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Sunil (Professional)     28 May 2012

Residential status calculation

 

Can you please help to calculate my resident status for A.Y 2011-12?

I was in India during the Previous year 2010-11 for 195 days and during the 4 years preceding the previous year 2010-11, I was in India for less than 365 days.

According to first part of the IT Section 6(1), I satisfy the condition of staying in India for more than 182 days  in the previous year 2010-11. So I can be resident for the AY 2011-12

but

I do not satisfy the second part of the section 6(1) although I was in India for more than 182 days in the Previous year 2010-11 but during the 4 years preceding the previous year 2010-11, I was in India for less than 365 days.

Any comments will be highly appreciated



Learning

 1 Replies

C. P. CHUGH (Practicing Lawyer)     28 May 2012

Just carefully go through the provisions relating to determination of status under the Income Tax Act which are reproduced below :

 

To satisfy the condition as laid down in section 6(!)(c) you have to be in india for a period or periods amounting in all to 365 days or more in the four preceeding years and 60 days in that year.  Since you were in india for more than 182 days in that previous year and also was in india for more than 365 days in the preceeding four years, your status would undoubtedly for the AY 2011-2012 would be Resident.

 

For your reference the section 6 of IT act is reproduced below.

"Residence in India.

536. 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)  54[* * *]

      (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.

                55[Explanation.—In the case of an individual,—

      (a)  being a citizen of India, who leaves India in any previous year 56[as a member of the crew of an 57Indian 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 58[eighty-two] days” had been substituted.]

          (2)  A Hindu undivided family, firm or other association of persons is said to be resident in India in any previous year in every case except where during that year the control and management59 of its affairs59 is situated wholly59 outside India.

          (3)  A company is said to be resident in India in any previous year, if—

       (i)  it is an Indian company ; or

      (ii)  during that year, the control and management59 of its affairs59 is situated wholly59 in India.

          (4)  Every other person is said to be resident in India in any previous year in every case, except where during that year the control and management of his affairs is situated wholly outside India.

          (5)  If a person is resident in India in a previous year relevant to an assessment year in respect of any source of income, he shall be deemed to be resident in India in the previous year relevant to the assessment year in respect of each of his other sources of income.

      60[(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 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 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.]"


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