What is a gift?
Section 122 of TP Act defines gift as a transfer of
certain moveable or immovable property made by a person called donor to another
person called donee. Transfer of property in gifts must be made voluntarily without
any consideration by the donor and accepted by donee during the life time
of the donor. For a gift to be valid both donor and donee must have
capacity to contract. A gift can be made to a minor although he can not enter
into a contract but it has to be accepted by a guardian on behalf of minor.
The essentials of a valid gift can be summarized as
follows:
a) There must be a transfer of property either
movable or immovable by donor to donee.
b) Donee must accept the gift during the life time
of the donor to give validity to the gift. Similarly if the donee dies before
acceptance, the gift is void.
c) It must be a voluntary act without any
consideration and not by any court order or settlement.
d) Gift of movable property can be effected by
a simple delivery while gift of immovable properly must be made by a
registered instrument in due compliance of Indian stamp Act and Registration
Act .The gift deed must be signed by the donor and accepted by donee in the
presence of at least two witnesses.
e) Gift of future property is void as
identifiable property does not exist.
f) Gift given to several persons will be valid
provided it is accepted by all. If it is not accepted any one person amongst
the group, then gift of such portion which reflects interest of that person in
that property will be void.
Can a Gift be revoked?
As already stated, gift is a voluntary transfer of
property and without consideration. As such it is normally not revoked. However
if it is agreed between the donor and the donee about revocation subject to
happening of an event, it can be revoked just like a contract. Such revocation
must be subject to happening of a specified event which can not be influenced
by the donor, other wise it will not be in the nature of a gift. For e.g,
If a donor gives Rs.10 lakhs and reserves a right to take back Rs.1 lakh
and it is accepted by the donor then the gift of Rs.1 lakh is void while the
gift of 9 lakhs is valid.
What are the formalities for registration of gift deed?
As per Section 17(a) and section 28 of Registration
Act, 1908 instruments involving gift of immovable properties must be
compulsorily registered. While registering the gift deed the following points
must be kept in mind.
1. Deed must be executed on a non judicial stamp
paper of requisite value applicable in the state where the deed is
executed and the property is situate
2. Stamp duty at the applicable rate must be paid.
In some states the rate of stamp duty varies for gifts between near relatives
and gifts to third parties i.e., other than near relatives. In some states
lesser stamp duty is fixed for gift deed amongst the near relatives. While in
the case of gifts to third parties fixed percentage of market vale is payable
as stamp duty.
3. Following documents must be presented to the
registration authority in whose jurisdiction the immovable property is
situated:-
a. Copy of Gift-deed executed by both donor and
donee.
b. Photographs of donor and donee PAN numbers of
donor and donee
c. Submit a declaration as to the particulars of
immovable property and its present market value
d. Record of rights/Title deeds which show the
prima facie ownership of the donor.
e. Map of agricultural land or other land and buildings,
f. Affidavit stating that Registration of
this document does not violate the notifications issued under Section 22A of
the Registration Act, 1908.
However it is recommended to get gift of movable
properties registered as well to establish the identity and intention.
What precautions are to be taken for availing
benefit under Income Tax Act?
Gift deed with full details of property gifted must
be executed to establish the bonafides of it. Gifts are generally taxed in the
hands of the recipient(individual or HUF) unless they are specifically exempt
under the Income Tax Act. Gifts
1) Received from certain relatives (The list
includes 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 in the case of
an individual) are not taxable.
2) Besides this, the following amounts are exempt
from tax u/s 56
a. Gifts received under a
will or as inheritance
b. Gifts received at the time of wedding
If the gifts do not fall in the above category and
the amount received is more than Rupees 50, 000/- in a year then it
is taxable as income from other sources in the hands of the recipient.
Is there any format for gift
deed?
There is no prescribed format. But the essentials
of valid gift must be reflected in the format, namely the names of donor and
donee, properties gifted, signatures of donor, acceptance of gift by donee in
the presence of two witnesses. A simple format is suggested below.
KNOW ALL MEN BY THESE PRESENTS that
I,__________ S/o _________________resident of
_________________, gift voluntarily, the following properties
to Mr.________ /Mrs____________/trust /company/ hereinafter referred to
as "the donee") absolutely for his/her /its sole use and
benefit forever.
I further declare that *donee is related to
me as _____________
i) Market value of the property is
Rs._______ and stamp duty paid is Rs.___
ii) the said gift has been accepted by the
donee
Description
of property
|
Amount
in Rs.
|
Movable
properties xxxxx
|
|
Immovable
property situated at _________ purchased from xxxxx previous seller/
inherited from _____xxxx
|
Current
market value
|
* Applicable if donee is related
IN WITNESS WHEREOF, I have executed this deed
this __ day of ____, 2013.
(Signature of donor)
I/We ___________, accept the above gift.
Signature of Donee
Witness no.1 _______Witness no.2___________
This deed of gift is made on this 24th Day of October
2007 at Bangalore.
By Smt. ______________ aged about 74 years permanently residing at
____________________(‘Donor’)
In favour of
Sri__________S/o _____________ aged about 25 years permanently residing at
___________ (‘Donee’)
1. That this day I _________ ‘the donor’ has gifted a sum of Rs.2,00,000.00
(Rupees Two lakhs only) to ‘Donee’ hereinabove by way of cash as gift.
2. That the said gift was made by me out of my self acquired and self earned
income / assets and none of my successors / heirs shall ever dispute or call in
question the said gift made by me to the said _________.
3. That the said gift was made by me unconditionally, without any expectation,
whatsoever, in return from the said __________.
4. That I shall have no right, title, claim, and interest or demand whatsoever
on the said gift in future and the said ___________ shall use the gifted amount
in the way he thinks fit for.
5. That I ‘the Donor’ shall have no right over the gifted amount. Further, I
also declare that the amount gifted and any accretion thereon shall be the
individual property of ________.
6. That I ‘the Donor’ declares that I have made this declaration in sound
health and perfect mental condition and this gift is an irrevocable gift.
7. In witness where of Donor and Donee has put their signature to the said deed
as a token of their acceptance on the day month and year mentioned first above
before the attesting witness.
Witness:
1.
DONOR
2.
DONEE
ACCEPTANCE
I Sri.___________S/o __________ aged about 25 years permanently residing at
________________ hereby confirm that I have accepted the above gift as stated
above.
DONEE
