The Reserve Bank of India governs such transactions and they fall under the purview of the Foreign Exchange Management Act (FEMA).
We give you a lowdown on all that you need to know if you are an NRI wanting to buy a property in India. To begin with, we need to understand the definition of non-resident Indian. Since property purchases are governed by FEMA, we need to go by the definition of NRI as stated in FEMA. According to FEMA, an NRI is a citizen of India who is resident outside India.
The rules and implications:
Can an NRI buy property in India?
Yes, a non-resident Indian can buy either a residential property or a commercial property in India. Further, there is no limit on the number of residential or commercial properties that an NRI can purchase in India.
Exception: An NRI however cannot buy agricultural land, plantation land or a farm house in India. He cannot even acquire such property as a gift.
There is however, no bar on inheriting such property.
Do you need RBI permission?
No. RBI permission is not required to buy residential or commercial property.
How to fund the purchase?
Payment for the purchase of property can be made either by way of funds remitted to India from abroad through regular banking channels or through the balance in the NRE, NRO or FCNR Account.
What income taxes are applicable on house properties in India?
According to the Indian Income Tax Act, if a person (resident or NRI) owns more than one house property, only one of them will be deemed as self-occupied. There will be no income tax on a self-occupied property. The other one, whether you rent it out or not, will be deemed to be given on rent. If you have not given the second property on rent, you will have to calculate deemed rental income on the second property (based on certain valuations prescribed by the income tax rules) and pay the tax thereof.
Now, the Income Tax Act does not specify if either or both these properties must be situated only in India. Vikas Vasal, Executive Director of KPMG India explains, “At the time of drafting the Income Tax Act, one did not envisage a situation where an Indian would own properties overseas. But now, more and more Indians are settling abroad. So from the reading of the Act, the rule of ‘more than one property’ will apply to global properties.”
What this means is that if you are an NRI and own only one property globally and that property is in India, you would not have to pay any income tax on it in India.
However, let us say you are an NRI resident in USA. You own and live in a house in USA. You also own a house property in India. Even if you do not give the property in India on rent, you would have to pay income tax on deemed rent in India. The deemed rent is determined by certain valuation rules prescribed in the Income Tax Act.
Remember that even if you have inherited a property in India and that is not your only property, you would have to pay tax on deemed income.
Is deemed income from house property taxed in foreign country?
You would need to look at the tax code in your country of residence. In the case of NRIs in the United States, the US tax code does not tax deemed income. However, Ganga Mukkavilli, a New York City based CPA whose firm, CPAs, Taxes & Associates PC, specialises in international accounting, taxes and small businesses says that you would still have to show the property if it is an investment property in your tax return in the US (even though you do not have any rental income ). “If you do not show this investment property, the problem will arise at the time of sale of property. Suppose you sell a property on which you had no rental income for US tax purposes but had deemed income as per India Tax code, then the amount spent on the maintenance, repairs and renovations and depreciation on this property which may be eligible for deduction or addition to your cost basis while calculating capital gains would become difficult to establish. However, if you have not declared the property in your tax returns, the US tax code may challenge the cost basis (purchase + improvements + suspended losses)to claim a tax deduction at the time of sale,” he explains.
“Of course, any investment properties with rental income and related expenses must be reported on Form Schedule E in the US tax returns and rental activities by nature are always treated as ‘passive’ investments with restrictions on deductibility of the net rental losses. Always consult a tax expert as passive activity rules are quite cumbersome,” he adds.
Home loans, an option?
Most definitely. The RBI allows NRIs to take home loans for buying property in India. You can also take a loan for repairs and renovations of your home.
You can pay the EMIs (Equal Monthly Installments) in any one of the following ways:
1) By remitting the money from your foreign bank account through regular banking channels
2) By issuing post dated cheques or Electronic Clearance Service (ECS) from your NRE, NRO or FCNR Account
3) Out of the rental income that this property earns
4) Cheques issued from your local relative’s bank account
What tax benefits are available on home loans repayments?
Under section 24 of the Income Tax Act, the interest on home loan is deductible from the income from house property to the extent of Rs 1.5 lakh per annum. Further, up to Rs.1 lakh of principle repayment can be deducted under section 80C (subject to an overall limit of Rs.1 lakh of that section).
This interest can be deducted from rental income. In case of self-occupied property discussed earlier, your rental income will be zero but you can still claim a deduction of interest of up to Rs.1.5 lakh. In such a case, you would have a loss from house property.
The loss can be set off against income from other sources like interest income, capital gains etc. If the loss is not completely exhausted in a particular year, it can be carried forward for 8 years. That is, you can show the loss in your tax returns for the next 8 years and off-set it against other income. But once carried forward, the loss can be set off only against income from house property.
Can an NRI give power of attorney for property purchase transactions?
Yes, in fact experts recommend that you give a PoA to a person resident in India so that he or she may complete formalities such as registration, possession, execution of agreement of sale etc. A PoA can be given to execute all contracts, deeds, mortgages, lease, sell and all matters relating to managing the property. However, at any given time, it would be better to give a specific power of attorney to any person, restricted only to a single action such as only purchase or only for lease. The power of attorney should be executed on a stamp paper or as per the requirement of the country where the PoA is executed. You must then get the PoA attested by any authorized official of the Indian Embassy/Consulate/Trade commissioner in that country.
Many times, when NRIs purchase properties, developers demand a PoA in their favour. You may choose not to give this PoA but it would lead to delays since all documents would have to be mailed to your foreign address. Giving a specific PoA would be a better option.
Having purchased a property, you will face several other challenges with respect to renting, managing or selling your property.