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Article by sabaha khan
Category Faculties of Law
Content

                                                                Concept of “Residence” under Income Tax Act

By Sabaha Khan

LLM (Business Laws)

National law school of India university, Bangalore

 Tax incidence on an assessed depends on his residential status. For instance, whether an income, accrued to an individual outside India, is taxable in India depends upon the residential status of an individual in India. Similarly, whether an income earned by a foreign national in India (or outside India) is taxable in India depends on the residential status of an individual, rather than his citizenship. Therefore, the determination of the residential status of the person is very significant in order to find out his tax liability[1]. One can say that taxation of the assessee depends on his residence. Therefore, the first inquiry is always towards proper ascertainment of the residential status of an assessee. In a decision of the Calcutta High Court[2] the learned judge observed,

“in my opinion, the word residence in its simple and ordinarily meaning signifies the place where the human eats, drinks or sleeps, or where his family and servants eats, drink and sleep and where there is some permanence and continuance of such eating. Drinking and sleeping and the statement of Bayley Justice in the case of King v. Inhabitants of North curry, is in m opinion, an authority on that proposition.”

In that case the learned Judge said that: where there is nothing to show that it is used in a more extensive sense, the word residence denotes the place where an individual eats, drinks and sleeps and where his family and servants eat, drink and sleeps[3].

 In the case of the Resident, the whole of the income is taxable whether earned in India or outside India. In the case of a Non-resident, only the income earned in India is taxed. There should be a base for the government for taxing any income of a person. Indian government has taken 3 bases for levy of income-tax in India:

  1. Residence.
  2. Source of Income.
  3. Receipt of Income.

For the levy of income-tax, Indian Government can tax the global income of Indian tax residents; or the Indian sourced income & income received in India of tax non-residents of India.

Foreign sourced income of the Indian residents becomes taxable in India. Conversely, foreign sourced income of the non- residents is not taxable in India. Thus, a person will always try to become a non- resident in India for the purpose of taxation. A person can become a non-resident by proper planning in advance. Viscount Sumner[4]  has remarked: “It is trite law that His Majesty’s subjects are free, if they can, to make their own arrangements so that their cases fall outside the scope of the taxing Act.”

Therefore, it is very important to understand when a person becomes resident in India. Similarly it’s important to understand the concept of resident and not ordinarily resident in terms of Hindu undivided family and companies.

 

Legislative history with explanatory notes

This section re enacts, in an approved form the provision of sections 4A and 4B of the 1922 Act.

“4A. Residence in the taxable territories- For the purpose of this Act-

  1. Any individual is resident in the taxable territories in any year if he-
  2. Is in the taxable territories  in that year for a period amounting in all to one hundred and eight two days or more; or
  3. Maintains or has maintained  for him a dwelling place in the taxable territories for a period or periods amounting in all to one hundred and eighty two days or more in that year, and is the taxable territories for any time in that year; or
  4. Having within the four years preceding that year been in the taxable territories for the period of, or for periods amounting in all to three hundred and sixty five days or more is in the taxable territories for any time in that year otherwise than on an occasional or casual visit; or
  5. Is in the taxable territories for any time in that year and the Income tax officer is satisfied that such individual having arrived in the taxable territories  during that year is likely to remain in  the taxable  territories for not less than three years from the date of his arrival;
  6. A Hindu undivided family, firm or other association of persons is resident in the taxable territories unless the control and management of its affair is situated wholly without the taxable territories.
  7. A company is resident in the taxable territories in any year, if-
  8. It is an Indian company; or
  9. During that year the control and management of its affairs is situated wholly in the taxable territories.

4B. Ordinary Residence- For the purpose of this Act-

  1. An individual is not an ordinarily resident in the taxable territories in any year if he has not been resident in the taxable territories in nine out of ten years preceding that year or if he has not during the seven years preceding that year been in the taxable territories for a period of, or for periods amounting in all to, more than two years;
  2. A Hindu undivided family is deemed to be ordinarily resident in the taxable territories if its manager is ordinarily resident in the taxable territories;
  3. A company, firm or other association of persons is ordinarily resident in the taxable territories if it is resident in the taxable territories[5].”

 

Now, under the Income Tax Act of 1961 the following provision is there;

Residence in India.

6.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)   [6][* * *]

        (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.

                       [7][Explanation.—In the case of an individual,—

        (a)   being a citizen of India, who leaves India in any previous year [[8]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.]

             (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 managementof its affairs is situated wholly 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 management of its affairis situated whollyin 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.

