To find out whether you are an NRI as per Indian Law, you must first understand who is considered as a resident as per FEMA Act, 1999 and Income Tax Act, 1961. As per Foreign Exchange Management Act (FEMA),1999, a person is considered to be a resident if he stays for equal to or more than 183 days in India during the preceding financial year. While OCIs are those who have given up their full Indian citizenship, NRIs are still citizens of India.
OCIs (Overseas Citizen of India) are non-Indian citizens who have a lifetime visa to live and work in India with fewer restrictions. It is the closest thing to dual citizenship that India offers.
The Indian real estate market has been a profitable option for NRIs for a very long time now. With the recent demonetisation move, NRIs’ interest in the Indian luxury property market is on the rise. Being an NRI, you should think about investing in India because:
- Government considers investment by NRI/PIO/OCI/ at par with that of Indian residents.
- The price of every apartment is the same, both for an Indian citizen and an NRI. A few developers are also coming up with NRI-centric projects.
- Commercial real estate is highly in demand from MNCs and start-ups.
- Real estate is a consistent source of rental income.
- Many overseas Indians want to come back to their home country and thus, invest in real estate for themselves or for relatives.
An NRI/OCI can freely purchase any immovable property, that is residential and commercial assets. But he cannot purchase agricultural land / plantation property / farmhouse in India.
Payment can be made by:
- Remittances to India through normal banking channels; and
- Through three kinds of bank accounts for NRIs, namely NRO, NRE and FCNR(B)
When an Indian National leaves India for taking up employment outside the country, his bank account in India gets designated as NRO account. These are Rupee denominated non-repatriable accounts and can be in the form of savings, current recurring or fixed deposits.
NRE are Rupee denominated accounts and can be in the form of savings, current, recurring or fixed deposit accounts. Foreign exchange brought in legally, repatriable incomes of the account holder, etc. can be credited to the account. Joint operation with other NRIs/PIOs is permitted. Power of attorney (POA) can be granted to residents for operation of accounts.
NRIs are permitted to open FCNR(B) accounts in US Dollars, Sterling Pounds, Australian Dollars, Canadian Dollars, Japanese Yen and Euro. The account may be opened only in the form of term deposit for any of the following maturity periods; (a) one year and above but less than two years, (ii) two years and above but less than three years, (iii) three years and above but less than four years, (iv) four years and above but less than five years, and (v) five years.
(Note: Payments via traveler’s cheque/foreign currency notes is not permitted in property purchase.)
There is no such maximum limit. An NRI can buy any number of properties (residential/commercial) in India. He is also not required to report details of his property purchase transaction to the RBI.
Giving the Power of Attorney(POA) to a relative/friend residing in India makes documentation easier. In the case of under-construction properties, developers ask for a POA to execute all paperwork related to contract, deed, mortgage or lease when the NRI is not in the country. POA is also useful at the time of selling the property. It is always advisable to get the documents run through a professional lawyer.
- Indian Passport
- OCI Card
- PAN Card- PAN is mandatory for filing income tax returns in India in case the property is rented out or sold.
- Address proof and passport size photographs
Any lending institution approved by National Housing Bank (NHB) is eligible for giving a home loan. Also, a few Non-Banking Financial Companies (NBFCs) also offer home loans subject to certain conditions-
- Loan amount and time for repayment is at par with those residing in India
- Loan amount shall not be credited to NRE/FCNR/NRNR account of the borrower
- Interest rate is same as for Indian residents
- Borrower can remit instalments/interest and other charges through normal banking channels or out of his funds in his NRE/FCNR/NRNR/NRO/NRSR account in India
- Post-dated cheques can be issued or ECS from NRE, NRO or FCNR account
- Rent amount can also be used to repay the loan in case of rented property. Cheques issued from any relative’s local account can be used to make payments. (A relative as defined in the Companies Act, 1956 is (a) any member of a Hindu Undivided Family; (b) spouse; (c) one is related to the other as father/mother/son/son’s wife/daughter/daughter’s husband, etc
Certain criteria regarding minimum age and years of work experience should be met. However, these vary from bank to bank.
|Bank||Minimum Age (in years)||Minimum Years of Work Experience (in years)|
|Axis Bank||24||6 months abroad and total work experience of 2 years|
Banks like ICICI and Axis also have a minimum salary per month criteria. For those working in any Gulf Cooperation Council (GCC) countries, minimum monthly income must be 5,000 AED (United Arab Emirates Dirham), while for those employed in US and other countries, $3,000 per month is the minimum salary.
If you are self-employed, you should have stayed abroad for at least 3 years. Professional and educational qualifications also matter. Those applying for loans should be at least a graduate.
