Real Estate(Regulation and Development) Act, 2016
After a lot of opposition, deliberation and several amendments, the Rajya Sabha has, on 10 March 2016, approved the Real Estate (Regulation and Development) Bill, 2016 (Bill/Act) which substantially amends the original Real Estate (Regulation and Development) Bill, 2013. All its provisons came into effect, from May 1, 2017.
The Bill largely seeks to protect the interest of the allottees/purchasers by promoting transparency, accountability and efficiency in the construction and execution of real estate projects by promoters. It also holds the promoters accountable for not registering their projects with the Real Estate Regulatory Authority (Regulatory Authority) or for providing insufficient information regarding their project. In addition to the promoter and allottees, the Bill also brings real estate brokers who facilitate the sale and purchase of units in a project within its ambit.
The salient features of the Bill are the following:
- Real Estate Regulatory Authority
- Under the Bill, instead of a regular forum of consumers, the purchasers of real estate units from a developer would have a specialised forum called the “Real Estate Regulatory Authority” which will be set up within one year from the date of coming into force of the Act. In the interim, the appropriate Government (i.e., the Central or State Government) shall designate any other regulatory authority or any officer preferably the Secretary of the department dealing with Housing, as the Regulatory Authority.
- Registration with the Regulatory Authority
- The promoter has to register their project (residential as well as commercial) with the Regulatory Authority before booking, selling or offering apartments for sale in such projects. In case a project is to be promoted in phases, then each phase shall be considered as a standalone project, and the promoter shall obtain registration for each phase.
- Further, in case of ongoing projects on the date of commencement of the Act which have not received a completion certificate, the promoter of such project shall make an application to the Regulatory Authority for registration of their project within a period of three months of the commencement of the Act.
- The following types of projects shall not be required to be registered before the Regulatory Authority:
- Where the area of land proposed to be promoter does not exceed 500 square meters or the number of apartments to be constructed in the project does not exceed eight apartments. However, the appropriate Government (Central and State Government) may, if it considers appropriate, reduce the threshold limit below 500 square meters or eight apartments;
- Projects where the completion certificate has been received prior to the commencement of the Act;
- Projects for the purpose of renovation or repair or re-development which does not involve marketing, advertising, selling and new allotment of any apartment plot or building.
- The application for registration must disclose the following information:
- Details of the promoter (such as its registered address, type of enterprise such proprietorship, societies, partnership, companies, competent authority);
- A brief detail of the projects launched by the promoter, in the past five years, whether already completed or being developed, as the case may be, including the current status of the projects, any delay in its completion, details of cases pending, details of type of land and payments pending;
- An authenticated copy of the approval and commencement certificate received from the competent authority and where the project is proposed to be developed in phases, an authenticated copy of the approval and commencement certificate of each of such phases;
- The sanctioned plan, layout plan and specifications of the project, plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof and the locational details of the project;
- Proforma of the allotment letter, agreement for sale and conveyance deed proposed to be signed with the allottees;
- Number, type and carpet area of the apartments and the number and areas of garages for sale in the project;
- The names and addresses of the promoter’s real estate agents, if any, and contractors, architects, structural engineers affiliated with the project; and
- A declaration by the promoter supported by an affidavit stating that:
- he has a legal title to the land, free from all encumbrances, and in case there is an encumbrance, then details of such encumbrances on the land including any right, title, interest or name of any party in or over such land along with the details;
- the time period within which he undertakes to complete the project or the phase; and
- 70% of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose.
- Carpet Area
Under the Bill, developers can sell units only on carpet area, which means the net usable floor area of an apartment. This excludes the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.
- 70% of realisation from allottees in a separate bank account
- The Act mandates that a promoter shall deposit 70% of the amount realised from the allottees, from time to time, in a separate account to be maintained in a scheduled bank. This is intended to cover the cost of construction and the land cost and the amount deposited shall be used only for the concerned project.
- The promoter shall be entitled to withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project. However, such withdrawal can only be made after it is certified by an engineer, an architect and chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project.
