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NRIs' obligation to file tax return in India
February, 21st 2009

Arti Seth landed a job in Australia and is looking to settle there. As she goes about wrapping up matters at India, she enquired whether there was any tax angle to settle and if she could afford to forget about filing an India tax return once she is an NRI.

For most individuals, tax compliances begin and end with filing a tax return. The India Income-Tax law requires a return to be filed by every individual whose total income during the financial year exceeds the specified threshold limit.

It is not very different for NRIs, although certain beneficial rules do exist.

It is better to begin by explaining what the term NRI means in tax parlance.

Tax concepts, NRI, residency and income taxable in India

An NRI is a citizen of India or a person of Indian origin* who is not a resident in India. Residency for tax purposes is decided based on a persons physical stay in India. There are three conditions that could trigger non residency for tax purposes. First, when an individuals stay in India is less than 60 days in a particular tax year. Second when the stay exceeds 60 days but is less than 182 days and the cumulative stay in the four years preceding the year in question is less than 365. Finally, when an individual leaves India for taking up an employment outside India and his/her stay is less than182 days in the year of departure.

A resident and ordinarily resident (ROR) persons global income is taxable in India, while a non resident (NR) is taxed on income earned or received (or deemed to be so earned or received in India).

Let us say Arti qualifies as an ROR in the year of departure, her sources of income being remuneration from employment in India as well as Australia, and interest from her savings bank account. If her total income after claiming a deduction for any tax saving investments in India exceeds Rs 180,000, she would have to file a return of her income with the revenue authorities (the income threshold is limited to Rs 150,000 in the case of non resident women).

It is quite likely that her Australian salary may also be put to tax in Australia, thereby resulting in double taxation. The Indian Income-Tax law allows Arti to take recourse under the India-Australia Double Taxation Avoidance Agreement, also called a treaty. If Arti qualifies as a treaty resident of India in the financial year 2008-09, taxes paid in Australia will be permitted as a credit (or deduction) while computing the balance tax payable in India.

That brings us back to the necessity for filing a return of income in India. Among other factors, the Indian revenue authorities place reliance on the disclosures in the return of income in assessing whether a tax payer has accurately offered his income for tax.

Why file a return of income in India

The answer being law demands it. Additionally, there are certain benefits that are possible to claim only on the basis of filing a valid return of income, such as:

Losses of a particular financial year are permitted to be carried forward for being set-off against income of future financial years only when the return of income for the year of loss has been duly filed.

If Arti is a NR in India and her Indian income is also taxable in Australia then relief under the treaty may be claimed in Australia for the taxes paid in India. Such relief may be claimed in respect of doubly taxed income, by offering the return filed in India as proof of income subject to tax in India and taxes paid thereon.

If Arti is an ROR in India and her Australian income is taxable in India, then for the purpose of claiming treaty relief in India, she would have to file a return of income in India providing the details of the doubly taxed income and the taxes paid in Australia.

Refund of excess tax deducted at source may be claimed only by filing a return of income. Delayed filing of return attracts a penal interest at the rate of 1% per month on the balance tax payable. Additionally, a penalty of Rs 5,000 may be levied if the return is not filed within one year from the end of the relevant financial year.

The return must be filed on or before 31 July succeeding the financial year by an individual (due date being September 30 if the individual is a working partner of a firm whose accounts are required to be audited). If one has missed the bus, one does not need worry, as a belated return for financial year 2007-08 may be filed after the due date (being 31 July 2008) but before 31 March 2010 (or completion of assessment whichever is earlier).

Arti will be glad to note, however, that no return needs to be filed if as an NRI, her income taxable in India comprises only of investment income or income by way of long term capital gains or both, and tax has been deducted at source from such income (by the payer).

Having said this, Arti will need to understand the procedural nuances involved in filing her return in India while she remains outside India.

Procedural aspects of filing an NRIs return

The primary exercise for Arti would be to put together a file containing details of incomes, exemptions and taxes paid. Easier said than done, as these details may need to be collated from different sources. For instance, receipts to be obtained as proof of investments in insurance policies and proof of income and tax deducted at source to be obtained from the employer for salaries, from the bank for interest on savings account and from the buyer of the family house property in respect of the capital gains arising on sale.

Forms have been prescribed for different categories of income. Arti will have to file her return in Form ITR 2. Persons earning salary, interest, pension and income form agricultural activities would have to file a return in Form ITR 1 etc. Arti may even authorize any person to sign the return on her behalf as authorized representative.

A useful development in the recent years is the facility of online/e-filing of returns which helps timely filing. However, if Arti does not have a digital signature, she will have to adopt a combination of e-filing and physical submission of the return filed online within 15 days of e-filing.

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