Friday, June 15, 2007

Real Estate: Manipulative International Investment – Open Defiance of RBI Regulations and Tax Evasion

The Real Estate Sector has witnessed an unprecedented boom during last 3 years arising out of economic growth on the one hand and liberalization of international investment in Real Estate Sector on the other hand. Reserve Bank of India, based on a decision of Government of India has liberalized investment in immovable properties in India for non- resident Indians as well as foreign companies and foreign citizens. In terms of the current liberalization NRIs are permitted to invest in real estate sector for the development involving construction of commercial as well as residential premises, townships and infrastructure facilities. There is no limit on the number of properties; quantum of investments. Recently RBI has also withdrawn the 10-years lock in period applicable to non-resident Indians. Even the non repatriable funds (profit arising out of real estate activities) can be repatriated under US $ 1 million per annum scheme.

In addition to this investment by foreign companies and foreign citizens is allowed subject to minimum level of investments and minimum area development requirements. The aforesaid liberalization in terms of Foreign Exchange Management Act are being openly misused and RBI has not brought in any mechanism by which the misuse can be curbed. The following natures of misuses are openly happening in connivance of property developer, property dealer and banker with the non- resident investors:

  • Investment in farm houses is specifically prohibited for non resident Indians, foreigners and foreign citizens. A very large number of such investments all across India have been made even special scheme for non resident farm houses.
  • Non- residents either in their own name or in the name of companies created for the purpose are buying agriculture land. After acquisition of the agricultural land a change of land use (CLU) is applied and in certain cases for several years no CLU is issued by the Government. The land is being traded even without obtaining CLU. This is clearly not permitted in terms of RBI Regulations, but being misinterpreted.
  • Large-scale investments in agriculture land are being made in the name of development of seeds or through a structured methodology of contract farming.
  • Non-resident Indians are regularly buying and selling properties, thereby involving themselves in trading in real estate. The plots, shops or commercial offices are being purchased from builders either partly developed or fully developed, and the same is being sold while under development.
  • Non-residents are buying built up residential properties and built up commercial properties and plots of land in various parts of the country and are frequently trading in these properties. 
  • In certain cases the investment made from outside India in the shape of shares is transferred between 2 non residents and the capital gain arising thereof is not offered to tax or in certain cases part of the consideration is passed outside India, which is not brought on record for tax payment in India. The treaty shopping in any case is legal.
The liberalization of Foreign Exchange Regulations is being misused in several other sectors, for which necessary preventive mechanism is not in place.e.g.
  • The maximum cap of foreign investment is being defied by having side agreements and shareholders’ agreements. In certain cases the foreign investor actually indirectly makes even the investment of the Indian partner and the Indian investor is under a firm commitment to transfer additional shares in favour of the foreigner at a later date. In actual practice, defecto the foreigners control the entire investment, it’s voting right and its financial upside. The Indian partner is offered only a small share. The Government needs to take undertaking from the Indian companies, Indian investors as well as the foreign investors that there are no such side agreements or understanding. All relationships between the foreign companies and the foreign investors with the Indian promoters and / or any other entities in relation to such investments should be either transparent or notified as illegal.
  • Government permitted transfer of shares between non residents to non residents outside India without any approval of RBI. These transactions are also not required to be reported to RBI.
  • In such cases the relevant tax liability on such transfers cannot be monitored and in certain cases it can also result in security threat as some unwanted anti national element can misuse this liberalization.
  • The Double Taxation Avoidance Treaty would also be required to be reconsidered, at least in those cases where the underlying real estate and business in India are transferred to outside India without monitoring or tax payment within India.
  • A number of TV channels broad-casting their programmes in India, receive a huge portion of the advertisement revenue outside India and in the absence of detailed regulations or mechanism to bring such receipts into India, the Foreign Exchange Resources as well as tax payments may suffer inordinately.
The Chartered Accountants community is ready to support the Government in not only suggesting a clear-cut mechanism but also providing its professional support in actually implementing the same, to ensure adherence of law of the land both in letter as well as in spirit. FEMA laws cannot be allowed to be misinterpreted. Also the Reserve Bank of India and Government of India need to have a re-look as to whether it is appropriate to continue with the liberalization for investment by non resident Indians, foreign companies and foreign citizens in India. It may be noted that the real estate, both residential and commercial has become costlier about 3 times to 30 times during last 3 years and most of the Indian residents are finding real estate out of their reach, even for their own genuine user requirements. Can we really afford in 10 fold increase in prices of Indian real estate in next 5 years, thereby endangering our social-political-economic balance? The Hon’ble Prime Minister and his Government need to move swiftly not in favour of land mafia but in favour of Indian masses, as they came into power with the electoral commitments of exclusive growth benefiting poor, needy and the common man.


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