Monday, March 20, 2017

Residential Status and Incidence of Tax

Unit – I: Introduction to Income Tax
Q.1. Write short notes on: (a) Assessment year (b) Previous Year (c) Charge of income tax (d) Capital asset  (e) Agricultural income (f) Person (g) Assessee (h) Revenue Vs Capital expenditure (i) Gross Total Income (j) Capital receipts (k) Revenue Receipts Vs Capital Receipts (l) Tax Return (m) Method of accounting
Ans: (a) Assessment Year: [Sec. 2 (9)]
“Assessment Year” means the period of 12 months commencing on the 1st day of April every year. In India, the Govt. maintains its accounts for a period of 12 months i.e. 1st April to 31st March every year. As such it is known as Financial Year.  The Income Tax department has also selected same year for its Assessment procedure.
The Assessment Year is the Financial Year of the Govt. of India during which income a person relating to the relevant previous year is assessed to tax. Every person who is liable to pay tax under this Act, files Return of Income by prescribed dates. These Returns are processed by the Income Tax Department Officials and Officers. This processing is called Assessment. Under this Income Returned by the assessee is checked and verified.
Tax is calculated and compared with the amount paid and assessment order is issued. The year in which whole of this process is under taken is called Assessment Year. At present the Assessment Year 2013-2014 (1-4-2013 to 31-3-2014) is going on.
(b) Previous Year: [Sec. 3]

