Q1. Are oral gifts of immovable property permitted?
Ans - No, the subject matter of the gift must be an existing property. The existing property may either be movable or immovable property.
Q2. What is meant by the word 'certain' in the context of gift?
Ans - Whenever a transfer of property, done via Gift, is controlled by fulfilling a prior condition by donee, it is called a "Conditional Gift". It can be of any of the two types:
a. Precedent Condition: When the condition is to be fulfilled before the transfer of the gift.
b. Subsequent Gift: When the condition is to be fulfilled after the transfer of gift.
Q3.Which are the five acts that can impair the act of gift?
Ans - A Gift of property stands void under the following conditions:
1. If a gift has been obtained by:
a. Force
b. False Representation
c. Fraud
2. By imposing conditions detrimental to the interests of the contracting parties.
Q4. Is the gift deed compulsorily registrable?
Ans - Yes, a gift is taxable under the following conditions:
1. Offerings to the saints.
2. Gifts on occasion of marriage, other than gifts exchanged amongst spouses themselves.
3. Amounts received on partition of a Hindu Undivided Family.
4. Cash from a charitable trust.
5. Gifts received from any overseas relatives.
Q5. What is the significance of attestation of a gift deed?
Ans - Yes, as per the provisions of the "Transfer of Property Act", a Gift can be revoked on instance of any of the following conditions:
1. Both the parties agree to suspension of Gift.
2. Both the parties should have mutually agreed to such a condition while entering into contract.
3. The condition of suspension is illegal.
Q6. What is/are the requirements of a valid attestation?
Ans - Yes, Gifts by NRI are taxable if received on any of the following occasions:
1. Birthdays
2. Anniversaries
3. Festivals
Q7. Is it necessary
that both witnesses be present at the same time or must attest
the document in each other's presence?
Ans - No. It is completely lawful for an executant to sign in the presence of one witness and
And mark in presence of the other witness.
Q8. Will the rights of the transferee be affected by the suspension or revocation
of the gift
Ans - No, provided he acquired the rights for a consideration and did not have notice of such suspension.
Q9. What constitutes fraud in the context of a gift?
Ans - How Concealment of fact, misrepresentation of facts and other cover-ups to obtain certain gain.
Q10. How is a gift treated under Income Tax Act, 1961?
Ans - Where a donor transfers a house property to his/her spouse, other than in connection with an agreement to live apart, the donor would continue to be the deemed owner of the property for the purpose of the Income tax Act, 1961. This also applies when the donor transfers the property to a minor child, other than a married daughter. Any earnings out of the said property would be included in the income of the donor.
Q11. Are gifts of immovable property subject to gift tax?
Ans - Gift tax in India has been abolished on gifts made after 1 October, 1998. However wealth tax applies to the gift, considered as wealth for the assessment year when the gift is received. The donee is liable for wealth tax.
Q12. Is there a tax on property received as gift through a Will?
Ans - No. There is no liability to gift tax, as it can be effectively received only after the death of the person making the Will.
Q13. What all persons do FEM (Acquisition and Transfer of Immovable Property
in India) Regulations, 2000 regulations apply to?
Ans - FEMA deals with the acquisition and transfer of an immovable property by way of a gift involving NRIs, PIOs and foreign Nationals, whether resident or non-resident in India.
Q14. Is a NRI/ PIO permitted to transfer by way of gift all kinds of immovable
property, whether agricultural/plantation/farmhouse property, residential or
commercial property?
Ans - Yes. However, as per Regulation 4 (e), FEM (Acquisition and Transfer of Immovable Property in India) Regulations, 2000, the donee of any agricultural/plantation/farmhouse property transferred by a PIO donor can only be an Indian citizen and also a person resident in India.
Q15. Who all are permitted to acquire as donee, any other property other
than agricultural/plantation/farmhouse property from a PIO donor?
Ans - The following persons are permitted to be donee:
- All citizens of India, irrespective of their residence
- Foreign nationals who are persons resident in India (Citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal and Bhutan, can acquire only after prior permission from the RBI.)
- PIOs, who are not residents of India.
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