- The promoter is also required to get his accounts audited within six months after the end of every financial year by a practicing chartered accountant. , Further, he is required to produce a statement of accounts duly certified and signed by such chartered accountant, and it shall be verified during the audit that (i) the amounts collected for a particular project have been utilised for the project; and (ii) the withdrawal has been in compliance with the proportion to the percentage of completion of the project.
- Acceptance or refusal of registration
- Upon receipt of an application by the promoter, the Regulator Authority shall within a period of 30 days, grant or reject the registration.
- Upon granting a registration, the promoter will be provided with a registration number, including a login Id and password for accessing the website of the Regulatory Authority and to create his web page and to fill in the details of the proposed project.
- If the Regulatory Authority fails to grant or reject the application of the promoter within the period of 30 days, then the project shall be deemed to have been registered.
- The registration, if granted, will be valid until the period of completion of the project as committed by the promoter to the Regulatory Authority. This period shall be extended by the Regulatory Authority for a period not exceeding one year in aggregate, only due to force majeure and on payment of such fee as may be specified by regulations made by the Regulatory Authority.
- Revocation or lapse of registration
- The Regulatory Authority may revoke the registration granted on receipt of a complaint or suo moto or on the recommendation of the competent authority in case (i) the promoter makes a default in doing anything required under the Act or the rules or regulations made thereunder; (ii) the promoter violates any terms of the approvals granted for the project; and (iii) the promoter is involved in any kind of unfair practice of irregularities.
- In the event the registration is revoked by the Regulatory Authority or it lapses, the Regulatory Authority shall:
- debar the promoter from accessing the website in relation to the project, specify his name in the list of defaulters on its website and also inform other Regulatory Authorities in other States and Union territories about such cancellation;
- facilitate the remaining development works to be carried out by competent authority or the association of allottees or in any other manner as may be determined by the Regulatory Authority. However, the association of allottees shall have a first right of refusal for carrying out the remaining development works; or
- direct the scheduled bank holding the project bank account, to freeze the account and thereafter take such further necessary actions, including consequent de-freezing of the account, for facilitating the remaining development works in the manner mentioned above.
- Website of the Regulatory Authority
- The promoter shall, upon receiving his login Id and password, create his web page on the website of the Regulatory Authority and enter all details of the proposed project including:
- details of the registration granted by the Regulatory Authority;
- quarterly up-to-date list of the number and types of apartments or plots or garages, as the case may be, booked;
- quarterly up-to-date status of the project along with the list of approvals obtained and approvals pending subsequent to commencement certificate; and
- such other information and documents as may be specified by the regulations made by the Regulatory Authority.
- Advertisement or prospectus issued by the promoter
- The advertisement or prospectus issued or published by the promoter should prominently mention the website address of the Regulatory Authority, where all details of the registered project have been entered and include the registration number obtained from the Regulatory Authority and other similar details.
- Where any person makes an advance or a deposit on the basis of the information contained in the notice, advertisement or prospectus and sustains any loss or damage because of any incorrect, false statement included in these, he shall be compensated by the promoter in the manner as provided under the Act. Also, if the person affected by such incorrect, false statement contained in the notice, advertisement or prospectus, intends to withdraw from the proposed project, his entire investment (along with interest at such rate as may be prescribed and compensation in the manner provided under the Act), will be returned to him.
- Limit on receipt of advance payment
A promoter shall not accept a sum more than 10% percent of the cost of the apartment, plot, or building, as the case may be, as an advance payment or an application fee, from a person without first entering into a written agreement of sale with such person and register the said agreement of sale, under any law for the time being in force.
- Restriction on addition and alteration in the plans
- The promoter cannot make any addition or alteration in the approved and sanctioned plans, structural designs, specifications and amenities of the apartment, plot or building without the previous consent of the allottee.
- The promoter also cannot make any other addition or alteration in the approved and sanctioned plans, structural designs and specifications of the building and common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such a building.
