NRI SECTION

NRI Property

Are you a NRI (Non Resident Indian), looking to invest in Real Estate in India? Confused where to invest? Which city to choose? Which developers are good & which ones to avoid? What are the best areas to invest in? Which are the most promising locations in 3 - 5 years? 

Not sure about the laws & regulations for NRI investment in property in India?

What are the income tax rules for NRI's buying property in India?

These are some of the common queries most NRI's have while buying property in India.Find answers to all your questions here! 

The one stop shop for NRI real estate investment in India. 

With the ever increasing Indian migrant population heading to the western countries for more rewarding professional opportunities , the repatriation of wealth back to India has seen a steady rise over the past years. Added to that is the fast paced growth of the indian economy, thus providing exciting investment opportunities. What better than the Indian Real Estate Market? Being amongst the top performing real estate markets in the world & the constant gain in dollar exchange rate, NRI's are rushing their tax free money to the Indian Property Market.

 

Definition of NRI?

  • Who is an NRI?

    A non-resident Indian(NRI) is a citizen of India who holds an Indian passport and has temporarily emigrated to another country for six months or more for employment, residence, education or any other purpose

  • Who is a PIO?

    • Abbreviation for “Person of Indian Origin”:
      • A. For the purpose of availing of banking facilities ( opening and operating bank accounts and investments in shares / securities in India ):
    • A foreign citizen (other than a citizen of Pakistan or Bangladesh) is deemed to be of Indian Origin, if,
      • i. he, at any time, held an Indian passport,
      • ii. (ii) he or either of his parents or any of his grand parents was a citizen of India bu virtue of the Constitution of India or Citizenship Act, 1956 ( 57 of 1955)
    • A spouse (not being a citizen of Pakistan or Bangladesh) of an Indian Citizen or of a person of Indian Origin is also considered a person of Indian origin for the above purpose.
    • B. for Investment in immovable properties:
    • A foreign citizen (other than a citizen of Pakistan, Bangladesh, Afghanistan, Bhutan, Sri Lanka or Nepal), is deemed to be of Indian origin if,
      • (i) he held an Indian passport at any time, OR
      • (ii) he or his father or paternal grand-father was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 ( 57 of 1955)

  • Who is an OCI?

    • An Overseas Citizen of India is:
    • (a) Any person of full age and capacity:
      • 1. (i) Who is a citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the constitution, or
      • 2. (ii) Who is a citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the constitution, or
      • 3. (iii) Who is a citizen of another country, but belongs to a territory that became part of India after the 15th Day of August, 1947.
      • 4. (iv) Who is a child of such a citizen, or
    • (b) A person, who is minor child of a person mentioned in clause (a)
    • Provided that no person, who is or had been a citizen of Pakistan, Bangladesh shall be eligible for registration as an Overseas Citizen of India.

NRI Property Guidelines

Non-Resident under Income Tax Act, 1961

  • Liability to pay tax in India does not depend on the nationality or domicile of the Tax payer but on his residential status. Residential Status is determined on the basis of physical presence i.e. the number of days of stay in India in any year.
  • Resident:
  • A. An individual is resident if any of the following conditions are satisfied:
    • he stayed in India for 182 days or more during the previous year, or
    • he stayed in India for 365 days or more during the four preceding years and stays in India for atleast 60 days 9 182 days in case of an Indian citizen or a person of Indian Origin coming on a visit to India or 182 days in case of an Indian citizen going abroad for an employment ) during the previous year.
    • Stay in India for the above criteria may be continuous or intermittent.
  • B. Hindu Undivided Family (HUF) or firm or other Association of persons is resident of India except in cases where the control and management of its affairs is wholly situated outside India in the previous year
  • C. A company is resident in India if:
    • It is an Indian company, or
    • during the previous year, the control and management is situated wholly in India.
  • An NRI has to pay stamp duty as well as registration fees at the time of purchase of a property. He / she is entitled to avail all / any benefits at par with Indian residents on the interest paid for the home loan.
  • Proceeds from sale of property come under the head of income from property, therefore, standard deduction is applicable as per the standard slab. In this case, the NRI will have to pay the applicable tax if he is residing in the country where worldwide income is taxable unless the country has Double Tax Avoidance Agreement with India.
  • The special advantage for an NRI is the amount which is paid for the interest of home loan is deductible from NRI's taxable income without any upper limit. The NRI is legally responsible for the payment of capital gains tax as prescribed under the Income Tax Act, in case he sells off the property.