          [[9](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.[10]]

The test of residence for an individual is to some extent different from those in 4A of the 1922 Act. The changes are noted in the appropriate places. There is no change in the test of residence for the other assessees and the test of ordinary residence (section 4 of the 1922 Act)[11].

Basic rules for determining residential status of an Assessee:

This section lays down the technical tests of territorial connection amounting for residence for all taxable entities. Two alternative tests are provided for individuals, two for companies, and one for Hindu undivided families, firms, associations of persons and other assessable units. The tests are artificial- stay for a day more or less may make a difference- but they make for precision and certainty, and they were held valid and inter vires under the 1922 Act[12].[13]

Residential status: three types of residential status are envisaged for an assessee under the Act. He may be-

  1. Resident (also known as resident and ordinarily resident)
  2. Non resident or not resident.
  3. Resident but not ordinarily resident (a category of residential status) only applicable to individuals and Hindu undivided families.[14]

The following basic rules must be kept in mind while determining the residential status;

  • Residential status is determined by each category of persons separately e.g., there are separate set of rules for determining the residential status of an individual and separate rules for companies etc.
  • Residential status is always determined for the previous year because we have to determine the total income of the previous year only.
  • Residential status of person is determined for every previous year because it may change to year to year. For example A who is resident of India in the previous year 2004-05, may become a non resident in the previous year 2005-06.
  • If a person is resident in India in a previous year relevant to assessment year in respect of any source of income, he shall deemed to be resident in India in previous year relevant to the assessment year in respect of each of his other source of his income.
  • A person may be resident of more than one country of any previous year.
  • Citizenship of a country and residential status of that country are separate concepts. A person may be an Indian national/citizen, but may not be a resident in India. On the other hand, a person may be a foreign national/citizen, but may be a resident in India.
  • It is the duty of the assessee to place all material facts before the assessing officer to enable him to determine his correct residential status.[15]

Rules for determining the residential status of an individual under section 6(1)

An individual may either be a:

  1. Resident in India
  2. Non resident in India

An individual cannot be simply called a resident in India.

If he is resident in India, we have to further determine whether he is

  1. Resident and ordinarily resident in India; or
  2. Resident but not ordinarily resident in India[16].

                                                        Individual

                               Resident

 

Non resident

Ordinarily resident

Not ordinarily resident

 

 

4.1 When an individual is said to be resident in India

An individual is said to be resident in India if he satisfies any one of the following two conditions:

  1. He is in India for a period or periods amounting in all to 182 days or more in the relevant previous year; or
  2. He is India for sixty days or more during the relevant previous years and has been in India for 365 days or more during four previous years immediately preceding the relevant previous year[17].

4.1.1 Exceptions provided:

There are however two exceptions to the above rule:

  1. In case of an individual, who is a citizen of India and who leaves India in any previous year for the purpose of employment outside India, the period of 60 days in condition no. 2 shall be substituted by 182 days from assessment year 1983-84 onwards i.e., he shall not be a resident of India unless his stay in India is at least 182 days during the relevant previous year in which he leaves India. Similarly, in case of an individual who is a citizen of India and who leaves India in any previous year as a member of the crew of an Indian ship, the period of 50 days shall be substituted by 182 days from assessment year 1990-91.
  2. In case of an individual, who is a citizen of India, or is a person of Indian origin, who, being outside India, comes on a visit to India in any previous year, the period of 60 days in the second condition given above, will be substituted by 182 days i.e. he shall not be a resident unless his stay in India is at least 182[18] days during the relevant previous year in which he visits India[19].

4.1.2 Judicial decisions:

Section 6(1) applies to all individuals:section 6(1) lays down the technical test of territorial connection amounting to residence to all individuals- foreigners as well as Indians include Hindus, Christians, Muslims, Parsis and others irrespective of the personal laws governing them.[20]

Onus to prove stay in India with department: the onus of proving that the assessee was an India during the four years preceding the previous year for a period or periods in aggregate of not less than 365 days, and was in India for at least 60 days during the previous year, lies on the department.[21]

Meaning of employment: the term employment is not defined in the Income Tax Act as such we may refer to some other judgments where some judged have defined the term employment. In the case of Westall Richardson Ltd v. Roulson[22]the honourable judge Denma Justice stated that the word employment is one of very wide significance. But the word ‘employer’ and the ‘employee’ are much restricted in their meaning. Thus, I may be said to employ my time and talents without being in any proper sense of employer, and I may also to be paid as employed in some pursuit or activity without being an employee[23].

