How is money refunded when a property deal is cancelled

Februay 2020

What are the financial and income tax consequences that follow, if a property deal is called off or cancelled? We examine

Property deals need not always culminate in the execution and registration of an agreement. Sometimes, the deal may not go through and may be abandoned halfway, after the payment of token money or even after some of the payments have been made. The deal may be cancelled by either the seller or the buyer, for any reason.

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In case of deals for the purchase of any real estate, the buyer generally pays some amount as token money, when the other terms and conditions for the transfer of the property are agreed upon. The amount of token money may vary, from being merely a token to a substantial percentage of the value of the property.

If the seller backs off from his commitment to sell his property, there are no immediate financial implications, except that the buyer gets a right to file a suit for specific performance in the courts of law. However, this is generally not resorted to.

If the buyer backs out from the deal, the seller has the right to forfeit the token money paid. With respect to such forfeited token money, the buyer cannot claim any income tax benefit, as this is treated as a capital loss under the tax laws. However, the advance money/earnest money that is forfeited, becomes an income of the seller in the year in which the deal is called off. Such forfeited earnest money is taxed under the head ‘income from other sources’ and not under the head ‘capital gains’, even though the income is received with respect to a capital asset.

Before the amendment of the law in 2014, the amount of forfeited earnest money was required to be deducted from the cost of acquisition of the asset with respect to which it was received, in the year in which the asset, which is the subject matter of the deal, was sold.

​​Refund of stamp duty paid

Generally, for all property transactions, the buyer has to pay certain amount as stamp duty. This is either a fixed amount or a percentage of the property’s market value. You also have to pay registration charges, for registration of the agreement.

The stamp duty rates and registration charges payable, are determined by the respective state governments. So, the rules for refund of stamp duty that is paid for property transactions, would vary from state to state. You are required to pay the stamp duty before the execution of the document.

In Maharashtra, you are entitled to claim refund of the stamp duty, within six months from its payment, in certain situations. You can claim the refund of stamp duty paid on such instrument, if the same has not been executed. The government deducts 1% of the stamp duty, subject to a minimum of Rs 200 and a maximum of Rs 1,000 of the stamp duty paid.

In case of cancellation of a deal for the purchase of a property and for which the agreements have already been registered, the Maharashtra government allows a longer period of two years from the date of the agreement, for claiming the refund of the stamp duty, subject to certain conditions.

This refund is allowed, only if the developer fails to hand over possession of the property booked and this fact, as the reason for cancellation of the deal, is mentioned in the cancellation deed. The rules also provide that the cancellation agreement should be registered.

The buyer of the property can get a refund of 98% of the stamp duty, if an application is made for a refund of the stamp duty. With the refund application, you are required to attach the original agreement, as well as the original cancellation deed, with both the documents being registered. However, you will not get a refund of the registration charges.

Refund of GST (Goods and Services Tax)

When you book an under-construction property, as per the existing laws, the developer levies a GST on the agreement value, at a certain rate. This rate will depend on whether the property falls under the ‘affordable housing’ category or not and also on whether the developer is availing of the GST. For any reason, if you want to cancel the booking and thus, surrender your rights over the under-construction property, the builder may agree to refund the booking amount and instalments paid, or even agree to pay a higher amount to you, depending on the demand and supply dynamics at that time.

Although the developer may have collected GST from you, he may or may not agree to refund this amount, as he may have already deposited the amount to the credit of the government. The builder will not be entitled to claim any refund with respect to the GST, as he has already rendered services to you.

In case you enter into an agreement to transfer your rights in the under-construction property to a third party, with the developer being the confirming party, your sale price would be inclusive of the GST and you will not be able to separately recover or charge any GST on such transaction.

While computing the capital gains, the GST that is already paid by you, will form part of the cost of acquisition. The capital gains will be taxable as long-term, if your holding period has been three years, or else, the profits, if any realised, will be taxed as short-term capital gains.

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Should you choose under-construction, ready-to-move or resale property?

Februay 2020

Unsure whether you should buy an under-construction, or ready-to-move-in, or resale property? We analyse the pros and cons of each option, to help you get clarity

The purpose for which a residential property is purchased, is crucial when it comes to deciding between an under-construction, ready to move (new property), or a resale property. You may buy it for occupancy as an end-user, or for investment purposes, or to keep it as a second home.

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What factors to consider when choosing between Under-construction vs ready-to-move-in vs resale property?

Experts suggest that for under-construction properties, the buyer should ensure that the developer has taken all the approvals, that the project should be RERA-registered and that it is being developed as per the development plan. There should be no financial stress on the project and the developer should have a good track record and the capability to deliver the project.

In case of ready-to-move-in projects, the buyer should ensure that all the property papers and approvals are in place and there is no financial liability on the project. The amenities and utilities promised by the developer should be in place and functional.

While buying a resale property, the buyer should check the age of the property, repair costs (if any) and encumbrances related to electricity, water, society bills, etc.

	Resale	Under-construction	Ready-to-move-in
Price	At market price, or lower if the seller is needy.	Discount over market rate	At a premium over the market rate
Risk level	Secure	Risky	Secure
Possession delay	No	Possible	No
Social infrastructure	Present in most cases	May not be present	Present in most cases
Physical infrastructure	Present in most cases	May not be present	Present in most cases
Return on investment	Low	High	Moderate
Suitability	End-use	Investment	End-use/investment
Loan facility	Available	Depends on papers and legal clearances	Available
Possession time	Immediate	Depends on project completion	Immediate

​​Who should buy under-construction properties?

An investor would always invest in an under-priced project with upside potential. During construction, the developers start with competitive pricing to attract buyers. As the project matures in construction and occupancy, the demand rises, leading to an increase in prices.