Do check with your bank or lending agency on compliance with above norms.
As per RBI norms, an NRI is eligible for a loan amount equal to 80 percent of the total value of the property. The rest 20 percent has to be paid by the NRI from his personal resources.
It varies from one bank to the other. For instance, HDFC and SBI offer up to 20-30 years while others may restrict it to 10-15 years.
Points to keep in mind
Inherited or jointly-held property
- Check title papers carefully
- Do a bank release if the property was under mortgage at any point in time
- To ensure that there are no pending dues (water, electricity, or any other), take a no dues certificate from the seller at the time of buying
- Take an NOC from the builder
- Check the Land Title
- Once RERA is in force in the region where you wish to purchase property, follow all disclosures made by the builder
Well, if you are still settled abroad and have income accruing there, you can try to get overseas funding.
- Passport and Visa
- PIO/OCI Card
- A copy of appointment letter and contract from the applicant’s company
- Labor card/ identity card (translated in English and countersigned by the consulate)
- If the applicant is employed in the Middle East, Salary certificate (in English) specifying name, date of joining, designation and salary
- Bank Statements of last six months
List of Classified Documents for:
- Copy of valid Passport with VISA stamps
- Copy of valid Visa/Work Permit/Equivalent document supporting NRI status of the proposed account holder
- Overseas Bank account statements of last 3 months showing salary credits
- Copy of latest contract giving evidence of Salary/Salary Certificate/Wage Slips
- Utility Bills for Address Proof
- Power of Attorney (POA) - if any
- Income Tax Returns of last 2 years
Self Employed Non Resident Applicants:
- Passport copy with valid VISA stamps
- Brief profile of applicant and Business/Trade License or equivalent document
- Overseas Bank account statements of last 6 months and NRE/NRO account
- Computation of income, P & L account and Balance Sheet of last 3 years certified by the C.A / CPA or any other relevant authority as the case may be (or equivalent company accounts)
- Utility Bills for Address Proof
- Power of Attorney (POA) - if any
- Income Tax Returns of last 3 years
In such a case, a photocopy of the following documents can be used:
- Current Passport, with place of birth as ‘INDIA’
- Indian Passport, if earlier held by the individual
- Parents’/Grandparents’ Indian Passport/Birth Certificate/Marriage Certificate proving the individual’s claim as a person of Indian origin
As per FEMA, an NRI has the right to sell residential and commercial property, either bought or inherited. In case of selling an inherited piece of agricultural/ plantation land/ farmhouse, the buyer must be a resident Indian. Such properties may also be gifted to another NRI or PIO.
- As per rules, one can repatriate only up to the amount invested in property.
- In case property was bought with foreign currency (other than Indian Rupee), the repatriation cannot exceed foreign exchange amount paid for purchasing the property through banking channels.
- If the property was bought using Indian Rupee, one can remit an amount upto USD 1 million, per financial year. NRI/PIO may make use of this facility to remit capital gains, where acquisition of the property was made by funds sourced by remittance through normal banking channels/ by debit to NRE/ FCNR(B) account.
- Repatriation of sale proceeds is restricted to a maximum of two properties.
- Capital gains, if any, may be credited to NRO account from which NRI/PIO may repatriate an amount equal to USD 1 million, per financial year( April to March).
Yes, it is repatriable but is subject to appropriate tax deductions and a certificate from a practising Chartered Accountant.
Yes, rent received is taxable and owner must file tax returns in India. In addition to this, the rent can be taxed in the NRI’s current country of residence. However, under the Double Tax Avoidance Agreement (DTAA), one can avail tax relief in certain countries.
- Like in India, municipal taxes and interest paid of home are deductible. Further, standard deduction of 30 percent of net rent (gross rent less municipal taxes) can be availed for repair and maintenance, irrespective of actual expenditure.
- Form 15CA is enough in case the remittance limit does not exceed Rs 50,000 per month. However, in certain cases where amount exceeds this limit, a certificate from a CA in Form 15CB in mandatory before uploading Form 15CA online.
Note: Form 15CB entail details pertaining to the payment, TDS rate and deduction as per Section 195 of the Income Tax Act. It also has details of DTAA, i.e. Double Tax Avoidance Agreement, if applicable.
Under Section 80C, principal on home loans, stamp duty and registration charges are allowed as deductions with maximum limit of Rs 1.5 lakh per year.
A vacant property is considered as self-occupied for which taxable value is nil. For the same, one can avail tax deduction on interest paid on home loan upto Rs. 1.5 lakh per year. Deduction for principal repayment can also be obtained.