A person merely undertaking tours abroad in connection with his employment in India would not be eligible for the relaxation provided under exception [24][25].

4.2 When an individual is said to be resident and ordinarily resident in India

The law has not prescribed the conditions of ordinarily resident in India. Section 6(6) states that an Individual shall not be ordinarily resident if he satisfies any one of the following two conditions;

  1. He has been a non resident in India in 9 out of 10 previous years immediately preceding the relevant previous year,
  2. He has been in India for a period of 729 days or less in 7 previous years immediately preceding the relevant previous year.

Deriving from the above, an individual who is resident in India, shall be resident and ordinarily resident in India if he satisfies both the following conditions

  1. He has been resident in India for at least 2 out of 10 previous years immediately preceding the relevant previous year. This means that he must satisfied any one of the conditions with exceptions for being the resident for at least 2 out of 10 previous years immediately preceding the relevant previous year.
  2. He has been in India for 730 days or more, during 7 previous years immediately preceding the relevant previous year.

4.3 When an individual is said to be non resident but not ordinarily resident in India under section 6(6) (a)

An individual who is resident in India is said to be “not ordinarily resident in India” if he satisfies condition no. (1) and (2) above. Or, in other words, if he does not satisfy any or both of the conditions mentioned in clause (a) and (b) above.

When an individual is said to be non resident in India under section 2(30)

An individual is said to be non resident, if he is not a resident in India i.e. none of the conditions (with exception) mentioned above is satisfied[26].

4.4 Analysis of tests of residence for individuals

The tests of residence[27] provided in this clause (1) for individuals are alternative and not cumulative. Each of the two tests[28] requires the personal presence of assessee in India for the stated period in the course of accounting year. If the assessed is continuously out of India during whole of a year, although, he may be, in the non-technical sense, ordinarily resident in India.

If the assessee’s stay in India is of requisite duration, he would be deemed to be resident, although he may put up at hotels. Not always at the same hotel, and never for long.[29] As Rowlatt J., observed in Levene v. IR[30] a complete wanderer, an absolute tramp, or the rich person of the same type wandering from hotel to hotel and never staying two nights in a same place, may still be a resident here, although he cannot be called as resident in any particular spot.[31] Stay in the yacht moored in the territorial waters in India would be a stay in India for the purpose of this section.[32] The term ‘India’ means the geographical territories and the territorial waters of India, and does not include Indian ships operating beyond the Indian territorial waters. Therefore, for computing the days, for which a person is in India, his stay in Indian ship abroad is not to be taken into account.[33] The Finance Act 1990 gave statutory recognition to this view with an amendment to the explanation to section 6(1) which ensured that the Indian seamen working on board an Indian ship would be treated as resident in India for any year only if the stay in India is for 182 days and more in that year.

A man might well be compelled to reside here completely against his will. The exigencies of business often forbid the choice of his residence, and though a man may make his home elsewhere and stay in this country only because business compelled him, nonetheless, if the conditions specified in the sections are satisfied he must be held to be resident here.[34] In law, a man may be resident in two different countries in the same year, although he can only have one domicile[35]. Only because there is an open border between India and Nepal and passport is not required for travel to and fro, it cannot presumed that a person claiming to be an Indian national residing in Nepal is a non-resident Indian.[36] The burden of proof to prove that a person is non-resident has to be discharged by him on the basis of material on record.[37]

 

Residential status of Hindu undivided family (HUF) under section 6(2)

5.1 When is HUF said to be resident in India

A HUF is said to be resident in India in any previous year in every case except where during that year the control and management of its affairs is situated wholly outside India.

When HUF said to be a non resident

It will be non resident in India if no part of the control and management of the affair are situated in India.

Once the HUF is resident in India it is to be further determined whether it is:

  1. Resident and ordinarily resident in India
  2. Resident but not ordinarily resident in India.

 

5.2 When in HUF said to be resident and ordinarily resident in India

Like in case of individuals, section 6(6) states that HUF shall be said to be not ordinarily resident of India if the karta of the HUF satisfies any of the following two conditions:

  1. He has been a non resident in India in 9 out of 10 previous years immediately preceding the relevant previous year,
  2. He has been in India for a period of 729 days or less in 7 previous years immediately preceding the relevant previous year.

Deriving from the above, the HUF is said to be resident and ordinarily resident in India if the karta of the HUF satisfies both the following conditions:

  1. He must be resident in at least 2 out of 10 previous years immediately preceding the relevant previous year
  2. He must be in India for at least 730 days during 7 previous years immediately preceding the relevant previous year.

