Everything about Benami Transactions in Real Estate

The Government of India (GoI) has tightened the belts to fight against the issue of Black Money. Several reforms have been introduced lately to nab those who have been channelizing their unaccounted resources through different means. One of the most vital reforms in this series is – The Benami Transactions (Prohibition) Amendment Bill, 2015. This bill is the amendment to the original Benami Transactions Law, 1988.

WHAT ARE BENAMI TRANSACTIONS?

Any property transaction in which the property is registered in the name of one person & its consideration/payment is provided by another person. The ‘property’ can be any movable/immovable asset including even gold & financial securities.

The person in whose name the property is registered is termed as ‘Benamidar’. To add to it, a Benamidar may or may not be a real person. It may simply be a fictitious person or a real person unaware of the ownership of the property.  Have a look at the snapshot below for better understanding.

In such cases, directly or indirectly, the real beneficiary is the person making the payment.

EXEMPTIONS FROM BENAMI DEFINITION

GoI has been a bit generous in exempting few cases from the purview of Benami Transaction. These include cases where a property is held by:

1. A person in the name of his/her immediate family including children & spouse. But the consideration should have been paid by know sources of income of family.
2. A member of Hindu Undivided Family. Here also the source of income should be known.
3. A person in the fiduciary capacity for a trust.

AUTHORITIES TO DEAL WITH BENAMI TRANSACTIONS

In the amended bill, a 3-tier structure of authorities has been established to take strict actions against Benami Transactions. These include:

1. Initiating Officer: Initiates the notice against a person, he believes is a benamidar. He may hold the property for up to 90 days & collect all the related necessary documents/evidence from the benamidar & other sources.
2. Adjudicating Authority: Based on the documents & evidences collected by the Initiating Officer, the Adjudicating Authority will pass an order whether to confiscate the property or release it.
3. Appellate Tribunal: Any appeals against the orders of Adjudicating Authority can be made to the Appellate Tribunal. Any appeals against the Appellate Tribunal can be made to the High Court.

PUNISHMENTS FOR BENAMI TRANSACTIONS

1. Rigorous imprisonment from 1 year to 7 years
2. Confiscation of the Benami Property
3. Monitory fine up to 25% of Fair Market Value of the property

CONCLUSIVE THOUGHTS

• I believe that the introduction of Benami Transactions Amendment Law will have a strong effect on the GoI’s campaign against Black Money

• But simultaneously, the real estate market will be impacted adversely & the market will be left with fewer buyers

• There will be reduction in real estate frauds & the sector will become more organized

• It will be beneficial for Loaning Agencies, as the available properties will be more authentic

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GST - Catalyst or Dampener for Real Estate?

WHAT IS GOODS AND SERVICE TAX (GST)?

GST is a ‘Single Indirect Tax’ on the supply of Goods & Services, right from Manufacturer to Consumer, which will encapsulate all the existing individual indirect taxes like VAT, Excise, Service Tax, etc. It is one of the most awaited tax reforms which recently got unanimous approval from both the Parliament Houses in this monsoon session. GST tries to simplify the complex tax structures & related issues by merging various taxes into one.

GST IN REAL ESTATE

Currently, the taxes applicable to Residential Real Estate transactions are - Service Tax, VAT & Stamp Duty. After the implementation of GST, Service Tax & VAT will be replaced by Central GST & State GST, whereas the Stamp Duty will remain unchanged as it is out of the orbit of GST. This will ensure more transparency to Indian Real Estate Sector. Let’s see how!

IMPACT OF GST ON VARIOUS REAL ESTATE TRANSACTIONS

GST will be applicable only on under-construction & rental properties, leaving aside the ready-to-move-in & other immovable properties. Major impact can be seen on construction costs & input credits. Impacts of GST on various transactions are listed below:

SELL OF IMMOVABLE PROPERTIES (LANDS)	Transfer by way of sell of immovable property is outside the ambit of GST. Immovable property will include lands/plots. There is no impact on the same.
UNDER CONSTRUCTION PROPERTIES	Under the current tax structure, Service Tax & VAT are levied on construction materials & works. Whereas under GST, only one tax will be levied. This will have direct impact on lowering the cost of construction. Currently, input taxes are not creditable to the builders, developers & end users. Hence, this non-credit cost is the main reason behind the higher final prices of the properties. Now under GST regime, there will be free flow of credits GST will strengthen the credit chain. Developers will get free input credits on GST paid by them, which in turn will lead to lower overall costs.
RESIDENTIAL LEASING/RENTING	Residential Leasing/Renting is not covered under the Service Tax currently. It continues to be same under GST too. No impact.
COMMERCIAL LEASING/RENTING	Commercial Leasing/Renting is currently taxable under Service Tax at the rate of 15.00%. It continues to be covered under GST too. GST will provide the commercial lessee/tenant negotiation power to negotiate on the lease/rents paid, as the builder will now enjoy input tax set off on the GST paid on the lease/rents. However, the actual magnitude of effect will be known only after GST rates are decided finally.

CONCLUSIVE THOUGHTS

“It will be important to see what the final rate of GST would be because if the rate is higher than the existing cumulative taxes, it will certainly be a dampener as it will increase the final cost for buying an under-construction flat and defeat the purpose of the bill,” said Neha Hiranandani, director, House of Hiranandani, a property developer based in Mumbai.

I totally agree with Ms. Neha & believe that the final tax rate of GST will stabilize the speculations of GST. However, with improved economic environment, I am hoping for positive response in realty sector. In any case, there will be a sturdy blow to this industry which is stagnant these days.

Author: Kopal Mittal

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