• NRI stayed in India for more than 182 days

Hi,

I have been working for a US based company from Dec 2019 and have been living in US since Sept 2017.
I went to India on vacation in August 2022 and my return was delayed due to visa processing delays and thus ended staying more than 182 days for FY 22-23. During my whole stay, I was still working for my US based company and my salary was deposited in US account.

Thus, I am tax resident of both US and India for this year.
Under the provisions of DTAA, will I have to pay tax on my US income in India(after claiming tax credit of federal taxes)?
or will it be completely tax exempt in India?

Thanks!
Asked 1 year ago in Income Tax

As per the provision of act you would be a tax resident on India and India would demand tax on same.

So 1st recommendation would be to file tax in India and claim credit of taxes paid in USA.

 

Another option could be if this is just a 1 time activity that you can say that as per India USA DTAA tie breaker rule you are a resident of USA but in that case also since you were physically in India income tax officer could say you are liable to pay tax in India even on that salary as per section 9 of the Income tax act.

 

Thus, the option is your's if you wish to take risk. Don't pay tax.

If not file return take credit and leave it.

 

Hope you find the information helpful, if yes do rate if 5 and provide your valuable feedback for my improvement.

Thank you.

Naman Maloo
CA, Jaipur
4292 Answers
101 Consultations

As you have provided services from India, income is said to be accrued/arised in India during the previous year 2022-23. It is an Indian income taxable in all cases irrespective of the residential status. As per India-USA DTAA, you would be deemed as resident of one country only. Determine residential status as per tie-breaker rule. 

 

For detailed discussion you may opt for phone consultation

Vivek Kumar Arora
CA, Delhi
4950 Answers
1105 Consultations

Since you have stayed in India for more than 182 days, you are considered as Indian resident. 

 

However, you can claim the tie-breaker rule under India USA DTA as you had come for certain time and your intention was not to stay here. However, even otherwise, on the salary income, the tax needs to be paid as the services were rendered from India. You can claim the credit of those taxes in US. 

Prerna Peshori
CA, Pune
199 Answers
12 Consultations

You only have to pay tax in india for income received in india since your status will be resident but not ordinary resident and hence global income will not be subject to tax in india, however whatever income you are earning in india will be subject to tax in USA and you can claim back that amount as credit

Vishrut Rajesh Shah
CA, Ahmedabad
940 Answers
39 Consultations

As the income is taxable in two countries, DTAA rules will be followed which will allow US to charge tax on that as it is the source the( where the income actually generated from)

And also tax exemption is not there you can have tax credit on that income.

Form 67 to be filled for claiming tax credit on federal income

Neeru Aggarwal
CA, Ahmedaba
7 Answers

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