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Residential status under income tax act 1961

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The tax liability of a person under the Income tax act depends upon his residential status in the financial year in which the income accrues or arises to him or is received by him.Financial year means the period of twelve months commencing on the first day of April every year.The residential status may change from year to year.Residential status under the Income tax act is different from the residential status under Citizenship act,FEMA,Aadhar Acts.A person may be a resident in more than one country in the same year,depending upon the tax law of the relevant country.

Who is a non resident?

A person who is not resident in India,is a non-resident.

Who is a resident?

Individual :

The test for determining the Residential Status of an Individual can be understood with the help of following chart.

Flow chart to determine the residential status

Liberalized provisions apply for certain categories,as below

A person 

  1. Who is an individual citizen and who leaves india during the previous year for the purpose of employment or
  2. Indian citizen who leaves India as a member of the crew of an Indian Ship or
  3. An Indian citizen or a person of Indian origin who comes to India on a visit during the previous year;

Who has spent 365 days  or more in India in the preceding four years will not lose his non-Resident status unless his stay in India is 182 days or more during the financial year.

A person of Indian origin is one if he,or either of his parents or any of his grant parents,was born in undivided India .

Thus the residential status of an Individual generally depends on his physical presence or period of stay in India and not on his nationality or domicile.

A Hindu undivided family ( HUF) or a firm or all association of persons

A Hindu undivided family ( HUF) or a firm or all association of persons is said to be resident in India in every case except where the control and the management of its affairs is situated Wholly outside India,during the financial year.Thus,where the control and management of it’s affairs is situated even partly in India,a firm, etc.,becomes a resident in India.

Indian Company

An Indian Company is a resident of India. Foreign company is said to be resident in India if its Place of Effective Management ( POEM) in that year, is in India during the financial year.

“Place of effective management”means a place where key management and commercial decisions that are necessary for the conduct of business of entity as a whole are,in substance made.

Categories of Resident

  1. Residents are further divided into two categories

(a)resident and ordinary resident

(b)resident but not ordinarily resident

The status of resident but not ordinarily resident is available only to the individuals and Hindu undivided families.

  1. An individual is said to be a “not ordinarily resident” in India in any financial year if:

(a)he has been a non-resident in India in nine out of ten financial years preceding that year;or

(b)he has been in India for a period of 729 days or less during the seven financial years preceding that year.

Thus and Individual would be a “not ordinarily resident (NOR) if he fulfills  either of the aforesai tests.

Some implications

(i) a new comer to India would remain NOR for the first two financial years at-least of his stay in India.

(ii)where a person who is resident in India goes abroad and remains non-resident for at least nine out of the next ten financial years, he would on his return be treated as NOR for at least the to financial years (the financial years of returning to India and the immediate  subsequent financial years).

Another implication is that a person may have been a resident or non resident in India during the seven preceding financial years but if he was in India for 729 days or less during those seven preceding financial years,he will then be treated as NOR.

  1. A Hindu undivided family is said to be ‘not ordinarily resident’in India if it’s manager is not ordinarily resident in India.For the purpose of calculating the length of the manager’s stay in India,the periods of stay in India of the successive managers of a Hindu undivided family during it’s continued existence have to be added up.

Taxability of Income based on residential status

SI Source Resident And Ordinary Resident (OR) Resident But Not Ordinary Resident (NOR) Non Resident (NR)
1 Income received or deemed to be received in India during the year Yes Yes Yes
2 Income accruing or arising or deemed to accrue or arise in India during the year Yes Yes Yes
3 Income accruing or arising outside india during the year from a business controlled in or a professional setup in Inida Yes Yes Yes
4 Income accruing or arising in India from a business /profession controlled /setup outside India Yes Yes Yes to the extent the income is attributable to operation in India

Income received outside and then remitted to India is considered as received outside India .If the Income earned outside India is directly credited in the bank account of a Non-resident in India, it is considered as received in India and hence is subjected to tax in India.However salary accrued to a Non-resident seafarer for service rendered outside India on foreign going ship ( with Indian flag or foreign flag) shall not included in the total income merely because the said salary has been credited in NRE account maintained by such Non-resident seafarer with an Indian Bank.

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