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Legal Room for Real Estate

Legal Room for Real Estate

Taxation For Real Estate

Income Tax Rules

An overview of Income Tax Rules pertaining to properties is as under:

(FORM 37-I): When buying a property that costs over Rs. 25,00,000, the Income Tax Act requires you to inform the Income Tax department, along with all the details of the flat you are buying. There is a prescribed form for this. The Income Tax Department has the right to purchase the flat at the same price as you have agreed to buy the flat instead of you and auction the flat in the open market. The idea behind this section of the Income Tax Act is that if the Income Authorities feel that the property has been sold below the market value then the Income Tax Department will acquire the property and sell it at the fair market value. The objective of this chapter is to try and cut out the black money transactions from property transactions. [Rule-48(K)].

SECTION 24 (2): Interest Deductions - The budget presented by the Finance Minister for the year 2001-2002, has increased the ceiling on the amount of deductions from Rs. 1,00,000/- up to Rs.1,50,000/- from an individual"s income if it is self-occupied for the interest paid for a home loan.

SECTION 54 F: The income tax act gives a person who does not own a residential house a concession to purchase one when they sell a capital asset. If you sell a capital asset, normally, you are required to pay tax on the gain in the value of the asset after indexation of the cost. If however you do not own a residential house, you can reinvest the net consideration you received from the sale of the capital asset in a house property and not pay any income tax on the gain from the sale of the capital asset. There is however a time frame within which to reinvest the funds from the gain of the sale of the capital asset.

SECTION 54: Reinvestment of House Property - An individual or HUF reinvesting the net proceeds from the sale of a house in another residential house is exempted from Capital Gains Tax u/s 54, provided the new house is purchased within 2 years after or one year prior to the date of transaction.

SECTION 139 (1) : All persons whose income is below taxable limits in occupation of immovable property exceeding 800 sq.ft. Residential Property or 125 sq.ft. Commercial Property, are required to file Form 2(C ) with the income tax (for Pune city).

SECTION 88: Repayment of the principal of a home loan up to Rs. 10,000/- is eligible for deduction under Section 88 whereby 20% (i.e. Rs.2,000) can be deducted from the total amount of tax payable.

Checklist for Buying

Before You Buy

1. The Title Report

Colloquially known as the ‘property card’ or in some places ‘saat-bara’, this is an investigation into the title of the land over a period of 30 years. It ensures the marketability of the land in the hands of the original owner. Ask for the detailed report, not merely an abbreviated certificate. This should be prepared for the seller by his lawyer & should be checked by your lawyer. If the title is not clear you can be evicted from the property at a later date.

2. Property under construction

If you are buying a new house, ask for an Allotment Letter or Development Agreement detailing the agreed price, payment & construction schedule, house plans, delivery date & builder’s liability in case of late completion or problems after possession. Make sure that the developer has clear title to the land, & that the relevant local authorities have approved the building plans. Once construction is over, ask for the completion & occupation certificates, which indicate that the building has adhered to municipal requirements. Some other costs you will incur: society formation charge, transfer charge, deposit for electricity meter, charge for registration of agreement.

3. Constructed property

Make sure that the seller has the title & possession of the property as well as the right to transfer the property. Check that the relevant approvals, if any, have been obtained from the land development/planning authority & the Income tax department. Ensure that there are no tenants & get a declaration that the property was purchased from the seller’s funds & is not mortgaged. Place a notice in the newspapers about the proposed purchase. Get a No Objection Certificate from the builder or society. Check that dues such as property tax, society, water & electricity bills etc. have been paid in full. Decide who will pay society transfer charges. Take possession of all relevant documents & also the original allotment letter, completion certificate, occupation certificate and all other documents given by the original builder.

37-I Provision And Other Procedures

Formalities in Purchase of Property

Valuation for Real Estate

Verification of the Title of the vendor

This is the most important aspect of a purchase transaction of an immovable property and may be competently handled by a reputed lawyer/solicitor/chartered accountant etc. The verification is necessary from following two angles:

i) Validity of Title: The vendor must have a clear, valid and marketable title over the immovable property which is the subject matter of transaction. This would require a close scrutiny of documents of title produced by the vendor. The document must be a registered document.

ii) Obtaining of Non-encumbrances certificate.

3. EXECUTIVE OF "AGREEMENT TO SELL": An "Agreement to Sell" may be executed once the contract for purchase of immovable property has been finalised. Besides that, value of the property, the "Agreement to Sell" must provide about the payment of transfer fees, stamp duty and registration fee which differs from state to state and is quite substantial. This may either be payable by vendor or the buyer or may be shared equally by the two as per the agreement. The final sale would however, be subject to buyer obtaining permission from Reserve Bank, where necessary, and seller obtaining permission of competent authority under Urban Land (Ceiling & Regulation) Act, 1976 where necessary. The "Agreement to Sell" does not require compulsory registration even if it contains recital of the payment of a part or whole of the purchase money.

Verification of the Title of the vendor

ii) Obtaining of Non-encumbrances certificate.

3. EXECUTIVE OF "AGREEMENT TO SELL": An "Agreement to Sell" may be executed once the contract for purchase of immovable property has been finalised. Besides that, value of the property, the "Agreement to Sell" must provide about the payment of transfer fees, stamp duty and registration fee which differs from state to state and is quite substantial. This may either be payable by vendor or the buyer or may be shared equally by the two as per the agreement. The final sale would however, be subject to buyer obtaining permission from Reserve Bank, where necessary, and seller obtaining permission of competent authority under Urban Land (Ceiling & Regulation) Act, 1976 where necessary. The "Agreement to Sell" does not require compulsory registration even if it contains recital of the payment of a part or whole of the purchase money.

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