5.3 When is HUF said to be resident but not ordinarily resident in India under section 6(6) (b)

A HUF, which is resident in India, is said to be resident but not ordinarily resident in India during the relevant previous year, if the manager of the HUF satisfies anyone of the conditions mentioned under (1) and (2) above or in other words, does not satisfy anyone, or both, of the conditions mentioned in clause (a) and (b) above[38].

5.4 Residentialstatus of firm, association of persons (AOP), body of individuals (BOI) under section 6(2) and of other person under section 6(4)

These entities may either be resident or non resident in India for any previous year.

  1. When is a firm, AOP, BOI said to be resident in India

A firm, AOP, BOI etc is said to be resident in India in any previous year in all cases except where during that year the control and management of its affairs is situated wholly outside India. In the case of a firm, the control and management is in the hands of partners and therefore, if the partners generally meet in India regarding the affairs of the firm, then the firm is said to be resident in India.

  1. When is a firm, AOP, BOI etc said to be non resident in India

If the control and management of the affairs of these entities is wholly out of India during the relevant previous year then they are said to be non resident. In other words, to be non resident, no part of the control and management should be in India.

A HUF, firm or other association of persons is resident in India if the control and management of its affairs is situated wholly or in part in India.[39] It is only when the control and management is situated wholly outside this country that these units of assessment are regarded as non resident. Since partial control is sufficient for the purpose of residence, a firm may have in law two places of residences.[40] The residence of partners[41], or of individual member of the HUF[42] is immaterial for the purpose of determining the residence of the firm or the family, except in so far as such residence affects the control and management of the affairs of the firm or family[43]. The residence of partners in India normally raises the presumption that the firm is resident in India, but the presumption may be rebutted by showing that the control and management of the affairs of the firm is situated wholly outside India.[44]

5.5 “Control and management” and “De facto control”:

The control and management of the business is situated at the place where, as was said  in San Paulo (Brazilian) Rly Co Ltd v. Carter,[45] ‘the head and brain of the trading adventure’ is situated; and the place of control may be different  from the place where the corporeal subjects of trading are to be found. Control of a business, and therefore, the place where trading activities or physical operations are carried on is not necessarily the place of control and management.[46]

The leading case on construction of this clause is Subhayya Chettiar v. CIT[47] which was concerned with the residence of a HUF. The following propositions are established by the judgment of the Supreme Court in this case:

  1. Normally a HUF is presumed to be resident in India unless the assessee proves that the control and management of its affairs is situated wholly outside India. This clause is largely based on the rule applied to England in cases of corporations. Generally speaking, the joint family, like corporation in English Law, resides where the central management and control actually abides. ‘Control and management’ signifies the controlling and directive power, the head and brain; and; ‘situated’ implies the functioning of such power at a particular place with some degree of permanence.
  2. The word ‘affairs’ in this clause means affairs which are relevant for the purpose of this Act and which have some relation to the income sought to be assessed. Mere activity by the family or its karta in a place does not create residence. The place of control, and therefore, or residence, may be different from the place where a family does a great deal of business.
  3. The seat of the management and control of the affairs of the family may be divided, and if so, the family may have more than one residence.
  4. If the seat of management and control is abroad, it would need much more than bare activities in India to support the finding that the seat of management and control has shifted or that the second shelter of such management and control had been started in India. Occasional and sporadic visits of the non resident karta to a place where the family business is carried on in India, or casual direction given in respect of the business while on such visits, would be insufficient to make family resident in India.[48]

It was laid down by the Supreme Court in Erin v. CIT[49] and CIT v. Nandlal Gandalal[50] approving the decision of the Bombay High Court in Naik v. CIT[51] that control and management means de facto control and management, and not merely the right to control and manage.[52] The HOL held to the same effect in Egyptian Hotel Ltd. V. Mitchell[53] and Bullock v. Unit Constructions Company Ltd[54]. In Naik’s case, a partner who under the term of partnership deed had full power of control over the firm’s business, resided in India, while the firm business is carried out in South Africa. In the absence of any evidence that he in fact controlled and managed the firm business from here, his residence was held to be insufficient to establish the residence of firm in India[55].

 

 

 

 

Residential status of a Company under section 6(3)

6.1 When a company is said to be resident in India

A company is said to be resident in any previous year if:

  1. It is an Indian company
  2. During the relevant previous year, the control and management of its affairs is situated wholly in India.

