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LESSON-2
RESIDENTIAL STATUS AND TAX
INCIDENCE
                                                          Ms Monica Singhania
STRUCTURE
2.0  Introduction
2.1  Objectives
2.2  Concept of Residential Status
2.3  Residential Status of Individual
      2.3.1 Resident and Ordinarily Resident
      2.3.2 Resident but not Ordinarily Resident
      2.3.3 Non-Resident
2.4 Residential Status of Hindu Undivided Family
      2.4.1 HUF – Resident or Non-Resident
      2.4.2 HUF – When ordinarily resident in India
2.5 Residential Status of Firm and Association of Persons
2.6 Residential Status of Company
2.7 Residential Status of every other person
2.8 Residential Status and Incidence of tax
      2.8.1 Indian and foreign income
      2.8.2 Incidence of tax for different tax payers
      2.8.3 Conclusions
2.9 Meaning of Receipt of Income
      2.9.1 Receipt vs. Remittance
      2.9.2 Actual Receipt vs. Deemed Receipt
2.10 Meaning of Accrual of Income
2.11 Meaning of deemed to accrue or arise in India
2.12 Let us sum up
2.13 Glossary
2.14 Self Assessment Exercises
2.15 Further Readings

2.0 INTRODUCTION
Tax incidence on an assessee depends on his residential status. For instance,
whether an income, accrued to an individual outside India, is taxable in India
depends upon the residential status of the individual in India. Similarly, whether
an income earned by a foreign national in India (or outside India) is taxable in
India depends on the residential status of the individual, rather than on his
citizenship. Therefore, the determination of the residential status of a person is
very significant in order to find out his tax liability.


                                                                                9
2.1 OBJECTIVES
After going through this lesson you should be able to understand:
   • The concept of residential status
   • Residential status of an Individual
   • Residential status of a Hindu Undivided Family
   • Residential status of a Firm and an Association of Persons
   • Residential status of a Company
   • Residential status of every other person
   • Residential status and Incidence of Tax
   • Meaning of receipt and accrual of India
   • Meaning of income deemed to accrue or arise in India


2.2 CONCEPT OF RESIDENTIAL STATUS
The following norms one has to keep in mind while deciding the residential status
of an assessee:
1. Different taxable entities - All taxable entities are divided in the following
categories for the purpose of determining residential status:
a. An individual;
b. A Hindu undivided family;
c. A firm or an association of persons;
d. A joint stock company; and
e. Every other person.
2. Different residential status - An assessee is either: (a) resident in India, or (b)
non-resident in India.
However, a resident individual or a Hindu undivided family has to be (a) resident
and ordinarily resident, or (b) resident but not ordinarily resident. Therefore, an
individual and a Hindu undivided family can either be:
a. resident and ordinarily resident in India; or
b. resident but not ordinarily resident in India; or
c. non-resident in India
All other assessees (viz., a firm, an association of persons, a joint stock company
and every other person) can either be:
a. resident in India; or
b. non-resident in India.

The table given below highlights these points-



                                                                                   10
Category       Individual/Hindu undivided family                          Firm, association
                                                                          of persons, joint
                                                                          stock company and
                                                                          every other person
Category 1     Resident in India                                          Resident in India
                               Ordinarily resident

                              Not-ordinarily resident

Category 2     Non-resident in India                                      Non-resident        in
                                                                          India
3. Residential status for each previous year - Residential status of an assessee is
to be determined in respect of each previous year as it may vary from previous
year to previous year.
4. 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-resident in a particular assessment year if he satisfies none of
the conditions of section 6(1).
5. 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 two (or more) countries at the same
time. It is, therefore, not necessary that a person who is resident in India will be
non-resident in all other countries for the same assessment year.


2.3 RESIDENTIAL STATUS OF AN INDIVIDUAL
As per section 6, an individual may be (a) resident and ordinarily resident in
India, (b) resident but not ordinarily resident in India, or (c) non-resident in India.


2.3.1 RESIDENT AND ORDINARILY RESIDENT
As per section 6(1), in order to find out whether an individual is “resident and
ordinarily resident” in India, one has to proceed as follows—
Step 1 First find out whether such individual is “resident” in India.
Step 2 If such individual is “resident” in India, then find out whether he is
       “ordinarily resident” in India. However, if such individual is a “non-
       resident” in India, then no further investigation is necessary.

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



                                                                                    11
India in any previous year, if he satisfies at least one of the following basic
conditions—
Basic condition (a)   He is in India in the previous year for a period of 182 days or more
Basic condition (b)   He is in India for a period of 60 days or more during the previous
                      year and 365 days or more during 4 years immediately preceding
                      the previous year
Note: In the following two cases, an individual needs to be present in India for a
minimum of 182 days or more in order to become resident in India:
   1. An Indian citizen who leaves India during the previous year for the
       purpose of taking employment outside India or an Indian citizen leaving
       India during the previous year as a member of the crew of an Indian ship.
   2. An Indian citizen or a person of Indian origin who comes on visit to India
       during the previous year (a person is said to be of Indian origin if either he
       or any of his parents or any of his grand parents was born in undivided
       India).

