INCOME TAX INCIDENCE NRI.ppt

Definitions of important termsDay 2Session 2slide 2.2

Assessment year [Sec. 2(9)]

Assessment year means the period of twelve months starting from April 1 of every year and ending on March 31 of the next year. For instance, the assessment year 2003-04 which commenced on April 1, 2003, will end on March 31, 2004. The period of assessment year is fixed by statute. Income of previous year of an assessee is taxed during the following assessment year at the rates prescribed for such assessment year by the relevant Finance Act

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Previous year [Sec. 3]

. Income earned in a year is taxable in the next year. The year in which income is earned is known as previous year and the next year in which income is taxable is known as assessment year. In other words, it can be said that income earned during the previous year 2002-03 is taxable in the immediately following assessment year (i.e., 2003-04)Uniform previous year - From the assessment year 1989-90 onwards, all assessees are required to follow financial year (i.e., April 1 to March 31) as the previous year. This uniform previous year has to be followed for all sources of income. Slide 2.2

Person [Sec. 2(31)]

The term person includes :a. an individual ;b. a Hindu undivided family ;c. a company ;d. a firm ;e. an association of persons or a body of individuals, whether incorporated or not ;f. a local authority ; andg. every artificial juridical person, not falling within any of the preceding categories.Slide 2.2

Person [Sec. 2(31)]

An individual - Under the present Act, the word individual means only a natural person, i.e., a human being. Deities and statutory corporations are assessable as juridical person. Individual includes a minor or a person of unsound mindShridhar Uday Narayan v. CIT [1962] 45 ITR 577 (All.), or a group of individualsWTO v. C.K. Mammed Kayi [1981] 129 ITR 307 (SC).n Trustees of a discretionary trust have to be assessed in status of individual and not in status of association of personsCIT v. Deepak Family Trust (No. 1) [1994] 72 Taxman 406 (Guj.).Slide 2.2

Person [Sec. 2(31)]

A Hindu undivided family - A Hindu undivided family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. Profits made by a joint Hindu family are chargeable to tax as income of the Hindu undivided family as a distinct entity or unit of assessment. Once a family is assessed as a Hindu undivided family, it will continue to be assessed as such till a finding of partition is given by the Assessing Officer under section 171

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Person [Sec. 2(31)]

An association of persons or a body of individuals - The word associate means to join in common purpose, or to join in action. Therefore, association of persons means an association in which two or more persons join in a common purpose or common action. The term person includes any company or association or body of individuals, whether incorporated or not. An association of persons may have companies, firms, joint families as its membersM.M. Ipoh v.CIT [1968] 67 ITR 106 (SC).

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Person [Sec. 2(31)]

Local authority - Local authority is a separate unit of assessment. As per section 3(31) of the General Clauses Act, 1897, a local authority means a municipal committee, district board, body of port commissioners, or other authority legally entitled to or entrusted by the Government with the control and management of a municipal or local fund.

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Person [Sec. 2(31)]

Every artificial juridical person - It covers not only deities Jogendra Nath Naskar v. CIT [1969] 74 ITR 33 (SC) but also all artificial persons with a juridical personality such as a Bar CouncilBar Council of Uttar Pradesh v. CIT [1983] 143 ITR 584 (All.) . Guru Granth Sahib is to be regarded as a juristic personShiromani Gurudwara Prabandhak Committee, Asr. v. Som Nath Das [2000] 160 CTR (SC) 61. This is residuary classification and, therefore, it does not cover those falling within any of the preceding classifications

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Assessee [Sec. 2(7)] Assessee means a person by whom any tax or any other sum of money (i.e., penalty or interest) is payable under the Act. The term includes the following persons :n First category - A person (i.e., an individual ; a Hindu undivided family; a company ; a firm ; an association of persons or body of individuals, whether incorporated or not ; a localauthority; and every artificial juridical person) by whom any tax or any other sum of money (including interest and penalty) is payable under the Act (irrespective of the fact whether any proceeding under the Act has been taken against him or not). Slide 2.2

Assessee [Sec. 2(7)] Second category - A person in respect of whom any proceeding under the Act has been taken (whether or not he is liable for any tax, interest or penalty). Proceeding may be taken :a. either for the assessment of the amount of his income or of the loss sustained by him ; orb. of the income (or loss) of any other person in respect of whom he is assessable ; orc. of the amount of refund due to him or to such other person Slide 2.2

Assessee [Sec. 2(7)] n Third category - Every person who is deemed to be an assessee. For instance, a representative assessee is deemed to be an assessee by virtue of section 160(2).n Fourth category - Every person who is deemed to be an assessee in default under any provision of the Act. For instance, under section 201(1), any person who does not deduct tax at source, or after deducting fails to pay such tax, is deemed to be an assessee in default. Likewise, under section 218, if a person does not pay advance tax, then he shall be deemed to be an assessee in default.Slide 2.2

Gross total income

A s per section 14, income of a person is computed under the following five heads :1. Salaries2. Income from house property3. Profits and gains of business or profession4. Capital gains5. Income from other sources.

