Gift Deed

A gift deed is useful when you want to gift the property to anyone or transfer the ownership of the property without any financial transaction. The gift deed should be registered at the sub-registrar’s office. Once the gift deed is registered, the beneficiary becomes the sole owner of the property.

This document allows a person to gift a property or transfer ownership of a property to a relative or non-relative without  committing any transaction of money. However, to ensure a legal transfer/gift of property, a person would need to draft a document on a stamp paper and get it attested by two witnesses. The gift deed would then have to be registered at the sub-registrar's office. In case a property owner fails to register the gift deed, the transfer would be considered invalid and cannot be proven in the court of law. Also a transfer of this kind is irrevocable or unchangeable. Once the property has been transferred, the old owner does not have rights to retrieve the property, reverse the transfer or even ask for any form of compensation.

Registering the gift of a movable property like jewelery is not necessary. However, just transferring the movable property is not enough. It must also be accompanied by a gift deed. Note that gifts made to certain people are not taxable. Those relationships are mentioned in the below diagram. Any gifts made to non relatives are taxable.

Even though a gift to a relative is non-taxable, this gift will still need to be accompanied by a stamp duty. The stamp duty generally ranges between 1 to 8% for the transfer of immovable property to a relative while it takes somewhere between 5-11% for the transfer of immovable property to a non-relative.

Note that even though a gift deed cannot be revoked, it can still be challenged in the court on the grounds of fraud or coercion. Other reasons on which the gift deed can be challenged are on the grounds that the gifter was a minor or was not in complete control of his actions.

Gift Deed from parent to offsprings

When parents gift a property to a child, often one of the most common questions asked is whether a gift deed needs to be registered for the transfer of property. People are also often concerned with the legal issues and the stamp charges that are involved in the procedure. Today we discuss about the facts one needs to be careful about when gifting a property.

If a father or mother wishes to transfer a property to his/her child, the parent will have to execute a gift deed in the name of the offspring.

While executing the gift deed, the transferor should remember that a gift deed is considered valid only when it is made voluntarily and without any consideration. The process consists of an offer made by the transferor, the acceptance of the offer by the transferee, and the execution of the gift. Hence, for a gift deed to be considered valid, the gift must be made voluntarily by the parent without any exchange of money. The gift should also be accepted by the offspring. Note that the gift deed needs to be executed by the parent and attested by two witnesses.

Stamp duty is also payable on the gift deed based on the existing rates. In most of the states, the stamp duty on a gift deed executed by a person to a set of relatives is considerably lower than that paid by the transferor when gifting the property to someone else.

On another note, if the parent wants to transfer the property to an offspring after his/her demise, then he/she can do so by executing a will. No stamp duty needs to be paid on the will. However, some court fee will have to be paid on the will.

The transferee will have to note that there are no legal issues in selling the property. However, when you attempt to sell the property, every buyer would like to confirm whether the seller has complete and marketable title over the property. Hence, when executing the sale deed, the transferor and the transferee should ensure that the title deeds beginning from the first sale, sale or transfer deed, certified plans, permissions for construction of house, etc. are in order. The seller will also have to confirm that all the documents are stamped properly and registered. If the property is transferred to your via a gift, then the gift deed will have to be properly stamped and registered. If the land is inherited, the Will will also become a part of the documents.

Additionally, as a seller in future the transferee will also need to prove that all property taxes have been paid and that there are no pending legal cases in the court with respect to the property in question. The transferee will also need to prove, at the time of sale, that there are no existing tax demands. These are a few documents, etc. that might be required but other additional documents might also be required when the sale is being processed.

Additional stamp duty will also be levied on the deed through which the transferee sells the property to another buyer at a future date.

Tax on Gift Deed

If someone buys a land out of their own funds in a family member's name, e.g. son, daughter or wife who does not earn, then it can be considered as a gift. On any land transferred by a gifter to a giftee, no tax needs to be paid based on section 56. However, if the giftee sells the land, then any capital gains obtained from such a sale would be considered as long term/short term tax. If the land is sold within a period of 3 years from the date of acquisition by the original buyer (gifter), then the capital gains/loss would be considered as short term capital gains. If the land is sold afer a period of 3 years from the date of acquisition, then the capital gains would be considered as long term capital gains.

The long term capital gains would in such cases be calculated as the difference between the sale proceeds (net) and cost of acquiring the land. If the land has been acquired before 1st April 1981, then you can take the fair market value of the property as its value on 1st April 1981, Hence, the cost of acquisition would be the fair market value on the date of acquisition or on 1st April 1981, whichever you prefer.

The cost of acquiring the property or improving the property can be calculated by multiplying the original cost or improvement cost by the cost inflation index for the year in which the property is being sold. This has to be divided by the Cost of Inflation Index (CII) of the year in which the land was purchased. This year of purchase can again be considered as the original purchase year or 1981 based on your choice.

The LTCG can be claimed as exempt from capital gains by reinvesting the sales profits in one residential flat located anywhere in India. The investment must be made either within one year prior to the sale of land or within 2 years after the sale of land. In case of under construction properties, the reinvestment can be made within three years from sale of property.

Note that if the cost of the new house is more than LTCG, then the entire LTCG can be exempt from tax. However, if it is less, then the amount exempt from tax is proportional to the amount reinvested in purchase of property.