6.2 When is a company said to be non resident in India

A company will be non resident in any previous year if:

  1. It is not an Indian company
  2. The control and management of its affairs is situated wholly or partially outside India[56].

6.3 Analysis of the tests of residence of companies:

Two alternative tests are provided for determining the residence of companies. A company is resident here (i) if it is an Indian Company or, (ii) the control and management of its affairs is situated wholly in India in the accounting year. Thus, even Indian company, as that expression is defined in section 2(26), is deemed to be resident in India even if its control and management is situated wholly and partly abroad; while a non Indian company is deemed to be resident in India only if its control and management is situated wholly in India. A company registered abroad is a foreign company, but a foreigner can reside here so can a foreign company.[57]

In the classic words of Lord Lorebum in De Beers Consolidated Mines Limited v. Howe[58], a company cannot eat and sleep but it can keep house and do business, and for purposes of Income Tax, a company resides where it really keeps house and does business, where the central management and control generally abides.[59] In law company may have more than one residence.[60] If a company is also residence elsewhere that would not necessarily displace its residence in India under this Act.[61]

6.4 Meaning of “Affairs” and “control and management of company”

In a particular case[62], the assessed, the foreign banking company went into liquidation. The official liquidator was appointed liquidator of the bank. It was held that assessed was to be deemed to be resident, as the company in liquidation has income from interest and rent in India and affairs relating to earning of such income were being controlled and managed in India by the official liquidator. The word ‘affair’ means affairs, which are relevant for the purpose of the Act and which have some relation to the income sought to be assessed.[63]

While the locale of control and management is the sole test of residence for a Hindu undivided family, firm and other associations of persons, it is an alternative test for companies. Again, a Hindu undivided family, firm or other association of persons is resident here even if the control and management is partially situated here, while a non Indian company which is partially or wholly controlled abroad situated here.[64] A non Indian company which is partially or wholly controlled abroad is to be regarded as non-resident.

In English cases companies have been held to be resident if the control and management was situated substantially in the United Kingdom[65], whereas this clause requires the control and management to be situated wholly in India[66].

The expression ‘control and management’ in this clause is used in relation to ‘affairs’ and not ‘business’. The expression ‘affairs’ may be said to be much wider than the expression ‘business’; further the expression ‘affairs’ means affairs which are relevant for the purposes of this act and which have some relation to the income sought to be assessed.[67]

As a rule, the direction, management and control, ‘the head and seat and directing power’ of a company’s affairs is situated at the place where the directors’ meetings are held and consequently , a company would be resident in this country if the meetings of directors who manage and control the business are held here.[68] The control and management would still be wholly situated in this country, although one or more of the directors may reside in the country where the company’s physical undertaking and subjects of the trade are situated, provided their powers are delegated to them by, and their actions are under the control of, the board of directors in this country.[69] On the other hand, if the actions of the directors residing abroad are not in fact subject to the control of directors in this country, the control and management would not be wholly situated in India.[70] It is not what the directors have power to do, but what they actually do that is of importance in determining the question of the place where the control is actually is exercised[71], for as Lord Sumner said in Egyptian Hotels Ltd v. Mitchell[72], “where the directors forbore to exercise their powers, the bare possession of those powers was not equivalent to taking part in or controlling the trading.” In this clause, as in the preceding one, control means de facto control and not merely de jure control.[73]

The control and management of a company’s affairs is not situated at a place where the shareholders meetings are held, even if one shareholder, by reason of his holding an absolute majority of shares, has a decisive voice in matters relating to the company’s affairs.[74] ‘The control of individual corporators is something wholly different form the management itself. Nor is this principal less true when the holding of the individual corporator is so large that he is able to over ride the wishes of the other corporators in matter relating to the control of the business of the company. The extent, but not then nature, of his power is changed by the magnitude of his holding.[75] The control and management, the head and brain does not reside where there is some ultimate power of control such as power to alter the articles of association by special resolution of the power to interfere with fundamental finance,[76] nor where the clever manager looks after the business,[77] nor where dividends are paid and declared.[78]

A company may be resident here even though its entire trading operation is carried on abroad.[79] If the management and control is situated here, the company is resident here, and it does not in the least matter where the actual selling and buying of the goods take place[80].