As the word ‘Previous’ means ‘coming before’ , hence it can be simply said that the Previous Year is the Financial Year preceding the Assessment Year  e.g. for Assessment Year 2013-2014 the  Previous Year should be the Financial Year ending 31st March 2013. The term previous year is very important because it is the earned during the previous year is to be assessed to tax in the assessment year. The simple rule is that the income of a previous year is taxed in its relevant assessment year. At present the previous Year 2012-2013 (1-4-2012 to 31-3-2013) is going on.
(c) Charge of Income Tax (Sec. 4)
Section 4 is the charging section for the Income tax Act, 1961 (the Act). It provides for the charge and collection/ payment of Income Tax India. The important Provisions of this section are:
Ø  Where any Central Act enacts for any Assessment Year that income-tax shall be charged at any rate or rates,
Ø  Income-tax at that rate or rates (including additional tax) shall be charged for that year in accordance with and subject to all the provisions of the Act.
Ø  In respect of the Total Income of the Previous Year of every Person
Ø  However, if by virtue of any provision of the Act, Income Tax India is to be charged in respect of the income of a period other than the previous year, then it shall be charged accordingly.
Ø  The Income-tax chargeable as above shall be deducted at source or paid in advance, if so required under any provision of the Act.
(d) Meaning of Capital Assets under Sec. 2(14) means:
Capital assets means Property of any kind held by an assessee which can be sold including property of his business or profession,
Except the Following:
1. Stock-in-trade, consumable stores or raw materials held for the purpose of business or profession.
2. Personal movable properties viz. furniture, motor vehicles, refrigerators, musical instruments etc. held for personal use of the assessee or his family. But personal property does not include the following:
Ø  Jewellery
Ø  Residential house property
Ø  Archaeological collections, drawings, paintings, sculptures, or any work of art.
3. Rural Agricultural land:
Ø  Land within the jurisdiction of a municipality or cantonment board having population of 10,000 or more or
Ø  Land situated within 8 kilometers from the local limits.
4. Special Bearer Bonds, 1991, 6.5% Gold Bonds, 1977 or 7% Gold Bonds, 1980 or National Defense Bonds, 1980, Gold deposit bonds issued under Gold Deposit Scheme, 1999. It is not necessary that the assessee should be the initial subscriber to the Gold Bonds.
(e) Agriculture Income [Section 2 (1A)]
Agriculture income is fully exempted from tax u/s 10(1) and as such does not form part of total income. As per Section 2(1A) agriculture income includes:
a)      Any rent or revenue derived from land which is situated in India and is used for agricultural purpose;
b)      Any income derived from such land by agriculture or by the process employed to render the product fit for market or by sale of such produce by the cultivator or receiver of rent in Kind.
c)       Any income derived from any building provided the following conditions were satisfied:
Ø  The building is or on the immediate vicinity of the agricultural land;
Ø  It is occupied by the cultivator or receiver of rent or revenue
Ø  It is used as a dwelling house or store house or out house ;
Ø  The land is assessed to land revenue and it is not situated within the specified area.
(f) Person [Section 2(31)]
Person includes seven types of persons namely:
a.       An individual;
b.      An Hindu undivided family (HUF);
c.       A company;
d.      A firm;
e.      An association of persons (AOP) or a body of individuals (BOI);
f.        A local authority;
g.       Every artificial juridical person not falling within any of the preceding sub clauses.
The 2 basic differences between AOP and BOI are:
a) In BOI there are only individuals but in AOP there can be any type of persons.
b) BOI is creation of law whereas AOP can be created by different persons coming together for doing some income producing activity on the voluntary basis.
(g) Assessee [Section 2 (7)]
To mean a person by whom any tax or any other sum of money payable under the Act and include:
i)        Every person in respect of whom any proceeding has been initiated under the act for the assessment of his income or the income of any other person.
ii)       A person who is deemed to be assessee under any provision of the Act.
iii)     A person who is deemed to be an assessee in default in any of the provision of the Act.
The above explanation divides various types of assessee into three categories:
(a)    Ordinary assessee
(b)   Representative assessee or deemed assessee
(c)    Assessee-in-default
(h) Revenue Vs Capital Expenditure
Revenue Expenditure: Revenue expenditure is outlay or expenses incurred in the day to day running of a company. In most cases revenue expenditure involves the procurement of services and goods that will be used within a financial year. Revenue expenditure does not improve or increase the income generating abilities of a company rather at best it leads to the maintenance of the current organisational revenue generating capacity.
All expenses of a revenue nature are recorded in the profit and loss account as either operating expenses, marketing and selling expenses and administrative expenses. Revenue expenses play a role in determining the profit earned or a loss by a company.
Revenue expenses are routine and recurring in nature and some examples of revenue expenditure include payments in staff wages and salaries, heating and lighting, depreciation, legal and professional fees, travel and subsistence, insurance, administrative expenses, most of marketing and public relations expenses, audit fees, office supplies, staff training costs, staff recruitment costs and minor or immaterial items of equipment.
Capital Expenditure: Capital expenditure represents outlay on fixed assets. Capital expenditure can be outlay of resources on the investment of long-term income generating capability of the company. Investment in fixed assets will lead to an increase or improvement in the investing company's revenue generating capacity. Capital expenditure can also be in the form of significant acquisitions or purchases of more expensive items of equipment that will last longer than a financial year.
All capital expenditure is recorded on the balance sheet. Capital expenditure will be depreciated or amortised annually to ensure that an expense is charged to the profit and loss account to reflect the capital expenditure's usage by the company.
Some of the examples of capital expenditure include outlay on land and buildings, plant and equipment, vehicles, computer equipment, product development costs, finance leases and software development costs.
General Principles cum difference between capita and revenue expenditure
To decide whether expenditure is capital and revenue in nature the following points should be considered. 
1.      Acquisition of Fixed Assets v. Routine Expenditure- Capital expenditure is incurred in acquiring extending or improving a fixed asset, whereas revenue expenditure is incurred in the normal course of business as business expenditure.
2.      Several previous years vs. one previous year- Capital expenditure produces benefits for several previous years, whereas revenue expenditure is consumed within a previous year.
3.      Improvement v. Maintenance- Capital expenditure makes improvements in earning capacity of a business. Revenue expenditure, on the other hand, maintains the profit making capacity of a business.
4.      Non-recurring v. Recurring- usually capital expenditure is a non-recurring outlay, whereas revenue expenditure is recurring outlay. 
(i) Gross Total Income
Section 14: As per section 14, all income, for purposes of income-tax, will be classified under the following heads of income.
(i)      Salaries,
(ii)    Income from House Property,
(iii)   Profits and gains of business or profession
(iv)  Capital gains
(v)    Income from other sources
Aggregate of incomes computed under the above 5 heads, after applying clubbing provisions and making adjustments of set off and carry forward of losses, is known, as gross total income (GTI) [Sec. 80B]

