Understanding Residential Status in Taxation
Understanding Residential Status in Taxation
Under the I.T. Act An Individual & H.U.F. can be treated as Ordinary, Not ordinary
resident or a non resident while all other person can be only resident Or non
resident.
Person of Indian Origin Means Any Individual who himself, or His Parents Or
His Grand Parents born in Undivided INDIA.(Maternal n paternal)
Resident
Individual/HUF Firm/LLP/ and Resident but Non-
AOP/BOI/ ordinarily not ordinarily resident
company resident resident
Resident etc.
Non-
Deemed resident
resident
Global Income which
Resident (Individual)
income is is received/
and deemed to be
Resident taxable in Income
ordinarily received/
resident India received/
accrued or deemed
arisen/
to be
deemed to
Non-resident received/
accrue or
Resident accrued
arise in India
but not or arisen/
ordinarily deemed
resident to accrue
or arise in
India
Income which
accrues or
arises outside
India being
derived from a
business
controlled in
or profession
set up in India
Non-resident
Residential
Status
(Section 6)
Resident
Firm/AOP/Local
Authority/Company etc.
Non-resident
CASE 1- INDIVIDUAL
BEING A CITIZEN OF INDIA
LEAVES INDIA DURING THE P/Y AS A MEMBER OF CREW OF AN INDIAN SHIP
OR
FOR THE PURPOSE OF EMPLOYEMENT OUTSIDE INDIA.(PERMANENT
INTENTION)-only condition (i) will need to fulfill otherwise he will be NR.
CASE 2- INDIVIDUAL
BEING A CITIZEN OF INDIA OR A PERSON OF INDIAN ORIGIN COMES
ON A VISIT TO INDIA.(TEMPORARY INTENTION)- -only condition (i) will need to
Fulfill otherwise he/she will be NR.
CASE-3-However, such person [case-2] having total income, other than the
income from foreign sources [i.e., income which accrues or arises outside
India (except income from a business controlled from or profession set up in
India) and which is not deemed to accrue or arise in India], exceeding ` 15 lakhs
during the previous year will be treated as resident in India if –[in other words
for such person following basic conditions will be apply and not above basic
conditions no. (i) & (ii) -
-the period of his stay during the relevant previous year amounts to
182 days or more, or
-he has been in India during the 4 years immediately preceding the
previous year for a total period of 365 days or more and has been
in India for at least 120 days in the previous year.
CA ANKIT SHARMA Page 4
Notes:
(a) The term “stay in India” includes stay in the territorial
waters of India (i.e. 12 nautical miles into the sea from the
Indian coastline). Even the stay in a ship or boat moored
in the territorial waters of India would be sufficient to make
the individual resident in India.
(b) It is not necessary that the period of stay must be
continuous or active nor is it essential that the stay
should be at the usual place of residence, business or
employment of the individual.
(c) For the purpose of counting the number of days stayed in
India, both the date of departure as well as the date of
arrival are considered to be in India.
(d) The residence of an individual for income-tax purpose has
nothing to do with citizenship, place of birth or domicile.
An individual can, therefore, be resident in more countries
than one even though he can have only one domicile.
SPECIAL PROVISIONS-
1-How to determine period of stay in India for an Indian citizen,
being a crew member? In case of foreign bound ships where the
destination of the voyage is outside India, there is uncertainty
regarding the manner and the basis of determining the period of stay
in India for an Indian citizen, being a crew member.
To remove this uncertainty, Explanation 2 to section 6(1) provides
that in the case of an individual, being a citizen of India and a
member of the crew of a foreign bound ship leaving India, the period
or periods of stay in India shall, in respect of such voyage, be
determined in the prescribed manner and subject to the prescribed
conditions.
Residential Status- =Rule 126 in the income tax rules to compute the period of stay in
such cases. According to rule 126 for the purpose of section 6(1) in case of an
individual being a citizen of INDIA n a member of the crew of a ship ,the period of stay
in INDIA shall in respect of an eligible voyage ,not include the following-
Period commencing from =The date from joining into the continuous discharge
certificate till the date entered into continuous discharge certificate signing off .
i) He has been a NR in India in 9 out of 10 p/y immediately preceding the relevant p/y,
OR
ii) He has been in India for less than 730 days in 7 p/y immediately preceding the
relevant p/y.
And if he did not satisfy any of the above conditions then he will be treated as
Ordinary Resident.
YES NO
(+)
Is his stay in India for 730 days or more
during the 7 PYs preceding the relevant PY
YES NO
SITUATION 2: Individual & HUF can be treated as Ordinary Resident Or Not Ord.
Resident. HUF is said to be Ordinary Resident if KARTA OF HUF is fulfill both of
following conditions:--
I) Karta has been RESIDENT in India for 2 or more years out of 10 p/y
immediately preceding the relevant p/y,
and
II) Karta has been in India for 730 days or more in 7 p/y immediately preceding
the relevant p/y.
