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Non-Resident Exporter selling goods from abroad to Indian Importer:
No liability will arise on accrual basis to the non-resident
on the profits made by him where the transaction of the sale between the
two parties are on a principal to principal basis. The question of whether
the transaction is on a principal to principal basis will be determined
on an examination of whether the purchases made by the resident are on
his own account, whether the transaction between the resident ant non
resident is made at arm’s length and at prices which are normal in the
trade, whether the non-resident exercises any control over the business
of the resident and the sales are made by the resident on his own account
and lastly, whether the payment to the non resident is made on delivery
of documents and is not dependent in any way on the sales to be effected
by the resident.
Non- Resident Company selling goods from abroad to its Indian subsidiary:
Where the Indian subsidiary is functioning independently
on its own instead of functioning as an agent of the parent company. Dealings
between the non-resident parent company and the Indian Subsidiary can
be
regarded as on a principal to principal basis provided:
contracts to sell are made outside India,
- sales are made on principal to principal basis and at arm’s length,
and
- the subsidiary does not act as an agent of the parent company.
Sale of plant and machinery to an Indian importer on installment basis:
If the sale is on a principal to principal basis and
the exporters have no other business connection, the mere fact that the
importer is allowed to pay the price in installments will not render the
exporter liable to be taxed on account of business connection.
Foreign Agents of Indian exporters:
A foreign agent of an Indian exporter operates in his
own country and no part of his income arises in India. His commission
is usually remitted directly to him and therefore is not received by him
or on his behalf in India. He is not liable to Indian Income tax on the
commission.
Non-Resident person purchasing goods in India:
A non-resident will not be liable to tax in India on
income attributable to operations confined to purchase of goods in India
for export unless the resident is closely connected with the non-resident
purchaser and the course of the business between them is so arranged that
the resident gets no profit or less than the normal profit in that trade.
The ITO has powers to determine the profit which may reasonably be deemed
to have been derived by the resident from that business.
Sales by a Non-Resident to Indian customers either directly or through
agents:
Where a non-resident allows an Indian customer facilities
for an extended credit for payment there would be no assessment merely
for this reason provided that:
- the contacts to sell are made outside India, and
- the sales are made on a principal to principal basis.
Even where the non-resident has an agent in India on
direct sales by the non-resident to Indian customers, no tax will be charged
, provided the agent has no functions to perform in respect of these direct
sales, that the contracts to sell are made outside India and the sales
are made on a principal to principal basis. Where, however. A non-resident’s
sales to Indian customers are secured through the services of an agent
in India, the assessment in India of the income arising out of the transaction
will be limited to the profit which is
attributed to the agent’s services provided:
- the non resident’s business activities in India are wholly channeled
through his agent,
- contracts to sell are made outside India and,
- the sales are made on a principal to principal basis.
While assessing the profits, however, allowance would
be given for expenses incurred including the agent’s commission in making
the sales. Where, however, non resident principal’s business activities
in India are not wholly channeled through the agent in India, the assessment
in India will be on the sum total of the amount of profit attributable
to the agents activities in India and the amount of profit attributable
to non resident own activity in India minus expenses incurred in making
sales.
The Finance Act has provided that in the case of a non-resident
engaged in the business of running a news agency or of publishing newspapers,
or journals, no income shall be deemed to accrue or arise in India through
or from activities confined to collection of news and views in India for
transmission out of India.
Exemption of income of non-resident individuals from shooting of any
film in India:
Income arising to a non resident individual who is not
a citizen of India, or to a firm whose partners are not citizens of India
or residents in India, or a company whose shareholders are not citizens
of India or residents in India, from operations which are confined to
any cinematograph film, in India is exempt from Indian taxation. The exemption
is also available for remuneration received by such a non resident individual
who is also not a citizen of India, in connection with shooting of a film
in India. Normally, such income would have been taxable u/s 9 due to business
connection. To encourage shooting of films in India, Section 10 of the
IT Act.1961 has been amended to provide this benefit w.e.f. 1st
April,1982.
Exemption of profits assessable u/s 9:
Section 9 seeks only to bring to tax the profits of a
non resident which can reasonably be attributed to operations carried
on in India. Even where there is a business connection in India, the whole
of the profit accruing or arising from the the business connection is
not deemed to accrue or arise in India. What is liable to tax in India
is only such portion of the profit as can, reasonably, be attributed to
the operations and business carried on in India.
