Changes in Income Tax for Non Resident Indian Citizens-Budget 2020

changes-in-income-tax-for-non-resident-indian-citizens-budget-2020

Budget 2020 has prescribed three natures of changes in the residential status of an Indian Citizen who is a non-resident. These amendments have been introduced as an anti-abuse measure to curb the practice of avoiding tax in India by taking advantage of being a non-resident. However, a benefit has been given to a non-resident Indian Citizen of becoming a resident who returns to India permanently.

Under the Income Tax Act, 1961, the residential status of a person may be a resident or a non-resident. In the case of a resident, he is liable to tax in India in respect of his world-wide or global income whereas a non-resident is only liable to tax in India only on such incomes that arise or accrue in India. A non-resident is not liable to world-wide or global income in India.

Further, a resident or a non-resident may be an Indian Citizen or a foreign national. Further, a resident is further divided into 'ordinary residents' (ROR) and 'resident but not ordinary resident' (RNOR). The residential status can change each year.

Further, there are certain provisions which are exclusively applicable for non-resident Indians. As per section 115C(e), a "non-resident Indian" means an individual, being a citizen of India or a person of Indian origin who is not a "resident".

In other words, a non-resident Indian means a non-resident Indian Citizen or a person of Indian origin.

A person shall be deemed to be of Indian origin if he, or either of his parents or any of his grand-parents, was born in undivided India. [As defined in Explanation to clause (e) of section 115C]

In other words, the following persons shall be considered as a 'person of Indian origin'-
1. The taxpayer himself if born in undivided India.
2. The taxpayers' either father or mother or both born in undivided India.
3. The taxpayers' either grandfather or grandmother or both born in undivided India.

The provisions related to the determination of the residential status of a person are contained in section 6 of the Act.

Section 6 of the Income Tax Act classifies the residential status of an Individual including an Indian Citizen in three categories-
1. Resident - also known as Resident and Ordinary Resident
2. Resident but not Ordinary resident
3. Non-Resident

The following amendment is proposed in section 6 of the Income Tax Act, 1961 vide clause 4(b) of the Finance Bill, 2020 which reads as under-

Amendment of section 6.
4. In section 6 of the Income-tax Act, with effect from the 1st day of April, 2021,–
(a) in clause (1), in Explanation 1, in clause (b), for the words “one hundred and eighty-two days", the words “one hundred and twenty days” shall be substituted;
(b) after clause (1), the following clause shall be inserted, namely:–
“ (1A) Notwithstanding anything contained in clause (1), an individual, being a citizen of India, shall be deemed to be resident in India in any previous year, if he is not liable to tax in any other country or territory by reason of his domicile or residence or any other criteria of similar nature.”;
(c) for clause (6), the following clause shall be substituted, namely:–
' (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 seven out of the ten previous years preceding that year; or
(b) a Hindu undivided family whose manager has been a non-resident in India in seven out of the ten previous years preceding that year.'

The three proposed amendments are discussed below-

Amendment 1: Reducing the period of stay in India

As per the existing rules, an Indian citizen or a person of Indian origin who comes on a visit to India would become resident in India only if he stays in India for a period of 182 days or more during the relevant previous year.

It is proposed to reduce the time of stay in India from 182 days to 120 days for an Indian citizen or person of Indian origin to become a resident in India.

Presently, if a non-resident Indian comes on a visit to India - the purpose may be to come to his home to meet his family members or relatives, or attending any social functions, etc., he can stay in India for an aggregate period of 181 days. Now, he can stay only up to 119 days after which he has to leave India. The idea behind this is to allow him to stay more in the country of his economic interest rather than to stay in India. The ratio of the period of his stay in India and the foreign country changed to 1/3:2/3 from 50:50.

Another reason to reduce the number of days to 120 days may be due to the purpose for which clause (1A) is inserted (discussed later as Amendment 3). If a person resides for a lower number of days in India he will have to spend more days in a foreign country and then he may be forced to become a resident of that country.

According to the Government, individuals, actually carrying out substantial economic activities from India, manage their period of stay in India, so as to remain a non-resident in perpetuity and not be required to declare their global income in India. The Government had noticed instances where a period of 182 days specified in respect of an Indian citizen or person of Indian origin visiting India during the year, is being misused. 

Let us reproduce the existing provision corrected with the proposed amendment to under the amendment more aptly-

6. 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) [***]
 (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.
Explanation. 1—In the case of an individual,—
 (a) being a citizen of India, who leaves India in any previous year as a member of the crew of an Indian 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 eighty-two days"  “one hundred and twenty days” had been substituted.
Explanation 2.—For the purposes of this clause, in the case of an individual, being a citizen of India and a member of the crew of a foreign bound ship leaving India, the period or periods of stay in India shall, in respect of such voyage, be determined in the manner and subject to such conditions as may be prescribed.

