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Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018.

The Reserve Bank of India, earlier, made the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000 vide Notification No. 21/2000-RB dated 03.05.2000 which came into effect from 01.06.2000.

Now the Reserve Bank of India, in supersession of the said notification as amended from time to time, made 'The Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018, vide Notification No. FEMA dated 26.03.2018. These regulations came into effect from 26.03.2018.

The current position is therefore as under :-

Important Definitions

  1. A person of Indian origin (PIO) means an individual (not being a citizen of Pakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran or Nepal or Bhutan), who –
    1. At any time, held Indian passport – OR
    2. Who or either of whose father or whose grandfather was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955);
  2. A person resident in India means
    1. A person residing in India for more than 182 days during the preceding financial year but does not include
      1. A person who has gone out of India or who stays outside (a) for taking up employment outside India or (b) for carrying on outside India business or vocation or for any other purpose as would indicate his intention to stay outside India for an uncertain period.
      2. A person who comes to or stays in India otherwise than (a) for taking up employment in India (b) for carrying on business or vocation in India or (c) for any other purpose as would indicate his intention to stay in India for an uncertain period.
    2. Any person or body corporate registered or incorporated in India.
    3. An office, branch or agency in India owned or controlled by a person resident outside India.
    4. An office, branch or agency outside India owned or controlled by a person resident inside India.
  3. Person resident outside India means a person who is not resident in India.
    1. Acquisition & transfer of property in India by an Indian citizen resident outside India
      He can:-
      1. Acquire any immovable property in India other than agricultural plantation/ farmhouse
      2. Transfer any immovable property in India to a person resident in India AND
      3. Transfer any immovable property other than agricultural plantation/ farmhouse to a person resident outside India if he is a citizen of India or person of Indian origin.
    2. Acquisition & transfer of property in India by a Person of Indian origin resident outside India
      He may:-
      1. acquire any immovable property other than agricultural land, farmhouse & plantation by purchase, gift, inheritance subject to the following conditions
        1. In case of purchase the funds should be received in India by way of inward remittance from any place outside India or from funds held in any Non-Resident Account maintained under FEMA/ RBI regulations.
        2. Gift can be from a person resident in India or from a person resident outside India who is either a citizen of India or a Person of Indian origin.
        3. inheritance can be from a person resident outside India provided that person had acquired the property in accordance with the provisions of the Foreign Exchange Law in force at the time of acquisition or from a person resident in India.
      2. Transfer any immovable property in India other than agricultural land, farmhouse, plantation by way of sale to a person resident in India or by way of gift to a person resident in India or to person resident outside India who is either a citizen of India or a person of Indian origin.
      3. transfer agricultural land, farmhouse or plantation property inland by way of gift or sale to a person resident in India who is a citizen of India.

Other Conditions

Whenever an immovable property is acquired in India by a person resident outside India the acquisition must be declared to RBI within 90 days from the date of acquisition in Form IPI.

Repatriation of Sale Proceeds

  1. In the event of sale of immovable property other than agricultural land/ farmhouse/ plantation property in India by the above 2 categories of person repartition of sale proceeds is possible subject to the following conditions:-
    1. Immovable property was acquired in accordance with the provisions of Foreign Exchange law/ Regulations in force at the time of acquisition.
    2. The property is held for at least 3 years from the date of its acquisition or from the date of payment of final installment of consideration whichever is later.
    3. Amount to be repatriated should not exceed
      1. Amount paid for acquisition of the property in foreign exchange remitted into India or out of Funds held in FCNR account OR
      2. The foreign currency equivalent as on the date of payment of the amount paid from funds held in NRE account for acquisition of property.
    4. Repatriation of sale proceeds in case of residential properties is restricted to maximum 2 properties.

Repatriation of Sale Proceeds

Citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan can take immovable property in India by way of lease for a period not exceeding 5 years without permission from RBI. For all other types of acquisition or transfer of immovable property in India they need to take prior permission of RBI.

Summary of acquisition and transfer of immovable property in India:

Table
Indian Nationals Residents In India
Indian Nationals Resident Outside India
Persons of Indian Origin Resident Outside India.
No restrictions
Can acquire any immovable property other than agricultural land / plantation / farm house.
Can acquire any immovable property other than agricultural land / plantation / farm house out of foreign currency funds or by way of gift or by way of inheritance.
Can transfer any immovable property to a person resident in India.
Can sell any immovable property other than agricultural land / Plantation / farm house to a person resident in India.
Can transfer any immovable property other than agricultural land / plantation/ farm house to a PIO/ Indian National Resident outside India.
Can gift any immovable property to a person Resident in India or to a PIO / Indian National Resident outside India.
Can sell / gift any agricultural land / plantation / farm house to an Indian citizen resident in India.

Persons of Indian Origin do not include citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan.

Table
Foreign Citizens Residents in India
Foreign Citizens Residents Outside India
Indian Branch/ Office of Foreign Concern
No restrictions, except in case of Nationals of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal and Bhutan who will require prior permission from RBI in all cases except where the immovable property is acquired by way of lease for less than 5 years.
Can acquire only after prior permission from RBI.
Can acquire immovable property which is required for carrying on its activities, a declaration in Form IPI will have to be filed with RBI within 90 days of such acquisition (the above procedure is not applicable to a liaison office)