Know all about Home Loans
Buying a home is a big decision in anybodys
life. It is a purchase that makes a difference to your day-to-day
life. This is the place where you spend a lot of time, a place
you come back to after a hard days work to rest and for
some time of peace.
Once you have decided on the house and bought
it [investing your lifetime savings, borrowing money and really
squeezing whatever sources of money you have], changing homes
because of some important oversight on your end is extremely difficult.
It is not like buying a pair of jeans, which, if it is small in
size, you can go back to the shop and have it exchanged for a
bigger size! Once you purchase your home, it is for keeps - for
better or for worse. In a large way, buying a home is like marriage.
So, we suggest, check things out before you
make a choice!
Let us take you there!!
We suggest: First things first - Prepare
your funding strategy
This is the main deterrent to buying a home.
Every time one hears people say, I cant afford my
own home. Here are your possible sources of funding your
home.
Your own money is the first source!
You can borrow funds from your relatives or friends (if they are
good enough to lend without having any expectations from you!)
You can borrow funds from your bank, take a loan against your
Provident fund account or borrow from a housing finance company
(this is a more professional method of borrowing since you pay
interest and are buying a service).
So what will the lender expect from
me?
If you are borrowing from relatives and friends,
your charisma, personality, charm, convincing powers should hopefully
take you there. But if you are borrowing from a funding agency
such as a bank or a housing finance company, they will judge your
ability to pay back the loan [they will check if you are earning
enough money!], the quality of your guarantor, if any and any
other liabilities you may have.
They will also check about the stability of
your job (if you are salaried) or your business (if you are self-employed).
And of course, they will mortgage the house in their favour till
you pay back every penny you owe them! Besides, they will expect
you to fund at least 15% of the house from your own personal money
for down payment before they grant you that loan.
You need to understand the funders predicament.
They have to wait for a long time to get their money back from
you. Average loan tenures are around 15 years!
What if the lender turns me down?
Dont worry. Approach another one. Each
housing finance company has its own internal norms of accepting
or rejecting a loan application.
If the lender is willing to lend me
more money even though I dont need it, should I take it?
Dont. Understand that this money does
not come free. You are being charged interest at current lending
rates. Also, you need to be comfortable with your own repayment
capacity. Dont over-borrow and then have to struggle for
repayments. The end may be disastrous with the lender repossessing
your home due to your incapacity to repay that loan.
Want a home loan? Let us take you there!
Have a basic idea of the location and
size of the flat you are looking out for [how many bedrooms you
may need, proximity to work place, school, etc].
While deciding your need, keep in mind your
future requirements such as expansion of your family. Calculate
the required area of your flat in the form of Carpet area
[this is measured from the inner sides of wall to wall and is
the net usable area], Built Up area [this includes
the thickness of the walls of the flat in addition to the carpet
area. This is generally about 15% more than the carpet area. For
instance, if the carpet area is 1000 square feet, the built up
area will be 1150 square feet] or Super Built Up area
[this includes common areas such as the corridors, the lift, the
staircase, etc and is about 25-35% more than the carpet area.
Area is measured either in the form of Square Feet
or Square Meters. [1 square meter = 10.764 square
feet].
We suggest: Get an idea about property
rates in areas of your interest
Check out newspapers, friends, websites, for
homes that seem to be fitting in what you have in mind in these
locations. Publications of help would be the Accommodation Times
or websites such as indiaproperties.com.
Buyers market, sellers
market or neutral market
Property rates will be dependent on the market
conditions prevailing at that time.
Buyers Market:
Here, there is a demand/supply mismatch between properties. This
means that there are more homes on sale and fewer buyers. Prices
are low at these times.
Sellers Market:
Here again, there is a demand/supply mismatch between properties.
In this situation, there are more buyers and fewer properties
available for sale. Prices are high at these times.
Neutral Market:
Here, the demand/supply is balanced with no significant excess
on either end. Prices are reasonable at these times and home transactions
happen at a steady pace.
Which market am I in?
Find out from your broker how quickly homes
are being sold in the market. If homes sell in less than 45 days,
it is probably a seller's market. If homes take longer than 4
to 6 months to sell, its probably in a buyer's market.
Should I contact a broker?
Go ahead and do so! For whatever may be said
about brokers, they do provide a valuable service to the real
estate market. Of course, your choice of the broker will ascertain
whether you have a good experience or bad experience with one.