ADDITIONAL CONDITIONS TO TEST AS TO 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 —
Additional condition (i)        He has been resident in India in at least 2 out of 10 previous
                                years [according to basic condition noted above]
                                immediately preceding the relevant previous year.
Additional condition (ii)       He has been in India for a period of 730 days or more during
                                7 years immediately preceeding 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 [i.e., (a) or (b)] and the
two additional conditions [i.e., (i) and (ii)].
It will be worthwhile to note the following propositions:
1. It is not essential that the stay should be at the same place. It is equally not
necessary that the stay should be continuous. Similarly, the place of stay or the
purpose of stay is not material.
2. 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 day.
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
India.


2.3.2 RESIDENT BUT NOT ORDINARILY RESIDENT



                                                                                   12
As per section 6(1), an individual who satisfies at least one of the basic conditions
[i.e., condition (a) or (b) mentioned in Para 2.3.1a] but does not satisfy the two
additional conditions [i.e., conditions (i) and (ii) mentioned in Para 2.3.1b], 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:
Case 1    If he satisfies at least one of the basic conditions [i.e., condition (a) or (b) of
          Para 12.1-1] but none of the additional conditions [i.e., (i) and (ii) of Para 12.1-
          2]
Case 2    If he satisfies at least one of the basic conditions [i.e., condition (a) or (b) of
          Para 12.1-1] and one of the two additional conditions [i.e., (i) and (ii) of Para
          12.1-2]


2.3.3 NON-RESIDENT
An individual is a non-resident in India if he satisfies none of the basic conditions
[i.e., condition (a) or (b) of Para 12.1-1]. In the case of non-resident, additional
conditions [i.e., (i) and (ii) of Para 12.1-2] are not relevant.
Illustration 2.1: X left India for the first time on May 20, 2003. During the
financial year 2005-06, he came to India once on May 27 for a period of 53 days.
Determine his residential status for the assessment year 2006-07.
Since X comes to India only for 53 days in the previous year 2005-06, he does not
satisfy any of the basic conditions laid down in section 6(1). He is, therefore, non-
resident in India for the assessment year 2006-07.

Illustration 2.2: X comes to India, for the first time, on April 16, 2003. During
his stay in India up to October 5, 2005, he stays at Delhi up to April 10, 2005 and
thereafter remains in Chennai till his departure from India. Determine his
residential status for the assessment year 2006-07.
During the previous year 2005-06, X was in India for 188 days (i.e., April 2005 :
30 days ; May 2005 : 31 days; June 2005 : 30 days ; July 2005 : 31 days ; August
2005 : 31 days ; September 2005 : 30 days and October 2005 : 5 days). He is in
India for more than 182 days during the previous year and, thus, he satisfies
condition (a) mentioned in Para 19.1-1. Consequently, he becomes resident in
India. A resident individual is either ordinarily resident or not ordinarily resident.
To determine whether X is ordinarily resident or not, one has to test the two
additional conditions as laid down by section 6(6) (a) [see conditions (i) and (ii),
Para 19.1-2].
Condition (i) of Para 19.1-2 - This condition requires that X should be resident in
India in at least 2 years out of 10 years preceding the relevant previous year. X is
resident in India for the previous years 2003-04 and 2004-05.
Condition (ii) of Para 19.1-2 - This condition requires that X should be in India
for at least 730 days during 7 years immediately preceding the previous year. X is
in India from April 16, 2003 to March 31, 2005 (i.e., 716 days).



                                                                                   13
X satisfies one of the basic conditions and only one of the two additional
conditions. X is, therefore, resident but not ordinarily resident in India for the
assessment year 2006-07.
Note: In order to determine the residential status, it is not necessary that a person
should continuously stay in India at the same place. Therefore, the information
that X is in Delhi up to April 10, 2005 is irrelevant.



Check Your Progress

Activity A- X, a foreign citizen comes to India, for the first time in the last 30
years on March 20, 2005. On September 1, 2005, he leaves India for Nepal on a
business trip. He comes back on February 26, 2006.
Determine the residential status of X for the assessment year 2006-07.
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Activity B- X, an Italian citizen, comes to India for the first time (after 20 years)
on May 28, 2005. Determine his residential status for the assessment year 2006-
07.
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2.4 RESIDENTIAL STATUS                                            OF        A       HINDU
UNDIVIDED FAMILY

As per section 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.


2.4.1 HUF- Resident or Non-Resident
A Hindu undivided family is said to be resident in India if control and
management of its affairs is wholly or partly situated in India. A Hindu undivided
family is non-resident in India if control and management of its affairs is wholly
situated outside India.



                                                                                                14
Control and management means de facto control and management and not merely
the right to control or manage. Control and management is situated at a place
where the head, the seat and the directing power are situated.


2.4.2 HUF- When ordinarily resident in India
A resident Hindu undivided family is an ordinarily resident in India if the karta or
manager of the family (including successive kartas) satisfies the following two
additional conditions as laid down by section 6(6)(b):
 Additional condition (i)    Karta has been resident in India in at least 2 out of 10
                             previous years [according to the basic condition mentioned
                             in Para 12.1-1] immediately preceding the relevant
                             previous year
 Additional condition (ii)   Karta 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.

