Why do we need to worry about the definitions as per the Income Tax Act and FEMA?

FEMA decides where you can invest.

For instance, you can open NRE or NRO accounts if you qualify as NRI (person resident outside India) as per FEMA. Your resident status as per the Income Tax Act does not matter when it comes to deciding whether you can make a particular investment in India.

Income Tax Act decides how the income from various investments will be taxed.

For instance, the provisions of the Income Tax Act will decide how income from NRE and NRO deposits will be taxed.

Another example: Your residential status as per FEMA will decide if you must make your investments in mutual funds as Resident or as an NRI. On the other hand, your residential status as per the Income Tax Act will determine if your MF investments get taxed as Resident or as an NRI.

To make matters complicated, your residential status per FEMA and Income Tax Act can be different. And this leads to a good bit of confusion.

While the Income Tax Act looks at the matter mathematically to decide whether you qualify as a resident or non-resident, FEMA looks at the intent too.

In this post, let’s understand the difference between definitions of a non-resident under FEMA and the Income Tax Act.

Definition of Non-resident as per Income Tax Act

As per Section 6 of the Income Tax Act, there are 3 residential statuses.

• Resident and Ordinarily Resident (ROR)
• Resident and Not Ordinarily Resident (RNOR)
• Non-Resident Indian (NRI)

You are a Resident if you satisfy ANY of the following two conditions:

• You are in India for 182 days in the financial year; OR
• You are in India for 365 days in 4 preceding financial years AND 60 days in the financial year

Condition 2 will ensure that most of those who are going abroad for the first time will not be eligible for NRI status. There are a few exceptions though:

• Condition 2 is not applicable if you are leaving India for employment or as a member of crew of Indian merchant ship. For such cases, 60 days in condition 2 is replaced by 182 days. Hence, condition 2 automatically becomes ineffective.
• Condition 2 is also not applicable of Indian Citizens or persons of India Origin (PIO) who stay abroad but are on a visit to India. In this case, period of 60 days is replaced by 182 days rendering

As per Income Tax Act, a person is of Indian Origin if he or either of his parents or any of his grandparents were born in undivided India.

An NRI is a citizen of India or PIO who is not a resident.

Read:

How are Mutual Fund Investments by NRIs taxed in India?

Who is RNOR?

This is applicable to Non-residents who are returning to India. Even if you are a resident (as per above definition), you can be either ROR or RNOR. You are an RNOR if you satisfy ANY of the following conditions:

• You have been an NRI in 9 out of 10 years preceding the financial year under consideration. OR
• You have been in India for no more than 729 days during 7 previous years preceding the financial year under consideration. You can see RNOR status may come into picture when you have been an NRI for many years.

I have discussed RNOR status with illustrations in my post on Returning NRIs.

If you qualify as RNOR, your foreign income won’t be taxed in India (barring a few exceptions). Therefore, tax treatment on foreign income for RNOR is similar to that of NRI. So, if you are planning to return to India, time your return in a way that you can enjoy RNOR status for a few years. Points to Note (Income Tax Definition)

• For those who are returning permanently to India, 60 days is not replaced by 182 days (under Condition 2). So, if you have been outside India for 365 days in 4 preceding financial years and return to India permanently before February, you will be considered Resident for the financial year as per Income Tax Act.
• Preceding financial year means the financial year that precedes the financial year under consideration. So, if you are trying to determine residential status for FY2017, four preceding financial years will be FY2013-FY2016 i.e. April 1, 2012 to March 31, 2016.

Definition of Non-resident as per FEMA

The definition for non-resident is provided under Section 2 of Foreign Exchange Management Act.
FEMA uses the term Resident Outside India (for Non-residents).
FEMA has two classifications for residential status.

• Resident in India
• Resident outside India (NRI)

Non-resident Indian (NRI) means a person resident outside India who is a citizen of India or person of Indian origin (PIO). When are you a resident as per FEMA? You are a Resident in India if you have been in India for a period of more than 182 days during the preceding financial year. There are a few exceptions. The above definition does not apply:

• If you have gone out of India (or stay outside India) for taking up employment
• If you have gone abroad (or stay abroad) for carrying out a business.
• If you have gone abroad (or stay abroad) for any purpose that indicates your intention to stay abroad for an uncertain period.

In such exceptional cases, you can be considered Resident Outside India even if you have been in India for a period of more than 182 days.

When are you a Non-resident as per FEMA?

Continuing with the definition in the previous section, you are a Resident Outside India (NRI) if you are in India for 182 days or less during the preceding financial year. There are a few exceptions. The above definition does not apply: 1. If you come to (or stay in) India for taking up employment. 2. If you come to (or stay in) India to carry on a business or vocation 3. If you come to (or stay in) India for any purpose that indicates your intention to stay in India for an uncertain period. In such cases, you will be considered Resident in India even if you have stayed in India for less than 182 days during the preceding financial year. If you are settled abroad and have come to India for a purpose other than employment or business and have no intention to stay in India permanently, you will continue to be considered Resident Outside India (NRI) irrespective of your duration of stay in India. Points to Note (FEMA Definition)

• If you go abroad for employment, business or vocation, you are NRI as per FEMA from day 1 of your departure. The period of stay in India does not matter in this case. You may have left on Feb 15. You will still be NRI from Feb 16 as per FEMA.
• Similarly, persons returning to India permanently are considered residents from day 1 of return. By the way, only you know if you have returned permanently. Hence, there can be an element of subjectivity in this case.
• If you are a student leaving India to study abroad, you are NRI from day 1 of your departure from India. RBI clarified this in Circular no. 45 dated December 8, 2003.
• There is no requirement of continuous stay in India. Your stay in India can be staggered over multiple trips/visits.
• Financial year is not defined in FEMA. However, it is assumed to refer April 1-March 31 period.
Differences between definition under FEMA and Income Tax Act
• For you to be resident in India, Income Tax Act requires stay of 182 days in India while FEMA requires a stay of more than 182 days.
• Income Tax Act considers Current Financial year for determination of residential status. FEMA considers preceding financial year.
• Income Tax Act DOES NOT consider the reason of stay in India or visit abroad for determination of residential status. FEMA does. Income Tax Act merely considers number of days of stay in India.
• When it comes to Income Tax Act, you are either resident or non-resident for the entire financial year i.e. you cannot be resident for part of the year and non-resident for rest of the year.
• The aforesaid limitation does not apply to FEMA. For instance, in the above example (leaving India for employment abroad), you are resident till Feb 15 and non-resident after Feb 15.

How does it matter?

Your investments are governed by definition as per FEMA.

For instance, you have to be NRI as per FEMA in order to own NRE/NRO/FCNR(B) accounts.

Whether you can open a PPF or purchase agricultural land depends on your residential status as per FEMA.

On the other hand, taxation of your income is governed by Income Tax Act.

It is quite possible that you are an NRI as per FEMA and a Resident as per Income Tax Act. The opposite is also possible