A non-resident Indian can remit $1mn from property sale

By Kul Bhushan 

The prices of ancestral properties left in India by emigrating non-resident Indians (NRIs) have escalated beyond their belief. Little wonder they have developed a new and intense interest in claiming their share, especially with recession biting hard in the West. In the last few years, the ancestral homes in India are valued in crores (one crore = Rs 10 million). So these amounts become very attractive for NRIs to claim and remit. In the recent past, the Reserve Bank of India (RBI) has revised the maximum amount that can be sent abroad without special permissions. However, these properties should not be agricultural land, a farm house or a plantation.

An NRI/PIO is allowed to send abroad up to $1 million from the sale of property in any one financial year. This amount should be the sale proceeds of property inherited by him out of rupee funds. This transfer is subject to production of documentary evidence in support of acquisition, inheritance or legacy of assets by the NRI, and a tax clearance or a no objection certificate from the Income Tax Authority. The $1 million remittance can also be made from the balances held in Non Resident Ordinary Rupee (NRO) Accounts.

After taking a dip following the financial crisis of 2008, property prices have bounced back and how. Despite the high price rise, more and more NRIs are keen to buy properties in India. Who can buy property in India? An NRI who is a citizen of India but residing outside, or a Person of Indian Origin (PIO). A PIO is defined as an individual (not a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan) who has held an Indian passport at any time or whose father or mother or grandfather or grandmother was a citizen of India.

The laws related to immovable property in India are complex and are not uniform from one state to another, said Rajan D. Gupta, a senior lawyer and a qualified accountant with SRGR Law Offices.

“A major concern is to determine the clear and marketable title of the land under question and to ensure that the land under question is free from any encumbrances such as litigation, prior mortgages, any third party interest or rights and any governmental actions such as compulsory acquisition proceedings,” said Gupta.

“Again, in case of properties, especially agricultural properties, which are owned by farming families, there are a number of family law issues which again are myriad as there are a number of religions in India and most of them have their own characteristic legal frameworks.”

Gupta said to ward off such issues and be almost certain about the legal status of the property to be acquired, it is advisable that a competent legal professional must be engaged to conduct a title check and due diligence of the property to be acquired.

“It is also important to engage such a professional who practises within the jurisdiction where the property is situated so that he/she is aware of the local legal compliances and issues,” he added.

NRIs face many legal tangles about their properties in India. These relate to the purchase, transfer and ownership of property, power of attorney, management and eviction of tenants, remittance of the sale proceeds, illegal grabbing of their properties and other related issues.

Their legal cases have been pending in the courts for years, indeed decades. If an NRI is fighting a case with a resident Indian, he is at a disadvantage because the Indian is in no hurry while the NRI has limited time to attend to his case during his visit to India or make special trips for court appearances.

Thus, NRIs have demanded the establishment of fast track courts in different parts of India to deal with their property cases — a demand the government has been considering for some years.

This issue will no doubt resurface in the forthcoming Pravasi Bharatiya Divas (PBD) next month when NRIs are cajoled to invest in India. Before investing in property, the NRIs want to see some mechanism for speedy judgments in their court cases.

Special committees have been formed by GOPIO – Global Organisation of Persons of Indian Origin — to deal with property problems. This committee has prepared and presented many proposals to ease the suffering of NRIs at the hands of real estate developers, buyers, sellers and tenants and has a database of thousands of such cases on their records.

This year, PBD discussed NRI property related issues and institutional arrangements to safeguard their properties in India as well as the modalities for credible investment avenues in the real estate sector. The problems have been highlighted; now action is awaited.

(Kul Bhushan previously worked abroad as a newspaper editor and has travelled to over 55 countries. He lives in New Delhi)

* Published in print edition on 23 December 2010