.5% will be levied, for every month or part of the month, on the amount of tax, from the date of deduction till the date of actual payment. 

As per section 271C of the Income Tax Act, penalty for non deduction / non-payment of TDS are equal to the amount of Tax which the assessee failed to deduct or pay [This penalty shall be imposed by the joint commissioner]. Further, Sec 221 provides for penalty to be paid as directed by the assessing officer which shall not exceed the amount of TDS. 

Why TDS provisions is Special for Revenue Authorities: 

Though as per memorandum explaining finance bill 2013, TDS concept was introduced to make parity with transaction of immovable property done by the non-residents, to have a full proof reporting mechanism for real estate transactions and also to make collection of taxes at the earliest possible time. Relevant extract is reproduced herein below: 

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 proposed to insert a new section 194-IA…..

However, collection of taxes at the earliest possible time is seems to be the main reason for introduction of this concept for real estate industry. Presently approx 40% of the Direct Tax collections in India are coming from TDS. The data given in the table below is explaing the same

Financial Year
Gross Direct Tax Collection
(Rs. in crore )
Net Direct Tax Collection
(Rs. in crore )
(Rs. in crore )
% share of TDS (Net Direct Taxes)
1,90,000/- #
38.00% ##
2013-14 ***

                ***Budgeted Estimated        ### Apx number

Looking into the magnitude of the transactions volume, newly inserted provision will definitely help the government to achieve the budgeted estimate of Direct tax collection in FY 2013-14 in the global slowdown era.

Area of Concern / Controversial Issues: 

  1. Should the buyer need to comply with TDS provisions if the agreement is entered before 1st June 2013 but the payments are made after 1st June 2013? What if when part payment has been made on or before the agreement date and agreement was made after 1st June 2013? What if the part payment is made before 1st June and balance is paid after 1st June? Whether TDS to be deducted on the entire amount or the balance amount? 
    • As there is no clarity on these issues till date, it is advisable for the buyers to deduct tax on every payment made after 1st June 2013, if total payment after 1st June 2013 is likely to be INR 50 lakh or more. A clarification is required on this issue. 
  2. In case of cancellation of transaction / booking, procedure of claiming refund has not been prescribed. 
  3. In case of payment in installments, TDS is required for every installment. It will increase the compliance burden on the buyers. Normally 80% of the property value is financed by Banks / Financial institutions. Banks / FIs are issuing the cheque / DD etc in favour of the Builder / Buyer. In case of under construction property, payments are made in installments. Now the question here is whether the banks / FIs will deduct 1% tax and paid to the government or bank will pay the full installments and the buyer will pay the tax and get it refunded from the builder. 
    • I don’t think that Banks / FIs will take the additional administrative burden. In the absence of clarity, things are getting complicated. 
  4. As per section 199 (read with Rule 37BA) of the Income Tax Act, a person can avail credit of TDS in the year in which the income is assessable. In case of Real Estate Developers, who is following project completion method and recognized the revenue only when the project gets completed, claiming of TDS refund in the year of completion will be a procedural nightmare. They have to claim the TDS refund on each year during the construction stage. 
  5. In case of sellers claiming exemption u/s 54, 54EC, 54F, have to claim refund by filing the return of income. Till the time, their refund gets invested with the revenue authorities for a return of 6% per annum, which is even lower than the treasury rates. Like foreign payments, facility of lower or NIL deduction is not provided in this section. 
  6. In case of joint ownership of property, applicability of the provision is not very clear. For example a property under joint ownership is sold for INR 80 lakh, where individual share of each of the seller is less than INR 50 lakh. In case of jointly purchase of property having a value of INR 80 lakh, where each buyer had contributed less than INR 50 lakh. In case of two or more buyers or two or more sellers, there is no clear guidance. Whether each buyer has to make compliance of the law as per their share or 1 buyer can make compliance for entire transactions? 
    • Though, a bare reading of the section gives an impression for applicability of the section if the property value exceeds INR 50 lakh and hence each buyer have to comply the provision in respect of their share in property. Still the same needs clarification for preventing litigation. 
  7. Whether deemed consideration, being stamp duty value as per section 50C / 43CA, can be replaced with actual consideration for compliance? In case of property received from relatives, where there is no consideration, can stamp duty value be taken for compliance of this section? 
    • In finance bill 2012, there was a proposal to take stamp duty value for TDS. However, the same is missing in the newly introduced section. 
  8. Whether the TDS provision will apply on Transfer of FSI / TDR as the same are immovable property? Applicability of TDS on Joint Development agreements as the same generally results into transfer of land also requires clarification. Further whether any right in a building such as tenancy right, leasehold right etc. will be subject to TDS provision or not may be a subject matter of future litigation. 
  9. PAN of Sellers is mandatory, in the absence of which TDS will be 20% by application of Section 206AA of the Income Tax Act.