In simpler terms, an individual shall be a resident in India if-

(a) he stays in India for a period of 182 days or more in aggregate in a previous year, or

(b) has been in India for an overall period of 365 days or more within four years preceding that year, and he is in India for an overall period of 60 days or more in that year.

Clause (b) of Explanation 1 of sub-section (1) provides that an Indian citizen or a person of Indian origin shall be Indian resident if he is in India for 182 days instead of 60 days in that year. This provision provides relaxation to an Indian citizen or a person of Indian origin allowing them to visit India for a longer duration without becoming a resident of India.

Important- To become a resident, the individual must satisfy any one of the given two conditions. He must satisfy either condition (a) or condition (b).

Certain liberty or relaxation is given to an Indian Citizen in the following three cases for the second condition (b):
(i) An Indian citizen and who leaves India during the previous year for the purpose of employment or
(ii) An Indian citizen who leaves India as a member of the crew of an Indian ship or
(iii) An Indian citizen or a Person of Indian Origin who comes to India on a visit during the previous year.

In all these three cases, the period of '60 days' shall be replaced by '182 days'.

The Finance Bill, 2020 has reduced the period of 182 days to 120 days only for the case (iii) where the non-resident Indian Citizen comes on a visit to India.

It is not the case that simply staying for more than 120 days will make the non-resident Indian citizen as a resident. In addition to this, he has to satisfy one more condition that he has stayed in India for 365 days or more in the last 4 previous years. [Refer condition (b)]. Till he satisfies only one of the conditions, he will not lose the non-resident status and continue to remain 'non-resident'.

If he never came to India in the last four previous years, then in the current previous year he can stay up to 181 days. [Refer condition (a)].

Therefore, it becomes necessary for every non-resident Indian citizens or Person of Indian Origin visiting India for a long stay for any purpose to carefully evaluate their stay in India and should come to India with proper planning to keep their residential status as 'non-resident', else they may stand to qualify as a resident in India.

Let us understand the Amendment 1 with some examples.

Mr. Rakesh, an Indian Citizen but a non-resident, has come to India on a visit in the previous 2020-21. His stay in India for the PY 2020-21 and the last 4 previous years is given below and determined his residential status for the PY 2020-21 accordingly.

Previous year
Case-I
(in days)
Case-II
(in days)
Case III
(in days)
Case IV
(in days)
Case V
(in days)
2020-21
190
135
110
125
110
Last 4 Previous Years
2019-20
0
0
0
0
30
2018-19
160
160
160
160
130
2017-18
150
150
150
150
110
2016-17
60
60
60
0
41
Total
370
370
370
310
311
Residential Status
Resident in PY 2020-21
Resident in PY 2020-21
Non-Resident in PY 2020-21
Non-Resident in PY 2020-21
Non-Resident in PY 2020-21

Reasoning-

Case-I: Since his stay in India exceeds 182 days, he becomes a resident. refer Condition (a), no need to check for (b).

Case-II: Since his stay in India in PY 2020-21 is more than 120 days and in the last 4 previous years exceeds 365 days, he has satisfied both the conditions (b).

Case-III: Even though his stay in the last four years exceeds 365 days but his stay during 2020-21 is less than 120 days and hence both conditions (b) fails to satisfy.

Case-IV: Even though his stay in PY 2020-21 exceeds 120 days but his stay during the last four years does not exceed 365 days and hence both conditions (b) fails to satisfy.

Case-V: Neither condition (a) nor conditions (b) satisfied.

In cases III, IV and V, Mr. Rakesh will not lose his non-resident status but in the other two cases, he will become a resident in India.

I would like to highlight some flashback of this amendment that relates to the reduction of the threshold from 182 days to 120 days for individuals who are Indian Citizens and non-resident visiting India and staying for over 120 days shall attain 'resident' status. 

The amendment directly impacts citizens of India or persons of Indian origin, which essentially means non-resident Indians (NRIs). The rationale behind the applicability of stay days threshold to non-resident Indian citizens, who otherwise exercise employment outside India, is to encourage them to visit India and not be classified as residents unless their stay exceeds 182 days.

Until April 1, 1995, the threshold was 150 days. The law was amended to address the need for overseas Indians to stay beyond 150 days and still be non-residents.

Way back in 1994, the Central Board of Direct Taxation (CBDT) issued a circular (Circular No. 684 dated June 10, 1994) to explain the rationale to the amendment.

