[ecis2016.org] While a gift of house property does not involve monetary consideration, it needs to be registered and taxes should be paid in certain cases
Gift deed stamp duty
Gifting of a house property in India has certain income tax and stamp duty implications. Gift deed stamp duty in India varies from state to state and can range between 2% and 7% of the property value.
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Gift deed stamp duty in Indian states
|State where gift deed is registered||Stamp duty as percentage of the property value|
Gift deed registration charge
Just like most deeds related to exchange of property, gift deed registration charge is also applicable, to make this instrument legally binding. While some states charge 1% of the property cost as gift deed registration charges, other charge a standard fee.
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How to calculate stamp duty on gift deed?
A percentage of the property value has to be paid as the stamp duty on gift deed registrations in a state. In UP, for example, the receiver of the gift has to pay 2% of the gift value as the stamp duty. Supposing the stated value of a property that is being gifted is Rs 1 crore. Then, the person receiving it would have to pay Rs 20 lakhs as stamp duty on the gift deed.
What property can be gifted?
A property has to meet with the following requirements to be become a gift under Indian laws:
- The property must a movable or an immovable property.
- The property must be transferable.
- The property should not be a future property.
- The property should be tangible.
Legal requirements for gift deed
Under the provisions of the Transfer of Property Act, the transfer of a house property as a gift, has to be backed by a registered instrument or document, signed by or on behalf of the person gifting the property and it should also be attested by at least two eyewitnesses. This means, one cannot simply decide to gift a property and do so without completing the legal procedure, if they intent to make the transaction legally binding.
Just like in the case of sale deeds, a gift deed must also be registered in the sub-registrar’s office, following the due procedure.
The registrar shall ensure that proper gift deed stamp duty has been affixed on the document when it is presented for registration. The amount of stamp duty and registration charges payable, with respect to a gift deed, are generally the same as in the case of a regular sale. However, if the gift deed is executed between some specified close relatives, some states provide concessions in stamp duty. For example, Maharashtra has a cap on stamp duty payable on gift of a residential or agricultural property to one’s spouse, children, grandchildren or wife of a son who has died, at Rs 200, irrespective of the value of the property.
Gift comes into effect immediately
Owners gifting their property must be mindful of the fact that as soon as the gift deed is registered, the owner loses his ownership over the gifted property. This is to say, the provisions of the gift deed, just like a sale or a relinquishment deed, come into effect immediately. This is not true in case of a Will, the provisions of which come into force only after the creator of the Will passes away.
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However, do take note that a gift deed takes effect, only upon the payment of the requisite stamp duty.
Income tax on gift deed
According to income tax laws, the value of all the gifts received by a person during a year is fully exempt, as long as the total of such gifts does not exceed Rs 50,000 in a year. If the value of all the gifts taken together exceeds Rs 50,000, then, the aggregate of the gifts received become taxable without any threshold exemption. However, income tax laws also give a favourable treatment, to gifts between two close relatives. Consequently, the gift of any asset (whether movable or immovable) made to certain specified relatives, is fully exempt from tax in the hand of the recipient, without any upper limit. The list of close relatives includes parents, spouse, siblings, siblings of the spouse, lineal ascendants and descendants of the person and his/her spouse. The list also includes spouse of the abovementioned persons.
If the house property is received as a gift from a relative, the first incidence of tax will arise, when you sell the property. The cost for the purpose of income tax, shall be the taken as the cost that was paid for the property by any of the previous owners. The profits shall be treated as short-term or long-term, depending on whether the aggregate of your holding period as well as that of the previous owner who had actually paid for it, is more than 36 months or not.
If the holding period as computed above is less than 36 months, the profit accrued on the sale of such property, shall be treated as short-term and will be added to your regular income and taxed at the applicable slab rate. However, if the holding period is more than 36 months, you will get the benefit of indexation on the cost of the property, as well as the option to claim exemption from payment of 20% long-term capital gains tax, by investing in a residential house or in capital gains bonds of Rural Electrification Corporation (REC) or National Highway Authority of India (NHAI).
Can you take back your gifted property?
