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FEMA Regulations for Foreign Embassies

The Foreign Exchange Management Act, 1999
Section 2(ze) of the FEMA Act defines transfer. The definition is comprehensive and includes leases within its ambit. It reads as:
(ze) transferļæ½ includes sale, purchase, exchange, mortgage, pledge, gift, loan or any other form of transfer of right, title, possession or lien.

FEMA (Acquisition and Transfer of Immovable Property in India) Regulations, 2018
The RBI on March 26, 2018 notified the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 via Notification No. FEMA 21(R)/2018-RB.

Rule 5 of the regulations provides the law for relating to sale/ purchase of immovable property by foreign embassies.
It reads as follows:
5. Purchase/ sale of Immovable Property by Foreign Embassies/ Diplomats/ Consulate Generals:
A Foreign Embassy/ Diplomat/ Consulate General may purchase/ sell immovable property in India other than agricultural land/ plantation property/ farm house provided:
  1. clearance from Government of India, Ministry of External Affairs is obtained for such purchase/ sale, and
  2. the consideration for acquisition of immovable property in India is paid out of funds remitted from abroad through banking channels.

Rule 11 of the 2018 regulations may also be relevant. It reads as follows:
11. Miscellaneous:- Any transaction involving acquisition or transfer of immovable property under these regulations shall be undertaken:
  1. through banking channels in India;
  2. subject to payment of applicable taxes and other duties/ levies in India.

Foreign Exchange Management (Remittance of Assets) Regulations, 2016
Remittance outside India by a person whether resident in India or not, of assets in India, are governed by section 47 of the Foreign Exchange Management Act, 1999 (FEMA) read with 1Notification No. FEMA 13(R)/2016-RB dated April 1, 2016.

Rules 2(v) 3, 4(1), 7 and 8 are relevant. They read as follows:
2(v) 'Remittance of asset' means remittance outside India of funds representing a deposit with a bank or a firm or a company, provident fund balance or superannuation benefits, amount of claim or maturity proceeds of Insurance policy, sale proceeds of shares, securities, immovable property or any other asset held in India in accordance with the provisions of the Act or rules or regulations made there under.

3. Prohibition on Remittance outside India of assets held in India. - Save as otherwise provided in the Act or rules or regulations made or issued thereunder, no person, whether resident in India or not, shall make remittance of any asset held in India by him or by any other person:
Provided that the Reserve Bank may, for sufficient reasons, permit any person to make remittance of any asset held in India by him or by any other person.

4. Permission for remittance of assets in certain cases. - (1) A citizen of foreign state, not being a Person of Indian origin (PIO) or a citizen of Nepal or Bhutan, who:
  1. has retired from an employment in India, or
  2. has inherited the assets from a person referred to in sub-section (5) of section 6 of the Act; or
  3. Is a widow/widower resident outside India and has inherited assets of the deceased spouse who was an Indian citizen resident in India, may remit through an authorised dealer an amount, not exceeding USD 1,000,000 (US Dollar One million only) per financial year on production of documentary evidence in support of acquisition, inheritance or legacy of assets by the remitter.

Provided that for the purpose of arriving at annual ceiling of remittance, the funds representing sale proceeds of shares and immovable property owned or held by the citizen of foreign state on repatriation basis in accordance with the Foreign Exchange Management (Acquisition and transfer of immovable property in India) Regulations, 2016 and Foreign Exchange Management (Transfer or issue of security by a person resident outside India) Regulations, 2000 made under the Act, shall not be included.

7. Reserve Bank's prior permission in certain cases:
  1. A person who desires to make a remittance of assets in the following cases, may apply to the Reserve Bank, namely:
    1. Remittance exceeding USD 1,000,000 (US Dollar One million only) per financial year:
      1. on account of legacy, bequest or inheritance to a citizen of foreign state, resident outside India; and
      2. by a Non-Resident Indian (NRI) or Person of Indian Origin (PIO), out of the balances held in NRO accounts/ sale proceeds of assets/ the assets acquired by way of inheritance/ legacy.
    2. Remittance to a person resident outside India on the ground that hardship will be caused to such a person if remittance from India is not made;
  2. On consideration of the application made under sub-regulation (1), the Reserve Bank may permit the remittance, subject to such terms and conditions as it deem necessary.

8. Payment of taxes:
Any transaction involving remittance of assets under these regulations shall be subject to the applicable tax laws in India.

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