As per the Circular, the intention to extend the 150 days to 182 days was to provide more liberty to NRIs visiting India for the purpose of supervision and control of their investments. This was a measure to encourage investments by NRIs and can spend up to 180 days and continue to be non-residents.

But this time, the government has found that this provision is being misused by the NRIs to escape the tax on his global income despite staying for half of the year in India and actually carrying out substantial economic activities from India. This amendment is proposed as an anti-abuse measure.

The Explanatory Memorandum to the Finance Bill, 2020 states - instances has come to notice where the period of 182 days specified in respect of an Indian citizen or person of Indian origin visiting India during the year, is being misused. Individuals, who are actually carrying out substantial economic activities from India, manage their period of stay in India, so as to remain a non-resident in perpetuity and not be required to declare their global income in India.

However, the government did not clarify whether this measure will adversely impact any investments by NRIs in India or not.

Amendment 2: Introducing the concept of 'Deemed Resident' for Indian Citizens

The Budget 2020 has proposed to provide that an Indian citizen who is not liable to tax anywhere would be deemed to be resident in India. It is proposed that an Indian citizen who is not liable to tax in any other country or territory shall be deemed to be a resident in India.

A new clause (1A) in Explanation 1 under section 6(1) of the Income Tax Act is inserted to provide for a non-resident Indian citizen to be a deemed resident in India.

The Finance Minister during her budget speech has not mentioned anything about the said amendment. However, in the last sentence of para 6.6 to ‘Annex to Part B of Budget Speech’, it has been stated that ‘It is also proposed to provide that an Indian citizen who is not liable to tax anywhere would be deemed to be resident in India.'

The explanatory memorandum to the Finance Bill, 2020 set outs the intention of introducing the provision.

The issue of stateless persons has been bothering the tax world for quite some time. It is entirely possible for an individual to arrange his affairs in such a fashion that he is not liable to tax in any country or jurisdiction during a year. This arrangement is typically employed by high net worth individuals (HNWI) to avoid paying taxes to any country/ jurisdiction on income they earn. Tax laws should not encourage a situation where a person is not liable to tax in any country. The current rules governing tax residence make it possible for HNWIs and other individuals, who may be Indian citizen to not to be liable for tax anywhere in the world. Such a circumstance is certainly not desirable; particularly in the light of current development in the global tax environment where avenues for double non-taxation are being systematically closed.

In the light of above, it is proposed that an Indian citizen who is not liable to tax in any other country or territory shall be deemed to be resident in India.

Read more on Amendment 2 related to Deemed Resident 

Amendment 3: Changes in conditions to become a Not Ordinarily Resident

This amendment is related to the residential status of a 'Resident but not ordinarily resident'. The threshold for a person to be “not ordinarily resident” has been revised to suggest that the individual has to be a nonresident in 7 out of 10 years (instead of 9 out of 10 years). This is a welcome change.

The relevant statutory provision is contained in section 6(6) of the Income Tax Act, 1961 and is reproduced below-

(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 seven 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 seven 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.

Sub-section (6) of section 6 provides for situations in which a person shall be “not ordinarily resident” in the previous year.

Clause (a) thereof provides that if the person is an individual who has been non-resident 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 an overall period of 729 days or less. 

Clause (b) thereof contains a similar provision for the HUF.

The amendment has kept only one condition of being a non-resident for 7 years in the last 10 years. The other condition of stay in India for a period of less than 730 days in the last 7 years is removed from the statute.

This category of persons has been carved out essentially to ensure that a non-resident is not suddenly faced with the compliance requirement of a resident, merely because he spends more than the specified number of days in India during a particular year. The conditions specified in the present law in respect of this carve-out have been the subject matter of disputes, amendments, and further disputes. Further, due to the reduction in the number of days, as proposed, for visiting Indian citizens or a Person of Indian origin, there would be a need for relaxation in the conditions.

This category of persons is introduced so that a non-resident does not become a resident immediately on returning to India so as to make him liable for his global income in India.

When a non-resident Indian citizen returns to India permanently he can retain the benefits of a non-resident for 3  to 4 years, after which he will become a resident.  He can escape from paying tax on his foreign income if any that accrues to him outside India after his return to India from aboard.

Let us understand the concept of 'not ordinarily resident' in simpler terms with examples.

In the earlier part, we have studied when a person or an individual becomes a resident. In this context, it is important to know who is a 'non-resident'.

A person who is not a resident is a non-resident. Section 2(30) defines the term non-resident as - "non-resident" means a person who is not a "resident".

Hence, a non-resident will become a resident once he stays in India for more than 182 days. A non-resident who is returning to India after a long period may become resident in the first year itself if he stays in India for more than 182 days simply in the year of return itself.