This is a highly disorganized business and depends completely
on personal relations and interaction.
This is what your broker can help
you with :
-
Saving your time, energy
and costs in finding your dream house.
-
Finding a house specifically
looking at your needs. You may never come across a sale of a
house not advertised for by the owner, without the help of your
broker.
-
Suggesting certain aspects
overlooked by you.
-
Informing you about the locality
and the type of people residing there, which you may be unaware
of.
-
Helping you with regulations
such as payment of stamp duty, registration, etc.
-
Helping you find lenders,
giving you insights about their requirements and helping you
fit into their eligibility norms.
-
Most of all, helping you negotiate
terms with the seller and closing the deal.
Of course, you will have to pay your broker
a pound of flesh for his services. There are no standard fees
payable to brokers but it is known in the market that brokers
charge about 2% of the transaction value (sometimes from both
the buyer and the seller!).
So, if you are able to find a
suitable house available for sale directly from the owner, which
you feel is competitively priced, go for it and save your brokerage
costs! Directly from the owner implies somebody you
know who knows somebody who wants to sell. A strong suggestion:
dont buy directly from an unknown seller. You could be the
third, forth or fifth buyer of the same property!
How do I judge the competency of a
broker?
This can be a very subjective decision in
terms of the brokers knowledge on the location, the kind
of people residing in the area, availability of necessary facilities,
etc. However, you can objectively judge a broker on his knowledge
of regulatory aspects such as stamp duty, registration, the quality,
reputation and projects of various builders, availability of loans
from various lenders, etc. The best way is to ask him lots of
questions and then get his answers verified from friends and other
acquaintances.
Watch out for these tactics of the
broker!
-
The broker will pressure
you to complete your transaction as quickly as possible giving
you the reason, Buy now, prices are expected to go up,
or, Sell now, prices are expected to go down. Dont
succumb to this kind of pressure. Take your time in getting
a good deal.
-
Make sure the broker spends
enough time on your deal and keeps in mind your requirements.
-
Usually brokers are restricted
to particular areas. The broker may not show you property in
any other area besides the area where he operates and may insist
that there are no other choices. Contact brokers operating in
other areas and see properties there too. Dont expect
your broker to ever tell you that you should look elsewhere
and that properties in his area are not suitable for you.
-
Some brokers will make you
feel that you are a small insignificant client and that they
dont need you as much as you need them. Understand that
this is just a pressure tactic to make you take a hasty decision.
Dont give in to it. Stand your own ground.
-
The broker will not disclose
problems with the house and may draw a very rosy picture to
tempt you to decide to buy. Caution! Check with neighbours and
friends who are aware of the area and building before making
that crucial decision.
-
Most of all choose a broker
through referral. There is no remedy if the broker cheats you.
This is an unregulated and disorganized market.
How do I find a
good broker?
The best way to zero in on a broker is through referrals from
friends, colleagues at work or relatives.
What do brokers normally charge?
There are no standard fees set for payment
of brokerage. However, it is a well-accepted fact that brokers
normally charge about 2% of the transaction value (sometimes from
both, the buyer and the seller!). In case of leases and leave
& licenses, about 2 months rent is charged as brokerage.
Of course, for purchase, lease or leave & license transactions
with larger values, brokerages are negotiable.
Fix the brokerage fee at the start!
Dont wait for the deal to be finalized
before doing so. You will give the broker a chance to hold you
at ransom at the last stage when you are ready to close the deal!
What if I find a flat on sale from
a builder? How do I check his reputation and reliability? Should
I still go through a broker?
You neednt go through a broker when
you are dealing with a builder, especially one of repute. However,
before you deal with the builder, check out the following:
-
Find out about his past projects.
-
Visit some of these projects.
-
Speak to the people living
in flats built by him. Find out from them regarding
(1) timely possession,
(2) quality of construction,
(3) compliance with the agreement,
(4) whether amenities promised were provided, etc.
-
Find out from Financial Institutions/banks
this builder has dealings with.
Do builders charge a fee, too?
No. Builders dont charge any fee or
commission for sale of their flats.
What is the procedure of payment and
taking possession of the flat from the builder?