The new law will definitely keep a proper track on all high value property transactions in the country and will give the taxing authorities the details in a systematic way. The provisions will also help the taxing authorities to achieve their yearly budgeted collection of Direct Taxes. There are various practical issues as discussed above, which needs to be clarified at the earliest to avoid future litigations. For property buyers, the newly inserted section puts additional compliance burden, which they have to be complied on a timely manner to prevent penal action. Concept of TDS provisions will definitely be a painful exercise for real estate buyers. Taxing authorities will be the only gainer. 

By CA Bikash Bogi
SBR & CO. Chartered Accountants
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(154 ITR 148) meaning of transfer in capital gain meanings of finance terms medical insurance premium MEDICAL OFFICER medical u/s 80D MEET MENREGA merge ledger in tally MICR CODE Microsoft Microsoft Excel military pay minimum alternative tax minimum balance minimum experiance for bank branch auditor minimum experience for bank branch auditor minimum service minimum wages mip mis matching MISTAKES IN ETDS RETURN mistakes in itr mistakes in return filling Mobile Number Portability Money MONEY MATTERS CASE Money Mistake monthly income plans monthly income scheme MOTOR INSURANCE MRTP ms excel MS OFFICE multipal challan multiple pan Mutual Fund mutual funds and tax MVAT AUDIT mvat audit form 704 Nabard Bonds name break up in pan nandan nilekeni NATIONAL ELECTRONIC FUND TRANSFER National Identification Authority NATIONAL SAVING CERTIFICATE NAV NEFT NEGATIVE LIST FOR TAX ON SERVICES Net asset value net banking new excise return form new 194 c NEW BASE RATE INTEREST NEW BASIC AND GRADE PAY new basic formula new coin new cut off limit for TDS new da rate new deduction NEW EST-1 new etds requirement NEW EXCISE DUTY ITEMS New Foreign Trade Policy NEW FORM ITR FY 2010-11 new fuv 2.110 new fvu 2.128 new income tax act new income tax calculator NEW INCOME TAX RATES new income tax return form 2010-11 itr-1 new income tax return form 2010-12 itr-1 New Infosys Chairman new itr form NEW ITR FORM AY 2011-12 new itr forms NEW ITR FORMS EXCEL new jeewan dhalan NEW PAN APPLICATION NEW PAN CARD NEW PARTNER ADDED NEW PAY BAND NEW PAY SCALE FOR UNIVERSITIES COLLEGES NEW PAYSCALE FOR PROFESSOR LIBRARIAN DPE new pension scheme to govt employee NEW RUPEE SYMBOL new rupee symbol font new sahaJ tax form new section 44AF new service tax rate 12.36 NEW SERVICES UNDER SERVICE TAX new tax form NEW TAX RATES new tds rate 2010-11 new tds rates fy 2009-10 new tds rules applicable. NEW TDS RULES FY 2010-11 New Year's Day newly weds nhai bonds nhai capital gain bond nhai tax free bonds nifty nil etds challan nil etds return nil tds on transportor no return for salary No.402/92/2006-MC (10 of 2008) non deduction certificate non deposit of TDS non performing assets NON RESIDENT INDIAN NOR note security features NOTES ON 3CD notice of meeting through email company notice pay notices etds notification 19/2008 service tax Notification 19/2009-ST notification 22/2011 notification 23/2011 notification 24 NOTIFICATION 25/2012 Notification 26/2011 notification 3-2011 notification 32/2009 dated 27.03.2009 NOTIFICATION 36/2011 NOTIFICATION 41 DT 31.05.2010 notification19.03.2012 npa norms NPS NRI nri investment indua NRI.PIO NSC ACCRUED INTEREST NSC INTEREST CALCULATOR nsc. NSDL NSE NUMBER TO TEXT numbers in to text OCI