NRI wins capital gains tax case in Delhi high court regarding sale of Rs 2 crore property despite Rs 46 lakh tax demand notice

Economic Times

14 hours ago

ET Online (Representative image) Delhi High Court: NRI wins Rs 2 crore property sale capital gains tax case despite buyer filing wrong TDS form An non-resident Indian (NRI) residing in the United States of America had to go through a very challenging time when he sold a property in Pune for Rs 2 crore and followed the laid down procedure. The problem started when the buyer deducted 20% TDS on this property transaction and deposited it with the income tax department using a wrong TDS form. As a result of this, the TDS amount simply failed to show up in the NRI's AIS. Without the TDS amount showing up in the AIS, the NRI could not claim it while filing Income Tax Return (ITR), resulting in a financial loss of Rs 18.68 lakh (20% TDS).
Moreover, the income tax department, unaware about this problem, issued a tax demand notice of Rs 46 lakh to this NRI as they deemed he sold the property and did not pay capital gains tax on it. The property buyer, however, claimed that he deposited the 20% TDS money with the income tax department and also showed a bank challan receipt for the same.
To give you a background context of this problem the property buyer deposited the 20% TDS in Form 26QB which relates to Indian residents. Since the property seller was NRI, the property buyer should have used Form 27Q to deposit the deducted 20% TDS. This wrong selection of the form by the property buyer was the source of all problems for the NRI. As soon as this issue was identified the property buyer went to the bank to correct the TDS form. However, the bank was working on this issue and taking its time to process the correction request. But the matter did not end here. The Income tax department said they cannot fix this issue by themselves as they need to follow the rules and procedure which involves the property buyer giving consent, an indemnity bond and other documents. There were dual challenges for this NRI - on one hand he was facing a tax demand of Rs 46 lakh and on the other hand he could not claim the TDS credit of Rs 18 lakh (20% TDS) as this was not showing up in his AIS. Hence the NRI approached the legal authority and ultimately Delhi High Court for relief.The Delhi High Court on May 27, 2025 ordered the income tax department to make the full 20% TDS credit reflect under the NRI's PAN with effect from the date it was deposited by the property buyer. The court also directed the income tax department to compute the amount of the tax refund that may be due to the NRI in accordance with law.Read below to understand the facts of this case and why the Delhi High Court ordered the income tax department to fix this issue and compute the tax refund amount that may be due to this NRI. How did this case start? According to the order of the Delhi High Court dated May 27, 2025, here is a timeline of events: 1998: A NRI person residing in the United States of America (USA) purchased a property in Pune.
A NRI person residing in the United States of America (USA) purchased a property in Pune. March 18, 2015: A doctor expressed his interest in buying this Pune property from this NRI for a total sale consideration of Rs 2 crore. The NRI accepted the offer.
A doctor expressed his interest in buying this Pune property from this NRI for a total sale consideration of Rs 2 crore. The NRI accepted the offer. September5, 2015 : The property buyer informed the NRI that he needs to deduct 20% TDS on this Rs 2 crore property sale. So the buyer will deduct Rs 18.68 lakh (18,68,177) and give the NRI Rs1.8 crore (1,81,31,823). The NRI agreed to this.
: The property buyer informed the NRI that he needs to deduct 20% TDS on this Rs 2 crore property sale. So the buyer will deduct Rs 18.68 lakh (18,68,177) and give the NRI Rs1.8 crore (1,81,31,823). The NRI agreed to this. October 27, 2015: The NRI computed his income tax liability as Rs 1.9 lakh (1,91,780) and deposited the same as advance tax. He then repatriated the balance amount of property sale proceeds to the USA. He did not file an income tax return (ITR) for that year.
The NRI computed his income tax liability as Rs 1.9 lakh (1,91,780) and deposited the same as advance tax. He then repatriated the balance amount of property sale proceeds to the USA. He did not file an income tax return (ITR) for that year. March 4, 2023: An Income tax officer issued a notice under Section 148(b) to this NRI on the basis of the information available that the NRI had sold a property, which according to the officer, suggested that the petitioner's income had escaped assessment.
An Income tax officer issued a notice under Section 148(b) to this NRI on the basis of the information available that the NRI had sold a property, which according to the officer, suggested that the petitioner's income had escaped assessment. April 15, 2023: The NRI person furnished all details and even showed his advance tax receipt, but the tax officer did not accept the same. This officer then proceeded to pass an order under Section 148A(d) holding that it is a fit case for issuance of notice under Section 148.
The NRI person furnished all details and even showed his advance tax receipt, but the tax officer did not accept the same. This officer then proceeded to pass an order under Section 148A(d) holding that it is a fit case for issuance of notice under Section 148. October 30, 2024: The income tax officer issued another notice under Section 142 seeking furnishing of certain documents. The NRI person responded to the same and gave the details.
The income tax officer issued another notice under Section 142 seeking furnishing of certain documents. The NRI person responded to the same and gave the details. March 4, 2025: The income tax officer issued a proposed assessment order by accepting the ITR filed by the NRI in response to the earlier notice. The tax officer also issued a computation sheet reflecting a tax demand of Rs 46 lakh (46, 81, 013). He issued another notice showing this tax demand amount. The tax officer based on this notice also initiated penalty proceedings under Section 270A.