In this case, he will be liable to pay tax on global income from the first year itself. To mitigate this hardship, the transformation from a non-resident to a resident has been made to pass through an intermediary residential status who will be a resident but not an ordinarily resident. This is where section 6(6) comes into play.

This provision will affect mostly non-resident Indian Citizens.

The amended provision provides that an individual will be a 'not ordinarily resident' (NOR) if he is a non-resident for 7 years out of the last 10 years. In this case, even he stays in India for more than 182 days in the previous year but was a non-resident for 7 years in the last 10 years, he will be called NOR.

Example: Mr. Rakesh is an Indian Citizen. He has been staying abroad for the last 20 years. Now he is returning to India permanently on 30.04.2020. He seldom comes to India but in 2018-19 he came to India and stayed for 110 days. In 2019-20, his period of stay in India was 200 days. When he left India in the year 2000, he had to come to India in 2001-02 and stayed for 220 days.

Determine his residential status for the previous year 2020-21.

By virtue of section 6(1), Mr. Rakesh will be a resident for the financial year 2020-21 since his stay in India is more than 182 days.

Since he was a non-resident earlier, section 6(6) will also applicable to him and can be benefitted therefrom if he satisfies the condition mentioned therein. To get the benefit of section 6(6) relaxation, at first it is to be checked whether he was a non-resident for 7 years out of the last 10 years. The period of 7 years need not be a continuous period of 7 years and can be any 7 years out of 10 years.

His residential status for each of the previous years beginning from 2020-21 is given below till he becomes a resident.

Sl No
Previous Year
Residential Status
Days of stay in India
Status
0
2020-21
330
NOR
Last 10 previous years
1
2019-20
200
NOR
2
2018-19
110
Non-Resident
3
2017-18
0
Non-Resident
4
2016-17
0
Non-Resident
5
2015-16
0
Non-Resident
6
2014-15
0
Non-Resident
7
2013-14
0
Non-Resident
8
2012-13
0
Non-Resident
9
2011-12
0
Non-Resident
10
2010-11
0
Non-Resident
11
2009-10
0
Non-Resident
The period  from 2009-10 and earlier is irrelevant
Since he was a non-resident in 7 out of the last 10 years, he is a NOR in PY 2020-21.


Sl No
Previous Year
Residential Status
Days of stay in India
Status
0
2021-22
360
NOR
Last 10 previous years
1
2020-21
330
NOR
2
2019-20
200
NOR
3
2018-19
110
Non-Resident
4
2017-18
0
Non-Resident
5
2016-17
0
Non-Resident
6
2015-16
0
Non-Resident
7
2014-15
0
Non-Resident
8
2013-14
0
Non-Resident
9
2012-13
0
Non-Resident
10
2011-12
0
Non-Resident
11
2010-11
0
Non-Resident
The period  from 2010-11 and earlier is irrelevant
Since he was a non-resident in 7 out of the last 10 years, he is a NOR in PY 2021-22.

Sl No
Previous Year
Residential Status
Days of stay in India
Status
0
2022-23
360
NOR
Last 10 previous years
1
2021-22
360
NOR
2
2020-21
330
NOR
3
2019-20
200
NOR
4
2018-19
110
Non-Resident
5
2017-18
0
Non-Resident
6
2016-17
0
Non-Resident
7
2015-16
0
Non-Resident
8
2014-15
0
Non-Resident
9
2013-14
0
Non-Resident
10
2012-13
0
Non-Resident
11
2011-12
0
Non-Resident
The period  from 2011-12 and earlier is irrelevant
Since he was a non-resident in 7 out of the last 10 years, he is a NOR in PY 2022-23.


Sl No
Previous Year
Residential Status
Days of stay in India
Status
0
2023-24
360
NOR
Last 10 previous years
1
2022-23
360
NOR
2
2021-22
360
NOR
3
2020-21
330
NOR
4
2019-20
200
NOR
5
2018-19
110
Non-Resident
6
2017-18
0
Non-Resident
7
2016-17
0
Non-Resident
8
2015-16
0
Non-Resident
9
2014-15
0
Non-Resident
10
2013-14
0
Non-Resident
11
2012-13
0
Non-Resident
The period  from 2012-13 and earlier is irrelevant
Since he was NOT a non-resident in 7 out of last 10 years (in fact, he was a non-resident for 6 years), he lost the status of NOR in PY 2023-24 and will become a Resident from the assessment year 2024-25.

From the above table, it can be seen that Mr. Rakesh will remain NOR or not ordinarily resident for three previous years 2020-21, 2021-22 and 2022-23. Thereafter, he will become a Resident.




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