One can take back a gift but this aspect must be considered and covered in the registered gift deed. Under Section 126 of the Transfer of Property Act, revoking the deal will not be possible, unless the donor specifies in the registered contract that he keeps with himself the rights to take back the gift.
This means that at the time of drafting the gift deed, the donor has to clearly mention that even after the gift deed is executed, the donor will still hold the right to revoke the gift deed and take back the gift from the donee, if and when he wishes to do so.
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Conditions to revoke a gift deed
The following are the steps for revoking a gift deed:
- It is important to have a clause or understanding between the donor and the recipient under the circumstances the gift deed can be revoked. This can be a failure or any particular incident.
- The condition for revoking the gift deed should be accepted by the recipient while receiving the gift and it should not be based on the will of the donor alone.
- Any gift that was not based on a fraud activity cannot be unilaterally revoked. In such cases the donor and the recipient need to move to the court for revoking it.
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Key points to remember about gift deeds
Gift to people other than relatives: Under the Indian laws, gifts between non-relatives are not acknowledged as legal. This assumption is based on the premise that the owner would charge a consideration from someone who is not known to them. In any case, the deed will have to be registered as a sale deed.
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Retraction of gift: To retract a gift deed, the donor will have to prove that he was duped or forced to execute the deed. There is no other way to take back a gifted property.
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Gifts received in marriage: Gifts that are received from relatives on the occasion of a marriage, through the execution of a will or inheritance, are not taxed.
Gift validity: A gift deed is valid if it is duly executed and the transferor is the absolute legal owner of the property. Another condition for the gift deed to be valid, is that no orders of courts should prevent such a transfer.
Tax liability on gift deeds: The tax liability does not arise on gift deeds, for someone who has received the same on the occasion of marriage, or by way of inheritance, or from a local authority. The same is also true for gifts received from a foundation, trusts, educational institutions, medical institutions, etc.
Some other tips to execute a gift deed
- In case you are gifting a movable property, it is not mandatory to execute a gift deed.
- In the gift deed, do mention that you are making the transfer out of natural love and affection for the donnee.
- Ideally, you should also mention the reason for making the gift in the gift deed. The reason could be for the general welfare or the person.
- At the time of registration of the gift deed, you also have to submit the proof of acceptance of the gift by the donee.
- Consult your family members before executing a gift deed. Taking them on board is necessary, to avoid future legal hassles.
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Gift deed myths
You can gift your property as you like: You can only gift your self-acquired property of which you are the sole owner. Any shared property cannot be gifted. This is particularly true of ancestral property.
Since it is a gift, there cannot be any tax implications: The receiver of the gift will have to pay taxes on high-value gifts. Since all properties are invariably high value gifts, stamp duty implications will arise.
Anyone can gift a property: Only a person who is in an absolutely mentally and emotionally fit condition can gift a property. Otherwise, the gift deed will become null and void.
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What is a Gift Deed?
Gift Deed is a document that transfers property to another owner as a gift. A Gift Deed is valid only when it is without any consideration in return by one family member/ friend to another. It is mandatory to register Gift Deed, according to Section 17 of the Registration Act, 1908.
How to make Gift Deed for property?
As per the Transfer of Property Act, the transfer of a house property under a gift, has to be effected by a registered instrument/document, signed by or on behalf of the person gifting the property and should also be attested by at least two witnesses.
Can you challenge a Gift Deed?
A gift deed can be challenged in court on the basis of its legality, subject to the law of limitation and proof of its illegality. It can be challenged under the following grounds: 1. If the gift deed did not follow legal requirements and was not registered accordingly. 2. If there were certain conditions for the gift that were not fulfilled by the receiver. 3. If either of the parties of the gift deed are incompetent for the contract.
Who can give Gift Deed?
The owner of an immovable property can gift it to a relative or a third person. A gift is considered valid only if it is made voluntarily and without consideration.
How can a lawyer help in gift deeds?
A lawyer is responsible for the documentation and handling of gift deeds. A gift deed is a legal document that can be executed only under the guidance of a lawyer. Thus, the lawyer helps in drafting and registering of the gift deed and also ensures that all the legal requirements are fulfilled in this process.
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