2.5 RESIDENTIAL STATUS OF FIRM AND
ASSOCIATION OF PERSONS
As per section 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.


2.6 RESIDENTIAL STATUS OF A COMPANY
As per section 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. However, 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.


2.7 RESIDENTIAL STATUS OF EVERY OTHER
   PERSON



                                                                                 15
As per section 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 its affairs is wholly situated outside India.



2.8 RESIDENTIAL STATUS AND INCIDENCE OF
   TAX
As per section 5, incidence of tax on a taxpayer depends on his residential status
and also on the place and time of accrual or receipt of income.

2.8.1 INDIAN AND FOREIGN INCOME

In order to understand the relationship between residential status and tax liability,
one must understand the meaning of “Indian income” and “foreign income”.
 “INDIAN INCOME” - Any of the following three is an Indian income —
1. If income is received (or deemed to be received) in India during the previous
year and at the same time it accrues (or arises or is deemed to accrue or arise) in
India during the previous year.
2. If income is received (or deemed to be received) in India during the previous
year but it accrues (or arises) outside India during the previous year.
3. If income is received outside India during the previous year but it accrues (or
arises or is deemed to accrue or arise) in India during the previous year.

FOREIGN INCOME - If the following two conditions are satisfied, then such
income is “foreign income” —
a. Income is not received (or not deemed to be received) in India; and
b. Income does not accrue or arise (or does not deemed to accrue or arise) in
   India.
Illustration 2.3- The above provisions may be explained in brief as follows:
Whether income is received (or        Whether income accrues (or             Status of the
deemed to be received) in India     arises or is deemed to accrue or           income
   during the relevant year             arise) in India during the
                                              relevant year
              Yes                                   Yes                     Indian income
              Yes                                  No                       Indian income
              No                                   Yes                      Indian income
               No                                  No                       Foreign income



                                                                                  16
2.8.2 INCIDENCE OF TAX FOR DIFFERENT
      TAXPAYERS

Tax incidence of different taxpayers is as follows—
                                      Individual and Hindu undivided family
                               Resident        and Resident but not      Non-resident
                               ordinarily resident    Ordinarily         in India
                               in India               resident in India

  ► Indian income              Taxable in India       Taxable in India    Taxable          in
                                                                          India
  ► Foreign income
  - If it is business income   Taxable in India       Taxable in India    Not taxable in
  and business is controlled                                              India
  wholly or partly from
  India
  - If it is income from       Taxable in India       Taxable in India    Not taxable in
  profession which is set up                                              India
  in India
  - If it is business income   Taxable in India       Not taxable in      Not taxable in
  and business is controlled                          India               India
  from outside India
  - If it is income from       Taxable in India       Not taxable in      Not taxable in
  profession which is set up                          India               India
  outside India
  - Any other foreign          Taxable in India       Not taxable in      Not taxable in
  income (like salary, rent,                          India               India
  interest, etc.)


              Any other taxpayer (like company, firm, co-operative society,
                     association of persons, body of individual, etc
                          Resident in India             Non-resident in India
 Indian income            Taxable in India              Taxable in India
 Foreign income           Taxable in India              Not taxable in India


2.8.3 CONCLUSIONS


                                                                                17
The following broad conclusions can be drawn —
1. Indian income - Indian income [see Para 2.8.1a for meaning] is always taxable
in India irrespective of the residential status of the taxpayer.
2. Foreign income - Foreign income [see Para 2.8.1b for meaning] is taxable in
the hands of resident (in case of a firm, an association of persons, a joint stock
company and every other person) or resident and ordinarily resident (in case of an
individual and a Hindu undivided family) in India. Foreign income is not taxable
in the hands of non-resident in India.
In the hands of resident but not ordinarily resident taxpayer, foreign income is
taxable only if it is (a) business income and business is controlled from India, or
(b) professional income from a profession which is set up in India. In any other
case, foreign income is not taxable in the hands of resident but not ordinarily
resident taxpayers.

Activity C: Determine whether the following is true or false:
1. The business income received by X Ltd. an Indian company in New York is
foreign income of X.
2. The dividend received from a foreign company in India is Indian company.
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2.9 MEANING OF RECEIPT OF INCOME
Income received in India is taxable in all cases irrespective of the residential
status of an assessee. The following points are worth mentioning in this respect:


2.9.1 RECEIPT vs. REMITTANCE
The “receipt” of income refers to the first occasion when the recipient gets the
money under his control. Once an amount is received as income, any remittance
or transmission of the amount to another place does not result in “receipt” at the
other place.


2.9.2 ACTUAL RECEIPT vs. DEEMED RECEIPT
It is not necessary that an income should be actually received in India in order to
attract tax liability. An income deemed to be received in India in the previous year
is also included in the taxable income of the assessee. The Act enumerates the
following as income deemed to be received in India:


                                                                                                18
► Interest credited to recognized provident fund account of an employee in
excess of 9.5 per cent.
► Excess contribution of employer in the case of recognized provident fund (i.e.,
the amount contributed in excess of 12 per cent of salary).
► Transfer balance.
► Contribution by the Central Government to the account of an employee under
a pension scheme referred to in section 80CCD.
► Tax deducted at source.
► Deemed profit under section 41.