(j) Capital Receipts
A receipt in lieu of source of income is a capital receipt. For e.g., Compensation for the loss of employment is a capital receipt. Capital receipt is generally referable to fixed capital. For e.g., Sale price on the sale of assets, which assessee uses as a fixed asset in his business is a capital receipt. Capital receipts are never taxable. That’s why amount received from insurance company at the time of maturity is not taxed under Section 10(10D). Similarly loan taken is also not taxed. However, some of the capital receipts are taxable since they have been specifically provided in the definition of Income such as tax on Capital gains on sale of Capital asset. 
(k) Revenue Vs Capital Receipts:
Any receipt of money can either be categorized as revenue or capital. Revenue receipts are always fully taxable unless specific exemption has been provided for that. Capital receipts are never taxable. That’s why amount received from insurance company at the time of maturity is not taxed under Section 10(10D). Similarly loan taken is also not taxed. However, some of the capital receipts are taxable since they have been specifically provided in the definition of Income such as tax on Capital gains on sale of Capital asset.
DIFFERENCE BETWEEN CAPITAL RECEIPT AND REVENUE RECEIPT
Capital Receipt
Revenue Receipts
Ø  Capital receipt is generally referable to fixed capital. For e.g., Sale price on the sale of assets, which assessee uses as a fixed asset in his business is a capital receipt
Ø  Revenue receipt refers to circulating capital. For e.g., Sale price of the stock in trade is a revenue receipt
Ø  Payment received towards the compensation for the extinction of a profit earning source is a capital receipt
Ø  Payment received to compensate loss of earnings is a revenue receipt
Ø  A receipt in lieu of source of income is a capital receipt. For e.g., Compensation for the loss of employment is a capital receipt.
Ø  A receipt in lieu of income is a revenue receipt
Ø  Capital receipts are exempt from tax unless they are expressively taxable like in the case of capital gains
Ø  Revenue receipts are always taxable unless expressly exempt from tax under section 10