The income tax officer issued a proposed assessment order by accepting the ITR filed by the NRI in response to the earlier notice. The tax officer also issued a computation sheet reflecting a tax demand of Rs 46 lakh (46, 81, 013). He issued another notice showing this tax demand amount. The tax officer based on this notice also initiated penalty proceedings under Section 270A. March 2025: The NRI filed a detailed reply pointing out that the entire tax liability had been discharged, but the credit of the same was not effected on account of TDS returns filed under Form 26QB instead of Form 27Q. The NRI directly filed an appeal against this order in the Delhi High Court. What did the Income Tax Department say in the Delhi High Court? Lawyers representing the Income Tax Department said in the Delhi High Court:'The counsel appearing for the Revenue submits that the Income Tax Department has been unable to correct the error, as under the Standard Operating Procedure [SOP], the consent of the buyers is required, along with an indemnity bond and other documents,' the reply given to the high court. Delhi High Court asks the tax department why buyers' consent is required for correcting TDS form? When the Delhi High Court asked the tax department why they need buyers' consent for correcting the TDS return form. The lawyers representing the income tax department said:The reply: 'On a pointed query, as to why the buyers' consent would be required, the counsel for the Revenue submits that the same would be necessary in order to obviate any action on the part of the buyers to recover the amount of the TDS that had been deposited. She states that although, there is no dispute as to the deposit of the TDS, but the petitioner's (NRI) case has been withheld only on account of the documents required from the buyers.' Delhi High Court final judgement The Delhi High Court ordered the income tax department to give the full TDS credit of Rs 18 lakh to this NRI and also compute the tax refund amount due to him.The judgement: 'In the peculiar facts of this case, we consider it apposite to direct the Revenue to correct the record and reflect the TDS deposited by the buyers to the petitioner's credit under the return filed in the Form 26QB with effect from the date, the amount was deposited. The Revenue shall further compute the amount of the refund, if any, that may be due to the petitioner in accordance with law. All the orders and communication not in conformity with the aforesaid directions shall be treated as having been set aside. The petition is allowed in the aforesaid terms. The pending application is also disposed of.' To reiterate, the NRI computed the balance of income tax liability at Rs 1.9 lakh (1,91,780) for this Rs 2 crore property sale and deposited the same as advance tax. His AIS was showing this advance tax payment.The Income tax department did not dispute this aspect. What is the significance of this case for NRIs? ET Wealth Online has asked various experts about the significance of this case, here's what they said:
Gopal Bohra, partner, N.A. Shah LLP, says: 'In this case, the buyer has appropriately deducted the tax at source @20% while making payment to the non-resident seller under section 195, however, wrongly deposited the TDS amount by filling Form 26QB which is applicable where tax is deducted @1% on purchase of property from resident seller. Due to this procedural error committed by the buyer, the non-resident seller's 26AS reflects TDS only @ 1% and balance TDS amount remains unconsumed under PAN of the buyer. Since, there was no loss to the revenue as the buyer has deposited the entire TDS with the government, the High Court has correctly directed the tax department to give credit of the balance TDS amount to the non-resident seller.'
Rahul Jain, Partner at Khaitan & Co, says: 'For NRIs selling property in India, this ruling underscores the importance of proactive tax compliance. It is vital to inform the buyer of their non-resident status, ensure that tax is deducted and deposited timely with the government, and that TDS is reported in Form 27Q with correct details (including the TDS amount and PAN of the buyer). If feasible, NRIs may ask the buyers to share the draft form prior to filing for confirmation. NRIs should also ensure to collect Form 16A (TDS certificate), monitor Form 26AS, and file the return in India to claim credit or refund, within statutory timelines. Small lapses can lead to significant complications, so early diligence can help avoid long and costly disputes.' Jain adds: "Income tax law explicitly states that taxes deducted at source and paid to the Central Government by the payor shall be treated as the taxes paid by the recipient. Accordingly, the recipient is legally entitled to claim credit of such taxes deducted and paid. In this instance, the fact that taxes were deducted and paid in India by the buyer (on behalf of the recipient) was undisputed and the issue was strictly limited to procedural lapse on part of the buyer in filing the correct tax form. While the tax department claimed that certain documents and an indemnity bond is required from the buyer as per the internal Standard Operating Procedure to rectify the issue, the High Court exercised its powers of writ and issued the directions to grant the credit."
Madhura Samant, Managing Partner, Elarra Law Offices, says: "The Court rightly held there was no statutory power for such a reversal and found the demand and penalty notices to be arbitrary and lacking in reasoned consideration. A buyer's procedural error cannot be allowed to prejudice a compliant seller. This case underscores the importance of balancing procedural compliance with a fair and fact-based evaluation of taxpayer conduct." Samant adds: 'NRIs selling property in India must ensure that the buyer deducts TDS using Form 27Q—not Form 26QB. It is also critical that the buyer has a valid TAN (Tax Deduction Account Number) before deducting TDS, as PAN alone is not sufficient in transactions involving NRIs. Without a TAN, Form 27Q cannot be filed. Additionally, the NRI seller must obtain Form 16A (the TDS Certificate) from the buyer as proof of tax deduction and deposit. Compliance should be double-checked before execution. Even a minor procedural lapse can escalate into significant tax disputes. Proactive oversight and proper documentation are essential to secure rightful tax credit and avoid unnecessary litigation. Legal safeguards start with paperwork. An incorrect form can lead to years of litigation and blocked refunds.'
Deepesh Chheda, Partner, Dhruva Advisors: The Delhi High Court prioritized the substance of tax payment over procedural error. Despite the buyers incorrectly filing TDS form, the court recognized that the entire tax liability had been discharged and directed the Revenue to credit the full TDS amount to the NRI, emphasizing that a mere technical lapse should not obstruct rightful credit. This High Court ruling serves as a crucial precedent for NRIs, affirming that substantive tax payment prevails over procedural errors in TDS filings. To prevent similar issues, NRIs must proactively educate their buyers on the correct TDS compliance for non-residents, emphasizing the mandatory use of correct form, and vigilantly verify proper filing to ensure timely credit and avoid protracted dispute.