official notification official website oltas one increment ONE RANK ONE PENSION one thousand rupee note online ONLINE BALANCE CHECK EPF online bsnl bill verification online deposit of tax online earning online emi calculator online employee provident fund online epf balcnce online filing of service tax return ONLINE FOREX TRADING online life insurance ONLINE PAN online pan verification online rectification itr online refund ONLINE REFUND STATUS ONLINE REGISTRATION OF COMPANY online return rectification online service tax online services by Govt ONLINE ST-3 online tan regsitration online tds payment ONLINE VAT opc option date orop other forms other income to employer out of debt OUTPUT SERVICE TAX CREDIT OUTSTATION CHARGES own name PACKAGE SOFTWARE PAN PAN ADDRESS pan and income tax return PAN AO CODE pan application excel pan correction pan details PAN LEDGER pan login pan mandatory for hra pan mandatory in etds pan name verificatio PAN ON RENT RECIPT pan regsitration PAN STATUS NSDL PAN STATUS UTI PAN STRUCTURE PAN SURRENDER pan transfer pan verification pan vs return parcel PARNERSHIP part time course tuition fees part of the year employee form 16 part of the year employee form 24q partial reverse charge in service tax partial withdrawal partner salary PARTNERSHIP DEED PARTNERSHIP RATES PASSWORD PATENT pay bands Pay calculator pay calculator revised pay commission punjab pay fixation examples pay per post PAY SERVICE TAX ON DUE BASIS payable at par paybands PAYMENT BY ACCOUNT PAYEE CHEQUE payment by cheque income tax payment due date reminder payment exceeding 20000-35000 payment of gratuity act paypal paypal ceiling PDF UTILITY penalty for service tax penalty if cheque cleared late penalty on concealment of Income penalty on late filing non filing of etds return penalty on late filing of income tax return pension pension arrear pension calculator pension da pension fitment pension gazette notification pension notification pension on grade pay military pay pension policy pensioner benefit Permanent account number PERSONAL ACCIDENT INSURANCE personal finance software personal loan PETROL DIESAL SAVE FISCAL DEFICIT PETROL DIESEL PRICE HIKED PETROL EXPENSES VALUATION petrol prices reduced PFC PFC INFRA BONDS PFC TAX FREE BONDS pfrda PHONE BANKING phone password pin pivot tables Place of Provision of Services Rules PLAYER AUCTION pmjdy PMS pnr Point of sale POINT OF TAXATION political party deduction Poppy Seeds portfolio POST GRADUATE TEACHER post office fixed deposit post office recurring deposit post office saving deposit account post office schemes postal ballots postal order POWER FINANCE BONDS POWER OF ATTORNEY PPF PPF CALCULATOR ppf huf account ppf interest rate ppf limit ppp ppt ppt fbt ppt on budget 2011 PPT UP VAT pranav mukharjee pre construction interest PRE EXISTING E-1 TRANSACTIONS pre filled challan income tax prepayment prepayment penalty press release press release 14.08.2008 presumptive tax scheme preventive health check up PRIMARY TEACHER PRINCIPAL printing manual private limited company PROF. TAX profession tax PROFIT RATE UNDER 44AF provident fund dues PROVISION OF FBT ON ESOP provisioning of npa PSPCL PSTCL PSU PAY HIKE public limited company public provided fund PUBLIC SHARE HOLDING IN LISTED COMPANY punjab govt arrear calculator PUNJAB VAT punjab vat notification purchase of residential house pure agent qfi quarterly statement status rail freight railway budget railway budget 2012 railway ticket RAILWAYS BUDGET 09-10 RAILWAYS BUDGET 11-12 rajiv gandhi