Indian real estate: DPDP Act 2023, RERA, UPI + stamp duty wall

Yes to RERA — the Real Estate (Regulation and Development) Act 2016 requires every real estate agent facilitating the sale or purchase of RERA-registered projects to be registered with the state RERA authority where they operate. Registration is state-specific (an agent registered with MahaRERA is not automatically registered with KRERA); agents facilitating projects across states may need multiple registrations. Registration process, fee, and renewal cycle vary by state — Maharashtra, Karnataka, and Haryana have among the most established procedures. Under DPDP Act 2023, registration as such is not a general requirement — the Act operates on the concept of Data Fiduciary obligations that apply automatically to every entity that processes personal data. A real estate agent is a Data Fiduciary in respect of client and lead data and must comply with notice, consent, security, breach notification, and grievance redressal obligations. Significant Data Fiduciaries (to be notified by the Central Government based on volume and sensitivity) will have additional obligations including appointment of Data Protection Officer. Most individual agents and small brokerages will not be notified as Significant Data Fiduciaries but will still bear the full baseline obligations.

Yes for smaller amounts within UPI transaction limits, with practical caveats. UPI has been the subject of progressively increased per-transaction limits by NPCI and RBI — the standard limit has been INR 1 lakh per transaction for most merchant categories, with higher limits progressively enabled for specific categories (education, capital markets). For real estate booking amounts that typically start at several lakhs, UPI in a single transaction may not fit the standard limit. In practice: (a) small token amounts (registration fee, site visit booking) can flow via UPI easily; (b) larger booking amounts should go through NEFT or RTGS to the developer's RERA escrow account, not to the broker; (c) brokerage payments from developer to broker can flow via NEFT/RTGS with proper invoicing and TDS compliance under Section 194H (5% TDS on brokerage where the payer is required to deduct); (d) WhatsApp with payment aggregator (Razorpay, PayU, Cashfree, PhonePe for Business, Instamojo) integration can generate a payment link that presents UPI, cards, net banking, and EMI options — the buyer chooses the appropriate method based on amount and preference. The important principle is that funds flow directly to the RERA escrow of the developer for project money, not to a broker's own account for holding — RERA's core reform was precisely to prevent broker/developer diversion of buyer funds.

Several practical differences. First, DPDP is conceptually simpler with fewer categorised bases for processing: consent is the primary basis, with a defined list of Legitimate Uses under Section 7 as narrower alternatives (compared to GDPR's six lawful bases including legitimate interests). Second, cross-border transfer uses a negative list (transfer permitted anywhere except to jurisdictions the government notifies as prohibited) rather than GDPR's positive adequacy list. Third, DPDP has stricter consent formality including the notion of Consent Manager as an intermediary (to be operationalised via rules). Fourth, DPDP has higher financial penalty ceilings than GDPR in some categories (INR 250 crore vs GDPR's EUR 20 million or 4% of turnover, though currency and mechanics differ). Fifth, DPDP does not have GDPR's data portability right explicitly; correction and erasure are provided but not portability. Sixth, DPDP does not have a formal Data Protection Officer requirement for all Data Fiduciaries — only for Significant Data Fiduciaries to be notified. Seventh, breach notification under DPDP is required to the DPB but the specific timeframes will be set in rules. For a real estate broker operating only in India with Indian clients, DPDP compliance is the operative framework. For a broker serving NRI/OCI clients based in the EU or with EU clients acquiring Indian property, GDPR may apply extraterritorially where the broker offers goods and services to EU-based individuals, adding a compliance layer.

GST at 18% on the brokerage amount received from each side (buyer-side brokerage and seller-side brokerage are separate supplies of service). If the broker is registered under GST (mandatory once turnover crosses INR 20 lakh for services generally, INR 10 lakh for specified states), every brokerage receipt must be documented with a GST-compliant tax invoice showing: broker's name, address, GSTIN; buyer's name and GSTIN if registered; description of service (real estate brokerage services); SAC 9972; total value of service; GST rate 18% and amount of CGST+SGST (intrastate) or IGST (interstate); place of supply; invoice number and date; signature. The buyer's location determines interstate vs intrastate treatment. Where the buyer is required under TDS provisions to deduct tax at source (Section 194H currently 5% TDS on brokerage where the payer is required to deduct), the broker receives net of TDS with Form 16A eventually issued; the broker claims TDS credit in their income tax return. E-invoicing via the Invoice Registration Portal (IRP) is mandatory for taxpayers with aggregate turnover above the notified threshold (currently INR 5 crore in preceding financial year with progressive lowering); brokerages exceeding this threshold must generate IRN (Invoice Reference Number) for every B2B invoice. Coordination with a GST practitioner or Chartered Accountant is essential for accurate compliance.

NRI-to-NRI resale of Indian residential or commercial property is permitted under FEMA and RBI Master Directions on Acquisition and Transfer of Immovable Property. The transaction should meet: (a) both buyer and seller are NRI or OCI (not foreign nationals of non-Indian origin, subject to specific exceptions); (b) the property is not agricultural land, plantation land, or farmhouse; (c) the purchase consideration flows through banking channels — either through remittance from abroad by the NRI buyer, or through NRE/NRO accounts in India of the NRI buyer; (d) the sale proceeds received by the NRI seller are credited to NRE/NRO account subject to repatriation rules — original purchase consideration from foreign source can typically be repatriated (up to USD 1 million per financial year per person subject to conditions), remaining amount held in NRO account or repatriated as per prevailing rules; (e) TDS under Section 195 applies at higher rates (typically 20% for long-term capital gains on immovable property held over 2 years, higher for short-term) unless a lower deduction certificate is obtained under Section 195(2) from the assessing officer. The broker facilitating such a transaction should: (i) verify KYC of both parties including PAN, passport, OCI/NRI status; (ii) recommend coordination with a Chartered Accountant familiar with FEMA and Section 195; (iii) coordinate with the buyer's banker for source of funds and with the seller's banker for TDS deduction and repatriation compliance; (iv) document everything to support any subsequent scrutiny by RBI or Income Tax. WhatsApp communication with NRI clients should route substantive FEMA questions to qualified professionals rather than generating advice from generic bot flows.