Acquisition and Transfer of Immovable Property in India by a Person Resident outside India.
Acquiring immovable property in India by persons resident outside India is regulated in terms of Section 6(3) (i) of the Foreign Exchange Management Act (FEMA), 1999 as well as by the regulations contained in Notification issued by RBI viz Notification No FEMA. 21/2000-RB dated May 3, 2000, as amended from time to time. The ersons resident outside India are categorized as Non- Resident Indians (NRIs) or a foreign national of Indian Origin (PIO) or a foreign national of non-Indian origin. A person resident in India who is not a citizen of India is also covered by the relevant Notifications.
Statutorily, under the provisions of Section 6(5) of FEMA 1999, a person resident outside India can hold, own, transfer or invest in Indian currency, security or any immovable property situated in India if such currency, security or property was acquired, held or owned by such person when he was a resident in India or inherited from a person who was a resident in India.
The regulations under the Notification No FEMA 21 dated May 3, 2000 permit a NRI or a PIO to acquire immovable property in India other than agricultural land or, lantation property or farm house. Further, foreign companies who have been permitted to open an office in India are also allowed to acquire any immovable property in India, which is necessary for or incidental to carrying on such activity. This stipulation is not available to entities which are permitted to open liaison offices in India.
The relevant regulations covering the transactions in immovable property have been notified vide RBI Notification No. FEMA 21/2000-RB dated May 3, 2000 and this basic notification has been subsequently amended by the notifications detailed below:
Notification No.FEMA 64/2002-RB dated June 29, 2002
Notification No.FEMA 65/2002-RB dated June 29, 2002
Notification No.FEMA 93/2003-RB dated June 9, 2003 and
Notification No. FEMA 146/2006-RB dated February 10 2006
(available with A.P.(DIR Series) Circular No. 5 dated 16.8.2006 on website)
All the above notifications are available on RBI website: www.fema.rbi.org.in
The restrictions on acquiring immovable property in India by a person resident outside India would not apply where the immovable property is proposed to be acquired by way of a lease for a period not exceeding 5 years or where a person is deemed to be resident in India. In order to be deemed to be a person resident in India, from FEMA angle, the person would need to comply with the criterion for residency as defined in Section 2(v) of FEMA 1999. However, citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan cannot acquire or transfer immovable property in India, (other than on lease, not exceeding five years) without prior permission of the Reserve Bank.
NRIs/PIO are allowed to repatriate an amount up to USD one million, per financial year (April-March), out of the balances held in the NRO account subject to tax compliance. This amount _includes sale proceeds of assets acquired by way of inheritance or settlement.
While the statutory and regulatory provisions are indicated above, we have been receiving several queries fromindividuals on operational procedures regarding acquisition, holding and transferring of immovable property in India and repatriating / remitting the proceeds arising from sale of such property. In order to clarify these issues, we have attempted a set of FAQs on various issues relating to acquisition and transfer of immovable property in India by a person resident outside India and a person resident in Indiawho is not a citizen of India.
In case there are other issues to be resolved, a reference may be made to the
Chief General Manager-in-Charge,
Foreign Exchange Department,
Foreign Investment Division,
Reserve Bank of India,
Mumbai- 400 001.
FAQ's on acquisition of residential / commercial premises in India by Non-Resident Indians ("NRI") 1. Who is a NRI under the provisions of Foreign Exchange Management Act? Generally, an Indian Citizen who stays abroad for employment/carrying on business or vocation outside India or stays abroad under circumstances indicating an intention for an uncertain duration of stay abroad or a person who is not resident in India for a period over 182 days is a non-resident Indian. Persons posted in U.N. organizations and officials deputed abroad by Central/State Governments and Public Sector undertakings on temporary assignments are also treated as non-residents.
2. Do nonresident Indian citizens require permission of Reserve Bank to acquire residential/ commercial properly in India? No.
3. Do foreign citizens of Indian origin require permission of Reserve Bank to purchase immovable property in India for their residential use? Yes. However, Reserve Bank has granted general permission to foreign citizens of Indian origin, whether resident in India or abroad, to purchase immovable property in India for their bona fide residential purpose. They are, therefore, not required to obtain separate permission of Reserve Bank.
4. In what manner the purchase consideration for the residential immovable property should be paid by foreign citizens of Indian origin under the general permission? The purchase consideration should be met either out of inward remittances in foreign exchange through normal banking channels or out of funds from NTE/FCNR accounts maintained with banks in India.
5. What are the formalities required to be completed by foreign citizens of Indian origin for purchasing residential immovable property in India under the general permission? They are required to file a declaration in form IPI 7 with the Central Office of Reserve Bank at Mumbai within a period of 90 days from the date of purchase of immovable property or final payment of purchase consideration along with a certified copy of the document evidencing the transaction and bank certificate regarding the consideration paid. 6. Can such property be sold without the permission of Reserve Bank? Yes. Reserve Bank has granted general permission for sale of such property. However, where the property is purchased by another foreign citizen of Indian origin, funds towards the purchase consideration should either be remitted to India or paid out of balances in NRE/FCNR accounts.
7. Can sale proceeds of such property if and when sold be remitted out of India? In respect of residential properties purchased on or after 26th May,1993, Reserve Bank considers applications for repatriation of sale proceeds up to the consideration amount remitted in foreign exchange for the acquisition of the property for two such properties. The balance amount of sale proceeds if any or sale proceeds in respect of properties purchased prior to 26th May, 1993, will have to be credited to the ordinary non-resident rupee account of the owner of the property.