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Expenditure incurred in relation to exempt income, not deductible [Sec. 14A Section 14A has been inserted from the assessment year 1962-63. It provides that no deduction shall be made in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act.

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Residential status and tax incidence

Residential status - General normsOne has to keep in mind the following norms while deciding the residential status of an assessee :1 Different taxable entities - Section 6 lays down the test of residence for the following taxable entities :a. an individual ;b. a Hindu undivided family ;c.a firm or an association of persons or a body of individuals ;d. a company ; ande. every other person.Slide 2.2


Different kinds of residential status - Assessees are either (a) resident in India, or (b) non-resident in India. As far as resident individuals and Hindu undivided families are concerned, they can be further divided into two categories, viz., (a) resident and ordinarily resident, or (b) resident but not ordinarily resident. All other assessees (viz., a firm, an association of persons, a company and every other person) can simply be either a resident or a non-resident

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Different residential status in respect of different previous years of the same assessment year not possible [sec. 6(5)] - If a person is resident in a previous year relevant to an assessment year in respect of any source of income, he shall be deemed to be resident in India in the previous year(s) relevant to the same assessment year in respect of each of his other sources of income .Different residential status for different assessment years - An assessee may enjoy different residential status for different assessment years. For instance, an individual who has been regularly assessed as resident and ordinarily resident, has to be treated as non-residentin a particular assessment year if he satisfies none of the conditions of section 6(1)

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Resident in India and abroad - It is not necessary that a person who is resident in India, cannot become resident in any other country for the same assessment year. A person may be resident in more than one country at the same time for tax purposes, though he cannot have two domiciles simultaneously. It is, therefore, not necessary that a person, who is resident in India, will be non-resident for all other countries for the same assessment year

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Residential status and tax incidence(individual)Basic conditions to test as to when an individual is resident in India - Under section 6(1), an individual is said to be resident in India in any previous year, if he satisfies at least one of the following basic conditions a. he is in India in the previous year for a period of 182 days or more ; orb. he is in India for a period of 60 days or more during the previous year and 365 days or more during the 4 years immediately preceding the previous year Slide 2.2

Residential status and tax incidence (individual) Slide 2.2

EXCEPTIONS - The aforesaid rule of residence is subject to the following exceptions:1. By virtue of Explanation (a) to section 6(1), the period of 60 days referred to in (b) above has been extended as follows

A.Ys.Who can take the benefitof extended period Extended period 1990-91 onwards An Indian citizen who leaves India during the previous year for the purpose of employment outside India or an Indian citizen who leaves India during the previous year as a member of the crew of an Indian ship 182 days

Residential status and tax incidence(individual). By virtue of Explanation (b), the period of 60 days referred to in (b) above has been extended as follows

A.Ys.Who can take the benefitof extended period Extended period 1995-96 onwards Indian citizen or a person of Indian origin] who comes on a visit to India during the previous year 182 days 1990-91 to 1994-95 Indian citizen or a person of Indian origin who comes on a visit to India during the previous year Slide 2.2150 days


Additional conditions to test when a resident individual is ordinarily resident in India - Under section 6(6), a resident individual is treated as resident and ordinarily resident in India if he satisfies the following two additional conditions i. he has been resident in India in at least 9 out of 10 previous years [according to basic conditions noted above] immediately preceding the relevant previous year; andii. he has been in India for a period of 730 days or more during 7 years immediately preceding the relevant previous year.In brief it can be said that an individual becomes resident and ordinarily resident in India if he satisfies at least one of the basic conditions and the two additional conditions [i.e., (i) and (ii)].Slide 2.2


Other points - In determining the residential status of an assessee, the following settled propositions have to be borne in mind :n Stay at the same place not necessary - It is not essential that the stay should be at the same placeKinloch v. IRC 14 TC 736. It is equally not necessary that the stay should be continuous. Similarly place of stay or purpose of stay is not material.n Stay in territorial waters - A stay by an individual on a yacht moored in the territorial waters of India would be treated as his presence in India for the purpose of this sectionBaryard Brown v. Burt 5 TC 667 Slide 2.2


Presence for a part of a day - Where a person is in India only for a part of a day, the calculation of physical presence in India in respect of such broken period should be made on an hourly basis. A total of 24 hours of stay spread over a number of days is to be counted as being equivalent to the stay of one dayWalkie v. IRC [1952] 1 AER 92. If, however, data is not available to calculate the period of stay of an individual in India in terms of hours, then the day on which he enters India as well as the day on which he leaves India shall be taken into account as stay of the individual in IndiaAdvance Ruling P. No.7 of 1995, In re [1997] 90 Taxman 62 (AAR - New Delhi).