6.5 Residential status is subject to certain changes

A company may change the place of its control and management.[81] Hence, a non Indian company which is resident in India in one year may, like any other assessed, not be resident in the next[82].[83]

6.6 Same residential status for all sources of Income under section 6(5)

The provision of section 6(5) is important. If a person is found to be a resident in respect of any one source of income, he shall be deemed to be resident in respect of all sources of his income. Before 1961 an assessed could have different previous year for different sources of income and as a result a problem arose as to how its residential status was to be decided. The position was that if an assessed had several sources of income outside India, he could escape tax, in respect of one or more sources by claiming to be non resident in respect of such source on the principal that assessed was entitled to have separate accounting period of his choice in respect of each source of his income.[84] Thus, if the assessed had three business in foreign countries, the accounting period for which respectively were on 31st October, 31st December and 31st March and the assessee came to India for the first time on 30th September, he would be in India for 182 days in respect of the business, the accounting period of which ended on 31st March but was non-resident, since his stay in India in respect of other businesses would be less than 182 days. According to 1992 Act, in such a situation, the assessee could claim exemption from tax in respect of income from these two other businesses. Under 1961 Act, the assessee having become a resident in respect of the business the accounting period of which end on 31st March, will be treated as resident in respect of other two businesses as well and is taxable in respect of all the businesses.[85] Under this Act the assessed is not entitled to claim any exemption in respect of those two businesses since being a resident of a third business, the same status will be attributed to him in respect of those other two businesses. It has also been held that the fact that the previous year for the purpose of assessment in the earlier year under section 3(1)(c) of the Act would not stand in the way of the application of section 6(5) for the purpose of determining the assessee’s residential status in the relevant year.[86]

The provisions of section 6(5) have become redundant with the introduction of a uniform previous year for all sources of income under section 3, as amended with effect from April 1, 1989. However, the problem envisaged under this sub section may arise for the assessment year 1989-90 for which there will be a transitional previous year as envisaged under the Tenth Schedule[87].

Burden of proof

The Supreme Court laid down in Subbayya Chettiar v. CIT[88] that clause(2) of this section raises a presumption that a joint family or a firm is resident in India and the onus of providing that the case falls within the exception provided by the latter part of the clauses is on assessed.[89] However clause (1) and (3) are framed differently and under those clauses the burden of proving than an individual[90] or a company is resident in India would be on the department[91].

                                                                                    Conclusion

To sum up, the tests of residence provided in clause (1) for individuals are alternative and not cumulative. Each of the two tests requires the personal presence of assessee in India for the stated period in the course of accounting year. If the assessed is continuously out of India during whole of a year, although, he may be, in the non-technical sense, ordinarily resident in India.

The term ‘India’ means the geographical territories and the territorial waters of India, and does not include Indian ships operating beyond the Indian territorial waters. Therefore, for computing the days, for which a person is in India, his stay in Indian ship abroad is not to be taken into account.[92] The Finance Act 1990 gave statutory recognition to this view with an amendment to the explanation to section 6(1) which ensured that the Indian seamen working on board an Indian ship would be treated as resident in India for any year only if the stay in India is for 182 days and more in that year.

A Hindu undivided family, firm or other association of persons are said to be resident in India in any previous year in every case except where during that year the control and management of its affairs is situated wholly outside India. Further, the presence of one of the partners in India who keep himself in touch with the affairs of the business will not constitute second centre of control in India. It has been repeatedly held by the courts that mere presence of partners in India would not lead to an inference that the control and management of the firm had been exercised in India.

An Indian company is deemed always to be resident in India wherever it may have its business. Further, if the company is not an Indian company, it shall be treated as resident in India in any previous year, if during that year, the control and management of its affairs are situated wholly in India. Control and management is one thing but the carrying of business operation of a company is quite another thing. By control and management of affairs meant not control and management of the day to day affairs of the business conducted through agents, employees and servants. In construing the expression control and management it is necessary to bear in mind the distinction between doing of business and control and management of the business. Business and the whole of it may be done outside and yet the control and management of the business is wholly within India.

In case of non companies’ entities like firms and associations of persons, if during the previous year, the control and management is situated partly in India, they become resident in India. In cases of non Indian Companies such partial situation of control and management of its affairs is not sufficient to make it a resident in India.

[1] Taxman, Students’ Guide to Income Tax, Tans Prints (India) pvt. Ltd., 33rd Ed., 2005-06, p-27.

[2] Calcutta Stock Exchange Association Ltd., In re, [1935] 3 ITR 105.

[3] Ajoy Halder, “Residence with respect to Artificial entities”, Taxman, Feb 28- March 5, 2004.