 

Taxation

In case of inherited property, the date and cost of purchase for purposes of computing the period of holding as well as cost of purchase is taken to be the date and cost to the original owner. To be more precise, the amount of long term capital gains together with the cost to the previous owner (i.e. the person from whom the property is inherited) would be considered as the cost of purchase. NRIs are subject to a Tax Deducted at Source (TDS) of 20% on the long term capital gains. But there are certain instances when NRI can get a waiver of TDS. One such case would be if the NRI is planning to re-invest the capital gains of the property in another property or in tax exempt bonds. In such cases, the NRI will be exempt from tax in India, and no TDS will be deducted either.

The Indian real estate market is attractive for non-resident Indians (NRIs) as it is easier to earn in a stronger currency and pay in Indian rupees. Things have further become easier as they can avail home loans from banks in India to purchase property here at attractive rates.

Anyone who comes under the definition of the Foreign Exchange Management Act, 1999 (FEMA) can avail a home loan in India. FEMA defines an NRI as someone who resides outside India for “employment, carrying on business or vocation in circumstances as would indicate an intention to stay outside India for an indefinite period”. It also says that an individual will also be considered NRI if his stay in India is less than 182 days during the preceding financial year.

However, as an NRI you cannot buy more than two residential properties in India. This is regardless of if you own a property in the country that you are working in and residing in. There are no such restrictions on commercial property though. However, NRIs are not allowed to purchase agricultural land here.”
This means that an NRI home loan can be availed to purchase, construct, renovate a new or existing house. You can also take home loans to purchase a plot of land for residential use.

The procedure to avail a home loan remains more or less the same as applicable to any resident Indian. However, there are some criteria to be kept in mind.

Eligibility
Income and educational qualifications play an important role in deciding the maximum amount of loan available to an NRI. You need at least a graduate degree to apply for a home loan.
For instance, to get an NRI home loan from ICICI Bank Ltd, you need to have at least a diploma or a graduate degree with minimum three years of employment abroad or professional qualification with one year of employment abroad. And if you work in West Asia, you need to have a minimum salary of 36,000 dirhams a year (for loans with a tenor of upto five years) and if you are in the US then you need to earn at least $30,000 a year.

The income taken into account for calculating the home loan eligibility is the repatriable income (income abroad) plus any income in India.

Documents required
Documents such as copies of passport, valid visa and work permit, contract of employment, work experience certificate, salary certificate and statements of non-resident external (NRE) or non-resident ordinary (NRO) accounts are usually required. The salary certificate should be attested from the embassy if the salary is not credited to a bank. You also need to give a local address proof and a power of attorney (PoA) to someone in India. This could be your chartered accountant or a relative. This is done as should there be any issue with repayment of the loan, the bank can reach out to the person with PoA. Details of permanent address in India are also required. This is a mandatory requirement.

Submission of documents
You needn’t have to make a trip to India to apply for a loan. Many banks have branches in places such as Dubai, Singapore, London and other cities. Some banks even offer this facility online.
But do remember to execute the PoA authority to someone in India.

Amount of loan
The amount of loan that one can avail will differ from bank to bank. For instance, ICICI Bank Ltd provides one with a home loan of between Rs.5 lakh and Rs.1 crore and Citibank will give you a home loan of upto Rs.5 crore.

General permission is granted to NRIs and PIOs to repatriate the sale proceeds of property inherited from an Indian resident, subject to certain conditions. If those conditions are fulfilled, the NRI need not seek the RBI's permission. However, if the NRI has inherited the property from a person residing outside India, he or she must seek specific permission from the RBI.

The conditions for repatriation of such funds are not really complicated - the amount per financial year (April-March) should not exceed USD 1 million, and should be done through authorized dealers. NRIs must provide documentary evidence with regard to their inheritance of the property, and a certificate from a chartered accountant in the specified format.

What NRIs must pay attention to is the income tax implications in their country of residence. Many countries tax their residents on their income regardless of where it originates from, while others provide partial or total exemption on capital gains arising on sale of a residential house if certain conditions are met. The most important point to ponder is the income tax liability in the country of residence on the amount of gain, and whether claiming exemption under Sections 54/54F/54EC is really worth it. The NRI may, in fact, be better off claiming only partial or no tax exemption on the capital gains in India.

What is the capital gains tax applicable on sale of properties in India?
For all income tax purposes, the definition of NRI shall be the one as prescribed in the Income Tax Act. For all repatriation purposes, the definition of NRI would be one under FEMA.

Long term capital gains:
As in the case of resident Indians, NRIs who sell property after three years from the date of purchase will incur long term capital gains tax of 20%. The gains are calculated as the difference between sale value and indexed cost of purchase. Indexed cost of purchase is nothing but the cost of purchase adjusted to inflation.