equity saving scheme RAJKUMAR S ADUKIA ramalingam Rate of return RATES AFTER BUDGET rates of service tax rbi RBI ACT RBI Circular on e-payment of taxes RBI FALSE CALLS RBI FALSE MAIL RBI INSTRUCTIONS GAR-7 RBI MONETARY POLICY rbi monetary policy 2012 RBI NOTIFICATIONS rbi report on customer services ready reckoner income tax REAL ESTATE Real Estate Investments REAL TIME GROSS SETTELEMENT reason for mis matching REBATE ON INPUT GOODS AND SERVICE REC Bonds rec infra bonds rec tax free bonds recent rectification of return online reducction in crr refinance calculator refund refund due to diff in valuation of perquisites refund of service tax on cancellation of tickets refund pilot scheme refund without matching registration charges tax saving RELIANCE COMMERCIAL FINANCE RELIANCE GOLD LOAN RELIANCE LIFE INSURANCE RELIANCE MUTUAL FUNDS relief calculator 2010-11 relief calculator fy 2011-12 REMUNERATION TO PARTNERS RENT rent a cab RENT RECIPT RENTING OF IMMOVABLE PROPERTY AFTER 01.07.2012 RENTING OF IMMOVABLE PROPERTY AFTER BUDGET 2010 repayment of housing loan REPLY TO CPC FOR NOTICE REPO RATE Reserve Bank of India reset password RESIDENTIAL STATUS RESOLUTIONS RESTAURANT restricted leave retail investor retirement planning retirement steps Retiring early retrospective amendment RETURN EXEMPTION SALARIED CLASS UP TO 5 LAKH RETURN FILING DATES return filing in odd conditions return for contractors tax deducted return not required with pan return of income RETURN PROCESSING RETURN UP TO 5 LAKH RETURN UPTO 5 LAKH REVENUE STAMP ON CHEQUE PAYMENT REVENUE STAP ON RECEIPT reverse charge on works contract reverse charge of service tax reverse mortgage reverse of 80C benefits REVERSE REPO RATE REVISE RETURN revised option date revised pay calculator revised return REVISED SCALE rgess rich right to reject RPF rpu rpu 1.7 rpu 2.2 rpu 2.5 rpu 2.7 RPU 3.00 rpu 3.1 RPU ITR 2011-12 rpu2.8 RTGS rti rti fees rule 12 of income tax return. RULE 2A rule 4A rule 6(4A) rule 6(b) rule 6DD rule3 rule40BA RUPEE SYMBOL s safety tips for atm SAHRE SHORT TERM CATIAL GAIN salary calculator SALARY ETDS Q4 salary in new direct tax code salary structure salary tds sale in transit sale of agriculture land SALE OF DEBENTURE sale of residential house SALES MEANING 44AB Sales tax samsung case saral 2 saral II SARAL II IN EXCEL Satyam Satyamevjayate SAVE TAX SAVING ACCOUNT saving bank interest saving bank interest rate saving linit u/s 80c saving more than income SAVING PASSBOOK sbi 9.75 % bonds SBI bonds sbi home loan SBI interest rates sbi net banking sbi rates SBIOAHC SCAM schedule VI companies act SCOPE OF ETDS STATEMENT SCOPE OF SERVICE ENLARGED SCOPE OF SERVICES WIDENED scrutiny fy 11-12 scrutiny selection search income tax seat wise/constituencies wise and party and party candidate wise latest position sebi SEC 194 C SEC 194 I sec 194 J secion 80c SECRETARIAL STANDARD secrutiny of itr section 10(10AA) SECTION 10(13A) section 10(38) SECTION 10(5) section 139(1) section 139(4) section 139(5) Section 14 SECTION 145 section 154 return online income tax section 16(iii) section 189 section 192 section 194-J SECTION 194A section 195 SECTION 195A section 197 SECTION 2(37A) section 201(1A) section 203(3) section 206(C)(5) section 205 SECTION 24(b) section 269SS 269T section 271(1)(c) section 282B Section 36(1)(vii) section 40(a)(ia) SECTION 40A(3) section 43(5) SECTION 44AB 2007-08 LAST DATE section 44AB limit SECTION 44AE SECTION 44AF Section 50 Section 50C section 54 section 54f SECTION 60 section 616(c) SECTION 