Transfer by Gift deed is not taxable

Transfer by Gift deed is not taxable

Gifts transactions are not taxable in the hands of the donor. For a donee, the gift deed transfer is taxable, but there are exceptions. 

Gifts are prevalent among family members or close relatives. It is one way of expressing love and affection. People also make gifts to save taxes as some of the Gift transactions are fully exempted from taxation.

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A person may gift any of the following:

A person may be an individual, HUF or an artificial juridical person like a company/firm. 

In India, we had a Gift Tax Act under which tax was levied on the gift. The donor had to pay the tax. But the said legislation was abolished. Now a provision has been made in the Indian Income Tax Act 1961, for taxing the gift transactions. The recipient of the gift has to pay tax. 

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The gift transaction is tax-free under certain circumstances: 

Gift of Cash:

If the aggregate value of the cash received in gift exceeds Rs 50,000 in a financial year, the recipient has to pay the tax on the amount received. The said amount is counted as his income under the head Income from other sources.

Read More: Tax for NRIs on gifts of money and property

Gift of property:

  • The gift deed of immovable property has to be registered. The stamp duty is paid at the time of registration based on the market value of the property. The stamp duty payable differs from state to state.
  • If the property is received as a gift without consideration, the recipient pays the tax if the stamp duty value of the property exceeds Rs 50,000/-.
  • If the property is received without adequate consideration, the recipient pays the tax if the stamp duty value exceeds consideration amount by Rs 50,000/-. 
  • In the case of moveable property like shares, jewellery, etc., the recipient pays the tax if the fair market value of the property exceeds Rs 50,000/-.

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Some gifts are tax-free:

  • Any amount of gift if received from the relatives as defined in the Income Tax Act. A relative is specified in the Act and can be the spouse, sibling, sibling of the spouse, sibling of either parent, etc.
  • For NRIs and PIOs, the rules of FEMA will also apply. The definition of relatives is narrower under FEMA. For NRIs as a recipient, rules of remittance have to be kept in mind. The resident Indian who wants to gift an amount to an NRI, the said amount cannot exceed the permissible limits of remittance. 
  • Gift received on the occasion of marriage.
  • Gift received under Will or inheritance
  • Gift on the contemplation of death of the donor
  • Gifts received from any fund, foundation, medical institution, educational institution or university, or any charitable or religious trust. Gifts received from any person by the said institutions are also exempted. Such foundation, institution etc. must be registered under the Income Tax Act.

A person can use provisions relating to gifts for tax planning. These are certainly not meant for evading taxes. 

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Transfer of Property on the basis of Registered or Unregistered Will

Transfer of Property on the basis of Registered or Unregistered Will

Transfer of property means transferring the ownership of the property.  For transfer of the property, one has to establish his claim or has to prove his title. The same can be done through various documents like sale deed, gift deed, Will etc.

Will or no Will

Whenever a person dies, someone has to manage his property and assets. There can be two situations:

1.   The person has died after making a Will

2.   The person has died without any Will (has died intestate)

In the first case, the property gets distributed as per the tenor of the Will.

In the second case, the property gets distributed as per the Law of Succession. The property gets devolved to the legal heirs of the deceased as per personal laws and relevant provisions of statute e.g. the Indian Succession Act, the Hindu Succession Act etc. whichever is applicable.

Registration of Will

As per the Indian Laws, it is mandatory to register the document based on which the immovable property having a value of Rs 100 and above is transferred. If a document which is required to be registered compulsorily has not been registered, the document does not confer any title. It is not admissible in evidence in court.

If the Will is registered, it is better. The registered Will is considered as a genuine one. The testator and the attesting witnesses appear before the Registering Authorities. It helps to ascertain their identities and add to the authenticity of the document.

Process of transferring the property

For transferring the ownership, the relevant papers are submitted to the office of the Sub Registrar.

Documents required are:

  • Will – A Will can be registered or unregistered. If the Will is registered, it is in the safe custody of the Registering Authority. It can also be kept in the safe custody of a banker or a lawyer. In such a case a certified copy of the Will is submitted. If the Will is unregistered, attested copy of the Will is submitted.
  • Probate – Probate can be demanded if it is compulsory or if the Will is not registered. Probate is a certificate from the court certifying that it is the last Will and is genuine. Probate is granted to the executor appointed under a Will. Probate is mandatory in certain States.
  • Succession certificateSuccession certificate is required to access the moveable assets of a deceased person. Even if the Will is there but not registered, the claimant through the Will in some cases, is asked to bring the succession certificate from the court. Succession certificate is generally required for a moveable property like bank account balances, shares, securities etc.

There are certain other documents also which may be required/ demanded by authorities, depending upon the facts of the case.

  • Affidavit from the legal heirs stating no objection to transfer the property to the person named in the Will if all legal heirs are not included in the Will
  • Affidavit of attesting witnesses if the Will is unregistered
  • Affidavit from the beneficiary of the Will to clear all the liabilities related to the property

It is always advisable to draft a valid and proper Will through a lawyer. It is better to get the same registered. It will help the family members later for a smooth transfer of the assets in the name of beneficiaries.

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