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lina abood (bussiness)     21 January 2012

Capital gain

When Iraqi sitizen married to Indian sitizen last 20 year and she is resident in India from the time of her marrige.

She has inherted some property in her original country  last 22 years through  her family  as agift

Recently she had sold that property which it is standing in her name in Iraq and transfer the full amount  officially to India.

By doing that dose she has to pay any kind of tax to Indian goverment

Please advise



Learning

 4 Replies

A V Vishal (Advocate)     21 January 2012

Has she acquired Indian citizenship

lina abood (bussiness)     22 January 2012

NO,she is still holding her original  iraqi sitizenship

sahil kumar (cosultancy)     22 January 2012

There are many Tax angles which will be attracted

one has to see residental status of individual , citizenship is totoally irrelevant fron income tax view point

secondly taxation treaty beween the two nations as if any tax is already paid on amount of sale of property then again taxing the same amount will result in double taxation so only the taxation treaty can throw some light on the terms which will provide sollution to the problem  

 

Under Section 6(1), an individual is said to be resident in India in any previous year if he satisfies any one of the following basic conditions:

(a)    He is in India in the previous year for a period of at least 182 days or,

(b)   He is in India for a period of at least 60 days during the relevant previous year and at least 365 days during the four years preceding that previous year.

In case an Indian citizen leaves India for employment abroad in any year for the purpose of employment (or where an individual, who is a citizen of India, leaves India as a member of the crew of an Indian ship), or where an Indian citizen or a person of Indian Origin, who has settled abroad, comes on a visit to India in the previous year, shall not attract clause (b) of the basic conditions Therefore, such individuals may stay in India upto 181 days in a given previous year without becoming resident in India for that previous year. An individual who does not satisfy either of the above basic conditions is non-resident for that previous year.

A Hindu Undivided Family (HUF) is said to be resident in India if control and management of its affairs is wholly or partly situated in India during the relevant previous year.

A resident individual or HUF assessee may further be classified into (i) resident and ordinarily resident (ROR) and (ii) resident but not ordinarily resident (RNOR). A resident individual or HUF is treated as ROR in India in a given previous year, if he satisfies the following additional conditions:-

1)      He has been resident in India in at least 9 out of 10 previous years (according to basic conditions noted above) preceding the relevant previous year; and

2)      He has been in India for a period of at least 730 days during 7 years preceding the relevant previous year.

An individual or HUF becomes ROR in India if the individual or Karta of HUF satisfies at least one of the basic conditions and both the additional conditions. An individual or Karta of HUF who is resident in India but does not satisfy both the additional conditions is RNOR for that previous year.

Residential status of assessee other than an Individual & HUF

In case of an assessee, other than an individual and HUF, the residential status depends upon the place from which its affairs are controlled and managed.

As per Section 6(2), a partnership firm or an association of persons are said to be resident in India if control and management of their affairs are wholly or partly situated within India during the relevant previous year. They are, however, treated as non-resident if control and management of their affairs are situated wholly outside India.

As per Section 6(3), an Indian company is always resident in India. A foreign Company is resident in India only if, during the previous year, control and management of its affairs is situated wholly in India. Where part or whole of control and management of the affairs of a foreign company is situated outside India, it shall be treated as a non-resident company.

As per Section 6(4), every other person is resident in India if control and management of his affairs is, wholly or partly, situated within India during the relevant previous year. On the other hand, every other person is non-resident in India if control and management of its affairs is wholly situated outside India.

lina abood (bussiness)     22 January 2012

Mr,Sahel

Thank you for your reply but frankly speaking I could not understand  much

I can only tell you that she is resident in india last 20 years and she didnt travel out side the country  last 15 years.

pleases advice.


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