- Structural defect
In case any structural defect or any other defect in the workmanship, quality or provision of services or any other obligations of the promoters is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, the promoter shall rectify such defect without any further charge, within thirty days. If the promoter fails to rectify such defect within such time, the aggrieved allottee shall be entitled to receive appropriate compensation in the manner as provided in the Act.
- Restriction on transfer and assignment
The promoter shall not transfer or assign his majority rights and liabilities in respect of a project to a third party without obtaining prior written consent from two-thirds of the allottees, except the promoter, and without the prior written approval of the Regulatory Authority.
Please note that the allottee, irrespective of (i) the number of apartments or plots booked by him or booked in the name of his family; or (ii) in the case of other persons such as companies/firms/any association of individuals, by whatever name called, booked in its name or booked in the name of its associated entities/related enterprises, shall be considered as one allottee only.
- Refund of amount in case of delay in handing over possession
In case the promoter is unable to hand over possession of the apartment, plot or building to the allottee (i) in accordance with the terms of the agreement of sale; or (ii) due to discontinuance of his business as a promoter on account of suspension; or (iii) revocation of his registration or for any other reason, then the promoter shall be liable, on demand being made by the allottee, to return the amount received by him from the allottee with interest and compensation at the rate and manner as provided under the Act. This relief will be available without prejudice to any other remedy available to the allottee.
However, where an allottee does not intend to withdraw from the project, he shall be paid interest by the promoter for every month of delay, till the handing over of the possession, at a prescribed rate.
- Other relevant provisions
- The same rate of interest will be payable by the allottee and the promoter in the event of their respective defaults.
- In the absence of any local laws, an association or society or cooperative society, as the case may be, of the allottees, shall be formed within a period of three months of the majority of allottees who have booked their plot or apartment or building, as the case may be, in the project.
- After the promoter executes an agreement for sale for any apartment, plot or building, no mortgage or charge can be created by the promoter on such apartment, plot or building. If any such mortgage or charge is created, then notwithstanding anything contained in any other law for the time being in force, it shall not affect the right and interest of the allottee who has taken or agreed to take such apartment, plot or building.
- The promoter may cancel the allotment only in terms of the agreement for sale. However, the allottee may approach the Regulatory Authority for relief, if he is aggrieved by such cancellation and such cancellation is not in accordance with the terms of the agreement for sale, is unilateral and without any sufficient cause.
- The promoter shall obtain insurance as may be notified by the appropriate Government, including but not limited to the title of the land and building and construction of the project. The promoter shall also be liable to pay the premium and charges in respect of the insurance.
- The promoter shall execute a registered conveyance deed in favour of the (i) allottee in respect of the apartment, plot or building; and (ii) association of allottees of competent authority in respect of the undivided proportionate title in the common areas, and hand over possession of the same within the period as specified under the local laws. In the absence of any local law, such conveyance deed shall be carried out by the promoter within three months from date of issue of the occupancy certificate.
- The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land in the manner as provided under the Act, and such claim for compensation shall not be barred by limitation provided under any law for the time being in force.
- Every allottee shall take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or buildings.
- The Regulatory Authority shall make a recommendation to the appropriate Government on (i) creation of a single window system for ensuring time-bound project approvals and clearances for timely completion of the project; and (ii) creation of a transparent and robust grievance redressal mechanism against acts of omission and commission of competent authorities and their officials.
- Real Estate Appellate Tribunal
- In addition to the establishment of the Regulatory Authority, the Bill also proposes to establish a Real Estate Appellate Tribunal (Appellate Tribunal) within one year from the date of commencement of the Act.
- Any person aggrieved by any direction or decision made by the Regulatory Authority or by an adjudicating officer, may make an appeal before the Appellate Tribunal within a period of 60 days from the date of receipt of a copy of the order or direction.
- The Appellate Tribunal shall deal with the appeal as expeditiously as possible and endeavour shall me made to dispose of the appeal within a period of sixty days from the date of receipt of appeal.
- The Appellate Tribunal shall have same powers as a civil court and shall be deemed to be a civil court. An appeal against the order of the Appellate Tribunal may be filed before the jurisdictional High Court within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal.