[4] [Levene V. IRC 13 TC 486, 501 (HL)]

[5] Sampathi Iyenger. Law of Income Tax: A commentary on Income Tax Act, 1961, Bharat Law House Pvt. Ltd., pp-843-844.

[6] Omitted by the Finance Act, 1982, w.e.f. 1-4-1983.

[7] Substituted by the Direct tax Laws (Second Amendment) Act, 1989, w.e.f. 1-4-1990.

[8] Inserted by the Finance Act, 1990, w.e.f. 1-4-1990.

[9] Substituted by the Finance Act, 2003, w.e.f. 1-4-2004.

[11] Kanga, Palkhivala and Vyas, The Law and Practice of Income Tax, Lexis Nexis Buttersworths, I Vol, IX Ed.,2004, p-348.

[12] Kanga, Palkhivala and Vyas, The Law and Practice of Income Tax, Lexis Nexis Buttersworths, I Vol, IX Ed.,2004, p-348.

[13] Wallace v. C.I.T., 16 ITR 240, 246 (PC).

[14]  Sampathi Iyenger. Law of Income Tax: A commentary on Income Tax Act, 1961, Bharat Law House Pvt. Ltd., p- 848.

[15] Girish Ahuja and Ravi Gupta. Concise Commentary on Income Tax, Bharat Law House Pvt. Ltd., 6th Ed., 2005, pp-67-68.

[17]http://www.caalley.com/art/cas09_0318.html, taken on 16th August 2010.

 

[18] For assessment year 1983-84 to 1989-90 90 days.

For assessment year 1990-91 to 1994-95 150 days.

[19] Girish Ahuja and Ravi Gupta. Concise Commentary on Income Tax, Bharat Law House Pvt. Ltd., 6th Ed., 2005, pp-68-69.

[20]  CIT v. Ramaswamy ,(K.S.) (1980) 22 ITR 217 SC.

[21] C.I.T. v. Dhote, (B.K.) (1967) 66 ITR 457 (SC).

[22] (1954) 2 AER 448.

[23] Girish Ahuja and Ravi Gupta. Concise Commentary on Income Tax, Bharat Law House Pvt. Ltd., 6th Ed., 2005, p-70.

[25] ITO v. Patel (KY) (1990) 33 ITD 714 (Bom) (ATI).

[26] Kanga, Palkhivala and Vyas, The Law and Practice of Income Tax, Lexis Nexis Buttersworths, I Vol, IX Ed.,2004, p-349..

[27] They apply to diplomatic personnel and their family members irrespective of International Law: CIT v. Sharda, 81 ITR 197.

[28] They were four in 1922 Act, and three in present Act till assessment year 1982-83.

[29] Lyaght v. IR, 13 Tc 511 (HL).

[30] 13 TC 486, 492.

[31] Ried v. IR, 10 TC 673, 679.

[32] Brown v. Burt, 5 TC 667.

[33] CIT v. Avtar Singh,247 ITR 260.

[34] Lyaght v. IR, 13 TC 511 (HL).

[35] Levene v. IR, 13 TC 486, 492.

[36] Ram Kumar v. UOI, 252 ITR 205.

[37] Choudhary v. UOI, 186 ITR 329, 337.

[38] Girish Ahuja and Ravi Gupta. Concise Commentary on Income Tax, Bharat Law House Pvt. Ltd., 6th Ed., 2005, pp-74-75.

[39] Khambhaty v. CIT, 61 ITR 30.

[40] Re Sarupchand, 13 ITR 245; CIT v. Erin, 20 ITR 412, 421.

[41] Naik v. CIT, 13 ITR 124,130.

[42] CIT v. SPKARM family, 19 ITR 685.

[43] Shrigopal v. CIT, 119 ITR 980, 983.

[44] Erin v. CIT, 34 ITR 1 (SC).

[45] 3 TC 407, 410 (HL); CIT v. Nandlal, 40 ITR 1,7 (SC).

[46] Erin v. CIT, 34 ITR 1 (SC).

[47] 19 ITR 168.

[48] Narasimha v. CIT, 18 ITR181, 194.

[49] 34 ITR 1, 5.

[50] 40 ITR 1, 7.

[51] 13 ITR 124, 127, 128-09.

[52] Narasimha v. CIT, 18 ITR181, 194, Mohammad Routher v. CIT, 49 ITR 39.

[53] 6 TC 542, 550, 552.

[54] 38 TC 712, 42 ITR 340.

[55] Kanga, Palkhivala and Vyas, The Law and Practice of Income Tax, Lexis Nexis Buttersworths, I Vol, IX Ed.,2004, pp-352-354.