The builder will show you the building plans
and inform you about his sale rates per square foot. He will take
you to the site for a personal visit. Normally, bookings are open
from the time the development of the building begins. You will
see only workers, a lot of loose earth, some skeletal structures
and nothing else much.
If you are comfortable with the builder, agreeable
to the site, sale rate and building plan you will be allotted
a flat based on your choice. A suggestion: choose a flat with
good ventilation, sunlight and facing the front side especially
if the building has a garden.
He will give you an allotment letter on you
paying him a booking amount of about 15% of your total cost.
The builder will prepare a payment schedule
for you based on the progress of the construction. For instance,
after taking the 15% booking amount from you, he will prepare
a schedule wherein you pay another 25% on completion of the first
plinth level, 25% more on completion of the second plinth level,
25% more on the building getting completely ready and the balance
10% on you taking possession of your flat.
If you have approached the builder at the
building being in the advanced stage of completion, you will have
to pay a higher booking amount on receiving your allotment letter.
He will then make out an agreement for sale,
get it stamped by paying the relevant stamp duty, which is normally
borne by the purchaser. After being stamped, the agreement is
signed by both the purchaser and the builder. Within a month of
signing, this agreement is registered with the Sub-registrar appointed
by the State Government under the Indian Registration Act, 1908.
The agreement for sale must contain particulars
such as liability of the promoter/builder to construct the building
according to the plans and specifications approved by the local
authority, possession date when the flat should be given to the
purchaser, price to be paid by the purchaser, the intervals at
which the installments for the full payment are to be made specifying
stage of construction, the precise nature of the body to be constituted
of the persons who would take the flats, details regarding the
common areas and facilities specifying the percentage of undivided
interest in the common areas and facilities appertaining to the
apartment agreed to be sold, a statement of the use for which
the apartment is intended.
The agreement for sale must also include copies
of title certificate, a copy of the approved plans and specification
of a list of fixtures and amenities including provisions for lifts
to be provided.
In the sale agreement there should be a declaration
/representation by the promoter/seller that he has not encumbered
the property in any manner whatsoever and entered into any other
agreement to sell/lease/license with any other party. It needs
to be specified whether the property is vacant or in possession
of any other party other than the seller.
The normal time taken for construction of
an average Stilt + 7 storied building would range between 15 to
20 months. It is possible that the construction period may go
up to 30 months if the building has more number of floors.
What do I look out for while site seeing
for a home?
Your checklist for the locality, availability
of facilities and environmental factors should include:
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The safety of the locality.
-
The availability of a hospital
and a school.
-
Proximity to the station,
bus stops. Easy availability of taxis.
-
Properly developed roads with
easy access to the building.
-
The availability of facilities
such as a market for purchase of groceries and provisions.
-
Availability of recreation
facilities like cinemas houses.
-
No air polluting factors such
as factories in the area.
-
No noise polluting factors
such as proximity to railway tracks, airports, etc.
-
Availability of adequate water,
no power tripping problems, proper drainage facilities [no flooding
during rains], proper garbage disposal facilities [regular garbage
pick up by the appointed agency such as BMC in Mumbai], cable,
quick availability of telephone connection. Easy availability
of gas connection.
-
Temple or other religious
place of worship.
-
Greenery
Your checklist for the building and the apartment
including the interiors should include:
-
Whether
title documents are clear and marketable. - to do
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Whether
all taxes have been paid.
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The building
is technically sound - it has strong foundations.
-
Does the
building face the direction you need.
-
Whether
you will get a parking facility. Whether it is an enclosed parking
or an open one.
-
Compliance
with Vaastu Shastra, feng shui, etc, if you believe in it.
-
The
building maintains hygiene and has cleanliness facilities such
as availability of a jamadar and other cleaners.
-
There
are adequate security systems in place.
-
The
flats interiors are adequately decorated and no major
repair work is needed.
-
Whether
the water drainage facilities are in order
-
Electrical
wiring must be sealed
-
Branded
products should be used in the home - sanitary wares ,fans,
heaters, tube lights, etc.
-
Check
for wall cracks.
-
There
are no leakages
-
Check
connection points for telephones, cable TV.
-
Check
if there are sufficient power points for lights, fans, air conditioners,
refrigerator, washing machine.
-
Check
the lofts
-
Check
the water tanks - if they are not leaking and are big enough
for your water needs.