2.10 MEANING OF ACCRUAL OF INCOME
Income accrued in India is chargeable to tax in all cases irrespective of residential
status of an assessee. The words “accrue” and “arise” are used in contradistinction
to the word “receive”. Income is said to be received when it reaches the assessee;
when the right to receive the income becomes vested in the assessee, it is said to
accrue or arise.


2.11 MEANING OF INCOME DEEMED TO
ACCRUE OR ARISE IN INDIA
In some cases, income is deemed to accrue or arise in India under section 9 even
though it may actually accrue or arise outside India. Section 9 applies to all
assessees irrespective of their residential status and place of business. The
categories of income which are deemed to accrue or arise in India are as under:
Nature of income                                                          Whether
                                                                          income is
                                                                          deemed to
                                                                          accrue or
                                                                          arise in India
Income from business connection in India                                        Yes
Income from any property, asset or source of income in India                    Yes
Capital gain on transfer of a capital asset situated in India                   Yes
Income from salary if service is rendered in India                              Yes
Income from salary (not being perquisite/allowance) if service is               Yes
rendered outside     India (provided the employer is Government of
India and the employee is a citizen of India)
Income from salary if service is rendered outside India (not being a            No
case stated above)



                                                                                  19
Dividend paid by the Indian company                                   Yes
Nature of        From whom        Payer’s source of income            Yes
income           income is
                 received
Interest         Government of Any                                    Yes
                 India
Interest         A person         Borrowed capital is used by the     No
                 resident in      payer     for     carrying    on
                 India            business/profession outside India
                                  or earning any income outside
                                  India
Interest         A person         Borrowed capital is used by the     Yes
                 resident in      payer for any other purpose
                 India
Interest         A person non-    Borrowed capital is used by the     Yes
                 resident in      payer     for     carrying   on
                 India            business/profession in India
Interest         A person non-    Borrowed capital is used by the     No
                 resident in      payer for any other purpose
                 India
Royalty/fees for Government of Any                                    Yes
technical        India
services
Royalty/fees for A person         Payment is relatable to a           No
technical        resident in      business or profession or any
services         India            other source carried by the payer
                                  outside India
Royalty/fees for A person         Payment is relatable to any other   Yes
technical        resident in      source of income
services         India
Royalty/fees for A person non-    Payment is relatable to a           Yes
technical        resident in      business or profession or any
services         India            other source carried by the payer
                                  in India
Royalty/fees for A person non- Payment is relatable to any other      No
technical        resident   in source of income
services         India




                                                                       20
Illustration 2.4- For the assessment year 2006-07 (previous year 2005-06), X is
employed in India and receives Rs. 24,000 as salary. His income from other
sources includes:
Dividend received in London on June 3, 2005: Rs. 31,000 from a foreign
company; share of profit received in London on December 15, 2005 from a
business     situated     in    Sri    Lanka    but     controlled    from     India:
Rs. 60,000; remittance from London on January 15, 2006 out of past untaxed
profit of 2003-04 earned and received there: Rs. 30,000 and interest earned and
received in India on May 11, 2006: Rs. 76,000. Find out his gross total income, if
he is (a) resident and ordinarily resident, (b) resident but not ordinarily resident,
and (c) non-resident for the assessment year 2006-07.
If X is resident and ordinarily resident, his gross total income will be Rs. 1,
15,000 (i.e., Rs. 24,000 + Rs. 31,000 + Rs. 60,000). If X is resident but not
ordinarily resident, his gross total income will work out to be Rs. 84,000 (i.e., Rs.
24,000 + Rs. 60,000). If X is non-resident, his gross total income will come to Rs.
24,000.
Notes:
1. The remittance from London of Rs. 30,000 is not taxable in the previous year
2005-06 because it does not amount to “receipt” of income.
2. Although the interest of Rs. 76,000 earned and received in India is taxable, it is
not included in the total income of the assessment year 2006-07, as it is not earned
or received in the previous year 2005-06. It will, therefore, be included in the total
income of X for the assessment year 2007-08.


2.12 LET US SUM UP

The lesson discusses in detail the meaning of the term residential status as
incidence of tax depends upon this status of the assessee. The residential status of
individual, Hindu undivided family, firm association of persons, company and
every other person are analysed. In addition the concept of Indian income and
foreign income has also been dealt with so as to give a complete picture to the
students of the income, which is liable to be taxed in India according to the
residential status.


2.13 GLOSSARY

Incidence of tax: Tax incidence means the final burden of tax. In other words,
incidence of tax is on person who actually bears/pays the final tax liability.
Remittance: Remittance is transmission of income after its first receipt.




