Skip to content
Got a notice? Emergency response

Property, Sale

When a bank auctions your Indian property to recover a loan

You lost the property to a bank auction, but the capital-gains tax is still yours, on the full sale price.

Your Indian property was mortgaged, you fell behind on the loan, and the bank auctioned it under the SARFAESI process to recover its dues. The money went to the lender, and you may have received little or nothing. It comes as a shock, then, that the tax office still treats you as having sold the property and charges you capital-gains tax on the full auction price. This is one of the harshest outcomes in the law, and it is settled, so it is worth understanding exactly why, and the extra twist when the owner is an NRI.
Request a free CA call
Last reviewed: 26 July 20266 min readReviewed by Preetesh Maloo, CA

The short answer

When a bank auctions your mortgaged property under SARFAESI, you, the borrower, are still the one who has sold it for tax purposes, so the capital gain is yours, computed on the full auction price, even though the money went to the lender. Crucially, the loan the bank recovered is not deductible from the sale price; the Supreme Court has held that repaying your own mortgage is just how you used the proceeds, not a cost of the property. If the auction price is below the stamp-duty value, the stamp value is deemed the sale price. And where the owner is an NRI, the auction buyer, not the bank, must deduct TDS under Section 195.

Is this your situation? Get a senior CA on it.

Free 15-minute call. We tell you what applies to you and what it costs, then you decide. You stay abroad.

Senior CA who specialises in NRI tax · we deal with the tax officer, you don't

Chat with a CA on WhatsApp

Related situations

You sold it, for tax, even though the bank ran the auction

The uncomfortable starting point is that the property was yours, and so is the sale. Even though a bank or its authorised officer conducts a SARFAESI auction and the proceeds go straight to the lender, for capital-gains purposes it is you, the borrower and owner, who transferred the property. So the gain is charged in your hands under Sections 45 and 48, on the full auction price as the sale consideration, exactly as if you had sold it yourself.

The part that feels unfair, and is the settled trap, is that the loan the bank recovered is not deductible. In CIT v Attili N. Rao, the Supreme Court held that when your own property is sold to clear a mortgage you created, discharging that mortgage is simply how you applied the sale proceeds, not a cost of acquiring or transferring the property. So you cannot reduce the taxable gain by the loan repaid. The gain is computed on the whole price, and the tax on it is a further claim on you, on top of having lost the asset.

The stamp-value rule, the surplus, and the NRI TDS

Two more points complete the picture. First, distress pricing does not escape the stamp-value rule: if the auction fetched less than the stamp-duty, or circle, value of the property, then under Section 50C that higher stamp value is deemed to be your sale consideration for the gain, subject to the usual tolerance band. So a low auction price can still be taxed as if you sold at the circle rate. Second, any surplus after the lender's dues are met comes back to you, and a shortfall does not reduce the taxable gain, the gain is on the price, not on what you netted.

For an NRI there is an added exposure that is routinely missed. Because the seller is a non-resident, the person paying, the auction purchaser, must deduct TDS under Section 195 on the sum chargeable, not the flat 1% that applies to a resident seller, and not the bank. In practice auctions are run as if the property is simply sold free of encumbrances, and this obligation is overlooked, leaving both the NRI's unpaid tax and the buyer's TDS default hanging. A practising CA computes the real gain, applies any reinvestment relief that can reduce it, and sorts out the TDS position so it is not left as a liability.

What's involved

What the CA actually does

  1. 1

    We compute the gain correctly

    We work the capital gain on the auction price, and confirm that the loan repaid is not deductible, so the figure is right and defensible.

  2. 2

    We check the stamp-value rule

    We test whether Section 50C deems a higher stamp value, and challenge it through the valuation route where the auction price was genuinely the market.

  3. 3

    We reduce it where we can

    We apply any reinvestment relief under the exemptions to bring the tax down, since the gain itself cannot be avoided.

  4. 4

    We sort the NRI TDS

    We address the Section 195 position, so the auction purchaser's withholding and your tax are handled rather than left as a default.

What to have ready

Documents you'll typically need

  • The auction sale certificate and price
  • The original purchase deed and cost of the property
  • The loan account and the dues recovered
  • Your PAN and residency details

Your destination country can change the details

Requirements differ from one consulate, university and visa route to the next, how recent the figures must be, how long funds must have been held, and which certificates are mandatory. We assemble the documents around the exact checklist you're applying under. To see how India's tax treaty with your country of residence affects related filings, set your country below or compare all 46 countries.

