Mukesh Mittal (CA Final) (87 Points)
26 December 2010A person of Indian origin leaves India for the first time in July 2008 for employment in Russia.
he comes back to India on 3rd december 2010 and stays in India till 31st March 2011.
what is his residential status for assessment Year 2011-12.
Is he liable to pay any advance tax.
kindly advise...
CA Rachit K Patel
(Chartered Accountant)
(1503 Points)
Replied 26 December 2010
Dear Manish,
The residential status for AY 2011-12 will be Non Resident - Salary earned outside India will not be taxable under Indian Income Tax Act.
Thanks & Regards,
Rachit K Patel
CA Sahil Singla..
(Service Tax )
(3746 Points)
Replied 26 December 2010
RESIDENT OF INDIA
Bcoz as per income Tax Act ,1961 ...for the person who leaves india for employment outside India during the previous year , then the rule of only 182 days will be applicable...but as per above case the person leaves india During ther Previous year 2008-2009....& not during the concerned previos year 2010-11...so for the previous year 2010-11 he will be the resident of India Bcoz he was remain in India in 2010-11 for 60 days & for a total of 365 days in the previous years 2006-07, 2007-08, 2008-2009, 2009-10
AS he is a person of indian origin then he mst fulfill the basic condition of 182 days first only then additional condition wil b considered.
dec+ jan + feb +mar = 28+31+28+31 =118 days.
bcz the main basic condition in his case doesnt get fulfilled so he wil nt b resident .
when he is nt resident person then there is no need to consider other additional condition
CA Rachit K Patel
(Chartered Accountant)
(1503 Points)
Replied 26 December 2010
Dear Manish,
A detail explanation: As per Income Tax Act,1961:
Residence in India.
516. For the purposes of this Act,—
(1) An individual is said to be resident in India in any previous year, if he—
(a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more ; or
(b) 52[* * *]
(c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year.
53[Explanation.—In the case of an individual,—
(a) being a citizen of India, who leaves India in any previous year 54[as a member of the crew of an 55Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or] for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words “sixty days”, occurring therein, the words “one hundred and eighty-two days” had been substituted ;
(b) being a citizen of India, or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause (c) shall apply in relation to that year as if for the words “sixty days”, occurring therein, the words “one hundred and 56[eighty-two] days” had been substituted.]
(2) A Hindu undivided family, firm or other association of persons is said to be resident in India in any previous year in every case except where during that year the control and management57 of its affairs57 is situated wholly57 outside India.
(3) A company is said to be resident in India in any previous year, if—
(i) it is an Indian company ; or
(ii) during that year, the control and management57 of its affairs57 is situated wholly57 in India.
(4) Every other person is said to be resident in India in any previous year in every case, except where during that year the control and management of his affairs is situated wholly outside India.
(5) If a person is resident in India 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 relevant to the assessment year in respect of each of his other sources of income.
58[(6) A person is said to be “not ordinarily resident” in India in any previous year if such person is—
(a) an individual who has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less; or
(b) a Hindu undivided family whose manager has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less.]
Source:https://law.incometaxindia.gov.in/Dit/File_opener.aspx?page=ITAC&schT=&csId=76a4f776-624f-4ef9-80e8-b3975c73278b&rdb=sec&yr=75996b99-a798-4098-bca8-e66ee23fe426&sec=&sch=&title=Taxmann%20-%20Direct%20Tax%20Laws
Devika
(Article Trainee)
(72 Points)
Replied 27 December 2010
He shall be a Non Resident in India for the A.Y.11-12 as per Section 6.
VIKAS SHARMA
(ARTICLESHIP(IPCC))
(55 Points)
Replied 27 December 2010
As per section 6 he is non resident ,,,
I am totally agree with palak calculation and C.A rachit k patel
CA Nikhilesh Singla
(CA)
(83 Points)
Replied 27 December 2010
He must be non resident as he did not setisfy the basic condition for becoming resident......
he is the person of indian origin thats why the 2nd basic condition i.e. to stay for 62 days and more than 365 days in last 4 preceeding years of P/Y, will be substituted by 182 days..
So in this case he does not satisfy the 2 basic condition, so he will be Non Resident.....
Mukesh Mittal
(CA Final)
(87 Points)
Replied 29 December 2010
Thank you friends for your valuable suggesstions.............
CA MOHIT BANSAL
(Tax Executive)
(35 Points)
Replied 10 March 2011
Dear Friends,
My querry is whether there is any provision under Income Tax Act, 1961 to determine the residential status of an Diplomat of USA who residing in India since 4 years.
Please give your valuable inputs on the same.
Mohit Bansal
Semi - Qualified
Live class on PF & ESI Enrollment & Returns Filing(with recording)
CAclubindia