-
Proper
place for keeping washing machine
-
Place
for washing utensils
-
Sunlight
adequacy
-
Platform
in kitchen, position of sink
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Store
rooms, cupboards
-
Quality
of flooring
-
Scalability
of the home, keeping future plans in mind
-
The
flat is properly ventilated.
-
Are
the rooms of optimum size and well-planned.
-
The
building has a modern lift in working condition.
-
The
terrace is in good condition.
-
There
are no mosquito problems
-
Housemaids/
helpers are easily available.
-
Society
charges for maintenance, parking space, etc., its rules regarding
selling, giving flat on rent, etc.
Should I give more importance to the
locality or to the flat?
It is a fact that an average house in a posh
locality is worth a lot more than a posh house in a down market
locality.
Should I buy a new home from the builder
or should I look for a home in the resale market?
Normally, locality plays an extremely important
part in the choice of a home. And one may not find new construction
in that locality. Hence one is stuck with buying a house on resale.
Of course, buying a new home has advantages like you can request
the builder to make specific changes in the interiors, you pay
the builder in installments for property under construction and
are not burdened with a big payment at one time, you can get a
good bargain from the builder in case of a flat ready for sale
but not purchased.
This is because builders are not investors
in real estate and dont normally hold on to the flats. Selling
and reinvesting in a new project is much more profitable for them.
However, while buying from builders take care regarding the escalation
clause in the agreement terms.
I have the money at my disposal and
am looking for my dream house. Should I buy a flat or a bungalow?
Naturally, you will want a bungalow if you
want the very best. But you will have to live far away from the
city and in most probability, away from your work place. This
means commuting every day. Besides, maintaining a bungalow is
extremely expensive - you will have to budget for small repairs,
leakages and painting jobs every month. Also, bungalows may not
be very safe - flats score on this count.
Of course, bungalows can be very personalized
unlike flats, which are made on mass standardized basis.
Our step-by-step procedure till possession
of a resale flat
-
Rate
the houses you have seen, in terms of your checklist from 1
to 10 - giving the highest score to the house that has the maximum
things you are looking out for.
- Zero in on the house
that is best suited to your needs and budget.
- Negotiate the terms with
the seller and check all the documents pertaining to the house.
-
Agreement
for Sale: Both the parties sign the agreement and the buyer
usually pays 10% as earnest money or deposit. This amount represents
an undertaking by the buyer to fulfill his terms of the contract.
If the buyer defaults on this, the deposit can be forfeited.
We suggest
open a joint bank account with the seller and transfer the deposit
amount in this account. Close the account when the deal is done.
Alternatively, give the deposit to a mutually agreed upon lawyer
till the deal is done. This ensures that the seller does not disappear
with your deposit. The balance is payable till the time of completion
of the sale.
The payment stages depend on the time mutually
agreed upon between the two parties. If the parties want to make
time the essence of contract, they can include that clause in
the agreement for sale. The sellers lawyer is usually responsible
to prepare the draft of the Agreement for Sale. Confirm that titles
of the house selected are clear [Refer to investigation of title
deeds .
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Pay
off the seller keeping a balance of about 10% to be paid on
taking possession.
-
6.
Have the documents registered.
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7.
Pay the balance due to the seller and take possession.
Check out the following before taking
possession
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Take
possession on an auspicious day, if you believe in it.
-
Inspect
the flat thoroughly before taking possession.
-
Ensure
the seller has not taken anything that he was supposed to retain,
such as light fittings, furniture, etc.
-
Do
a puja, if you believe in it.
-
Change
the lock of the main door.
-
Take
all original documents and relevant papers from the seller.
-
Make
sure the seller has paid his electricity bill, society tax and
other bills such as telephone bill till he was in possession.
-
Take
a letter from the seller confirming that the seller is handing
over vacant and peaceful possession of the flat
Do the following
immediately after taking possession
- Insure your home against
theft and fire. If you have borrowed to buy your home, the housing
finance company normally will insist on insurance and use it as
a collateral for your loan.
- Change the name in the
electricity bill and telephone bill to your name.
- Change the nameplate on
the main door - put yours in bold!
Make sure the society bills are made out in your name.
You are now a proud owner of a home!
I am a Non-Resident Indian (NRI). Can I get
a loan for buying a home in India?
Yes, you certainly can get a loan. Procedures
for obtaining a loan is largely the same as for a resident India
with only the documentation aspect changing a little.