And if Karta did not satisfy both of the above conditions then HUF will be treated
as Not Ordinary Resident.
b) In case of other Co.-IF POEM in substance in India then Resident and if POEM
in substance o/s India then NR.
The categories of income which are deemed to accrue or arise in India are:
(1) Any income accruing or arising to an assessee in any place
outside India whether directly or indirectly-
(a) through or from any business connection in India,
(b) through or from any property in India,
(c) through or from any asset or source of income in India or
(d) through the transfer of a capital asset situated
in India would be deemed to accrue or arise in
India.[Section 9(1)(i)]
Fees for
Income Salary earned Salary Royalty, if Income arising
Dividend paid Interest, if technical
accruing or for services payable by payable by outside India,
by an Indian payable by services, if
arising rendered in the being any sum of
Company payable by
outside India, India Government money paid
directly or outside India without
to Indian
indirectly Citizen for consideration, by a
through or services A non resident Indian to a
from Person resident in
rendered resident Government non-corporate
India
outside India non-resident or
foreign company or
If money is Exceptions to a RNOR, where
Any Business borrowed and aggregate of such
Connection in used for the sum > ` 50,000
India purpose of If the money borrowed
business or and used or technical
profession services or royalty
carried on in services are utilised for
India the purpose of business
Any or profession carried on
property/asset outside India
or source of
income in India
If technical
services or If the money
royalty services borrowed and used or
are utilised for technical services or
transfer of
the purpose of royalty services are
capital asset
business or utilised for making
situated in
profession income from any
India
carried on in India source outside India
or making income
from any source
in India
(2)In the case of a non-resident, the following shall not, however, be treated
as business connection in India [Explanation 1 to section 9(1)(i)]:
In the case of a business, in respect of which all the operations are not
carried out in India [Explanation 1(a) to section 9(1)(i)]:
In the case of a business of which all the operations are not carried out in
India, the income of the business deemed to accrue or arise in India shall be
only such part of income as is reasonably attributable to the operations
carried out in India. Therefore, it follows that such part of income which
cannot be reasonably attributed to the operations in India, is not deemed to
accrue or arise in India.
Any income which arises from any property (movable, immovable, tangible and
intangible property) would be deemed to accrue or arise in India.
Examples:
1. Hire charges or rent paid outside India for the use of the machinery or buildings situated in
India,
2. Deposits with an Indian company for which interest is received outside India etc.
3. Mr. X, resident in New York, USA, has a house property situated in India which has been
given on rent by him. Rent receivable/ received by Mr. X would be taxable in India
whether such rent is received by him in India or outside India as the house property is
situated in India.
Capital gains arising through the transfer of a capital asset situated in India would be
deemed to accrue or arise in India in all cases irrespective of the fact whether
(i) the capital asset is movable or immovable, tangible or intangible;
(ii) the place of registration of the document of transfer etc., is in India or outside;
and
the place of payment of the consideration for the transfer is within India or outside.
Income from salaries payable by the Government for services rendered outside India
[Section 9(1)(iii)]
Income from ‘Salaries’ which is payable by the Government to a citizen of India for services
rendered outside India would be deemed to accrue or arise in India.
The following conditions have to be satisfied to treat such income as deemed to accrue or arise
in India:
• Income should be chargeable under the head 'Salaries’;
• The payer should be Government of India;
• The recipient should be an Indian citizen, whether resident or non-resident in
India;
• The services should be rendered outside India.
However, allowances and perquisites paid or allowed outside India by the Government to an
Indian citizen for services rendered outside India is exempt, by virtue of section 10(7).
Example : If a non-resident ‘A’ borrows money from a non-resident ‘B’ and invests the same
in shares of an Indian company, interest payable by ‘A’ to ‘B’ will not be deemed to accrue or
arise in India.
4. Income treated u/s 68, 69, 69A, 69B, 69C is as deemed to be received in India.
INDIVIDUAL HUF
CONTROL & MANAGEMENT
IF INDIVIDUAL DOES NOT FALL NORMAL 6(1) C]DEEMED RESIDENT 6(1A) WHOLLY/PARTLY IN INDIA WHOLLY O/S
IN A/B/C THEN =NR INDIA
A] GENERAL INDIVIDUAL CASE- IF CITIZEN OF INDIA +RESIDE
BASIC CONDITIONS= O/S INDIA+COMES TO VISIT or Not RESIEDENT NR
RNOR
ROR
1]For Resident as per case A or B(i)(ii) 2]Only for Resident as per case B (iii) 3]DEEMED RESIDENT U/S 6 (1A)ALWAYS RNOR
If satisfy any one condition- if satisfy any one of the following Condition-
IF Resident individual does not fulfill any of the above conditions then he/she will be ROR.
Note- If section 6(1) applicable then section 6(1A) will not be applicable.
Note-Visit not mandatory in case of Deemed Resident u/s 6(1A).
IN SUBSTANCE