- Adjudicating Officer
For adjudging the compensation to be paid by the promoter in accordance with the provisions of the Act, the Regulatory Authority shall appoint (in consultation with the appropriate Government) one or more judicial officers as deemed necessary, who is or has been a District Judge, to be an adjudicating officer for holding an inquiry in this regard. However, such an appointment will be made after giving any person concerned a reasonable opportunity of being heard.
- Offences and Penalty
- Stringent penal provisions have been prescribed under the Act against the promoter in case of any contravention or non-compliance of the provisions of the Act or the orders, decisions or directions of the Regulatory Authority or the Appellate Tribunal which are the following:
- If promoter does not register its project with the Regulatory Authority – the penalty may be up to 10% of the estimated cost of the project as determined by the Regulatory Authority;
- If promoter does not comply with the aforesaid order of the Regulatory Authority – imprisonment of up to three years and a further penalty of up to 10% of the estimated cost, or both; and
- In case the promoter provides any false information while making an application to the Regulatory Authority or contravenes any other provision of the Act – the penalty may be up to 5% of the estimated cost of the project or construction.
These penal provisions have also been prescribed for any contravention or violation committed by the real estate agent or the allottee.
- If any allottee fails to comply with, or contravenes any of the orders, decisions or directions of the Regularity Authority, there may be a penalty for the period during which such default continues, which may cumulatively extend up to 5% of the cost of the plot, apartment or building, as the case may be, as determined by the Regulatory Authority. Further, if any allottee fails to comply with, or contravenes any of the orders or directions of the Appellate Tribunal, this may entail imprisonment up to one year or with fine for every day during which such default continues, which may cumulatively extend up to 10% of the cost of the plot, apartment or building, as the case may be, or with both.
- Overriding effect
The provisions of this Act shall have an overriding effect in case there is any inconsistency between the provisions contained in this Act and in any other law (including a state law) for the time being in force.
The Maharashtra Housing (Regulation and Development) Act 2012 has been repealed by the Central Government.
REVISED DTAA TO IMPROVE TRANSPARENCY IN TAX MATTERS, HELP CURB TAX EVASION AND TAX AVOIDANCE, REMOVE DOUBLE TAXATION AND WILL STIMULATE THE FLOW OF INVESTMENT, TECHNOLOGY AND SERVICES BETWEEN BOTH THE COUNTRIES.
The Double Taxation Avoidance Agreement (DTAA) between India and Kenya was signed and notified in 1985. Subsequently, the DTAA was renegotiated and a revised DTAA was signed between both countries on 11th July, 2016. The revised DTAA has been notified in the Official Gazette on 19th February, 2018.
Some of the key features of the revised DTAA are highlighted as under:
- In order to promote cross border flow of investments and technology, the revised DTAA provides for reduction in withholding tax rates from 15% to 10% on dividends, from 15% to 10% on interest, from 20% to 10% on royalties and from 17.5% to 10% on fees for management, professional and technical services.
- The revised DTAA provides for a new Article on Limitation of Benefits to allow treaty benefits to bonafide residents of both countries, to combat treaty abuse by third country residents and to allow application of domestic law to prevent tax avoidance or evasion.
iii. The Article on Exchange of Information has been updated to the latest international standard to provide for exchange of information, including banking information for tax purposes, to the widest possible extent.
- A new Article on Assistance in Collection of Taxes has also been provided in the revised treaty which will enable assistance in collection of tax revenue claims between both countries.
The revised DTAA will improve transparency in tax matters, help curb tax evasion and tax avoidance, remove double taxation and will stimulate the flow of investment, technology and services between India and Kenya.
Hong Kong is a significant economic partner of India in terms of trade and investment. India is Hong Kong’s seventh largest trading partner and the total value of bilateral trade has reached HKD 266 billion.
Despite such large-scale trade relations between India and Hong Kong, India did not have a Double Tax Avoidance Agreement (tax treaty) with Hong Kong. Furthermore, the Indian government had categorically clarified vide Instruction No. 1948 dated 4 May 1998 that the tax treaty between India and China would not extend automatically to Hong Kong since Hong Kong has a right to conclude and implement agreements with other jurisdictions on its own.