You will be required to submit copies of your
work permit (if applicable), your visa, employment contract, latest
salary slip and overseas bank statement of the past few months.
You can repay the loan (the principal and the interest) through
the normal banking channels using either a Non Resident (External)
or a Non Resident (Ordinary) account.
However, Non-Resident Indians can obtain home
loans from nationalized banks only.
Purchase
of Home by NRI's in India
There will always be a net surplus of house hunters over houses
available, especially in a country with a population that has
crossed the 1 billion mark.
There are 4 good reasons for purchasing a house property with
assistance from housing finance company
-
The rent which would
have been paid for a similar property in the same or similar
locality is no longer required to be paid, and hence, in effect
it is a notional income.
-
Investment in house property,
as in the case of shares or bullion serves as a hedge against
inflation.
-
Normally, the repayment
is in instalments. When the market price keeps pace with inflation
and when your own income is expected to rise, you make payment
against the original price with money that becomes cheaper and
cheaper. You should therefore explore the various avenues for
taking loans against mortgage of your house.
-
Finally, the most important
reason for buying a house is a nagging wife.
RBI has granted general permission
to NRIs as well as PIOs (Notification FERA 201/99-RB dt 30.3.99)
to acquire by way of purchase or inheritance and dispose of by
way of sale, mortgage, lease, gift, settlement or otherwise any
number of immovable properties, residential or commercial, situated
in India, subject to
-
The
consideration shall be paid out of foreign exchange remitted
through normal banking channels or out of the funds held in
NRE/ FCNR. Acquisition of a house or even a commercial property,
out of funds in NRO account of the purchaser or from his rupee
funds is possible, but on a non-repatriable bases.
-
At
the most, only 2 houses by way of gift given by close relatives
can be acquired.
-
Persons
purchasing properties with foreign exchange and also interested
in maintaining repatriation right, shall submit to the RBI within
a period of 90 days of purchase, a declaration in Form IPI-7
along with a certified copy of the document evidencing the transaction
and a certificate from a bank in India for having paid the consideration.
If a property, residential or
commercial, acquired on or after 26.5.93 through foreign exchange,
is sold after 3 years from the date of its acquisition or from
the date of payment of final instalment, whichever is later, repatriation
of the amount equivalent in foreign exchange paid for the acquisition
is permissible with RBI's prior approval (form IPI-8 received
within 90 days). The permission for repatriation may be granted
for a maximum of 2 residential properties. It appears that no
such restriction is prevalent for commercial properties.
OCBs will be permitted to repatriate net profit (up to 16%) arising
from sale of such investment after the lock-in period of 3 years.
A foreign citizen of whatever origin, resident or otherwise, can
purchase a property in India on non-repatriable basis for bonafide
residential purpose with prior permission from RBI (form IPI-1).
This stipulation is not applicable if the immovable property is
taken on lease for a period not exceeding 5 years.
Repatriation
Any income (including rent on let-out house) earned on Indian
assets of an NRI in India can now be repatriated only after appropriate
tax has been paid thereon.
Following are the forms related with acquisition and sale of immovable
property, prescribed by RBI. There are only 8 of them, but the
following are in vogue :
Form Purpose
IPI-1 : To acquire and hold
immovable property in India.
IPI-2 : To transfer or dispose
of immovable property in India.
IPI-6 : Declaration in respect
of properties held as on 1.1.74.
IPI-7 : Declaration of property
purchased under the general Permission.
IPI-8 : Request for repatriation
of the original investments in properties.
Property Outside India
Housing Loans
ADs may grant housing loans to NRIs without reference to RBI where
the NRI is a principal borrower with resident close relative as
a co-guarantor or the land is owned jointly by NRI borrower with
the resident close relative. In such cases the payment of margin
money and repayment of the loan instalments should be made by
the NRI borrower. The loans can also be given to residents with
NRI as a co-guarantor.
RBI has delegated powers to ADs and certain financial institutions
like HDFC, LIC Housing Finance, etc., to grant loans to NRIs holding
Indian passports for the purpose of acquisition of flats/houses
in India against collateral of the house. Repayment of the loan,
interest and all related charges should be made by remittances
from abroad through normal banking channels or out of funds in
the NRE/FCNR/NRO/NRNR accounts. The loan should be fully secured
by creating equitable mortgage of the property and if necessary,
lien on borrower's other assets in India including NRE/FCNR deposits.