Short term capital gains:
If the NRI sells the property before three years have elapsed since the date of purchase, short term capital gains tax at his or her tax slab is incurred. Short term capital gain is calculated as the difference between the sale value and the cost of purchase (without the indexation benefit). The NRI will be subject to a TDS of 30% irrespective of his or her tax slab.

NRI selling their properties can apply to the income tax authorities for a tax exemption certificate under section 195 of the Income Tax Act. A NRI has up to two years from the date of sale to invest in another property, or up to six months to invest in bonds.

Section 54 - This section stipulates that if NRI sells a residential property after three years from the date of purchase and reinvest the proceeds into another residential property within two years from the date of sale, the profit generated is exempt to the extent of the cost of new property. To illustrate - if the capital gains is Rs 10 lakh and the new property costs Rs 8 lakh, the remaining Rs 2 lakh are treated as long term capital gains. The sold residential property may be either have been self-occupied property or given on rent. The new property must be held for at least three years.

NRIs cannot invest the proceeds on the sale of a property in India in a foreign property and still avail the benefit of Section 54. However, some recent hearings with the appellate authorities have held that exemption can be claimed under Section 54 even if the new house is purchased outside India. However, this is not explicitly specified clearly under the law, and it is advisable for an NRI to consult a tax expert before making any investment decisions outside India to avail of tax benefits under Section 54.

Section 54EC - This section of the Income Tax Act states that if an NRI sells a long term asset (in this case, a residential property) after three years from the date of purchase and invests the amount of capital gains in bonds of NHAI and REC within six months of the date of sale, he or she will be exempt from capital gains tax. The bonds will remain locked in for a period of three years.

Non Resident Indians (NRIs) are allowed to invest in the following areas in the Housing and Real Estate Sector under the Automatic Route of FDI:

  • Development of services plots and construction of built up residential premises.
  • Investment in real estate covering construction of residential and commercial premises including business centers and offices.
  • Development of townships.
  • City and regional level urban infrastructure facilities, including both roads and bridges.
  • Investment in manufacture of building materials.
  • Investment in participatory ventures in (i) to (v) above.
  • Investment in housing finance institutions.

 

Can an NRI sell property in India?
Yes, an NRI can sell residential or commercial property in India. He can sell to:

  • A person resident in India (the definition of resident in this case will be as per FEMA)
  • An NRI
  • A Person of Indian Origin (PIO)

However, an NRI can sell agricultural or plantation land or a farm house only to a person who is resident in India and a citizen.
In which account must the sales proceeds be credited?
There are two scenarios that may arise here:

  • Sale of property purchased as a resident Indian

       The sale proceeds in such cases would have to be credited in the Non Resident Ordinary (NRO) Account.

  • Sale of property purchased as a non-resident Indian

If the property was purchased out of rupee resources, that is, income earned in rupees, or the home loan is repaid by a relative who is a resident of India, the amount must be credited in the NRO account.
In all other cases, there are limits to repatriation that are discussed in the next question.
What are the rules for repatriation of sale proceeds of property sold in India?
If the property was purchased while you were a resident of India, then the sale proceeds must be credited to the NRO account. You can repatriate up to USD 1 million per calendar year from your NRO Account (including all other capital transactions), provided you have paid all taxes due.
Now, if the property was purchased while you were a non-resident, you can repatriate the proceeds outside India provided that you fulfill certain conditions:

You should have purchased the property in accordance with the foreign exchange laws prevalent at the time you bought the property

The amount to be repatriated will follow these limits:
a. If you purchased by remitting foreign exchange to India through normal banking channels, then the repatriation cannot exceed the amount that you remitted.
b. If you purchased using funds in the Foreign Currency Non Resident (FCNR) Account, then the repatriation cannot exceed the amount paid through this account.
c. If you purchased using funds lying in your Non Resident External (NRE) Account, then the repatriation cannot exceed the foreign exchange equivalent, as on date of purchase, of the amount paid through NRE Account.
d. If you purchased a property by taking a home loan, then repatriation cannot exceed the amount of loan repayment that has been done using foreign inward remittances or debit to NRE/FCNR Accounts.
e. If you purchased the property using balance in your NRO account, then the sale proceeds must be credited to your NRO account and you can repatriate to the extent of USD 1 million (including all other capital account transactions).
In all these cases, the balance sale proceeds can be credited to the NRO account and you will be able to repatriate up to USD 1 million per calendar year (including all other capital account transactions).
In all cases, repatriation is restricted to sale of two residential properties.

