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NRI Property Sale • 2026Income Tax Act, 2025 (Section 395 / Form 128)Last Updated: 10 September 2026

Selling Property in India as an NRI: TDS, Capital Gains & Repatriation

Selling Indian immovable property as a non-resident involves three separate legal questions: how much capital-gains tax is actually payable, how much withholding tax the buyer must deduct at source, and how the remaining proceeds can legally be remitted abroad under FEMA. This guide separates those three issues and reflects the transition to the Income Tax Act, 2025.

Key 2026 Statutory Rules at a Glance

Post-23 July 2024 NRI LTCG:Qualifying long-term immovable property transfers by non-residents are taxed at 12.5% without indexation. The resident grandfathering indexation option does not apply to NRIs.
Lower Withholding (Form 128):For Tax Year 2026–27, lower or nil withholding is governed under Section 395(1) via Form No. 128 (replacing the old Section 197 / Form 13 mechanism).
Non-Resident Withholding:The resident 1% TDS rule (Section 194-IA) does not apply. Reporting uses Form 141 under the new withholding framework.
FEMA Repatriation:Remittance abroad is executed through the USD 1 Million/FY facility under FEMA (not LRS), using the updated Form 145/146 documentation.

Interactive Capital Gains & Withholding Estimator

Calculate estimated capital gains and compare statutory withholding vs. Lower Withholding Certificate (Form 128) results.

Total sale value in the agreement
Deemed consideration under Section 50C
Original purchase price (no indexation post-July 2024)
Renovation / expansion capital costs
Brokerage, legal, and registry fee expenses
Statutory cap: ₹50 Lakhs (REC / NHAI / PFC bonds)

1. The Three Distinct Questions: Gain, TDS & Repatriation

An NRI property sale should never be reduced to a single percentage. Tax liability, buyer withholding, and outward remittance are governed under separate legal provisions:

Legal QuestionWhat It Actually MeansGoverning Factors
1. Capital Gains TaxHow much tax the NRI seller ultimately owes the Indian government.Sale price vs. Stamp duty value, actual acquisition cost, holding period, and Section 54/54EC exemptions.
2. Buyer Withholding (TDS)How much tax the buyer must deduct at source from the payment.Non-resident withholding rules, Section 395(1) / Form 128 Lower Deduction Certificate, and PAN.
3. Outward RepatriationHow much net sale proceeds can be remitted abroad to the NRI's home country.FEMA USD 1 Million/FY facility, Form 145/146 (replacing Form 15CA/15CB), and bank verification.

2. 23 July 2024 Reform: NRI Long-Term Capital Gains at 12.5%

The Finance (No. 2) Act, 2024 introduced sweeping changes to capital-gains taxation for immovable property transfers:

Transfer PeriodNRI Long-Term Tax RateIndexation Benefit Availability
Transfers on or after 23 July 202412.5% (Flat)No Indexation permitted for NRIs
Transfers before 23 July 202420% (Standard)Indexation permitted under older 1961 Act rules

3. Lower or Nil Withholding: Form 128 (Replacing Form 13)

Under the Income Tax Act, 2025 and Income-tax Rules, 2026, the procedural machinery for lower tax deduction has been modernized:

Old Framework (1961 Act):Section 197 & Form 13

Applies to transactions and proceedings initiated under the repealed 1961 Act.

New Framework (2025 Act):Section 395(1) & Form No. 128

Current statutory application filed on TRACES for Tax Year 2026–27.

Why Form 128 Is Essential for NRI Sellers:
  • Prevents excessive tax withholding on the gross sale consideration.
  • Directs the Assessing Officer to issue a certificate specifying TDS based on actual capital gains rather than the full transaction price.
  • Eliminates years of waiting for massive tax refunds from the Income Tax Department.

4. Capital Gains Tax Exemption Options (Section 54 & 54EC)

NRIs are fully eligible to claim capital-gains relief under Indian tax law by reinvesting their proceeds:

Section 54 (Reinvestment in Residential House in India):

Available when selling a residential property. You can exempt capital gains by purchasing another residential property in India within 1 year before or 2 years after the sale (or constructing within 3 years). Statutory cap: ₹10 Crores.

