Nri case

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

23 March 2012 NRI IS GOINING TO INDIAN IMMOVABLE PROPERTY ,
PLEASE SUGGEST ME UR EXPERT OPINION IN RELATED TO FOLLOWING
WHETHER CAPITAL GAIN WILL BE APLICABLE,
WHETHER ANY AMOUNT REQUIRED TO BE DEDUCTED FROM PAYMENT MADE TO NRI,
WHETHER ANY CLEARANCE CERTIFICATE IS REQUIRED TO BE OBTAINED FROM DEPARTEMENT OF INCOME TAX?

PLEASE DO THE NEEDFUL

CA MANOJ GUPTA

CA MANOJ GUPTA (Expert)
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24 March 2012 I understand that NRI is selling the prop.
In that case cap gain will be cahrgeable to tax
Tax will have to deducted in terms of section 195.
NO CLEARANCE CERTIFICATE REQD
CA MANOJ GUPTA
JODHPUR
09828510543

Querist : Anonymous

Querist : Anonymous (Querist)

24 March 2012 but sir there is long term capital loss,
wat procedure will be required for making payment to NRI???
dadasaheb Bichitkar ( C.A Final)
Pune - 9970528555

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C A S.S.Agarwal, M.Com.,LL.B,

C A S.S.Agarwal, M.Com.,LL.B, (Expert)
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24 March 2012 If there is loss on long terms capital gains then you file the return in time claiming the loss and no TDS is required and no clearance or any type of certificate is required the only thing required is he should file Nil return for 2-3 years if he is not going to return to India. For this he must have a PAN Card for filing the return.
Now, coming to the new provisions in the finance act 2012 then he is liable for TDS and then he has to claim in his return for sale of the property

CA MANOJ GUPTA

CA MANOJ GUPTA (Expert)
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24 March 2012 here lies the catch
Section 195(1) provides that Any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest [* * * *] or any other sum chargeable under the provisions of this Act (not being income chargeable under the head “Salaries” [* * * *]) shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force :
Section 195(2) further provides that Where the person responsible for paying any such sum chargeable under this Act [(other than salary)] to a non-resident considers that the whole of such sum would not be income chargeable in the case of the recipient, he may make an application to the [Assessing] Officer to determine, [by general or special order], the appropriate proportion of such sum so chargeable, and upon such determination, tax shall be deducted under sub-section (1) only on that proportion of the sum which is so chargeable :
It appears that the intention is that tax shall be deducted on entire sum payable to NR
As per section 9 any income through or fro m transfer of a capital asset situate in India is income deemed to accrue or arise in India.
In the given case you have no authority to decide what is the amt of cap gain/loss to the transferor. Hence u shld follow the requirement of section 195(2) and file an application to AO otherwise deduct tax on the sale consideration as per section 50C
CA MANOJ GUPTA
JODHPUR
09828510543

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