How can NRIs invest in real estate?
According to the regulations of FEMA and RBI, an NRI is permitted to make specific investment in real estate. A NRI is allowed to do the following investments in property:
Any immovable property can be purchased by an NRI in India other than any agricultural land, farm house and plantation property.
 He can get any immovable property as mentioned above by gift from Indian resident, Indian citizen residing outside India or person of Indian origin.
Obtain any property by inheritance.
He can transfer immovable property to any resident of India by sale.
He can transfer any agricultural land, farm house or plantation land to any resident of India by gift.
He can also transfer his residential or commercial property by means of gift to any person either residing in India or abroad or person of Indian origin.


Tax on income from immovable property selling/renting

  • Q1. What is the Tax treatment for income generated from property selling or renting for NRI/ PIO/OCI?

    The mere acquisition of property does not attract income tax. However, any income accruing from the ownership of it, in the form of rent (if it is let out)/annual value of the house (if is not let out and it is not the only residential property owned by that person in India) and/or capital gains (short term or long term) arising on the sale of this house or part thereof is taxable in the hands of the owner.

  • Q2. Do NRI/PIO/OCI have to file return in India for their property rental income and Capital Gains Tax?

    The Government of India has granted general permission for NRI/PIO/OCI to buy property in India and they do not have to pay any taxes even while acquiring property in India. However, taxes have to be paid if they are selling this property. Rental income earned is taxable in India, and they will have to obtain a PAN and file return of income if they have rented this property. On sale of the property, the profit on sale shall be subject to capital gains. If they have held the property for less than or equal to 3 years after taking actual possession then the gains would be short term capital gains, which are to be included in their total income as tax as per the normal slab rates shall be payable and if the property has been held for more then 3 years then the resultant gain would be long term capital gains subject to 20% tax plus applicable cess.

  • Q3. How does the Double Taxation Avoidance Agreement work in the context of tax on income and Capital Gains tax paid in India by NRI?

    India has DTAA’s with several countries which give a favorable tax treatment in respect of certain heads of income. However, in case of sale of immovable property, the DTAA with most countries provide that the capital gains will be taxed in the country where the immovable property is situated. Hence, the non-resident will be subject to tax in India on the capital gains which arise on the sale of immovable property in India. Letting of immovable property in India would be taxed in India under most tax treaties in view of the fact that the property is situated in India.

Tax on income from immovable property selling/renting

  • Q1. What is the Tax treatment for income generated from property selling or renting for NRI/ PIO/OCI?

    The mere acquisition of property does not attract income tax. However, any income accruing from the ownership of it, in the form of rent (if it is let out)/annual value of the house (if is not let out and it is not the only residential property owned by that person in India) and/or capital gains (short term or long term) arising on the sale of this house or part thereof is taxable in the hands of the owner.

  • Q3. How does the Double Taxation Avoidance Agreement work in the context of tax on income and Capital Gains tax paid in India by NRI?

    The Government of India has granted general permission for NRI/PIO/OCI to buy property in India and they do not have to pay any taxes even while acquiring property in India. However, taxes have to be paid if they are selling this property. Rental income earned is taxable in India, and they will have to obtain a PAN and file return of income if they have rented this property. On sale of the property, the profit on sale shall be subject to capital gains. If they have held the property for less than or equal to 3 years after taking actual possession then the gains would be short term capital gains, which are to be included in their total income as tax as per the normal slab rates shall be payable and if the property has been held for more then 3 years then the resultant gain would be long term capital gains subject to 20% tax plus applicable cess.

  • Q3. How does the Double Taxation Avoidance Agreement work in the context of tax on income and Capital Gains tax paid in India by NRI?

    India has DTAA’s with several countries which give a favorable tax treatment in respect of certain heads of income. However, in case of sale of immovable property, the DTAA with most countries provide that the capital gains will be taxed in the country where the immovable property is situated. Hence, the non-resident will be subject to tax in India on the capital gains which arise on the sale of immovable property in India. Letting of immovable property in India would be taxed in India under most tax treaties in view of the fact that the property is situated in India.

Capital Gains Tax on NRI/PIO/OCI

  • Q1. Does Capital Gains Tax (CGT) apply to NRI/PIO/OCI?

    Yes. Long-term and short-term capital gains are taxable in the hands of non-residents.

  • Q2. How is Rate of CGT computed?

    Type of asset: Assets like house property, land and building, jewellery, development rights etc. Rate of tax deduction at source (TDS) for Long term is 20% & for Short term 30%.
    Exemption available (only for long term capital gains)

    The long term capital gains arising on sale of a residential house can be invested in buying/ constructing another residential house, within the prescribed time. The exemption is restricted to the amount of capital gains or amount invested in new residential house, whichever is lower.