 

[56] Girish Ahuja and Ravi Gupta. Concise Commentary on Income Tax, Bharat Law House Pvt. Ltd., 6th Ed., 2005, p-78.

[57] De Beers v. Howe, 5 ITC 198, 214 (HL); New Zealand shipping v. Thew, 8 TC 208 (HL);  American Thread v. Joyce, 6 TC 1 and 163 (HL); New Zealand shipping v. Stephens, 5 TC 553 (CA).

[58] 5 TC 198 (HL).

[59] Todd v. Egyptian Delta, 14TC 119 (HL).

[60] Swedish Railway v. Thomson, 9 Tc 342, 372-3 (HL); Todd v. Egyptian Delta, 14 TC 119, 144 (HL).

[61] Swedish Railway v. Thomson, 9 Tc 342, 372-3 (HL); Todd v. Egyptian Delta, 14 TC 119, 144 (HL).

[62] CIT v. Bank of China, (1985) 154 ITR 617/23, Taxman 46 (Cal).

[63] A.C. Sampath Iyengar, The Law of Income Tax, Bharat Law House Private Limited, 1994, P-865.

[64] Narottam v. CIT, 23 ITR 454, 459.

[65] New Zealand shipping v. Thew, 8 TC 208 (HL); De Beers v. Howe, 5 ITC 198, 214 (HL).

[67]Universal Cargo v. CIT, 205 ITR 215.

[68] Narottam v. CIT, 23 ITR 454, 459; San Paulo Rly v.Carter, 3 TC 407, 413 (HL); Naik v. CIT, 14 ITR 334, 339;

[69] Calcutta Jute v. Nicholson, 1 TC 83; Cesena v. Nicholson, 1 TC 88, New Zealand shipping v. Thew, 8 TC 208 (HL); De Beers v. Howe, 5 ITC 198, 214 (HL).

[70] Egyptian Hotel v. Mitchell, 6 TC 542, 551-52 (HL), where, however question is not of company’s residence but whether company’s was carrying of ‘business in the UK’.

[71] Ajoy Halder, “Residence with respect to Artificial entities”, Taxman, Feb 28- March 5, 2004.

[72] Egyptian Hotel v. Mitchell, 6 TC 542, 551-52 (HL).

[73] Narottam v. CIT, 23 ITR 454, 459.

[74] Stanley v. Gramophone and Typewriter, 5 TC 358 (CA).

[75] Stanley v. Gramophone and Typewriter, 5 TC 358 (CA), p-376 as per Fletcher Moulton LJ,.

[76] Noble v. Mitchell, 11 TC 372, 511 as per Rowlatt J.

[77] Narottam v. CIT, 23 ITR 454.

[78] Egyptian Hotel v. Mitchell, 6 TC 542 552 (HL).

[79] Narottam v. CIT, 23 ITR 454, San Paulo Rly v.Carter, 3 TC 407, 413 (HL).

[80] Egyptian Hotel v. Mitchell, 6 TC 542, 551-52 (HL), on appeal 6 TC 548 (HL).

[81] Todd v. Egyptian Delta 14 TC 119 (HL), Egyptian Hotel v. Mitchell, 6 TC 542, 551-52 (HL).

[82] Kanga, Palkhivala and Vyas, The Law and Practice of Income Tax, Lexis Nexis Buttersworths, I Vol, IX Ed.,2004, pp-354-357.

[83] Wallace v. CIT, 13 ITR 39, 44-45, affirmed in 16 ITR 240 (PC).

[84] A.C. Sampath Iyengar, The Law of Income Tax, Bharat Law House Private Limited, 1994, P-869.

[85] A.C. Sampath Iyengar, The Law of Income Tax, Bharat Law House Private Limited, 1994, P-869

[86] CWT v. PR Shanmugan, (1985) 153 ITR 330/23 Taxman 371 (Mad).

[87] Ajoy Halder, “Residence with respect to Artificial entities”, Taxman, Feb 28- March 5, 2004.

[88] 19 ITR 168.

[89] Erin v. CIT 34 ITR 1 (SC); Knightsdale v. CIT  28 ITR 650, 667.

[90] CIT v. Dhote, 66 ITR 457 (SC).

[91] Kanga, Palkhivala and Vyas, The Law and Practice of Income Tax, Lexis Nexis Buttersworths, I Vol, IX Ed.,2004, p-359..

[92] CIT v. Avtar Singh,247 ITR 260.

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