Residential Status in Taxation

Residential Status in Taxation .

Section 6(1) and 6(6) of the Income Tax Act provides for the residential status of an individual in order to determine his liability for paying tax. Residential status has been given due importance under the act due to the anomaly in determining the taxable income of various people who reside in other countries as well as India. In order to impose a fair legislative procedure the residential status of not only individual persons but also companies, firms, Association of persons/ body of persons and even Hindu Undivided Family have been included so that none of them can escape the ambit of taxation.

The incidence of liability depends in all cases upon the residential status of an individual or an artificial juristic person, since according to section 5 of the act the scope of taxability of total income of a person is based purely on his residential status. Section 6 broadly classifies tax payers into three categories:

1.       Resident (also known as resident and ordinarily resident)

2.       Non Resident

3.       Not ordinarily resident

Section 6 of the income tax act prescribes the tests to be applied to determine the residential status of all tax payers for the purpose of income tax. An assesses residential status must be determined with reference to the previous year in respect of which the income is sought to be taxed and not with reference to the assessment year.

Individual

According to section 6(1) of the income tax act, an individual is said to be resident in India in any previous year if:

a.       He has been residing for at least 182 days in the previous year

b.      He has resided for at least 60 days in the previous year and a total of 365 days in a period of 4 years immediately preceding the previous year

There are two exceptions to this rule:

Exception 1: a person will not be determined under section 6(1)(b) if he being a citizen of India leaves India as a member of the crew of an Indian ship or for the purpose of employment outside Indian.

Exception 2: A person will not be determined u/s 6(1)(b) if he being a citizen of India or of Indian origin lives outside India rendering service outside Indian and comes to visit India.

An explanation to this section provides that “a person of Indian Origin” means a person who himself or his parents or either of his paternal or maternal grandparents was born in undivided India.

If the above requirements are not sufficed then a person is said to be a Non Resident, hence no further requirements prevail as to the determination of his/her residential status.

Further section 6(6) provides that in order to term a person as ordinarily resident in India, one of the following two conditions are to be fulfilled:

a.       He has been resident in India for at least 2 years in the previous 10 years immediately preceding the relevant previous year, or

b.      He has been in India for 730 days or more during the past 7 years immediately preceding the relevant preceding year

Hindu Undivided Family:

The residential status of an HUF is determined through the place of control and management of the affairs of the family. According to section 6(2), a HUF is said to be resident in India if the control and management, partially or wholly is situated and executed in India. The word “Control and Management” includes administration, strategizing and decision making processes. Therefore, the residential status of the Karta who is the head of a HUF is not relevant for this section. If the where the Karta resides is the where the whole administration takes place then the HUF is said to situated in that place. Therefore if the control and management is not situated in India then the HUF is said to be a non resident.

Secondly according to section 6(6)(b) for determining if the HUF is ordinarily resident in India the following points are to be looked at:

a.       The Karta has been resident in India for at least 2 years in the previous 10 years immediately preceding the relevant previous year. Or

b.      The Karta  has been resident for a total of 730 days or more for the past 7 years immediately preceding the relevant previous year

AOP/BOI

For association of persons and body of individuals if the management of affairs of the firm is wholly or partly situated in India then it is said to be resident in India. However if whole of the management of affairs  of the firm is done outside India, it is said to be non resident.

Companies

A company can never be ordinarily resident. An Indian company i.e. a company incorporated in India is always a resident in India whether its management of affairs is situated fully or partially outside India. However a foreign company is said to a resident in India if in the previous year whole of its management and administration was situated in India. Conversely when even partial management is situated outside Indian the foreign company is not held as a resident in India.