                                                                                   21
2.14 SELF ASSESSMENT QUESTIONS

1. How is residential status determined?
2. What are the different categories of residential status? Explain how these
categories are determined and affect the tax liability of an assessee?
3. “The incidence of income-tax depends upon the residential status of an
assessee”. Discuss fully.
4. Write short notes on the following:
a. Income received in India
b. Income deemed to accrue or arise in India
c. Control and management of a business
5. X, an Indian citizen, leaves India on May 22, 2005 for vacation to Uganda and
returns on April 9, 2006. Determine the residential status of X for the assessment
year 2006-07?
6. X, a foreign citizen, visits India since 1985 every year for a period of 100 days.
Determine the residential status of X for the assessment year 2006-07?


2.15 FURTHER READINGS
Income-tax Act, 1961, Taxmann Publications Pvt. Ltd., New Delhi (latest
edition).

Singhania, Vinod. K. and Monica Singhania, Students Guide to Income-tax,
Taxmann Publications Pvt. Ltd., New Delhi (latest edition).




                                                                                  22

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Lesson 2 residential status

  • 1. LESSON-2 RESIDENTIAL STATUS AND TAX INCIDENCE Ms Monica Singhania STRUCTURE 2.0 Introduction 2.1 Objectives 2.2 Concept of Residential Status 2.3 Residential Status of Individual 2.3.1 Resident and Ordinarily Resident 2.3.2 Resident but not Ordinarily Resident 2.3.3 Non-Resident 2.4 Residential Status of Hindu Undivided Family 2.4.1 HUF – Resident or Non-Resident 2.4.2 HUF – When ordinarily resident in India 2.5 Residential Status of Firm and Association of Persons 2.6 Residential Status of Company 2.7 Residential Status of every other person 2.8 Residential Status and Incidence of tax 2.8.1 Indian and foreign income 2.8.2 Incidence of tax for different tax payers 2.8.3 Conclusions 2.9 Meaning of Receipt of Income 2.9.1 Receipt vs. Remittance 2.9.2 Actual Receipt vs. Deemed Receipt 2.10 Meaning of Accrual of Income 2.11 Meaning of deemed to accrue or arise in India 2.12 Let us sum up 2.13 Glossary 2.14 Self Assessment Exercises 2.15 Further Readings 2.0 INTRODUCTION Tax incidence on an assessee depends on his residential status. For instance, whether an income, accrued to an individual outside India, is taxable in India depends upon the residential status of the individual in India. Similarly, whether an income earned by a foreign national in India (or outside India) is taxable in India depends on the residential status of the individual, rather than on his citizenship. Therefore, the determination of the residential status of a person is very significant in order to find out his tax liability. 9
  • 2. 2.1 OBJECTIVES After going through this lesson you should be able to understand: • The concept of residential status • Residential status of an Individual • Residential status of a Hindu Undivided Family • Residential status of a Firm and an Association of Persons • Residential status of a Company • Residential status of every other person • Residential status and Incidence of Tax • Meaning of receipt and accrual of India • Meaning of income deemed to accrue or arise in India 2.2 CONCEPT OF RESIDENTIAL STATUS The following norms one has to keep in mind while deciding the residential status of an assessee: 1. Different taxable entities - All taxable entities are divided in the following categories for the purpose of determining residential status: a. An individual; b. A Hindu undivided family; c. A firm or an association of persons; d. A joint stock company; and e. Every other person. 2. Different residential status - An assessee is either: (a) resident in India, or (b) non-resident in India. However, a resident individual or a Hindu undivided family has to be (a) resident and ordinarily resident, or (b) resident but not ordinarily resident. Therefore, an individual and a Hindu undivided family can either be: a. resident and ordinarily resident in India; or b. resident but not ordinarily resident in India; or c. non-resident in India All other assessees (viz., a firm, an association of persons, a joint stock company and every other person) can either be: a. resident in India; or b. non-resident in India. The table given below highlights these points- 10
  • 3. Category Individual/Hindu undivided family Firm, association of persons, joint stock company and every other person Category 1 Resident in India Resident in India Ordinarily resident Not-ordinarily resident Category 2 Non-resident in India Non-resident in India 3. Residential status for each previous year - Residential status of an assessee is to be determined in respect of each previous year as it may vary from previous year to previous year. 4. 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-resident in a particular assessment year if he satisfies none of the conditions of section 6(1). 5. 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 two (or more) countries at the same time. It is, therefore, not necessary that a person who is resident in India will be non-resident in all other countries for the same assessment year. 2.3 RESIDENTIAL STATUS OF AN INDIVIDUAL As per section 6, an individual may be (a) resident and ordinarily resident in India, (b) resident but not ordinarily resident in India, or (c) non-resident in India. 2.3.1 RESIDENT AND ORDINARILY RESIDENT As per section 6(1), in order to find out whether an individual is “resident and ordinarily resident” in India, one has to proceed as follows— Step 1 First find out whether such individual is “resident” in India. Step 2 If such individual is “resident” in India, then find out whether he is “ordinarily resident” in India. However, if such individual is a “non- resident” in India, then no further investigation is necessary. 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 11