(l) Tax Return
The tax form or forms used to file income taxes with the Internal Revenue Service (IRS). Tax returns often are set up in a worksheet format, where the income figures used to calculate the tax liability are written into the documents themselves. Tax returns must be filed every year for an individual or business that received income during the year, whether through regular income (wages), interest, dividends, capital gains, or other profits. A return of excess taxes paid during a given tax year; this is more accurately known as a "tax refund".
(m) Method of Accounting [Section 145]
As per section 145, for income-tax purposes, only one of the following two methods of accounting can be followed:
a)      Mercantile system;
b)      Cash system.
Further, the profits from business and profession will have to be computed in accordance with accounting standards which may be prescribed by the Central Government from time to time. The Central Government has since notified the following two accounting standards to be followed by all assessee who are following mercantile system of accounting:
a)      Accounting Standard I relating to disclosure of accounting policies.
b)      Accounting Standard II relating to disclosure of prior period and extraordinary items and changes in accounting policies.
Q.2. Define the term “Previous year”. And “Assessment year"? Income tax is charged on the income of the previous year.” Do you fully agree with this statement? If not, what are the exceptions?
Ans: The rule that the income of the previous year is taxable as the income of the immediately following assessment year has certain exceptions. These are: 
1. Income of non-residents from shipping subject to following conditions
a)      Assessee should be Non Resident (NR).
b)      Assessee should own a Ship or Chartered by NR.
c)       Business of carrying passengers, livestock, mail or goods shipped at a port in India.
d)      The NR may (may not) have an agent in India.
2.  Income of persons leaving India either permanently or for a long period of time subject to following conditions
a)      It appears to the Assessing Officer that an Individual may leave India during the current Assessment Year (A.Y.) or shortly thereafter.
b)      He has no present intention of returning to India.
c)       The total income upto the probable date of his departure from India shall be chargeable to tax in that A.Y.
3. Income of bodies formed for short duration subject to following conditions
a)      There is an Association of Persons (AOP) or a Body of Individuals (BOI) or an artificial judicial person, formed or established or incorporated for a particular event or purpose.
b)      It appears to the Assessing officer (A.O.) that it is likely to get dissolved in the A.Y. in which it is formed or immediately after such A.Y. 
4. Income of a person trying to alienate his assets with a view to avoiding payment of tax
a)      It appears to the A.O. during any current Assessment Year that a person is likely to charge, sell, transfer, and dispose of any of his asset.
b)      Such asset may be movable or immovable.
c)       The intention is to avoid tax liability ; and 
5. Income of a discontinued business. In these cases, income of a previous year may be taxed as the income of the assessment year immediately proceeding the normal assessment year.  These exceptions have been incorporated in order to ensure smooth collection of income tax from the aforesaid taxpayers who may not be traceable if tax assessment procedure is postponed till the commencement of the normal assessment.
Q.3. “The incidence of tax depends upon the residential status of an assessee.” Discuss.
Ans:  As per Section 5 of the Income Tax Act 1961, incidence of tax on a taxpayer depends on his residential status and also on the place and time of accrual or receipt of income.
 In order to understand the relationship between residential status and tax liability, one must understand the meaning of “Indian income” and “Foreign income”. An Indian income is one which satisfies any of the following conditions:
a.       If income is received (or deemed to be received) in India during the previous year and at the same time it accrues (or arises or is deemed to accrue or arise) in India during the previous year, or
b.      if income is received (or deemed to be received) in India during the previous year but it accrues (or arises) outside India during the previous year, or
c.       if income is received outside India during the previous year but it accrues (or arises or is deemed to accrue or arise) in India during the previous year.
 Similarly, Foreign income is one which satisfies both the following conditions:
a.       Income is not received (or not deemed to be received) in India; and
b.      income does not accrue or arise (or does not deemed to accrue or arise) in India.
Indian income is always taxable in India irrespective of the residential status of the taxpayer. Foreign income of an individual and HUF from a business controlled or profession setup in India will be taxable in the hands of resident and ordinarily resident and resident but not ordinarily resident but not in the hands of a non-resident. However, Foreign income from a business controlled or profession setup outside India will be taxable only in the hands of resident and ordinarily resident and not in the hands of a resident but not ordinarily resident or a non-resident person.
Foreign income of any other taxpayer (Company, Firm, AOP, BOI etc.) will be taxable if the taxpayer is resident in India and will not be taxable in case the taxpayer is non-resident in India. 
Tax incidence of different taxpayers is as follows—
Particulars
ROR
RNOR
NR
Income received in India
Income deemed to be received in India
Income accruing or arising in India
Income deemed to accrue or arise in India
Income received/ accrued outside India from a business in India
Income received/ accrued outside India from a business controlled outside India
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
Yes
No
No