In 2017, the Union Cabinet of India gave its approval for entering into a tax treaty with Hong Kong. Accordingly, India entered into a tax treaty with Hong Kong on 19 March 2018 for the avoidance of double taxation and fiscal evasion of taxes on income. The said tax treaty would become effective once the same is notified by both the countries.
Key takeaways from the tax treaty
Permanent Establishment – Article 5
- Service Permanent Establishment (PE) is established if services are provided by a resident of one country in another country through its employees/other personnel for a specified period.India-Hong Kong Tax Treaty provides for a threshold of 183 days. This threshold is substantially higher than the limits of 30/60/90 days in various other tax treaties. However, this clause provides that the period has to be considered for any 12 month period and also covers connected projects.
- Recently, India had expanded the definition of Dependent Agent PE (DAPE) under the domestic law to bring the same in line with the definition provided under the Multilateral instrument (MLI) signed under the Base Erosion & Profit Shifting (BEPS) project.
The India-Hong Kong Tax Treaty continues to have the old definition ( narrower definition) of . could be Hong Kong has reserved its rights on the expanded definition of provided under MLI in respect of its covered tax treaties.
Shipping and Air Transport – Article 8
- The India-Hong Kong Tax Treaty provides for partial exemption of profits earned by a shipping company or airline company. The tax treaty provides that income from a shipping business or airline business would be taxable in the source country at 50% of the tax rate of the source country.Typically, most of the Indian tax treaties provide for an exemption in source country for shipping companies and airline companies. Provisions of partial exemption present only in a few Indian tax treaties like India-Netherlands, India-Greece India-France among others.
Dividends – Article 10
- The India-Hong Kong Tax Treaty provides for a 5% tax rate on dividends in the hands of the recipient of the dividend without any ownership condition.Most of the Indian tax treaties with developed countries like the USA, the UK, France, Germany, etc. provide for a higher rate of dividend tax. India has limited tax treaties which provide for a 5% dividend tax rate. However, all those treaties have an ownership condition for availing the 5% rate. However, the India-Hong Kong Tax Treaty provides for a lower without any ownership condition.
Royalties & Fees for Technical Services – Article 12 & 13
- Royalties and Fees for Technical Services (FTS) are taxable at the rate of 10%.
Many Indian tax treaties with countries like Singapore, the USA, the UK, etc. provides for an expanded definition of FTS. However, such a clause is not present in this treaty.
Capital Gains – Article 14
- Capital gains to be taxable in the source country for shares as well as others.
This tax treaty would help in creating transparency in tax matters and also help companies in avoiding double taxation of income. It would be pertinent to note that most of the terms negotiated in the tax treaty are in line with the recently signed tax treaties by India. However, in respect of shipping income, the treaty does not have the same advantage as available under the India-China Tax Treaty.
Also, it would be pertinent to note that various articles of the tax treaty (i.e., dividend, interest, royalties, FTS, capital gain articles, etc.) have a specific anti-abuse provision which requires a principal purpose test to be fulfilled. Benefits of these articles would not be available in cases where the main purpose or one of the main purposes of the company was to avail these benefits.
The only silver lining in the tax treaty is a favorable tax rate of 5% for dividend taxation in source state without any condition. However, in the Indian context, this may not be of relevance as dividend income from companies would be exempt.
Nevertheless, signing this tax treaty would help Hong Kong companies to claim tax credit in the home country of taxes paid in India.
In exercise of the powers conferred by sub-section (3) of section (6) read with section 47 of the Foreign Exchange Management Act, 1999 (42 of 1999), the Reserve Bank makes the following regulations relating to merger, amalgamation and arrangement between Indian companies and foreign companies. These Regulations may be called the Foreign Exchange Management (Cross Border Merger) Regulations, 2018 and shall come into force from the date of their publication.
The Regulations are detailed in the link mentioned herein below