Further, a person making an outward remittance is required to furnish following documents, depending upon type and quantum of payment involved.
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1 Foreign Remittances FEMA & Income Tax Implications - By CA Vandana Shah Background All foreign remittances from India are currently regulated under Foreign Exchange Management Act (FEMA). While FEMA plays an important role in deciding the permissibility of payments abroad, an equal role is played by Indian Income Tax Act (ITA) especially in transactions involving remittance of income. FEMA allows permissible remittances by authorized dealer banks on production of relevant undertaking from the remitter and a certificate from a Chartered Accountant in the formats prescribed under ITA. Correspondingly, ITAprovides that any person responsible for making any payment to Non Resident in respect of any income chargeable to tax under the provisions of ITA is required to deduct tax at source from the concerned payment. The tax is required to be deducted irrespective of the mode of the payment and on accrual or payment basis, whichever is earlier.further, one needs to examine the provisions of Double Tax Avoidance Agreement (DTAA) between India and specified country to confirm on taxes to be deducted under section 195 of ITA. Also, one needs to check regarding the availability of Tax Residency Certificate (TRC) of Non Resident / Form 10F and Permanent Account Number (PAN) of Non Resident to conclusively decide on the applicable rate of withholding tax in respect of foreign remittance. Further, a person making an outward remittance is required to furnish following documents, depending upon type and quantum of payment involved. Particulars Concerned Forms Income chargeable to tax is lower than Rs. 50,000 and the aggregate of such payments does not exceed Rs. 2,50,000 Other Remittances not falling in prescribed exclusion list and above category Part A of Form 15CA only Part B of Form 15CA and Form 15CB (Certificate in prescribed format) from Chartered Accountant Page 9
2 There are certain payments such as investment abroad in equity capital, investment in debt securities, investment in branch or wholly owned subsidiaries, loans to non-residents, remittance for medical treatment, maintenance of close relatives, etc. that have been specifically excluded from the requirements of Form 15CA/ Form 15CB certification. 2 In these cases, one needs to take care of only FEMA compliances. Also, it is pertinent to note that the new notification for Form 15CA / Form 15CB no longer require submission of form as long as the payments are not chargeable to tax in India. Having said that, the Indian tax authorities may or may not agree with the stand of assessee that the payment is not taxable in India. Accordingly, on conservative basis, one may avoid procuring Form 15CA / Form 15CB only in cases where the income is clearly not taxable. In cases of doubt, it may be advisable to obtain Form 15CA / Form 15CB. Meaning of Resident Having discussed the above, it would be relevant to note here that the term Resident has different connotations as per ITA and FEMA. FEMA takes in account the purpose of stay to determine residential status of the concerned person. The below mentioned table briefly summarizes distinguishing factors: Page 10
3 Resident in India ITA FEMA a. Resident in India i. Individual Physical presence of 182 days or more in previous year in India or Physical presence of 60 days or more in previous year concerned and 365 days or more during 4 preceding tax years. It is important to note here that in case of Indian citizen who leaves India as a member of crew of ship or for the purpose of employment outside India, the criteria of 60 days is substituted by 182 days. HUF/ AOP / Firm Company Resident except when control and management situated wholly outside India. Indian company or Control and management of its affairs is situated wholly in India. (i) Residing in India for more than 182 days during the course of preceding financial yearbut does not include- a person who has gone out of India or who stays outside India, in either case- (a) for or on taking up employment outside India, or (b) for carrying on outside India a business or vocation outside India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period; a person who has come to or stays in India, in either case, otherwise than- (a) for or on taking up employment in India, or (b) for carrying on in India a business or vocation in India, Or (c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; (ii) any person or body corporate registered or incorporated in India, (iii) an office, branch or agency in India owned or controlled by a person resident outside India, (iv) an office, branch or agency outside India owned or controlled by a person resident in India; Non Resident An individual who is not a Resident as per the above residency definition is considered as a Non Resident for income tax purpose. Non Resident A person resident outside India means a person who is not resident in India. Not Ordinarily Resident A person is considered to be Not Ordinarily Resident if he is: Non Resident in India in 9 out of preceding 10 years Physical presence is less than 730 days during 7 preceding years. Not Ordinarily Resident There is no concept of Not Ordinarily Resident in FEMA. 1 Refer Sec on 195 of Income Tax Act for details and excep ons to sec on Refer No ca on No. 67/2013 dated 2 nd September Refer Sec on 6 of Income Tax Act 4 Refer Sec on 2 of FEMA Act, 1999 Page 11
4 Thus, while one may be Resident as per ITA, he may or may not be Resident as per FEMA. Accordingly, one needs to determine the permissibility of transactions as per residency definition under FE- MA and consider the tax implications as per residency rules under ITA. Some of the permissible outward remittances and compliances thereof: Royalties / Fees for Technical Services: Position under FEMA FEMA currently does not prescribe any limit for the remittance of royalty / service payments. Consequently, the same can be freely remitted. Position under ITA - Section 195 of ITA will be applicable and one needs to determine taxes to be deducted at source, depending upon DTAA provisions and availability of prescribed documents. Accordingly, one needs to obtain Form 15CB and furnish undertaking in Form 15A, depending upon quantum involved. Payments for Import of Goods: Position under FEMA Import of goods in India is normally allowed in accordance with FEMA regulations. There are certain procedural formalities to be complied with in accordance with FEMA regulations. Position under ITA The notification dealing with section 195 remittances does not specifically exclude import payments. However, practically,in most cases (primarily those other than cases where the non-resident has a PE in India);pure import transactions may not trigger any taxation in India. Therefore, considering the revised language used in the Forms, many taxpayers are practically not obtaining Form 15CB / Form 15CA in respect of payments for import of goods. However, there is no blanket exemption provided to import transactions and adequate caution must be exercised to ensure that the payment for imports is unambiguously not taxable in India considering the provisions of the ITA and the relevant Double Taxation Avoidance Agreement. Remuneration to Expatriates: Position under FEMA - A citizen of foreign state, being an employee of foreign company or an Indian citizen employed by foreign company outside India and on deputation to office / branch / subsidiary / joint venture of such foreign company in India can receive the salary in foreign currency account maintained with bank outside India, provided the applicable income tax has been paid in India. Position under ITA The relevant taxes will have to be deducted and paid by the employer company under section 192 of ITA and applicable DTAA provisions. Investment Abroad in Equity Capital / Debt / Wholly Owned Subsidiaries, etc.: Position under FEMA The investment will have to be in accordance with FEMA regulations. The remittance would fall under automatic route if the specified conditions are met. Relevant forms under FEMA will have to be filed with the authorized dealer bankers. Position under ITA- There is no compliance requirement under ITA as the same would fall under the exclusion list (as discussed above). Page 12
5 External Commercial Borrowings / Loans from abroad: Position under FEMA The external commercial borrowings will have to be obtained by Indian entity in accordance with FEMA regulations. The remittance would fall under automatic route if the specified conditions are met. Relevant forms under FEMA are required to be filed with the authorized dealer on timely basis. Position under ITAThere is no compliance requirement under ITA with respect to repayment of principal of loan as there is no income element in repayment of capital. However, with respect to payment of interest on loan, section 195 will be applicable and withholding tax will have to be determined in light of DTAA provisions and availability of relevant documents. Accordingly, the relevant Form 15CA / Form 15CB will have to be procured. Others There could be several other types of remittances. One will have to examine the permissibility of same under FEMA as well as determine applicable taxes and compliance requirements on concerned income, prior to such outward remittances. CA Vandana Shah is a member of the institute. She can be reached at vandanagshah@gmail.com Page 13
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