Q.4. Distinguish Tax Evasion, Tax Avoidance, Tax Mitigation and tax planning.
Ans: Tax Evasions, Tax Avoidance, Tax mitigation and Tax Planning
The methods adopted to reduce the tax liability can be broadly put into four categories: "Tax Evasion";”Tax Avoidance”, "Tax Mitigation", "Tax Planning".  The difference between these four methods sometimes become blurred owing to the perception of the tax authorities and / or tax payer.
Tax Evasion : Tax Evasion term is usually used to mean 'illegal arrangements where liability to tax is hidden or ignored i.e. the tax payer pays less than he is legally obligated to pay or by hiding income or information from tax authority.   Thus, here the tax liability is reduced by "illegal and fraudulent"  means. For example: understatement of income.
Tax Avoidance : Tax Avoidance refers to the legal means so as to avoid or reduce tax liability, which would be otherwise incurred, by taking advantage of some provision or lack of provision in the law.   Thus, in this case tax payer tries to reduce his tax liability but here the arrangement will be legal, but may not be as per intent of the law.   Thus, in this case, tax payer does not hide the key facts but is still able to avoid or reduce tax liability on account of some loopholes or otherwise. For example: misinterpreting the provisions of the IT Act.
Tax Mitigation : "Tax Mitigation" is a situation where the taxpayer takes advantage of a fiscal incentive afforded to him by the tax legislation by actually submitting to the conditions and economic consequences that the particular tax legislation entails.  A good example of tax mitigation is the setting up of a business undertaking by a tax payer in a specified area such as Special Economic Zone (SEZ).
Tax Planning : Tax Planning is defined as "arrangement of a person's business and / or private affairs in order to minimize tax liability". For example: availing deduction.
Q.5. Define the term “assessee” and “person” under the income tax act. What is regarded as income under the income tax act?
Ans: Meaning of Income
According to Sec. 2(24) of Income tax Act, 1961, “Income” includes:
(i) profits and gains;
(ii) voluntary contributions received by a trust created wholly or partly for charitable or religious purposes or by an institution established wholly or partly for such purposes.
(iii) the value of any perquisite or profit in lieu of salary taxable under clauses (2) and (3) of section 17;
(iv) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by a person who has a substantial interest in the company, or by a relative of the director
(v) any sum chargeable to income-tax under clauses (ii) and (iii) of section 28 or section 41 or section 59;
(vi) any capital gains chargeable under section 45;
(vii) the profit and gains of any business of insurance carried on by a mutual insurance company or by a co-operative society;
(vii) any winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or from gambling or betting of any form or nature whatsoever;
Explanation: for the purposes of this sub-clause:
a.       “lottery” includes winnings, from prizes awarded to any person by draw of lots or by chance or in any other manner whatsoever, under any scheme of arrangement by whatever name called;
b.      “card game and other game of any sort’ includes any game show, an entertainment programme on television or electronic made, in which people compete to win prizes or any other similar game;
(ix) any sum received by the assessee from his employees as contributions to any provident fund or superannuation fund or any fund set-up under the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948); or any other fund for the welfare of such employees;
(x) any sum received under a Keyman insurance policy including the sum allocated by way of bonus on such policy.
(xi) any sum referred to in clause (vii) of section 28.
(xii) receipts without consideration – any sum received u/s 56(2) (v) where any sum of money exceeding Rs. 50,000 is received by an individual or HUF from any person on or after 1.9.2009. However this clause is not applied if money received from relative or on occasion of marriage or under will.
Q.6. How Residential Status of the following is Determined:
Ø  Individual
Ø  HUF
Ø  Company
Ø  Firm
Ø  AOP and BOI
Ans: Residential status of an assessee is important in determining the scope of income on which income tax has to be paid in India. Broadly, an assessee may be resident or non-resident in India in a given previous year.
Residential Status of An individual
Ø  Resident in India: Satisfying any one of two BASIC conditions given u/s 6(1). Further classified into two parts:
a)      Resident and Ordinarily Resident: Satisfying One of the Basic Conditions [6(1] + Both the Additional Conditions [6(6)(a)&(b)

b)      Resident but not Ordinarily Resident: Satisfying One of the Basic Conditions [6(1] + Not satisfying any of the Additional Conditions [6(6)(a)&(b)

Ø  Non – Resident [Sec. 2(30)]: Not satisfying any of the Basic Conditions mentioned in [6(1)].
Remember: Ordinarily Resident and Resident but not ordinarily residential status is Applicable to individual and HUF Only

Basic Conditions Under section 6(1):
a)      182 days or more during P/Y, or
b)      At least 60 days during the relevant P/Y  + 365 days during the four years preceding that P/Y subject to following exceptions:
Ø  Individual + Citizen of India + Leaving India during P/Y + For Employment
Ø  Individual + Citizen of India + Leaving India during P/Y + As Crew member of India Ship
Ø  Individual + Citizen of India or Person of India Origin + Visit India during P/Y
Here, Person of Indian Origin: Himself + Parents + Grandparents (maternal and paternal grandparents) Born in Undivided India

Additional Conditions section 6(6):
a)      Resident in India in at least 2 out of 10 previous years (according to basic conditions noted above) preceding the relevant previous year;
b)      In India for a period of at least 730 days during 7 years proceeding the relevant previous year.