Section 54EC (Capital Gain Infrastructure Bonds):

Invest up to ₹50 Lakhs of long-term capital gains in specified bonds (NHAI, REC, PFC, IRFC) within 6 months of the transfer date. Bonds carry a mandatory 5-year lock-in period.

Section 54F (Sale of Non-Residential Asset):

Available when selling long-term commercial property or land. Requires reinvesting the net sale consideration into a residential house in India.

5. Repatriating Sale Proceeds Abroad: USD 1 Million Facility

Under FEMA regulations, NRIs and PIOs can repatriate up to USD 1 Million per financial year from their NRO accounts representing property sale proceeds:

  • Form 145 & Form 146: Under the Income-tax Rules, 2026, foreign remittance declarations transition from the old Form 15CA/15CB to Form 145 (challan information) and Form 146 (CA certification).
  • Audit Trail: The Authorized Dealer (AD) bank requires the registered sale deed, prior purchase deed, proof of tax compliance, and Form 145/146.
  • Not LRS: The USD 1 Million facility is separate from the Liberalised Remittance Scheme (LRS) and is specifically tailored for non-residents.

Top 8 NRI Property Sale Mistakes to Avoid

  • Applying the resident 1% TDS rule (Section 194-IA) to an NRI seller.
  • Assuming a flat 23.92% TDS deduction is universally mandatory without applying for Form 128.
  • Using indexed acquisition costs for post-23 July 2024 NRI property transfers.
  • Failing to account for Section 50C circle rate adjustments when agreement value is lower than stamp duty value.
  • Investing in unapproved bonds expecting Section 54EC exemption (only REC, PFC, NHAI, IRFC qualify).
  • Waiting until after sale registration to apply for a Lower Withholding Certificate.
  • Ignoring the transition to Form 141 (property TDS reporting) and Forms 145/146 for remittance.
  • Assuming that property sale proceeds can be remitted abroad without bank FEMA clearance.

Frequently Asked Questions (FAQ)

A non-resident seller is not subject to the resident-property TDS mechanism under section 194-IA (1%). The non-resident withholding framework applies instead. The exact deduction should not be represented as a universal 23.92% of the sale price because the applicable tax provision, transaction date, rate, documentation and any lower/nil withholding certificate can affect the deduction.

For a qualifying long-term immovable-property transfer by a non-resident on or after 23 July 2024, the current long-term capital-gains rate is generally 12.5% without indexation, subject to the applicable law, surcharge, cess, exemptions and the facts of the transaction. Indexation should not be applied to such an NRI transfer.

Yes. A lower or nil withholding certificate can be obtained where the estimated total income justifies a lower deduction. For Tax Year 2026–27 under the Income Tax Act, 2025, the relevant provision is section 395(1) and the prescribed application is Form 128. References to section 197 and Form 13 describe the older 1961 Act framework.

Potentially, subject to the statutory conditions. Section 54 can apply to qualifying long-term capital gain from a residential house when the taxpayer acquires or constructs another qualifying residential house within the prescribed time limits. Section 54EC can apply to eligible long-term capital gain from land or building where the taxpayer invests in specified bonds within six months, subject to the ₹50 lakh investment ceiling and other conditions.

Not automatically. The remittance must satisfy the applicable FEMA route and the authorized dealer bank's documentation requirements. Eligible NRIs/PIOs can generally use the USD 1 million per financial year NRO/asset-remittance facility in qualifying circumstances, but the amount, source of funds, tax compliance and supporting documents must be checked before the transfer.

For transactions governed by the Income Tax Act, 2025, the corresponding remittance forms under the Income Tax Rules, 2026 are Form 145 and Form 146. The Income Tax Department states that the new framework retains similar thresholds while updating the form numbers. The appropriate part/form depends on the taxability and circumstances of the remittance.
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Notice: Governed by the Income Tax Act, 2025 (Section 395), Income-tax Rules, 2026 (Rule 213), and RBI Master Directions on Remittance of Assets.