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Taxability of income depends on
March, 11th 2010

An individual is taxed based on his residential status in India. The residential status, in turn, is determined based on the physical stay of an individual in the relevant financial year (tax year) as well as preceding ten tax years. This is particularly relevant in respect of Indians working overseas or having income/income earning assets outside India.

RESIDENTIAL STATUS

Broadly, and individual could be a resident or a non-resident in a particular tax year. Once an individuals residential status is determined to be a resident, it is further examined whether he is an ordinary resident or not an ordinary resident in India.

PHYSICAL STAY BASIC TEST

An individual is said to be a resident in India if he fulfils any of the following two conditions. First, if he is present in India for a period of 182 days or more in that tax year OR second, if he is present in India for a period of 60 days or more during the relevant tax year and at least 365 days or more during the four preceding tax years. In case an individual does not satisfy any of the above two basic conditions, then he is said to be a non-resident.

CONCESSION FOR NRIS

In the case of a citizen of India, who leaves India in any tax year for the purposes of employment outside India, the above said period of 60 days is substituted by 182 days. This is particularly beneficial for individuals going and working overseas in a particular tax year.

Similarly, in the case of a citizen of India or a person of Indian origin who being outside India, comes on a visit to India in any tax year, the above said period of 60 days is substituted by 182 days. This is helpful for non-resident Indians who visit India for family or other purposes.

ADDITIONAL TEST NOT ORDINARY RESIDENT

In the case of an individual who is a resident, it is to be further determined whether he is an ordinary resident or not an ordinary resident. A person is said to be not ordinary resident if he satisfies any of the following additional conditions. First, if he has been a non-resident in India in nine out of the 10 previous years preceding the relevant tax year OR second, if he has been in India for 729 days or less in the seven tax years preceding the relevant tax year. If none of the above two conditions are satisfied, then a person is said to be an ordinary resident.

TAX INCIDENCE

An individual who is an ordinary resident is taxable on his worldwide income, irrespective of the place of receipt or accrual of such income. Thus, broadly speaking, rental income, business income, interest, dividends, capital gains etc. earned / received overseas would be taxable in India.

In the case of a person who is not Ordinarily Resident, any income other than income accruing or arising outside India is taxable in India. However, in the case of such income that accrues or arises outside India is derived from a business controlled in or a professional set-up in India, then the same would also be taxable in India.

In case an individual is a non-resident, then only income received / deemed to be received or accrued / deemed to be accrued in India is taxable in India. Thus, broadly speaking, his overseas income would not be taxable in India, provided it is first received outside India.

DOUBLE TAXATION AVOIDANCE AGREEMENTS IMPORTANT

It is also important to examine the conditions laid out under the respective Double Taxation Avoidance Agreements (DTAAs), also know as treaties, which India has entered into with other countries to finally determine the taxability or otherwise for any particular source of income.

Generally, the DTAAs provide for taxability of income in one country. Else, if the income is subject to tax in both the countries, then credit could be claimed for tax paid in the other country, subject to the prescribed conditions.

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