Residential Status of Firm [Sec. 6(2)]
Ø  Resident in India: Any Part of control and management of its affairs is in India during P/Y.
a)      Resident and Ordinarily Resident: Must be Resident in India + Both the Additional Conditions [6(6) (a) & (b) must be satisfied by KARTA or MANAGER.

b)      Resident but not Ordinarily Resident: Must be Resident in India + Not Satisfying any of the Additional Conditions [6(6) (a) & (b) by KARTA or MANAGER.

Ø  Non – Resident [Sec. 2(30)]: NO Part of control and management of its affairs is in India during P/Y.(Wholly Outside India)

Residential Status of Firm and AOP, or BOI [Sec. 6(2)]
Ø  Resident in India: Any Part of control and management of its affairs is in India during P/Y.
Ø  Non – Resident [Sec. 2(30)]: NO Part of control and management of its affairs is in India during P/Y. (Wholly Outside India)

Residential Status of Company [Sec. 6(3)]
Indian Company:
Ø  Resident in India: Registered in India + Deemed Company under any law of our country.
Foreign Company:
Ø  Resident In India: 100% Control and Management of its affairs in India.
Ø  Non Resident in India: Any part of Control and Management of its affairs outside India.

Residential Status of Local Authority and Artificial Judicial Person [Sec. 6(4)]
Ø  Resident in India: Any Part of control and management of its affairs is in India during P/Y.
Non – Resident [Sec. 2(30)]: NO Part of control and management of its affairs are in India during P/Y. (Wholly Outside India)

Q. Explain the concept of Indian Income as Income tax Act, 1961.
Ans: Indian Income is called by various words and names. These are:
a)      Income received in India
b)      Income deemed to be received in India
c)       Income accrued or deemed to be accrued in India

Income Received in India
The receipt of income refers to the first occasion when the recipient gets the money. Transmission of amount after receipt to other place does not result in receipt.
Income deemed to be received in India [Section 7]
Ø  Contribution by employer to RFP in excess of 12% of the salary.
Ø  Interest credited to RPF in excess of 9.5% of salary.
Ø  Transferred balance from URPF to RPF.
Ø  Contribution to notified pension scheme under sec. 80CCD.
Income which are deemed to accrue or arise in India [Section 9]
a)      Income from a business connection in India. [Sec-9(1) (i)]. In case of a NRI the following shall not be treated as business connection in India:
ü  Purchase of goods for the purpose of export.
ü  Collection of news and views for transmission outside India.
ü  Shooting of cinematograph films in India if such nonresident is not a citizen of India.
b)     Any income accrue or arise to an assessee through or from any property , asset or source of income in India[Sec-9(1)(i)]
c)      Any income accrues or arises to an assessee through transfer of capital asset situated in India. [Sec-9(1)(i)]
d)     Income from Salaries earned in India or which is payable by the government to  citizen of India for service rendered outside India  [Sec-9(1)(ii) & (iii)]
e)      Dividend paid by Indian Company outside India. [Sec-9(1)(iv)]
f)       Interest payable by:
ü  Government
ü  A person who is a resident in India except where payment is made on money borrowed for business or profession carried on outside India.
ü  A person who is a non resident in India provided where payment in made on money borrowed for business or profession carried in India.
g)      Royalty Payment fees for technical services by government or resident person[Sec-9(1)(vi)]
ü  Government
ü  A person who is a resident in India except where payment is made for business or profession carried on outside India.
ü  A person who is a non resident in India provided where payment is made for business or profession carried in India.
h)     Fees for technical services by government or resident person[Sec-9(1)(vii)]
ü  Government
ü  A person who is a resident in India except where payment is made for business or profession carried on outside India.

ü  A person who is a non resident in India provided where payment is made for business or profession carried in India.

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