Mumbai, February 15, 2018

The Authority of Advance Rulings (AAR) has held that the salary income of a nonresident individual for services rendered overseas cannot be taxed in India, even when such salary is paid into a bank account in India.

The ruling stands out because apart from providing relief from double taxation under the Indo-US tax treaty, the AAR additionally held that the sums received in India would not be taxable here under the domestic tax laws.

Unlike a tribunal or court order, a ruling by AAR, a quasi-judicial body, does not set a precedent. But it does have persuasive value and is well-considered. Thus, the ruling may benefit expat workers, in particular the over one lakh Indian workers who work in the US, largely on H1B visas.

Typically, when white-collared workers are ‘seconded’ on an overseas assignment by an Indian company, a split salary arrangement is worked out. Under ‘secondment’, the employee is transferred on the payroll of the overseas parent or group company, which pays the basic salary and certain allowances, in the overseas country. However, the Indian company deposits a part of the salary in the employee’s bank account in India. This enables the employee to meet certain obligations in India—such as repayment of housing loan or household expenses (as the family could be in India).

While an Indian residing abroad is popularly referred to as a non-resident Indian (NRI), the nomenclature is different under tax laws. It is not the country of origin, but the number of days’ stay in India, which determine whether a person will be a resident or non-resident for tax purposes.

Resident individuals are taxable in India on their global income, irrespective of where it was earned. In the case of non-residents, only income that accrues or arises in India (say, bank interest from a savings account in India or rental income from a house in Mumbai) is treated as taxable in India (see table). There is a third category, that is, resident but not ordinarily resident (RNOR), for whom the tax incidence is the same as for non-residents.

“Thus, salary received by non-residents in a bank account overseas for services performed outside India is not subject to tax in India. However, salary received in India is considered as taxable under the Indian domestic tax laws (along with being taxed in the country where they are working as most countries adopt the source method of taxation). Typically, a split salary mechanism results in litigation, as income-tax (I-T) authorities seek to bring to tax the income received in India. In such cases, employees claim relief under a tax treaty, which ensures that the same income is not taxed twice,” says Maulik Doshi, tax partner, SKP Group, a consultancy firm.

In this case, the employee, T N Santhosh Kumar, was seconded by Texas Instruments to Texas Inc, a US company, for a period of two years. As is typically the case, a split salary mechanism was adopted. Kumar was paid monthly a part of the salary and certain bonuses in India by Texas India.

A communique by EY India states: “Based on the India-US tax treaty, the AAR held that the place where the employee performs their duties is what is considered and not where the income is received or where the company providing the remuneration is based. As the salary is paid for work performed in the US, the income would be taxable in the US alone and no tax would be required to be withheld in India.”

“It is interesting to note that the AAR also held that such salary payments received in India by the non-resident would not be taxable in India even under its domestic tax laws,” says Doshi and adds, “in cases where there is no tax treaty (such as with Hong Kong) or in peculiar situations where the taxpayer is unable to access a tax treaty owing to lack of certain documents, this ruling will be very helpful.” In simple terms, the word accrue in India refers to something that is due in India.

Kumar was deputed for a two-year term. In the second year, in which he returned to India (that is, 2012-13) he was a resident of India and liable to tax on his global income. The US would also tax his US source salary income. Here, the AAR held he would be entitled to a tax credit in India for US taxes.

[The Economic Times]