  • 4. India in any previous year, if he satisfies at least one of the following basic conditions— Basic condition (a) He is in India in the previous year for a period of 182 days or more Basic condition (b) He is in India for a period of 60 days or more during the previous year and 365 days or more during 4 years immediately preceding the previous year Note: In the following two cases, an individual needs to be present in India for a minimum of 182 days or more in order to become resident in India: 1. An Indian citizen who leaves India during the previous year for the purpose of taking employment outside India or an Indian citizen leaving India during the previous year as a member of the crew of an Indian ship. 2. An Indian citizen or a person of Indian origin who comes on visit to India during the previous year (a person is said to be of Indian origin if either he or any of his parents or any of his grand parents was born in undivided India). ADDITIONAL CONDITIONS TO TEST AS TO 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 — Additional condition (i) He has been resident in India in at least 2 out of 10 previous years [according to basic condition noted above] immediately preceding the relevant previous year. Additional condition (ii) He has been in India for a period of 730 days or more during 7 years immediately preceeding 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 [i.e., (a) or (b)] and the two additional conditions [i.e., (i) and (ii)]. It will be worthwhile to note the following propositions: 1. It is not essential that the stay should be at the same place. It is equally not necessary that the stay should be continuous. Similarly, the place of stay or the purpose of stay is not material. 2. 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 day. 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 India. 2.3.2 RESIDENT BUT NOT ORDINARILY RESIDENT 12
  • 5. As per section 6(1), an individual who satisfies at least one of the basic conditions [i.e., condition (a) or (b) mentioned in Para 2.3.1a] but does not satisfy the two additional conditions [i.e., conditions (i) and (ii) mentioned in Para 2.3.1b], 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: Case 1 If he satisfies at least one of the basic conditions [i.e., condition (a) or (b) of Para 12.1-1] but none of the additional conditions [i.e., (i) and (ii) of Para 12.1- 2] Case 2 If he satisfies at least one of the basic conditions [i.e., condition (a) or (b) of Para 12.1-1] and one of the two additional conditions [i.e., (i) and (ii) of Para 12.1-2] 2.3.3 NON-RESIDENT An individual is a non-resident in India if he satisfies none of the basic conditions [i.e., condition (a) or (b) of Para 12.1-1]. In the case of non-resident, additional conditions [i.e., (i) and (ii) of Para 12.1-2] are not relevant. Illustration 2.1: X left India for the first time on May 20, 2003. During the financial year 2005-06, he came to India once on May 27 for a period of 53 days. Determine his residential status for the assessment year 2006-07. Since X comes to India only for 53 days in the previous year 2005-06, he does not satisfy any of the basic conditions laid down in section 6(1). He is, therefore, non- resident in India for the assessment year 2006-07. Illustration 2.2: X comes to India, for the first time, on April 16, 2003. During his stay in India up to October 5, 2005, he stays at Delhi up to April 10, 2005 and thereafter remains in Chennai till his departure from India. Determine his residential status for the assessment year 2006-07. During the previous year 2005-06, X was in India for 188 days (i.e., April 2005 : 30 days ; May 2005 : 31 days; June 2005 : 30 days ; July 2005 : 31 days ; August 2005 : 31 days ; September 2005 : 30 days and October 2005 : 5 days). He is in India for more than 182 days during the previous year and, thus, he satisfies condition (a) mentioned in Para 19.1-1. Consequently, he becomes resident in India. A resident individual is either ordinarily resident or not ordinarily resident. To determine whether X is ordinarily resident or not, one has to test the two additional conditions as laid down by section 6(6) (a) [see conditions (i) and (ii), Para 19.1-2]. Condition (i) of Para 19.1-2 - This condition requires that X should be resident in India in at least 2 years out of 10 years preceding the relevant previous year. X is resident in India for the previous years 2003-04 and 2004-05. Condition (ii) of Para 19.1-2 - This condition requires that X should be in India for at least 730 days during 7 years immediately preceding the previous year. X is in India from April 16, 2003 to March 31, 2005 (i.e., 716 days). 13
  • 6. X satisfies one of the basic conditions and only one of the two additional conditions. X is, therefore, resident but not ordinarily resident in India for the assessment year 2006-07. Note: In order to determine the residential status, it is not necessary that a person should continuously stay in India at the same place. Therefore, the information that X is in Delhi up to April 10, 2005 is irrelevant. Check Your Progress Activity A- X, a foreign citizen comes to India, for the first time in the last 30 years on March 20, 2005. On September 1, 2005, he leaves India for Nepal on a business trip. He comes back on February 26, 2006. Determine the residential status of X for the assessment year 2006-07. --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------ Activity B- X, an Italian citizen, comes to India for the first time (after 20 years) on May 28, 2005. Determine his residential status for the assessment year 2006- 07. --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------ 2.4 RESIDENTIAL STATUS OF A HINDU UNDIVIDED FAMILY As per section 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. 2.4.1 HUF- Resident or Non-Resident A Hindu undivided family is said to be resident in India if control and management of its affairs is wholly or partly situated in India. A Hindu undivided family is non-resident in India if control and management of its affairs is wholly situated outside India. 14
