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Income Tax for non-residents: Stranded in India & facing double taxation? New CBDT circular explained for you

Income Tax for non-residents: Due to the coronavirus outbreak and subsequent lockdown last year (2020), many non-residents were stuck in India due to the stringent travel restrictions

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Income Tax for non-residents: Due to the coronavirus outbreak and subsequent lockdown last year (2020), many non-residents were stuck in India due to the stringent travel restrictions. The CBDT had issued a circular (No. 11 of 2020) to provide relief to such non-resident individuals who came to India on a visit before 22 March 2020 and that circular was w.r.t. Financial Year (FY) 2019-20.

CBDT recently issued a new circular (No. 2 of 2021), providing further guidance on the determination of the residential status of such individuals, whose movement was restricted due to Covid related restrictions. The circular elaborates the broad provisions of the Income Tax Act and also the DTAAs, wherein the provisions are flexible to provide individuals relaxations w.r.t. their number of days stay and the resulting issue of residency.

Here’s a look at all the details of the circular NRIs stranded in India should know

What is this circular about? And what are its implications?

According to Dr Suresh Surana, founder RSM India, the new circular has elaborated the broad provisions of the Income Tax Act (‘IT Act’) and also the DTAAs, wherein the provisions are flexible to provide individuals relaxations with respect to their number of days stay and the resulting issue of residency.

“Some of the provisions elaborated in the CBDT circular include the provisions of section 6 under the Income Tax Act, Tie-breaker rule under the DTAAs, relaxation under Article 16 (OECD mode) for Dependent personal services, etc. However, if any individual is still facing dual residency/double taxation even after taking into consideration the relief provided by the respective DTAAs, then he/she may furnish the information in Form NR by 31 March 2021 to the Principal Chief Commissioner of Income-tax (International Taxation) who in turn, will examine the situation and provide specific/general relaxation, if required,” Dr Surana told FE Online.

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Implications of the recent circular

Dr Surana said the implication of the recent circular is that the determination of the residential status in case if the same is not resolved based on the guidance in the CBDT circular no. 2 of 2021, would be required to be done by that specific individual in Form NR i.e. case-by-case application need to be done.

Does the recent circular provide any kind of benefit to NRIs?

The recent circular does not provide any specific relief to the Non-residents. However, it does guide on the available provisions and relaxations under the Income Tax Act and the DTAAs. It may not directly benefit any category of taxpayers, though it provides a taxpayer, who is not sure of his residency about the option of making an application in Form NR, said Dr Surana.

What individual still facing dual residency/double taxation should do?

Such individual may explore the option of making an application in Form NR.

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Other key points from the circular that a taxpayer should know

Following are some other key provisions of the circular explained by Dr Surana in conversation with FE Online

a. Recourse to Tie-breaker test in case of dual residency issues:

In case of dual residency, tie breaker rule as per relevant DTAA can be applied i.e. an individual will be resident of the country in which:

– He has a permanent home

– His personal and economic relations (centre of vital interests) are closer

– He has an habitual abode

– He is a national

b. Employment income taxable only subject to conditions as per DTAA

The article contained in relevant DTAA about dependent personal services governs the taxation of employment income. The DTAA distributes the taxation rights between the employee’s jurisdiction of residence and the place where the employment is exercised. The article related to dependent personal services is more or less similar in most of the DTAAs. Article 16 of the Indo-USA DTAA provides that salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is exercised in the other Contracting State then its remuneration will be taxable in that other Contracting State only under following situations:

Accordingly, if a USA resident under employment of a USA corporation has got stranded in India and performs employment from India, its salary will not be taxable in India unless he is present in India for 183 days or more during the financial year 2020-21 or if the salary is borne by Indian permanent establishment of such USA corporation.

c. Relief by Other Countries & OECD Guidance on COVID -19 Crisis

The Circular also provides a reference to the measures or steps taken by other countries in order to provide a relief to the taxpayers with respect to the issue of double taxation. Similarly, it has also referred to the OECD policy response guidance to COVID -19 crisis issued by OECD Secretariat. The OECD Guidance with respect to the change of the residence status of individuals provides as follows:

The CBDT Circular takes into consideration that even the OECD has recognized that DTAAs contain the necessary provisions to deal with the cases of dual residency arising due to COVID-19 situations and accordingly the tie-breaker rules as mentioned in the DTAA would apply in such case

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