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Resident but not ordinarily resident [Sec. 6(1), 6(6)(a)] - An individual who satisfies at least one of the basic conditions mentioned in para 1-1 but does not satisfy the two additional conditions [i.e., conditions (i) and (ii) mentioned in para 1-2], is treated as a resident but not ordinarily resident in India. In other words, an individual becomes resident but not ordinarily resident in India in any of the following circumstances :q If he satisfies at least one of the basic conditions [i.e., condition (a) or (b) of para 1-1] and none of the additional conditions [i.e., (i) and (ii) of para 1-2].q If he satisfies at least one of the basic conditions and one of the two additional conditions [i.e., (i) or (ii) of para 1-2

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Non-resident - An individual is a non-resident in India if he satisfies none of the basic conditions [para 1-1]. In the case of non-resident the additional conditions [i.e., (i) and (ii) of para 1-2] are not relevant Residential status of a Hindu undivided family [Sec. 6(2)] A Hindu undivided family (like an individual) is either resident in India or non-resident in India. A resident Hindu undivided family is either ordinarily resident or not ordinarily resident

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When a Hindu undivided family is resident or non-resident

Place of control Resident ornon-resident Ordinarily resident or not Control and management of the affairs of a Hindu undivided family is n Wholly in India Resident See para 2 for individual n Wholly out of India Non-resident --n Partly in India and partly outside India Resident Slide 2.2See para 2 for individual


When a resident Hindu undivided family is ordinarily resident in India - A resident Hindu undivided family is ordinarily resident in India if the karta or manager of the family (including successive karta) satisfies the following two additional conditions as laid down by section 6(6)(b) :a.he has been resident in India in at least 9 out of 10 previous years immediately preceding the relevant previous year; andb.he has been present in India for a period of 730 days or more during 7 years immediately preceding the previous year.If the karta or manager of a resident Hindu undivided family does not satisfy the two additional conditions, the family is treated as resident but not ordinarily resident in India.Slide 2.2


Residential status of the firm and association of persons [Sec. 6(2)] A partnership firm and an association of persons are said to be resident in India if control and management of their affairs are wholly or partly situated within India during the relevant previous year. They are, however, treated as non-resident in India if control and management of their affairs are situated wholly outside India

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Residential status of a company [Sec. 6(3)] An Indian company is always resident in India. A foreign company is resident in India only if, during the previous year, control and management of its affairs is situated wholly in India. In other words, a foreign company is treated as non-resident if, during the previous year, control and management of its affairs is either wholly or partly situated out of India.

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Residential status of every other person [Sec. 6(4)] Every other person is resident in India if control and management of his affairs is wholly or partly situated within India during the relevant previous year. On the other hand, every other person is non-resident in India if control and management of his affairs is wholly situated outside India.

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Tax incidenceThe tax incidence would differ according to the residential status of the assessee i.e. Resident or Resident and Ordinarily Resident (R & O R)Resident by Not Ordinarily Resident (R & N O R)Non Resident (N R)

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Tax incidenceTax incidence in respect of the following incomes would arise in all the casesIncome received in India whether accrued in India or outside India Income deemed to be received in India whether accrued in India or outside IndiaIncome accruing or arising in India whether received in India or outside IndiaIncome deemed to accrue or arise in India whether received in India or outside India

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Tax incidenceTax incidence in respect of the following incomes would arise only in the case of R & O R and R &N O RIncome received and accrued outside India from a business controlled in or a profession set-up in India Tax incidence in respect of the following incomes would arise only in the case of R & O R Income received and accrued outside India from a business controlled from outside India or a profession set-up outside IndiaIncome (other than business or profession income) received and accrued outside India Slide 2.2


Tax incidenceNo Tax incidence in respect of the following incomes would arise in any of the three casesIncome earned and received outside India but later on remitted to India at the time of remittance

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INCOME TAX INCIDENCE NRI.ppt