References on this page

  • The borrower is the transferor even in a bank auction; the capital gain is charged on the full auction price (Sections 45, 48)
  • The loan repaid is not deductible from the consideration (CIT v Attili N. Rao, Supreme Court): discharging your own mortgage is application of proceeds, not cost
  • If the auction price is below the stamp-duty value, the stamp value is deemed the sale consideration (Section 50C)
  • Where the seller is an NRI, the auction buyer must deduct TDS under Section 195, not the bank

Frequently asked questions

Common questions

Because for tax you are still the seller. A SARFAESI auction transfers your property, so the capital gain is yours, computed on the full auction price, even though the proceeds went to the lender. It is a settled, and harsh, position.

No. The Supreme Court held in Attili N. Rao that discharging your own mortgage is how you applied the sale proceeds, not a cost of the property. So the loan repaid does not reduce the taxable gain.

Not automatically. If the auction price was below the stamp-duty value, Section 50C deems the stamp value your sale consideration, so a low auction price can still be taxed as if you sold at the circle rate, unless you show the auction was the real market value.

The auction purchaser, under Section 195, because the seller is a non-resident, not the bank and not the 1% resident rate. This is often missed in auctions, leaving both your tax and the buyer's TDS unresolved.

The exceptions that change the answer

Where the general rule stops applying to you

Every rule below has a carve-out, a cut-off date or a condition that flips the answer. These are the ones that decide real cases.

TDS rate when buying property from an NRI

Right now: 12.5% plus surcharge and cess on LTCG

Where it works differently

The gain is short-term
TDS is at the applicable slab rate, effectively 30% plus surcharge and cess for most NRI sellers.
s.195 requires deduction at 'rates in force' for the actual character of the income.
No lower-deduction certificate is obtained
TDS applies to the ENTIRE SALE CONSIDERATION, not to the gain.
s.195 operates on the sum paid unless the AO determines otherwise. This is the whole commercial case for Form 13 / Form 128.
There are joint NRI sellers
TDS is deducted separately against each seller's PAN in their ownership proportion.
Rule 37BA. Deducting entirely against one PAN strands the other's credit.
The buyer deducts 1% under s.194-IA
Wrong section. The buyer becomes an assessee-in-default under s.201 for the shortfall plus 1% per month interest and penalty under s.271C.
s.194-IA applies only where the seller is a RESIDENT.

Commonly got wrong

  • TDS on property purchase is 1% over Rs 50 lakh. That is s.194-IA, for RESIDENT sellers only. For a non-resident seller it is s.195 at the full capital-gains rate, with no threshold.1% applies only if the seller is a resident. NRI seller means s.195 at 12.5% plus surcharge and cess on the whole consideration unless a certificate is obtained.
  • The buyer files Form 26QB. 26QB (now Form 141) is for s.194-IA. An NRI-seller purchase needs a TAN and Form 27Q (now Form 144).Buying from an NRI, you need a TAN, you deduct under section 195, and you file Form 27Q (Form 144 from 1 April 2026). Form 26QB is only for resident sellers.

Circle-rate tolerance band under s.50C

Right now: 10%

Where it works differently

The agreement date and registration date differ
The stamp-duty value on the AGREEMENT date may be used, if part of the consideration was paid by banking channel on or before that date.
Provisos to s.50C(1).
The seller disputes the circle rate
s.50C(2) entitles them to a Valuation Officer reference. The AO cannot refuse.
The sub-section is mandatory once the claim is made.
The buyer is also assessed
The same shortfall can be taxed in the buyer's hands under s.56(2)(x), so both sides are exposed.
Mirror provisions.

Commonly got wrong

  • The tolerance band is 5%. Stale since AY 2021-22.If the sale price is within 10% of the circle rate, no substitution happens. Beyond that gap, the circle rate replaces your sale price for computing the gain.

Related

If this matched your situation, these go further

When the buyer pays in instalments: the year the tax falls dueSelling a tenant-occupied or encroached property for less than its stamp valueSaving capital-gains tax by reinvesting in another house (Section 54)Form 13 lower-TDS certificate (property sale)NRI ITR filing (we file for you)DTAA TDS recoveryCapital gains calculatorProperty sale TDS calculator

Lost an Indian property to a bank auction?

Send us the auction details and your cost. A practising CA will compute the gain and sort the TDS on a free call, no obligation.

Request a free CA call

No card, no obligation. All certification and filing work is handled by ICAI-registered practising Chartered Accountants.