64 section 66B service tax section 68 Section 73 section 80 M section 80c section 80CCF section 80D section 80E secured code master card Securities and Exchange Board of India security features sehaj self assessment tax Seminar on service tax changes Senior citizen Senior Citizens Savings Scheme 2004 service ta SERVICE TAX service tax code Service Tax (Removal of Difficulty) Order SERVICE TAX 2010 service tax ac class service tax accounting code service tax adjustment service tax audit SERVICE TAX CHANGES FROM 01.07.2012 service tax changes in budget Service TAX CLARIFICATION SERVICE TAX COMPLIANCE SERVICE TAX DEPOSIT DUE DATE SERVICE TAX DUE DATE Service Tax excel pdf word SERVICE TAX EXEMPTION LIMIT Service Tax Form excel pdf word SERVICE TAX FORMS service tax internet banking service tax notifications SERVICE TAX ON LAW FIRM ADVOCATES service tax on transportation of passengers by air service tax on advocates SERVICE TAX ON BROKERAGE service tax on ca service tax on coaching service tax on construction services service tax on director services SERVICE TAX ON DISTRIBUTION OF ELECTRICITY SERVICE TAX ON EDUCATIONAL SERVICES service tax on gta service tax on health services service tax on hotel clarification SERVICE TAX ON HOTEL ROOM RENT service tax on invoice basis service tax on lawyers SERVICE TAX ON LEASING SERVICE TAX ON PACKAGE SOFTWARE service tax on railway freight SERVICE TAX ON RENT service tax on road service tax on transmission distribution of electricity service tax on work contract tax service tax on wrong head service tax onr eimbursements SERVICE TAX PAYMENT SERVICE TAX PROCEDURES SERVICE TAX RATE CHART service tax rate effective date service tax rate reduced service tax rates increased SERVICE TAX REGISTRATION SERVICE TAX REGISTRATION LIMIT SERVICE TAX RETURN SERVICE TAX RULES service tax section 65(105)m SERVICE TAX VOLUNTARY COMPLIANCE ENCOURAGEMENT SCHEME SERVICES CHARGES OF BANKS SERVICES TAXABLE servicetax set off in same head or other head. sevice tax on associate enterprises sez share share market SHARE SHORT TERM Capital GAIN share transfer share your thoughts SHOME COMMITTEE REPORT Short term capital gain depreciable Assets SHORT TDS SHORT TERM ACCOMMODATION short term capital gain 15 % SIM CARD SIMPLE TAX CALCULATOR single premium policy sip SIXTH COMMISSION sixth pay commission skimming slider based EMI calculator SLR small saving schemes small service provider smart buying tips software import son eduction loan father speak asia speak asia fraud speak asia online speed clearing spending habits SPF splitting of wages Spreadsheet SRVICE TAX CLARIFICATION ss patta ST-1 EXCEL ST-2 ST-3 stamp duty standing committee status of return STATUS OF TAX DEDUCTED statutory audit stay on demand notices STCG 10% 15% STGC Stock STOCK EXCHANGE STOCK MARKET FROM 9.00 AM. STOCK MARKETS stp STRUCTURE AND VALIDATION OF PERMANENT ACCOUNT NUMBER stt stt challan sub contractor SUBPRIME CRISES success secrets sugam Sukanya Samriddhi Account SUPREME COURT RENT sur name in pan surcharge cess on tds Surrender-Cancellation of Service Tax Registration survey income tax swiss bank Systematic Investment Plan tally 7.2 tally 9 tally easy tally erp9 tally recycle bin tally shortcut tally simple tally tips TAN TAN STRUCTURE Tariff Value Tax saving tax accounting standards TAX AMNESTY SCHEME tax benefit from budget TAX CALCULATION TAX CALCULATION 2008-09 TAX CALCULATION FORMULA ADDIN EXCEL TAX CALCULATOR tax calculator 10-11 TAX CALCULATOR 2008-09 tax calculator 2010-11