• Transfer of allotment from NRI

I am looking into a property which was initially alloted to a NRI by a big builder. The NRI say X has paid complete due to the builder , and flat is ready now. But the registration is not done yet.

Now X wants to sell its allotment to me and Builder would transfer the allotment  for a transfer fee. 
Now in this case flat will be directly registered in my name . So my question is 
1.who is the seller in my case , as I would pay the money to the seller X and flat will be registered by the builder.

2.what would be the sell amount , on which amount TDS  will be calculated  , the amount I pay X or the original amount mentioned in the allotment letter.

3. What all agreement/registration I need to do ?
Asked 1 year ago in Property Law from Kolkata, West Bengal
Religion: Hindu
1. X cannot sell the property to you unless the conveyance deed has been made in his favour. One can sell a property only once he has become the lawful owner thereof after execution of the title deed in his favour.  

2. The agreement between the builder and X should be cancelled before a fresh agreement is entered into between you and the builder.

3. The owner alone can be the seller. If the title deed has not been made in favour of X then the builder alone can sell the property to you.

4. TDS is to be deducted @ 1% where the consideration exceeds Rs.50 Lakhs.
Ashish Davessar
Advocate, Jaipur
18070 Answers
447 Consultations
5.0 on 5.0
1) contact a local lawyer 

2) tripartite agreement would be made between NRI seller you and builder as confirming party . 

3) however please note that builder would charge transfer fees running into around s 2 lakhs or so . 

4) whether NRI seller is willing to pay transfer charges to builder ? 

5) sale amount would be the price you pay to NRI seller 

6) check whether occupation certificate is issued by municipal corporation 

Ajay Sethi
Advocate, Mumbai
23153 Answers
1216 Consultations
5.0 on 5.0
HI,
1. If you purchase the flat, it will be registered in your name as you the purchaser and builder as the seller.However you can insist the builder and the NRI investor to sign a Tri-party- agreement  separately which can mention about the details of the deal the money transaction and the amount adjustments etc. , to avoid any future claims.The NRI can sell you  from a direct transfer from builder to you 

2. The builder will be the seller in this case as there is no Registration took place.
2. it is usually the rate at which the buyer needs to deduct tax is 1% and it may go up to as high as 20% if the seller does not disclose his PAN. This rule also covers the property purchased through home loan.
Under sec.194-1A, of the act, any sum paid by way of consideration for transfer of any immovable property (other than agricultural land) is covered under section 194-IA, provided the consideration for transfer of an immovable property is not less than Rs. 50 lakhs. 
No deduction shall be made where consideration for the transfer of an immovable property is less than fifty lakh rupees.
4. The Tax/ TDS shall be decided  on the consideration amount mentioned the sale deed

5. To complete the registration make sure that you get all the documents pertaining to the building along with the sale agreement/ sale deed as it is applicable in Kolkotta, make sure that you get n NOC from the builder that the flat is clear of all encumbrance,  you will not be able to get nay details of mortgage from the registrar office as it is not yet registered.The deed for Registration of the sale is usually prepared by the builder and you can get an advocate to scrutinize e it. Once the documents is prepared make payments of stamp duty and registration charges as required and go for the registration.

Ultimately you as a purchased need to keep due diligence in buying a property, so its tile, permissions, developmental rights,occupancy certificate, completion certificate, permission from different local and Government authorities etc have to be in place.All these can be checked before entering into a deal.
So ask for the copies of set of documents get it scrutinized with a local property lawyer and proceed further.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. The Seller in your case would be the builder however before you enter into an agreement with the Builder here, it is advisable that any other earlier agreements between the NRI and the Builder be terminated or cancelled. The Builder will charge the transfer fee so make sure the X is ready to pay the said amount or the amount which is to be paid is to be mentioned in the agreement clearly.

2.TDS will be calculated on the amount which is paid to the X during the sale.

3.Before buying the property from X, make a background check of the builder and the property as well. Completion certificate, occupation certificate, etc are to be checked. 
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
1. In this case the builder will be the seller to you. The builder has already got the consideration and it will charge further payment from the 1st allotte,

2. The 1st allottee will give a consen letter and copy of the agreement to the builder for issuing fresh allotment letter in your name duly cancelling his name,

3. The 1st allotte shall have to pay all the dues including the maintenance , club house charges etc.,

4. The TDS shall have to  be deducted by you from the sale amount mentioned in the agreement,

5. The said amount shall have to be deposited by you to the appropriate account meant for depositing RDS amount. 
Krishna Kishore Ganguly
Advocate, Kolkata
12082 Answers
228 Consultations
5.0 on 5.0
1)it is advisable  that sale deed with builder should reflect the actual amount paid to seller . it may not be possible if amount being paid to seller is more than price builder has received from the seller . in your case seller is being paid Rs 65 lakhs whereas builder has received Rs 48 lakhs . 

2) one option is for sale deed to be registered between builder and seller . which reflects Rs 48 lakhs amount . then your purchase flat on resale basis for Rs 65 lakhs from the seller 

2) it is sufficient if builder agrees to issue  NOC to seller for transfer of flat in your name . 

3) the NOC should mention that full payment has been paid by seller and that no dues are payable to the builder . 

4) apply for bank loan on basis of  regd sale deed between builder and seller and  issue of NOC  by builder . once loan is sanctioned then agreement to be regd with seller.  
Ajay Sethi
Advocate, Mumbai
23153 Answers
1216 Consultations
5.0 on 5.0
1. You do not need to make an agreement with X as he is not the owner. The agreement can be made only with the builder, on the basis of which you can apply for bank loan.

2. NOC will not suffice. The agreement between the builder and X is required to be cancelled, albeit the consideration can be paid to X.

3.  TDS will be on 65 lacs i.e the complete consideration. 
Ashish Davessar
Advocate, Jaipur
18070 Answers
447 Consultations
5.0 on 5.0
1. You shall deduct TDS on the amount you are paying to the 1st Allotee i.e. on Rs. 65 Lakhs,

2. It will be 1% of the amount paid if the said payment is more than Rs.50 Lakhs,

3. Not only that the 1st allotee shall have to pay off all his dues and also should produce certificate from the lending Bank that he does not have any dues outstanding in connection with the loan taken for buying the said flat (if he has taken such loan from the Bank).
Krishna Kishore Ganguly
Advocate, Kolkata
12082 Answers
228 Consultations
5.0 on 5.0

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