  • 7. Control and management means de facto control and management and not merely the right to control or manage. Control and management is situated at a place where the head, the seat and the directing power are situated. 2.4.2 HUF- When ordinarily resident in India A resident Hindu undivided family is an ordinarily resident in India if the karta or manager of the family (including successive kartas) satisfies the following two additional conditions as laid down by section 6(6)(b): Additional condition (i) Karta has been resident in India in at least 2 out of 10 previous years [according to the basic condition mentioned in Para 12.1-1] immediately preceding the relevant previous year Additional condition (ii) Karta 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. 2.5 RESIDENTIAL STATUS OF FIRM AND ASSOCIATION OF PERSONS As per section 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. 2.6 RESIDENTIAL STATUS OF A COMPANY As per section 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. However, 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. 2.7 RESIDENTIAL STATUS OF EVERY OTHER PERSON 15
  • 8. As per section 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 its affairs is wholly situated outside India. 2.8 RESIDENTIAL STATUS AND INCIDENCE OF TAX As per section 5, incidence of tax on a taxpayer depends on his residential status and also on the place and time of accrual or receipt of income. 2.8.1 INDIAN AND FOREIGN INCOME In order to understand the relationship between residential status and tax liability, one must understand the meaning of “Indian income” and “foreign income”. “INDIAN INCOME” - Any of the following three is an Indian income — 1. If income is received (or deemed to be received) in India during the previous year and at the same time it accrues (or arises or is deemed to accrue or arise) in India during the previous year. 2. If income is received (or deemed to be received) in India during the previous year but it accrues (or arises) outside India during the previous year. 3. If income is received outside India during the previous year but it accrues (or arises or is deemed to accrue or arise) in India during the previous year. FOREIGN INCOME - If the following two conditions are satisfied, then such income is “foreign income” — a. Income is not received (or not deemed to be received) in India; and b. Income does not accrue or arise (or does not deemed to accrue or arise) in India. Illustration 2.3- The above provisions may be explained in brief as follows: Whether income is received (or Whether income accrues (or Status of the deemed to be received) in India arises or is deemed to accrue or income during the relevant year arise) in India during the relevant year Yes Yes Indian income Yes No Indian income No Yes Indian income No No Foreign income 16
  • 9. 2.8.2 INCIDENCE OF TAX FOR DIFFERENT TAXPAYERS Tax incidence of different taxpayers is as follows— Individual and Hindu undivided family Resident and Resident but not Non-resident ordinarily resident Ordinarily in India in India resident in India ► Indian income Taxable in India Taxable in India Taxable in India ► Foreign income - If it is business income Taxable in India Taxable in India Not taxable in and business is controlled India wholly or partly from India - If it is income from Taxable in India Taxable in India Not taxable in profession which is set up India in India - If it is business income Taxable in India Not taxable in Not taxable in and business is controlled India India from outside India - If it is income from Taxable in India Not taxable in Not taxable in profession which is set up India India outside India - Any other foreign Taxable in India Not taxable in Not taxable in income (like salary, rent, India India interest, etc.) Any other taxpayer (like company, firm, co-operative society, association of persons, body of individual, etc Resident in India Non-resident in India Indian income Taxable in India Taxable in India Foreign income Taxable in India Not taxable in India 2.8.3 CONCLUSIONS 17
  • 10. The following broad conclusions can be drawn — 1. Indian income - Indian income [see Para 2.8.1a for meaning] is always taxable in India irrespective of the residential status of the taxpayer. 2. Foreign income - Foreign income [see Para 2.8.1b for meaning] is taxable in the hands of resident (in case of a firm, an association of persons, a joint stock company and every other person) or resident and ordinarily resident (in case of an individual and a Hindu undivided family) in India. Foreign income is not taxable in the hands of non-resident in India. In the hands of resident but not ordinarily resident taxpayer, foreign income is taxable only if it is (a) business income and business is controlled from India, or (b) professional income from a profession which is set up in India. In any other case, foreign income is not taxable in the hands of resident but not ordinarily resident taxpayers. Activity C: Determine whether the following is true or false: 1. The business income received by X Ltd. an Indian company in New York is foreign income of X. 2. The dividend received from a foreign company in India is Indian company. --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------ 2.9 MEANING OF RECEIPT OF INCOME Income received in India is taxable in all cases irrespective of the residential status of an assessee. The following points are worth mentioning in this respect: 2.9.1 RECEIPT vs. REMITTANCE The “receipt” of income refers to the first occasion when the recipient gets the money under his control. Once an amount is received as income, any remittance or transmission of the amount to another place does not result in “receipt” at the other place. 2.9.2 ACTUAL RECEIPT vs. DEEMED RECEIPT It is not necessary that an income should be actually received in India in order to attract tax liability. An income deemed to be received in India in the previous year is also included in the taxable income of the assessee. The Act enumerates the following as income deemed to be received in India: 18
