• Sending money to relatives as gift or loan

Hi,

Is it possible for OCI card holder living overseas(Australian citizen) to send money to maternal uncle in India as gift ? Also, can maternal uncle send money as gift back to OCI card holder overseas who gifted money to him in first place ? I read somewhere that money can be gifted to nephew but not to uncle as tax free.

If OCI card holder living overseas sends money to his maternal uncle as loan instead of gift and and pays it back after some years, is that fine? What is the procedure of loan agreement?

Is there any restrictions for end use of money in both cases ?
Asked 7 years ago in Taxation

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12 Answers

A loan from an NRI can be taken by a resident of India or an Indian Company. Similarly, the loan can be taken by an NRI from a resident of India. The rules and procedures to be followed in such cases have been dealt above. RBI from time to time revises such rules, so one needs to be updated regarding the current rules.

Any change in the rule is updated by the RBI on its website.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

The money will be taxable in the hands of the donee depending on what is the amount which is gifted to him

Section 56 of income tax act deals with what is the threshold for money above which it is taxable and also specified relatives between whom the gift transaction has taken place which has been exempted from payment of tax by the donee

If the money is essentially to be returned then it is nothing but a loan transaction and cannot be termed as gift 

Loan agreement in such a case can be made which would require nominal stamp duty and attestation before public notary. Registration is not compulsory for loan agreement 

Also in case of default in repayment of loan, the jurisdiction of the court will be to the court where the cause of action arose or where defendant resides

You also need to take certain security from your uncle which can be touched by you in case he defaults, by selling the same and realising and adjusting the sale proceeds against your loan with interest

The money can be remitted to your NRO account in India and you can issue a cheque to your uncle, of such account

In case of remittance out of India, I guess there is some restriction by RBI under the FEMA law

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

You can gift any amount to your maternal uncle however this amount cannot be taken back to your account it will be treated as Hawala transaction and you will be punished in your country of your residence because you will not be able to provide the evidence of this income

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

I wanted to clarify the legal position as you can send money from Australia to your maternal uncle but your maternal uncle if he transfers any money to your bank account then it will be treated as money laundering because he has to submit proof for the purpose is sending the money and at the same time in Australia you have to provide the declaration of that amount you received from India I hope your query is clear now

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

According to section 56(2) of Gift Tax Act any sum of money exceeding Rs.50,000 received without consideration by an individual or a Hindu Undivided Family (HUF) is chargeable to tax as income from other sources.
However, some gifts are tax exempted. Gifts which are not taxable are the ones received from your 'close' relatives. 'Close' relatives is defined as:

Parents

Parents siblings and their spouse

Siblings

Spouse of siblings

Daughter and son

Spouse of daughter and son

Spouse

Spouse's parents

Spouse's siblings and their respective spouse.

Maternal uncle does not have to pay taxes on the money he receives. 

 

 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

 

You can send send money to your maternal uncle in India as gift 

 

2) your uncle can gift money to you 

 

3) resident individual can also make a gift in Indian Rupees to his NRI/ PIO “close relatives” by way of a credit to their NRO account. However, all such money gifts, put together for the resident individual, should be within the LRS limit of USD 250,000 in any financial year.

 

4) loan in foreign exchange can also be taken by resident Indians from their close NRI relatives. However, certain conditions are imposed while taking a loan fromclose relatives. The loan amount cannot exceed US$ 2,50,000. The loan taken should be free of interest. The minimum period of repayment should be seven years. The loan should be utilized forborrowers’ personal use.The loan cannot be used to buy immovable property or for investment in shares and debentures or for re-lending.

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

loan in foreign exchange can also be taken by resident Indians from their close NRI relatives. However, certain conditions are imposed while taking a loan fromclose relatives. The loan amount cannot exceed US$ 2,50,000. The loan taken should be free of interest. The minimum period of repayment should be seven years. The loan should be utilized forborrowers’ personal use.The loan cannot be used to buy immovable property or for investment in shares and debentures or for re-lending.

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

 Money can be gifted to Uncle also  but it is to be carefully ascertained that the case of Monet Laundering does not get attracted in the instant case.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1.The foreign natitional shall have to open a resident account in India where his said Uncle can deposit the said amount and execute am notarised  affidavit affirming that he has gifted or return the said amount to his nephew.

 

2. For transferring the said amount to the foreign country, he shal have to obtain approval from the RBI.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Yes it can but taxable here

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

If you are unsure of the taxation issues for gifting the money then better a loan can be advanced in favor of the uncle who is to be benefited out of this.

 

 

FEMA brings in a restrictive meaning to the gifting transactions by covering gifts of sum of money within the LRS domain and referring to a definition of “relative” which is narrower than that of the ITA. Therefore, gift of a sum of Indian Rupees by an uncle or “relatives” of the spouse would be not be taxable, but would not be permitted as per the FEMA regulations.

 

Under the Liberalised Remittance Scheme (“LRS”), resident individuals are permitted to remit overseas up to USD 250,000 per financial year. Such remittances are permitted to be used for conducting permissible current or capital account transactions and subsumes gift in foreign currency made to any NRI or Persons of Indian Origin (“PIO”); i.e. there is no requirement for the donor and the recipient to be related. Therefore, in a case where such a gift is received from a distant relative (in excess of INR 50,000), while the same would be permissible under FEMA, such receipt would become taxable in the hands of the NRI recipient under section 56(2)(x) of the ITA.

 

 

The Reserve Bank of India (RBI) in its monetary policy review enhanced the limit under Liberalized Remittance Scheme (LRS) to $250,000 per person per year from existing limit of 125,000 USD.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

He can better give it as loan to him and get it back utilizing the current law on this.

 

Resident of India can only borrow money in Indian rupees from NRIs. The conditions under which he/she can borrow are: Borrowing shall be only on a non-repatriation basis. ... The first way is to debit the NRE/NRO/FCNR account of theNRI and give the loan to the Indian resident.

an individual resident Indian can borrow a sum not exceeding USD 250,000 or its equivalent from his close relatives staying outside India, subject to the conditions that: the minimum maturity period of the loan is one year; the loan is free of interest;

 

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

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