If a property is rented for more than 300 days, an NRI is exempted from wealth tax. A vacant house declared as self-occupied is also exempted. However, wealth tax is applicable on second or subsequent properties at the rate of 1 percent on value more than Rs 30 lakh.
NRIs are also subject to capital gains tax in India. For a property held over 3 years, they can incur long-term capital gains. Non-residents can claim exemptions under Section 54, Section 54EC and Section 54F. Long-term capital gains are taxed at 20 percent and is also subjected to a TDS of 20 percent.
Again, capital gains may be taxable in the NRI’s current country of residence also. However, under DTAA, relief may be available in the form of credit for Indian taxes paid. Capital gains may also be invested in specific bonds issued by National Highway Authority of India (NHAI) or Rural Electrification Corporation (REC) upto Rs 50 lakh within six months of sale.
An NRI/OCI/PIO should be aware of the income tax implication of their country of residence. Some countries provide partial or complete exemption on capital gains if all the requisite conditions are met, while few other countries tax the residents no matter where they are originally from.
You should not neglect getting a rental agreement signed by your tenant. This is to avoid any unwanted trouble at the time of expiry of the agreement. Rental agreements are of two types- Rental Lease Agreement and the Leave and License Agreement. While the former is used for transfer of ownership from owner to lessee for a certain period; the latter does not transfer ownership to the lessee.
Tenant can credit the rent amount directly to the NRE/NRO account of the non-resident. In case the NRI does not have these bank accounts, the rent can also be credited to an account abroad, provided he has the requisite certification from a Chartered Accountant, stating that all his taxes have been paid properly.
The owner has to pay taxes on the rental income earned by him. The tax is deducted at source (TDS), i.e. your tenant. Thus, your tenant must obtain a TAN number and deduct a TDS of 30 percent from the total rent amount. Post this, the TDS certificate must be given to the owner/landlord.
(Note: If the tenant fails to pay the tax amount, he will be held responsible by the tax authorities. Also, you will not be able to declare any incomes from your taxable incomes. However, if you have already paid and filed for tax returns this may not be an issue.)
In accordance with the Indian Income Tax Act, for both Indian resident and Non-Indian resident, if more than one property is rented out, then only one will be considered taxable and the other will be considered self-occupied. If the latter property is not on rent, income tax on deemed rental income of the second house has to be paid.
(Note: If the Non resident owns only one property in the world which happens to be in India, then he need not pay an income tax on the deemed rental income in India.)
In case of inherited property in India, you will be liable to pay the tax on deemed income if it is not your only property.
Points To Remember
- It is advised that you make sure you know which agreement you are opting for.
- Find out the best way to get your rent credited to your account on time.
- Read about the tax implications well in advance.
The Real Estate Regulatory Act, 2016 (RERA) is a landmark development in the history of the Real estate sector. The Act, once completely implemented, will not only bring in more transparency and accountability in this sector but will also provide a mechanism to simplify and regulate the buying and selling of all types of properties.
Below are ten major features of RERA:
- Without signing a sale agreement, a developer cannot accept an advance sum of more than 10 percent of the total cost of property from the buyer.
- A developer will have to maintain a project Escrow Account wherein 70% of the money can only be withdrawn for the purpose of project land and construction costs.
- Wrong representation of services/amenities is prohibited. All advertisements and brochures must be uploaded on the authority’s website where all the details pertaining to the projects has been entered.
- Any structural defect in the property within five years from the date of handing over possession must be rectified by the developer within a month’s time without any extra cost.
- Specifying time period required for project completion during registration itself is expected to bring in a huge relief for those looking to buy a home.
- During registration, the developer must reveal the name and address of all the real estate brokers/agents associated with the project.
- It is mandatory for Brokers/agents involved in facilitating sale or purchase of any project to obtain registration from the concerned authority. In the absence of this, brokers shall not do any such activity connected to the project.
- If a developer fails to adhere to any of the norms mentioned in the Act, the authority can cancel the registration of a project on receiving a complaint or suo motu.
- The authority will grant/reject registration within 30 days of receiving the application of the concerned project. It must issue a registration number and login ID/password for accessing the website. Post this, developers will create the webpage and fill in the requisite details pertaining to the project.
- For the projects that are being developed in phases, the developer will have to register each phase separately. As per the new Act, each phase is considered to be a stand-alone real estate project.
- A developer cannot transfer the rights and liabilities of the real estate project to a third party without getting the written consent from at least two-third buyers (allottees), and the written approval by the concerned authority.
Several other customer-friendly measures are part of this Act. But real estate being a subject closely related to a state, every state in India will be adopting a Real Estate Act applicable to projects in that state.