  • 11. ► Interest credited to recognized provident fund account of an employee in excess of 9.5 per cent. ► Excess contribution of employer in the case of recognized provident fund (i.e., the amount contributed in excess of 12 per cent of salary). ► Transfer balance. ► Contribution by the Central Government to the account of an employee under a pension scheme referred to in section 80CCD. ► Tax deducted at source. ► Deemed profit under section 41. 2.10 MEANING OF ACCRUAL OF INCOME Income accrued in India is chargeable to tax in all cases irrespective of residential status of an assessee. The words “accrue” and “arise” are used in contradistinction to the word “receive”. Income is said to be received when it reaches the assessee; when the right to receive the income becomes vested in the assessee, it is said to accrue or arise. 2.11 MEANING OF INCOME DEEMED TO ACCRUE OR ARISE IN INDIA In some cases, income is deemed to accrue or arise in India under section 9 even though it may actually accrue or arise outside India. Section 9 applies to all assessees irrespective of their residential status and place of business. The categories of income which are deemed to accrue or arise in India are as under: Nature of income Whether income is deemed to accrue or arise in India Income from business connection in India Yes Income from any property, asset or source of income in India Yes Capital gain on transfer of a capital asset situated in India Yes Income from salary if service is rendered in India Yes Income from salary (not being perquisite/allowance) if service is Yes rendered outside India (provided the employer is Government of India and the employee is a citizen of India) Income from salary if service is rendered outside India (not being a No case stated above) 19
  • 12. Dividend paid by the Indian company Yes Nature of From whom Payer’s source of income Yes income income is received Interest Government of Any Yes India Interest A person Borrowed capital is used by the No resident in payer for carrying on India business/profession outside India or earning any income outside India Interest A person Borrowed capital is used by the Yes resident in payer for any other purpose India Interest A person non- Borrowed capital is used by the Yes resident in payer for carrying on India business/profession in India Interest A person non- Borrowed capital is used by the No resident in payer for any other purpose India Royalty/fees for Government of Any Yes technical India services Royalty/fees for A person Payment is relatable to a No technical resident in business or profession or any services India other source carried by the payer outside India Royalty/fees for A person Payment is relatable to any other Yes technical resident in source of income services India Royalty/fees for A person non- Payment is relatable to a Yes technical resident in business or profession or any services India other source carried by the payer in India Royalty/fees for A person non- Payment is relatable to any other No technical resident in source of income services India 20
  • 13. Illustration 2.4- For the assessment year 2006-07 (previous year 2005-06), X is employed in India and receives Rs. 24,000 as salary. His income from other sources includes: Dividend received in London on June 3, 2005: Rs. 31,000 from a foreign company; share of profit received in London on December 15, 2005 from a business situated in Sri Lanka but controlled from India: Rs. 60,000; remittance from London on January 15, 2006 out of past untaxed profit of 2003-04 earned and received there: Rs. 30,000 and interest earned and received in India on May 11, 2006: Rs. 76,000. Find out his gross total income, if he is (a) resident and ordinarily resident, (b) resident but not ordinarily resident, and (c) non-resident for the assessment year 2006-07. If X is resident and ordinarily resident, his gross total income will be Rs. 1, 15,000 (i.e., Rs. 24,000 + Rs. 31,000 + Rs. 60,000). If X is resident but not ordinarily resident, his gross total income will work out to be Rs. 84,000 (i.e., Rs. 24,000 + Rs. 60,000). If X is non-resident, his gross total income will come to Rs. 24,000. Notes: 1. The remittance from London of Rs. 30,000 is not taxable in the previous year 2005-06 because it does not amount to “receipt” of income. 2. Although the interest of Rs. 76,000 earned and received in India is taxable, it is not included in the total income of the assessment year 2006-07, as it is not earned or received in the previous year 2005-06. It will, therefore, be included in the total income of X for the assessment year 2007-08. 2.12 LET US SUM UP The lesson discusses in detail the meaning of the term residential status as incidence of tax depends upon this status of the assessee. The residential status of individual, Hindu undivided family, firm association of persons, company and every other person are analysed. In addition the concept of Indian income and foreign income has also been dealt with so as to give a complete picture to the students of the income, which is liable to be taxed in India according to the residential status. 2.13 GLOSSARY Incidence of tax: Tax incidence means the final burden of tax. In other words, incidence of tax is on person who actually bears/pays the final tax liability. Remittance: Remittance is transmission of income after its first receipt. 21
  • 14. 2.14 SELF ASSESSMENT QUESTIONS 1. How is residential status determined? 2. What are the different categories of residential status? Explain how these categories are determined and affect the tax liability of an assessee? 3. “The incidence of income-tax depends upon the residential status of an assessee”. Discuss fully. 4. Write short notes on the following: a. Income received in India b. Income deemed to accrue or arise in India c. Control and management of a business 5. X, an Indian citizen, leaves India on May 22, 2005 for vacation to Uganda and returns on April 9, 2006. Determine the residential status of X for the assessment year 2006-07? 6. X, a foreign citizen, visits India since 1985 every year for a period of 100 days. Determine the residential status of X for the assessment year 2006-07? 2.15 FURTHER READINGS Income-tax Act, 1961, Taxmann Publications Pvt. Ltd., New Delhi (latest edition). Singhania, Vinod. K. and Monica Singhania, Students Guide to Income-tax, Taxmann Publications Pvt. Ltd., New Delhi (latest edition). 22