A business connection Implies some continuity of relationship
between the persons in India who helps the non resident to make the profits
and the person outside India who receives the profits.
Income of a non-resident accruing or arising directly
or indirectly through or from any business connection in India shall be
deemed to be income accruing or arising in India and will be taxable in
his hands. In respect of a resident, it is immaterial whether the place
of accrual of income is within India or outside, since in either event
he is chargeable thereof. But in respect of a non- resident unless the
place of accrual is within India, the non-resident is not liable to the
charge. Hence this provision is of particular importance in the assessment
on non-residents.
Under this section, all income accruing or arising directly
or indirectly through or from any business connection in India or through
or from any property in India or through or from any asset or source of
any income from India*( from any money lent at interest and brought into
India in cash or in kind) or through transfer of capital situated in India
is assessable.
Through or from any Properties in India:
The term property in this clause should be understood
in the ordinary sense of the word, whether movable or immovable. Income
arising by reason of hire of furniture in India would be one arising in
India. Positives and negatives of films of motion pictures would be property,
and the income derived from hiring of such films would fall under this
head. Thus, the term property here is not confined to immovable property.
Through or from any Asset or Source of income:
The term asset would include all intangible rights as
opposed to property mentioned above which deals only with tangible property.
It would, for instance, include bonus, interest accruing on securities
and other interest, dividends from companies, patent royalties, copyright
royalties, rent including ground rent etc.
Income accruing or arising through or from any money lent on interest
or brought
into India in cash or in kind :
The expression money lent and brought into India denotes
that first the lending takes place outside India and later the money is
brought by the person to India as his own money. Thus, the contract of
loan takes place outside India. If the contract of loan was made in India,
the interest naturally accrues in India and would be taxable in the normal
course without resort to Section 9.
The lending and the bringing of the borrowed money into India should form
one conjoint transaction. There should be an arrangement between the lender
and the borrower that the loan should be brought into India. The money
could be brought in by ways of bills or securities or shares in stocks
etc., and not necessarily in currencies. This provision will cover casual
loans.
As regards loans amounting to a business of money lending they would be
covered by provision relating to business connection. This provision has
been deleted with effect from 1-6-1976.
Income accruing or arising through the transfer of capital asset situated
in India:
This section is designed to tax any capital gain that
a non-resident may make by a transfer of any capital asset situated in
India. Thus, even if the sale price is received outside the taxable territory,
if the assets transferred are situated within the taxable territories,
capital gains tax will be attracted.
Other income deemed to accrue or arise in India:
These are:
- Salary earned in India is taxed irrespective of whether the contract
of employment was made abroad or whether the payment of remuneration
was stipulated to be paid abroad. Thus, the place of payment or receipt
of salary is immaterial. If the salary is earned in India for the services
rendered in India, it would be taxable in India.
The Gujarat High Court in CIT v. S.G. Pegnatale (1980)
124 ITR 391 held that if liability to pay salary arises outside India,
and the salary is also payable outside India, the same cannot be deemed
to accrue or arise in India even if services are rendered in India.
An explanation has been added to provide that salaries payable for services
rendered in India will be regarded as Income earned in India. Since
the Explanation is for removal of doubts, it reflects the true legislative
intention in regard to these provisions from the commencement of the
Income-tax Act, 1961. Therefore, though the new Explanation in terms
has been inserted from 1st April 1979, it will not be permissible
to reopen or rectify assessment years prior to 1979-80 under section
264 ignoring these provisions and following the Gujarat High Court decision.
Thus, salary wherever paid will be taxable in India if services are
rendered in India.
- In the case of Indian Government servants, in receipt of Government
salary wherever they happen to be employed, that is within India or
outside India, and wherever they may happen to be paid, their salaries
are always chargeable to tax in India.
- A dividend paid by an Indian Company outside India is chargeable to
Indian Income –tax.
- It is provided with effect from 1-6-1976 that income from interest,
royalty and fees for technical services shall be deemed to accrue or
arise in India if it is payable by:
- the Government; or
- a resident in India except in cases where it is payable for the purposes
of a business or profession carried on by such person outside India
or for the purpose of making or earning any income from any source outside
India; or
- a non-resident where it is payable for the purpose of a business or
profession carried on by him in India or for the purpose of making or
earning any income from a source in India.
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