• US citizen and OCI card (without PAN) selling India flat

I live in the US (us citizen and OCI card). I have a flat in Mumbai that i would like to sell (long term capital gains may be applicable and buyer is inquiring about TDS). I have my father on a POA to sell etc on my behalf. i want to legally avoid the hassle to deal with capital tax gains etc (TDS) since i have an option to buy another property in mumbai within a month or two and roll the money in. The other option (preferred) i am considering is to gift the property to father - he is a super sr. citizen and he can sell whenever he wants and keep all the money to himself. 
Question i have is how easy and quick is it to gift the flat to my father so that he can sell when he likes and get the benefit of tax exemptions for sr. citizen. Can i use the same POA executed 10+yrs back to take care of the gift formalities sitting in the USA?
Asked 3 years ago in Property Law
Religion: Hindu

Ask a question and receive multiple answers in one hour.

Lawyers are available now to answer your questions.

7 Answers

If you were an Indian citizen at that time and if POA deed was executed by an unregistered deed then it is advisable that you better execute a fresh deed with additional recitals enabling him to execute a registered gift deed unto himself by himself as an agent to the beneficiary. 

This is legally acceptable. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. As you have rightly suggested, gift the flat to your father so that he will sell the flat as per his sweet will and wish by obtaining tax exemption for a new super senior citizen.

2.  If the existing POA has authorised your father to take care of gift formalities, then the same POA holds good. However, if the existing POA does not have gift formalities, then you can execute a fresh POA in your father's favour to execute the gift formalities.

3.  The execution of POA and gift formalities can be completed within a fortnight.

Shashidhar S. Sastry
Advocate, Bangalore
5623 Answers
339 Consultations

Is POA duly stamped and registered .?

 

if not is it attested before Indian consulate .?

 

your father can on basis of POA sell the flat .TDS would be deducted by buyer at 22.6 per cent 

 

 

On basis of POA your father can also gift the flat 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

You xan gift the same there is no issue for the same. Execute gift deed. 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

you will have to first check in the existing POA whether any power is granted to your father to transfer the flat by way of gift and to register such gift deed with the sub-registrar of assurances

if the above power is absent in the POA, then you will have to make another 'Special Limited POA' in which you would authorise your father to complete and comply with the registration of the gift deed on your behalf 

so you can have the gift deed draft and special POA draft prepared by a lawyer 

after the drafts are approved by you, the lawyer will take their prints on stamp papers

for the special POA the stamp duty is Rs. 500/-

for the gift deed, for gift of property by son to father, the stamp duty is 3% plus 1% metro cess, on the market value of the flat plus 1% registration fee alongwith registration agent's and lawyer's professional fees

initially the gift deed can be stamped for Rs. 500/-

the stamped POA and gift deed can then be couriered to you at your USA address 

you will then have to sign on the documents before the Indian Consulate/Embassy in the USA

Then you will have to send the signed documents back to Mumbai by courier

your father would then get the gift deed registered and comply with the registration formalities on your behalf using your special POA 

the POA can also give powers to your father to sign on applicable society share transfer forms and share certification application and to submit the same to the society for name transfer in his name

likewise a power can also be given to him to apply to all the relevant authorities like electricity supplying company, etc. to transfer the electric meter and other utility bills in your father's name 

your father will have to hold the flat for atleast 3 years in order to avail the long term capital gains tax exemption benefit when he sells the flat in future 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

Under Instruction 2 B (iii) of Master Circular No.  4/2014-14 (Updated as on 25th, June 2014 you are entitled to gift to a person resident in India. POA executed then years back is not valid now you need to execute a fresh POA. Further. POA cannot be issued  to the person to whom property is propose to be transferred, issue the POA to another person and get the gift deed executed by him to father .

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

Dear client,

PoA remains valid only till the life of the principal. General power of attorney if confers powers to gift to a particular person specified and the General Power of Attorney is registered only then General Power of Attorney holder can execute gift on behalf of the owner.

A gift deed can be made and executed immediately. Just approach a lawyer and tell him about the gift to be given or received and accordingly he will draft a deed which will be signed by both parties and get it registered.

Thank you.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer