Residential status of employ returing india after 6 month

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

29 January 2013 An individual returing india after 200 days saying ( short term deputation ) aborad during the previous year 2001-12. as per 6(1) if any person leves india for employement purpose in any previous year then he has to stay more than 182 days in india to become a resident . whether this rule is applicable at the time of returing in india . Please refer if you find any case law related to this,

Deepak Agrawal

Deepak Agrawal (Expert)
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30 January 2013 For being a resident in India for tax purpose, an individual should stay at least 182 days during the relevant previous (financial) year.

thus in Financial Year 2011-12, his days of stay in India is less than 182 days, thus he is non resident in assessment year 2012-13 (financial year 2011-12). Assuming that he has not gone abroad back in financial year 2012-13, he will be tax resident in AY 2013-14 (FY 2012-13).

Querist : Anonymous

Querist : Anonymous (Querist)

30 January 2013 Thanks for the answer . But if the person return back after completeing the employment in the same year then 60 dasy condition will apply ... some compnay deduct tax on that basis . can you please share any relevent case decision in this matter

Deepak Agrawal

Deepak Agrawal (Expert)
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30 January 2013 Pl refer the explanation to sec.6 as under:

[Explanation.—In the case of an individual,—
(a) being a citizen of India, who leaves India in any previous year 57[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" had been substituted.]

Thus, if person has left India for employment purpose, then condition of 60 days or 365 days will not work/apply. Then only criteria for test of residency will be 182 days in the relevant financial year.

The deduction of Tax on the basis as you are telling is not in accordance with the Act.

CA. Anuj Gupta

CA. Anuj Gupta (Expert)
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15 February 2013 Here you need to check whether the employee was in India for more than 365 days in 4 years prior to 2011-12. If yes then he shall be called as a resident.

Anuj
femaquery@gmail.com

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