    If the amount of capital gains is invested in bonds of National Highways Authority of India (NHAI) or Rural Electrification Corporation, then the entire capital gains is exempted, else the proportionate gain is exempted. As per the financial budget 2007-08, a cap of Rs. 50 lakhs has been imposed on investment that can be made in capital tax saving bonds.

  • Q3. How does Double Taxation Avoidance Agreement work in the context of CGT paid in India on the foreign tax treatment?

    In case the non-resident pays any tax on capital gains arising in India, he would normally be able to obtain a tax credit in respect of the taxes paid in India in the home country, because the income in India would also be included in the country of tax residence. The amount of thetax credit as also the basis of computing the tax credit that can be claimed are specified in the respective country’s DTAA and is also dependent on the laws of the home country where the tax payer is a tax resident.

Repatriation of funds

  • Q1. What are the rules governing the repatriation of the proceeds of sale of immovable properties by NRI/PIO as prescribed by the Reserve Bank of India?

    • (a) If the property was acquired out of foreign exchange sources i.e. remitted through normal banking channels/by debit to NRE/FCNR(B) account, the amount to be repatriated should not exceed the amount paid for the property:
      • In foreign exchange received through normal banking channel or
      • By debit to NRE account (foreign currency equivalent, as on the date of payment) or debit to FCNR(B) account.
    • (b) If the property was acquired out of Rupee sources, NRI/PIO may remit an amount up to USD one million, per financial year, out of the balances held in the NRO account (inclusive of sale proceeds of assets acquired by way of inheritance or settlement), for all the bonafide purposes to the satisfaction of the Authorized Dealer bank and subject to tax compliance. The NRI/PIO may use this facility to remit capital gains, where the acquisition of the subject property was made by funds sourced by remittance through normal banking channels/by debit to NRE/FCNR(B) account.

  • Q1. Are NRI/PIO/OCI eligible for Housing loans to buy property from any Indian Bank?

    The rental income, being a current account transaction, is repatriable, subject to the appropriate deduction of tax and the certification thereof by a Chartered Accountant in practice. Repatriation of sale proceeds is subject to certain conditions. The amount of repatriation cannot exceed the amount paid for acquisition of the immovable property in foreign exchange.

Income Tax

  • Q1. Who should file tax returns?

    • If you are an NRI/OCI/PIO, you would have to file your income tax returns if you fulfill either of these conditions:
      • 1. (a) Your taxable income in India during the year was above the basic exemption limit of ` 1.6 lakh OR
      • 2. (b) You have earned short-term or long-term capital gains from sale of any investments or assets, even if the gains are less than the basic exemption limit.
    • Note: The enhanced exemption limit for senior citizens and women is applicable only to residents and not to non-residents.

  • Q2. Are there any exceptions?

    • Yes, there are two exceptions:
      • (a) If your taxable income consisted only of investment income (interest) and/or capital gains income and if tax has been deducted at source from such income, you do not have to file your tax returns.
      • (b) If you earned long term capital gains from the sale of equity shares or equity mutual funds, you do not have to pay any tax and therefore you do not have to include that in your tax return.
    • Tip: You may also file a tax return if you have to claim a refund. This may happen where the tax deducted at source is more than the actual tax liability. Suppose your taxable income for the year was below ` 1.6 lakh but the bank deducted tax at source on your interest amount, you can claim a refund by filing your tax return.
    • Another instance is when you have a capital loss that can be set-off against capital gains. Tax may have been deducted at source on the capital gains, but you can set-off (or carry forward) capital loss against the gain and lower your actual tax liability. In such cases, you would need to file a tax return.

  • Q3. What’s the best way to file tax returns?

    Traditionally, you could file your return either by giving a power of attorney to someone in India or by sending your form and documents to a tax expert in India who would then file returns on your behalf.But nowadays, the easiest option for NRIs to file their Indian tax returns is by using the online platform. There are several options to file online.

NRI Property investment options

  • Non Resident Indians (NRIs) are allowed to invest in the following areas in the Housing and Real Estate Sector under the Automatic Route of FDI:
    • Development of services plots and construction of built up residential premises.
    • Investment in real estate covering construction of residential and commercial premises including business centers and offices.
    • Development of townships.
    • City and regional level urban infrastructure facilities, including both roads and bridges.
    • Investment in manufacture of building materials.
    • Investment in participatory ventures in (i) to (v) above.
    • Investment in housing finance institutions.