8. Are any conditions required to be fulfilled if repatriation of sale proceeds is desired? Applications for repatriation of sale proceeds are considered provided the sale takes place after three years from the date of final purchase deed or from the date of payment of final installment of consideration amount, whichever is later.
9. What is the procedure for seeking such repatriation? Applications for necessary permission for remittance of sale proceeds should be made in form IPI 8 to the Central Office of Reserve Bank at Mumbai within 90 days of the sale of the property.
10.Can foreign citizens of Indian origin acquire or dispose of residential property by way of gift? Yes. Reserve Bank has granted general permission to foreign citizens of Indian origin to acquire or dispose of properties up to two houses by way of gift from or to a relative who may be an Indian citizen or a person of Indian origin whether resident in India or not, provided gift tax has been paid.
11. Can foreign citizens of Indian origin acquire commercial properties in India? Yes. Under the general permission granted by Reserve Bank properties other than agricultural land/farm house/plantation property can be acquired by foreign citizens of Indian origin provided the purchase consideration is met either out of inward remittances in foreign exchange through normal banking channels or out of funds from the purchasers' NRE/FCNR accounts maintained with banks in India and a declaration is submitted to the Central Office of Reserve Bank in form IPI 7 within a period of 90 days from the date of purchase of the property/final payment of purchase consideration.
12. Can they dispose of such properties? Yes.
13. Can sale proceeds of such property be remitted out of India? Yes. Repatriation of original investment in respect of properties purchased by foreign citizens of Indian origin on or after 26th May 1993 will be allowed to be remitted up to the consideration amount originally remitted from abroad provided the property is sold after a period of three years from the date of the final purchase deed or from the date of payment of final installment of consideration amount, whichever is later. Applications for the purpose are required to be made to the Central Office of Reserve Bank within 90 days of the sale of property in form IPI 8.
14. Can the properties (residential/commercial) be given on rent if not required for immediate use? Yes. Reserve Bank has granted general permission for letting out of any immovable property in India. The rental income or proceeds of any investment of such income has to be credited to NRO account.
15. Can NRIs obtain loans for acquisition of a house/flat for residential purpose from financial institutions providing housing finance? Reserve Bank has granted general permission to certain financial institutions providing housing finance e.g. HDFC,LIC Housing Finance Ltd.,etc. to grant housing loans to non-resident Indian nationals for acquisition of houses/flats for self-occupation subject to certain conditions.
16. Can authorized dealer grant loans to NRIs for acquisition of a flat/house for residential purposes? Authorized dealers have been granted permission to grant loans up to non-resident Indian nationals for acquisition of house/flat for self-occupation on their return to India subject to certain conditions. Repayment of the loan should be made within a period not exceeding 15 years out of inward remittance through banking channels or out of funds held in the investments' NRE/FCNR accounts.
17. Can Indian companies grant loans to their NRI staff? Reserve Bank permits Indian firms/companies to grant housing loans to their employees deputed abroad and holding Indian passport subject to certain conditions. Source: Reserve Bank of India.
18. While purchasing real estate most developers demand a Power of Attorney in their favor, is there a way to avoid it? One can choose not to grant the Power of Attorney (POA) to the developers. However this will mandate the mailing of all documents to your foreign residence and associated time delays. A good compromise is to grant the POA to the builder only for specific necessary items.
Home loan FAQs for NRIs
1. For what kinds of property is a NRI eligible for Home loans? A home loan is sanctioned to the NRIs for any of the following housing finance schemes: a) To purchase a house that is ready-built, under construction or from a second owner b) To fund the purchase of a plot of land allotted by a society / development authority. c) For self-construction of a property on a plot of land. d) For renovation or improvement of an existing property in India.
2. What is the eligibility for obtaining NRI Home Loans? Your eligibility is calculated in the same way as it is calculated for resident Indians. More emphasis is laid on the following criteria in the appraisal of a NRI case: a) Qualifications - the NRI applicant has to be a graduate b) Current job profile & Past work experience c) Probability of continuing abroad for the loan tenure d) Probability of servicing the loan with an extended tenure in case you have to return to India.
3. What is the repayment period for a NRI Home Loan? The housing finance offered to NRIs normally does not exceed 5 years. However, some HFCs offer loans for a term of 7 years. The repayment for the loan is via EMIs. The EMIs begin only after the entire loan is disbursed. In case of a part disbursement, you pay simple interest at the rate applicable on the loan amount that is disbursed to you.
4. How is the mode of payment for NRI home loans? The loan towards the house has to be paid for the entire tenure of the loan through remittances from abroad through normal banking channels or from such accounts as may be permitted by RBI from time to time. As of today, the payments are done through NRO, NRE, NRNR and FCNR accounts. These accounts change on the basis of RBI permissions to each HFC.
5. What are the Tax Benefits applicable to Non-Resident Indians? No tax benefits are available for NRI customers unless you file returns and thereby become eligible to avail the tax benefits as mentioned under Home Loans.
6. What are the documents required for obtaining NRI Home Loans? NRIs are required to submit additional documents than is normally required for a resident Indian. a) A copy of the passport b) A copy of the works contract (also sometimes referred to as the contract card/labor card) c) The power of attorney (POA). The POA is required because the borrower is not based in India and in such a scenario; the HFC would need a representative 'in lieu of' the NRI to deal with as required. Although not mandatory, the POA is usually drawn on the NRIs parents, wife or children .