“An investor will always find it attractive, to invest during the early stages of project development. Under the guidelines of the Real Estate (Regulation and Development) Act (RERA), a developer cannot launch a project without obtaining the requisite permissions. Therefore, there is no pre-launch stage now. It is always advisable to invest, after thoroughly understanding the project, including the permissions obtained, government dues, project plan, etc.

All these details are better known upon official launch,” says Amit Chawla, director, valuation and advisory services, at Colliers International India.

Investing in resale property could be a costly affair because the existing buyer would have already paid stamp duty on it, and the investor has to again pay the stamp duty for such property. So, the cost of the ownership escalates by the value of stamp duty. The existing property owner may also add some premium on the price of the property, increasing purchase cost.

For example, if the stamp duty and the registration cost at a particular location is 8%. So, each time a property changes hands from one owner to another, the price will increase by at least 8% due to the stamp duty and registration thereof.

Who should buy ready-to-move-in properties?

People who are living on rent, may find it challenging to manage the EMI and rental outgo at the same time. The situation may become more complicated, if the possession of the property possession is delayed. Hence, such buyers should prefer ready-to-move-in properties over under-construction properties. 

“First-time buyers are usually end-users, who need a place to live and therefore, prefer ready-to-move-in flats, as they generally do not plan to sell the property for a long time,” opines Rituraj Verma, partner at Nisus Finance.

A ready-to-move-in property allows the buyer to understand the quality of construction, infrastructure support and locality. Moreover, the end-user can immediately leave the rental home, to save on the rental money. With a ready-to-move-in property, a buyer can also have a look and feel of the property and can compare it with other projects more effectively.

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How to buy a home that delivers long-term ROI

The decision to buy a property, should be based purely on the needs of the individual and the inherent value of the unit. We look at how home buyers can ascertain this, to choose a property that provides good returns on investment

With the Real Estate (Regulation and Development) Act (RERA) coming into force, as well as various other policy initiatives such as the Benami Transactions Act and the government’s push to affordable housing, we are seeing increased activity in the residential property market in the larger cities. After the dampener of demonetisation in 2016, the positive buyer sentiment visible now is especially significant. Consequently, builders are determined to capitalise on it, via increased marketing efforts. Given that there is already a lot of supply in the residential market – a lot of it for ready possession – fresh launches have been curtailed, so that the existing inventory can be absorbed. Much of the intensified marketing efforts are centered around special deals and offers.

How to ascertain the real value of a home

While this may be advantageous for property buyers, they should be judicious while evaluating offers and schemes and base their purchase decisions solely on the real value of the home. Freebies such as gold, cars and household goods, have an undeniable attraction but they are fundamentally frivolous in nature and do not add to the value of the home.

The price of a home is obviously an important consideration for middle-class property buyers. However, the strategy of looking for the cheapest options on the market, does not make much sense because it is quality that determines value. In the case of residential property, the quality of an offering depends on three aspects:

1. The quality of the location.


2. The brand value of the builder.


3. The availability and quality of facilities and amenities in the project and in individual units.

​​The importance of location in a property’s value

Central locations are traditionally the costliest, as they offer great access to many important parts of the city , such as the CBD (central business district) and SBD (secondary business district). These areas tend to host the offices of high-profile companies and offer a vast cross-section of jobs, from highly-paid management to more modestly-paid support staff jobs. Even the second category of jobs is attractive, because the growth prospects in high-profile companies, are usually very good. This is what makes living in central locations very desirable and from a real estate pricing perspective, very expensive.

In India, this mantra held true for a very long time, until the advent of the infotech culture. The IT/ITeS industry, tends to offer very good salary packages but is not focused on high-value locations. Quite to the contrary, such firms prefer to set up shop in peripheral locations, so as to save on the real estate costs. As a result, many cities’ outskirts have become very desirable places for home buyers and they are far less expensive.

For IT professionals and industrial employees, as well as property investors, buying a home in a peripheral location that connects to an IT hub and/or manufacturing belt, makes perfect sense. Unfortunately, such locations attract all kinds of developers – from those who have a reputation for creating true lifestyle value offerings, to those who specialise in constricted, ‘pigeon-hole’ homes. This is where the brand value of a developer plays a significant role.

Correlation between brand value and quality

With a lot of housing supply available in the new growth corridors, buyers are spoilt for choice. The cost of a flat is obviously important but one still only gets what one pays for. Ultimately, a home is not just an asset but one which performs the very critical functions of offering refuge, comfort and security. Buyers must look for options, which offer them these three advantages to a satisfactory level. Branded builders provide these as part of their standard value offering, because their reputation demands it.

Facilities and amenities that add value to a property

Urban life today, places a lot of stress and demands on us. Consequently, our homes cannot be mere places of refuge but must also provide healing and rejuvenation. A clubhouse, swimming pool and children’s park, are no longer luxuries but the bare minimum that Indian home buyers can and should expect. Nevertheless, even projects without such offerings will find buyers because of their lower prices. While short-listing prospects for home purchase, it is important to ensure that the final selection provides a decent lifestyle and not just an abode.

If one looks at the supply in the residential property market from this perspective, the choice of options automatically narrows down to a more manageable and comprehensive level. Buying the right home is not just about present and future comfort, but also about investment growth. Homes in good locations, built by reputed developers with a good saturation of amenities and facilities, will always yield better capital appreciation, as well as potential rental income for property investors.

TO KNOW MORE ABOUT INVEST IN PROPERTY IN THANE TO SAVE ON LONG TERM CAPITAL GAIN BLOG - A GUIDE TO CREATING WEALTH WITH RESIDENTIAL REAL ESTATE INVESTMENT, VISIT CREDAI MCHI THANE UNIT