If the seed money and also the payments of interest and repayment
of loan is made out of direct remittances from abroad or through
NRE/FCNR accounts, the repatriation right is protected.
If the house/flat is rented out, the entire rental income, even
if it is more than the prescribed instalment, should be adjusted
towards repayment of the loan. If the rental income is less than
the prescribed instalment, the borrower should remit the amount
to the extent of the shortfall from abroad or pay the difference
of his/her NRE/FCNR/ NRO/NRNR account in India.
This facility will, however, not be available to OCBs. Acquisition
of the property by PIOs will be subject to RBI approval u/s 31
of FERA.
Gift of Immovable Property
RBI has granted general permission to NRIs to transfer, by way
of gift, immovable property held by them in India provided it
is effected between relatives or it is in favour of a charitable
trust. It may be noted that the value of the gift for stamp duty
is not to be taken at the market value but in accordance with
valuation norms of the Stamp Office of respective states.
Case Studies
In this section, we present some typical situations faced by people.
The queries
Purchase through Power of Attorney
Q: I have
purchased under Power of Attorney a flat of GDA in Vaishali in
February 94. Its yearly instalment of Rs. 14,000 consists of Rs.
8,000 interest and Rs. 6,000 towards part payment of the capital
borrowed. The receipt of GDA would be in the name of the original
allotee. Would I be entitled to set off the interest paid by me
of Rs. 8,000 against my other income? Can I claim tax rebate of
Rs. 6,000?
A:
The payments made by you as a PA holder are on behalf of the original
allotee and therefore, you cannot claim both these benefits. Even
the original allotee cannot claim these benefits because he has
not incurred the costs and the contribution has not been made
out of his income chargeable to tax.
Income from House Property
Q: I own
the present house where I am residing. I am considering buying
yet another flat, larger in size through HDFC loan. I have been
given to understand that this will add to my already heavy tax
burden. Some notional income will be construed as my income. This
appears unreasonable, but is it true?
A: Annual value of self-occupied
property is taken as 'nil'. Where the annual value is taken as
'nil', no deductions on account of repairs, insurance premium
and ground rent will be allowed except deduction in respect of
interest paid or payable on funds borrowed.
Where there are more than one such self-occupied
properties, only one property, as per the choice of the assessee
can be taken as self-occupied at nil value and all the others
as let out.
The owner of a house property, inclusive of
the appurtenant land, is taxed on the 'annual value' of the property.
This annual value is dependent on i) municipal
ratable value ii) actual rent if the property is let out and iii)
fair rent and standard rent. Some expenses like municipal taxes,
insurance premium, etc. are allowed.
Interest on borrowed capital from whatever
sources, for acquiring, constructing, reconstructing or repairing
the self-occupied property is deductible with a ceiling of Rs.
30,000. This ceiling is Rs. 100,000 for loans taken after 1.4.99
provided the acquisition or construction of the property is completed
before 1.4.2003. This interest can be set off against income from
any source, including salary.
There is no ceiling where the annual value
is not nil. However, if after all the permissible deductions are
claimed, the income turns out to be a loss, it cannot be set off
and is required to be ignored.
You are entitled to claim rebate u/s 88. Payments
towards cost of construction or acquisition of a residential house
property, qualify for rebate u/s 88 with a ceiling of Rs. 10,000
provided such payments are instalments or part payments of loans
from approved sources.
If you take a loan to acquire, construct,
repair, renew or reconstruct any house property (including residential),
from any source, the interest is deductible. On the other hand,
the rebate u/s 88 can be claimed only if the loan is taken from
some certain specified sources (not any source) and is for purchase
or construction (not repair, renew or reconstruct) of only a residential
house (not any house).
Is there any sense in having these minor differences
in parallel provisions?
Cancellation Of Contract by seller
Q:I had
given Rs. 25,000 as earnest money for purchasing a residential
flat. Now, after two and a half years of prolonged litigation,
there was a compromise and as per the consent decree, I have received
back my principal of Rs. 25,000 along with Rs. 15,000 as penalty
or compensation for cancellation of the contract and Rs. 5,000
as interest. Discuss taxability of these amounts.
