28 December 2013
As I know gifts on marriage from any person is not chargeable to tax. Then what will be the compliances/requirements and consequences if any, of getting a gift on marriage from a non-resident and he may be client also? I hope this query can be solved by maximum experts.Please solve this.
28 December 2013
Mr nikhil kaushik kindly refer section 56 in which clearly written that the person who is a resident receives gift from relatives.......
Nevertheless, even if I assume that what you wrote is correct which is "that the person who is resident receives gift from relatives", even then in the query raised here, it is resident only who is receiving the gift. The giver is non-resident.
I would love to hear your interpretation on this my dear friend.
28 December 2013
Yes nikhil is correct, no where in sec 56(2) it mentions abt resident and non resident while u read abt the gifting clause on marraige.
The amounts can reflect in your bank statement. And to play further safe, you can get an email/letter form the giver stating the intent to giving gift to you on the occasion of your marriage (this is advisable given that it is a fema transaction).
01 January 2014
Dear hardik. I am still searching for the section 56 where it is written that it applies only to resident donors!! Would be great if you could share a link for the same.
I was just reading your first reply. I believe you got the query wrong. non-resident is not receiving the gift here, he/she is giving the gift.
01 January 2014
when any problem arise in income tax department, contact me and sure nikhil bhai and aryan bhai that time A.O. view will be different than section 56 which is still searching by you.
01 January 2014
Bhai we are asking the same instead of directing us to section 9 kindly let us know where in the whole sec 56 it mentions that if non residents gives gift then it is taxable in indian income tax act ,1961.
or
Provide any link of case law in this regard...assume that querist guarav dixit is issued notice for scrutiny and as u said u will ans in such situation...
01 January 2014
Agreed with Mr. Nikhil and Mr. Tushar, the Gifts received on occasion of Marriage is exempt from Tax irrespective of the Residential Status
01 January 2014
Looking to curiosity of the readers; I wish to raise one question first of all: . . whether gift received from mother who is NRI is taxable? . . The answer is : NO.
One very happy feature of the provision of taxation of gifts is that any gift received from any person on the occasion of the marriage of the gift’s recipient would not be liable to income tax. . There is no monetary limit attached to this exemption. . Note that, if you receive any gifts at the time of engagement or the marriage anniversary if liable to pay the tax. . .
01 January 2014
Sir gift from mother whether NRI or not is never taxable as she falls in defination of relatives mentioned under explanation to sec 56(2).
01 January 2014
HUMOUR : . . 1. MARRIAGE is compulsory! . (From engagement till marriage; generally everyone is happy...but he/she should be ready to bear the cause and effect thereof after marriage. . Due to this TOUGH CONDITION marriage gifts are exempt. :)
01 January 2014
When an INCOME is EXEMPT; we need not refer any other section of the Income Tax Act. . . Whatever conditions of the exemption are there; are explained in the section itself. . . Asking again: . For income exempt under section 10; are we required to refer any other section to get the said income exempt?
01 January 2014
@ Dear Tushar, . . Whenever you read a section of an Act; always raise a counter question to understand the provisions quickly. . . Is there any condition in the section that his/her marriage should be the first of his life? . . Hope now you got the answer about Muslim Marriages. . .
01 January 2014
Further; does this section says that for a particular community EXEMPTION would be restricted to one marriage only which is otherwise allowed for more. . . Now see my humorous comment again assuming the case pertains to a Muslim. :) . .
01 January 2014
Basically it does not speak anything and there the confusion and doubts starts coming since India is very diverse country with numerous religion,caste etc and as Hon'able Nani Palkhiwala had once said "We legislate first and then think"
01 January 2014
Happy to note that new generation also remember N A Palkhiwala. . . When there is no clarity; means either it favours the department or the assessee. . . Now who is STRONG in presentation; will WIN THE CASE. . . TUTORIALS : Due to this reason; EMINENT LAWYERS make the PROVISIONS OF LAW to WIN THE CASE. . . (Because it is sure; there would be a CASE requiring explanations and at least ONE LAWYER would WIN THE CASE). . .
01 January 2014
Thanks a lot sir for your valuable replies and yes sir he was a legend and i havent seen any body like him as he use to deliver speeches just day after budget explaining the proposed provision in depth analysis and life lasting explanation.
01 January 2014
An "ACT" says about the provisions. . A "CASE" emerges requiring clarification. . "LAW" is made when a "decision" is given thereon. . (That decision need not be a justice : it is just a judgment). . Proof : . Due to the above; we find "controversial judgments" by different courts of law on the same issue having the same facts. . . NOW TRY TO DEFINE WHAT IS LAW! . A lot of controversy would emerge to define it. . . Pictorial post : https://www.caclubindia.com/forum/definition-of-law-275928.asp#.UsQ6Vfv4S1s
Is cash more than 50 thousand received by a non-resident from resident relative taxable in India?? This was the main point of the discussion.
If you read section 56, there is nothing to suggest that such transaction is taxable in India. As far as I see, the whole section except for 56(2)(viib) is residence status neutral.
I am not sure what our friend hardik feels about this.
01 January 2014
What others/majority feel "may" not be true in the profession. . . Top professionals find "different opinion" from the majority with "substance" of law. . . When they explain; others/majority follow them. . . The reason : . Majority believe in the "words" and not the "concepts)."
