ANURAG CHAUDHARY Vs. COMMISSIONER OF INCOME TAX
AUTHORITY FOR ADVANCE RULINGS
Shri Anurag Chaudhary
Commissioner of Income Tax -XVI
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(1.) THIS application is filed by an individual assessee under Section 245Q of the Income Tax Act. In the application, the applicant has claimed his status as 'non -resident'. It is stated in the application that the applicant left India for USA for employment purposes on 31st March, 2008 and came back on 29th November, 2008 i.e. he was in India for 122 days (243 days outside India) in the previous year 2008 -2009. A copy of letter dated 27th March 2008 from NIIT Technologies Limited posting the applicant to the US Company as Software Engineer has been enclosed. Apparently, the applicant was assigned by NIIT Technologies Limited, an Indian company, to work in its group company in USA, NIIT Technologies Inc., for sometime. A copy of statement of 'full and final settlement' prepared by NIIT Technologies Ltd has also been filed. The dates of his joining and leaving NIIT Tech Inc. USA are mentioned therein.
(2.) WITH these facts the applicant sought ruling on the question:
Am I non -resident in India in previous year 2008 -09?
As the question was defective, it was re -cast as follows:
Whether the income earned by the applicant by way of salary from his employment in USA in the previous year 2008 -09 (assessment year 2009 -10) is liable to be taxed under Section 5(1)(c) or any other provision of the Income -tax Act, 1961 on the basis that the applicant's status was that of a 'resident' during that year?
The applicant did not appear in person or through authorized representative.
(3.) THE relevant provisions of the Income -tax Act are quoted below:
Section 5: Scope of Total Income
(1) Subject to the provisions of this Act, the total income of any previous year of person who is a resident includes all income from whatever source derived which -
(a) is received or is deemed to be received in India in such year by or on behalf of such person ; or
(b) accrues or arises or is deemed to accrue or arise to him in India during such year; or
(c) accrues or arises to him outside India during such year:
Provided that, in the case of a person not ordinarily resident in India within the meaning of Sub -section of (6) of Section 6, the income which accrues or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set -up in India.
(2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non -resident includes all income from whatever source derived which - - - -
(a) is received or is deemed to be received in India in such year by or on behalf of such person; or
(b) accrues or arises or is deemed to accrue or arise to him in India during such year.
Section 6: Residence in India
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
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 - In the case of an individual,
(a) Being a citizen of India, who leaves India in any previous year [as a member the crew of an Indian ship as defined in Clause (18) of Section 3 of the Merchant Shipping Act, 1958 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;
The term 'non -resident' is defined in Section 2(30) to mean "a person who is not a resident.;
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