A: When any earnest money or
advance is paid by the purchaser, both the seller and the buyer
gain legal rights for due performance of contract. If the purchaser
commits a breach of agreement, the earnest money can be forfeited
by the seller. On the other hand, if the seller is at default,
the purchaser has a right to insist on due performance. You have
received back the earnest money paid. This is a capital receipt.
The interest of Rs. 5,000 however, is a revenue receipt and is
chargeable to tax.
In respect of the additional compensation
of Rs. 15,000, you may be guided by the ratio of CIT v Abbasbhoy
A. Dehgamwalla (1991) 59Taxman498 (Bom) as well as CIT v Sterling
Investment Corporation. The breach of contract gives the purchaser
merely a right to sue and any compensation received against this
right cannot be treated as a consideration for the transfer of
a capital asset.
A conflicting view has been expressed by CIT
v Vijay Flexible Containers (Bom). It was held that the right
acquired under the agreement is a capital asset and the compensation
received on its extinguishment is chargeable to capital gains.
The legislation is so ambiguous that even
the courts are unable to arrive at proper interpretation. I submit
that when there are conflicting opinions, CBDT should come out
with a clarification. Otherwise, the benefit of doubt should be
given to the assessee.
In yet another case of IT v Gulabchand, Allahabad
High Court considered it as casual income, exempt upto Rs. 5,000
in the aggregate.
Cancellation Of Contract By Purchaser
Q: I had
received Rs. 40,000 as earnest money from a prospective purchaser
of my flat. Now, after one year of prolonged litigation, there
was a compromise and as per the consent decree, I have returned
Rs. 15,000 and retained Rs. 25,000 as compensation for cancellation.
Kindly let me know taxability of this amount.
A:
When the earnest money was received, it was definitely not your
income. This amount cannot change its character only because you
have decided to confiscate it for the non-performance of the buyer.
Since no transfer of any capital asset has actually taken place,
there is no capital gain. This means that the entire forfeited
amount escapes the tax net, but only in the present dimension.
When the flat is eventually sold, Sec. 51 stipulates that in computing
cost of acquisition, any advance or other money received and forfeited
by the assessee is to be deducted from the cost or the written
down or fair market value, for which the asset was acquired.
House Loan Taken by Deceased Father
Q: Immediately
after purchasing an ownership flat, my father expired. He had
taken HDFC loan and was well aware of the tax provisions. My mother
and myself are staying in the flat. I have been paying the Equated
Monthly Instalments (EMI) which consist of part interest and part
loan repayment. I have been receiving conflicting opinions regarding
the deductibility of the interest element and the rebate on loan
repayment. Can you give your opinion?
A:
It is not you but your father who had borrowed the funds from
HDFC. The rebates and deductions are not available to those who
have not borrowed the funds directly and these facilities are
not available to the successor to the property. This was the view
taken by the Gujarat High Court in respect of CIT v Rajkot Seeds
Oil & Bullion Merchant Association Ltd. (1975) 101ITR748.
This is indeed very sad. I do not think that
it was the intention of the legislation to deprive the inheritor
of the property of these concessions.
Flat Given on Lease to Employer
Q: I am an executive
in a company and am entitled to the various managerial perks.
My basic salary and D.A. for the purpose of housing perks is Rs.
10,000. I have purchased a residential flat at Borivli with a
loan from a bank. My company has agreed to take the flat on lease
from me and give it back to me for my residential purpose as an
employee. The company has agreed to pay me a rent of Rs. 8,000
per month, since the flat belongs to me. Now, my queries :
1. Do I have to pay tax on the rent received?
2. Can I treat the lease rental as perquisites?
3. Can I claim deduction of the bank interest?
4. What about tax rebate on repayments of capital?
A: You are landlord of the residential
flat in which you are staying as an executive of the company that
is your tenant. This is complicated.
I do not have good news for you. The answers
to all your questions are in the affirmative. In other words,
you have to pay tax on the rent received by you as income from
house property. It is also necessary to pay tax on the housing
perks. The perquisite value for this rent-free unfurnished residential
house which is situated in Mumbai is 10% of salary plus excess
of fair rent over 60% of salary. The fair rent is obviously Rs.
8,000. Otherwise, your company would not have agreed to pay the
rent.
The value of your
perks is :
| Installment |
Amount |
|
10% of Rs. 10,000 |
Rs. 1,000 |
|
Fair rent |
Rs. 8,000 |
|
60% of salary Rs. 6,000 |
Rs.