01 January 2014
well thats what I am saying that you cannot. So, the whole question of residential status becomes moot whether we give or receive gift, to or from non-resident.
01 January 2014
In majority of the cases; CONCEPTS are tried to explain. . . However; perception of the different judges may be different. . . Hence we should try to find out the CONCEPTS behind the LAW and not the wordings used therein. . . If the "wordings" were final as the base of TAX PLANNING; we would never find the CASE OF VODAFONE. . .
01 January 2014
Sir, in nutshell, in vodafone wording were final. It was only through an amendment of law that an attempt was made to bring the transaction under tax net retrospectively.
With regards the particular case of section 56 applicability to gift to non-resident, I believe for that very reason even form 15CA/CB is not required for RBI purpose Code 1302.
I believe we should understand the concept but we should not insert concepts!!
For eg under section 56, if the attempt of the law was to restrict receipt of gifts only in the hand of residents, it could have used the appropriate wording as it did in section 56(2)(viib). Instead the govt regulates the FX flow through limits set in FEMA.
01 January 2014
Vodafone's case judgements were given differently at different stages of the assessment and appeals. . . Many professionals still don't agree with the judgment of the Supreme Court. . . (Before amending the law; it must be kept in mind that the government has taken opinion of the eminent experts). . The wordings of the legislation can never be deemed to "misuse" with "malafide" intention. . . It's true that previously such practices were there....when law was not so complex but now-a-days; top professionals who use to suggest such things think 100 times before suggesting so. . .
01 January 2014
. If the identity, creditworthiness and genuineness of the transaction can be proved; then certainly there is no problem at all. . . KYC provisions are important now-a-days when banking transactions occur. . . That must be kept in mind when "huge money" is received as a gift from a non-resident. . .
02 January 2014
Bhai, tumne ab tak section 56 ki reference nahi di!!!
Hum log toh dhund kar thak gaye. let me reiterate, it doesnt matter who gives and who receives. as long as they are related, no tax is applicable.
baaki, we are willing to relook at our opinion if you can refer to the relevant provisions of section 56 or any case law. Please note that reference to section 9 is not valid here as section 9 can only decide where the income accrues, it cannot make a non-taxable transaction taxable. taxability is decided by section 5.
02 January 2014
relation shall be as defined under section 56!!
See hardik, I am not on what basis you are advising in this case. if you read the query, the gift was received from non-resident. Your answer was that since the gift has been received by a non-resident, it is taxable. So there is some disconnect.
The act goes like this, you decide the taxability of income as per provisions of the act read with section 5. then on the basis of section 9, u decide whether, on the basis of the residential status of the assessee, the same is taxable in India. If any income is not taxable at all, section 9 wont be able to create taxability.
Section 56 clearly provides that receipt on marriage or receipts from relatives is cannot be included in the total income of the assessee. there is no distinction on the residential status in this section except for section 56(2)(viib). Once that is established, section 9 cannot create taxability!
02 January 2014
business connection shall be applicable for business income, not for section 56!. But business connection was not your contention earlier right. Your contention was that section 56 is based on residential status.
And yes if there is a allegation that business income is being routed via route of gifts, then it shall be open for AO to verify the claims.
02 January 2014
also please refer to definition of business connection. Having a client in india doesn't create business connection. Refer explanation 2 to Section 9(1)(i)
for a detailed discussion on business connection, refer http://icai.org/resource_file/10878p832-839.pdf
regardless, given that the income in this case is accruing to a resident, business connection is an irrelevant consideration!!
02 January 2014
@Hardik : In simple words even if gift is rec from a client whether resident or non resident is exempted under sec 56(2)
Sec 9 will have no application in this regard as sec 56(2) is a specific provision which shall prevail over general provision of sec 9 as per rules of Interpretation.
02 January 2014
Thanks a lot to all of the Experts for your valuable replies.And I think the conclusion of this query is that "Gifts received on marriage by any individual from any person is not taxable." "Wish to all of you a very very Happy New Year"
02 January 2014
ok. which part of the cases you referred to apply in this case?? we dont know. How section 9 applies to gifts from relatives?? we dont know. Why don't you reply in form of an answer stating the facts and how section 5, 9 or 56 apply or dont apply to this case. I believe most of us have read Secion 9. we are asking how it applies to this case. That is what you need to answer (because as client is claiming no tax, revenue needs to establish how it is taxable. So you need to provide the logic)
In 56 ITR 20, the appeal of revenue dismissed by Supreme Court and it was held that no business connection (needless to say that facts of 56 ITR 20 have no link to the facts of query Mr Dixit raised here)
We all have presented our views. You have not presented a single persuasive reference to to counter any of our argument.
None of us has been able to find reference to "RESIDENT" in section 56!! How a non-income item becomes income under section 9, we dont know. So we have no idea what you really want to establish.
I will repeat the query for you. An Indian on his/her marriage, has received gift from a non-resident (who may be also a client). Whether this gift is taxable or not?
please answer on the basis of the facts provided above with reference to relevant portions of applicable sections and case laws.
If you don't have the time to answer, then lets consider this query closed from our side as the querist has already made his view.
with regards to uploading PPT, you can upload in the share files section) Or better write an article and post it in articles section
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