2,000 |
|
Total Value of Perks |
Rs. 3,000 |
|
Rent Received |
Rs. 8,000 |
|
Tax Payable on |
Rs. 11,000 |
|
Is this double taxation? Definitely not.
You are getting double benefit from the same flat.
In the case of deduction of interest on loan
and rebate on repayment of loan instalments, you are entitled
to both of them. On self-occupied property, the limit on deduction
of interest has been raised by FA99 from Rs. 30,000 to Rs. 75,000
under certain conditions. There is no limit if the flat is let
out. Is your flat self-occupied or let-out? Of course it is let-out.
You cannot pay rent to yourself. The Sec. 88 rebate is possible
both on self-occupied and let out flats.
Loan to Repay Loan
Q: At present,
I am residing in a company-owned flat in Mumbai. I have located
a good residential bungalow at Lonavla and desire to purchase
it in order to provide for my post-retirement residence. The seller
desires immediate down payment. I can get a cheap loan (only 6%
interest) from my employer, but being a public sector organisation,
the processing for sanction of housing loan takes well over six
months. I can take a clear loan (24% interest) from a money lender.
But can I take this loan, purchase the house and reimburse him
after the sanction from my employer comes through?
A: Yes, you can but you should not.
You will lose all the tax benefits. Instalments or part repayment
of loans borrowed from any eligible source, enjoys tax rebate
u/s 88 upto Rs. 10,000. Loan taken from the money lender does
not qualify for the rebate. Similarly, the loan taken from your
employer to repay the loan taken from the money lender does not
attract rebate. However, loan taken from a permissible source
to extinguish loan from another permissible source, will definitely
qualify for rebate.
By the time the sanction from your employer
is received, you will be already possessing a house and therefore
the sanction may lapse.
Sec. 24 allows deduction of interest on borrowed
capital. Here, there is no restriction on the source of the borrowed
capital. Interest paid even to the money lender upto Rs. 75,000
(raised from Rs. 30,000 by FA99) can be deducted from your income
but tax rebate on repayments is not possible.
Yes, this is indeed very confusing. At the
time of amending the Act, it is the primary duty of the authors
to ensure that there is consistency of conception within different
sections. It is evident that this aspect is handled casually,
resulting in the Act becoming complex and complicated. Complications
in legislation result in easily avoidable large-scale litigations
and rampant corruption.
House under Construction
Q: I am
already an owner of a residential flat in a cooperative society.
Its current market value can easily be around Rs. 50 lakhs. I
have also purchased a bigger house, costing about Rs. 75 lakhs.
This is still under construction and have paid about Rs. 20 lakhs
so far towards the instalments. I am given to understand that
only one house per individual enjoys freedom from tax. Am I supposed
to pay wealth tax on Rs. 75 lakhs or Rs. 20 lakhs?
A:
Since your 2nd 'house' is not complete or habitable, it cannot
be considered as a house. The instalment paid are towards the
right to acquire a housing property and not a house itself. This
new asset is not treated as a taxable asset by Sec. 2(ea) of the
WTA. No wealth tax is payable either on Rs. 20 lakhs or Rs. 75
lakhs. It becomes eligible to wealth tax only when the property
is complete and its ownership passes on to you.
House and Wealth Tax
Q: When
I was promoted as general manager in my company, I got a fully-furnished
residential flat as a perquisite. I gave my bungalow on rent to
a close friend. This bungalow, with its 3 outhouses was purchased
2 years ago for Rs. 35 lakhs. I was shocked to find that my friend
was using the main portion as his office and the outhouses as
laboratories for manufacturing chemicals. Now that my bungalow
is neither self-occupied nor residential, what is my wealth tax
liability?
A: FA93 has inserted a new clause
(vi) u/s 5 of the WTA under which from AY 94-95 onwards, one house
or part of a house belonging to an individual or an HUF will be
exempt from wealth tax, irrespective of its value.
The words used are - 'a house or part of a
house'. There is no condition that such a house should be residential
or self-occupied. Therefore, this house is free from wealth tax
unless you own yet another house anywhere in India. Even in that
case, one of the houses as chosen by you will be free from wealth
tax. Similarly, any business and commercial premises are productive
assets and therefore are free from wealth tax.
|