RESIDENTIAL STATUS
Changes in conditions relating to residence status in finance Act, 2020
Currently, an individual is resident in India in a previous year if (i) he is in India for a period or periods amounting to 182 days or more in that year; or (ii) he is in India for 365 days or more in the 4 years preceding that year and he is in India for a period of 60 days or more in that year.
Moreover, in case of a citizen of India or a person of Indian origin who is outside India and comes on a visit to India in a previous year, the threshold of 60 days (referred to in earlier paragraph) is relaxed to 182 days. This limit of 182 days is now reduced to 120 days.
Similar relaxation in respect of a citizen of India who leaves India in a previous year as a member of the crew of an Indian ship or for the purposes of employment outside India remains unchanged.
An individual is a resident but not ordinarily resident if he has been non-resident in 9 out of the 10 previous years preceding that year or has during the seven previous years preceding that year been in India for an overall period of 729 days or less.
Similar provisions exist for a manager of an HUF for determining the not ordinarily resident status of such an HUF.
Another related amendment for determining not ordinary resident is in respect of Indian citizens who are non-residents in India but are not liable to tax in any other country or territory by reason of their domicile, residence or any other criteria of similar nature and earning total income from India exceeding Rs. 15 Lakhs in previous year excluding the foreign sources then such citizens are deemed to be residents in India and consequently they become not ordinary resident provided their stay in India for period amounting in all to 120 days or more but less than 182 days. However, if his stay in India is more than 182 days then the OR/NOR shall be determined as per to old provision.
Hence, it is anti-abusive provision for Indian citizens who shift their stay in low or no tax jurisdiction to avoid payment of income tax in India and hence it is clarified vide Press release dated 02.02.2020 that new provision is not intended to include in tax net those Indian citizens who are bonafide workers in other countries.
CAPITAL GAIN
Increase in tolerance limit – Sections 43CA, 50C and 56(2)(x)
Presently, if the amount of consideration received or accruing as a result of transfer of land or building or both, held as a capital asset, is less than its stamp duty value then section 50C provides that stamp duty value shall be taken to be full value of consideration.
Similarly, if the amount of consideration received or accruing as a result of transfer of land or building or both, held as stock-in- trade, is less than its stamp duty value then section 43CA provides that stamp duty value shall be taken to be full value of consideration.
Upon receipt of land or building or both, for a consideration which is less than its stamp duty value, the difference between the stamp duty value and the amount of consideration is chargeable to tax under section 56(2)(x).
Presently, section 43CA, section 50C as well as section 56(2)(x) provide for a tolerance limit of 5% of the consideration i.e. if the difference between the stamp duty value and the amount of consideration received or accruing as a result of transfer is up to 5% of the amount of consideration then stamp duty value is not to be taken as full value of consideration / the difference between the stamp duty value and the amount of consideration is not to be charged. The tolerance limit of 5% provided for has been increased to 10%.
Capital Gains provisions on Segregation of Portfolios of Mutual Fund Schemes – Sections 49 and 2(42A)
Section 49 provides for cost of acquisition for capital assets which became the property of the assessee under specified circumstances. Further, section 2(42A) provides for period of holding of a capital asset by an assessee for it to be a short-term capital asset.
In the event of downgrade in credit rating of debt and money market instruments in portfolio of mutual fund schemes (referred to as a ‘credit event’), the Securities and Exchange Board of India (vide its Circular SEBI/HO/IMD/DF2/CIR/P/2018/160 dated 28th December 2018) has permitted the Asset Management Companies (AMC) an option to segregate the portfolio of such schemes. The objective of creating a segregated portfolio of debt and money market instruments by mutual funds schemes is to ensure fair treatment to all investors in case of such a credit event and to deal with liquidity risk. Where an AMC decides to segregate a portfolio on the occurring of a credit event, all existing investors in the scheme on segregation are allotted equal number of units in the segregated portfolio as held in the main portfolio.
The said SEBI Circular defines the term ‘main portfolio’ to mean the scheme portfolio excluding the segregated portfolio. The term ‘total portfolio’ means the scheme portfolio including the securities affected by the credit event, which in effect is the sum total of the segregate and main portfolio.
It is now provided that in determining whether units in a segregated portfolio are short-term capital assets, the period for which the original units in the main portfolio were held by the assessee will be included.
Further, the cost of acquisition of such units in a segregated portfolio shall be the cost of acquisition of the units held by the assessee in the total portfolio in proportion to the net asset value of the asset transferred to the segregate portfolio out of the net asset value of the total portfolio immediately before the segregation of portfolios. The cost of acquisition of the original units in the main portfolio shall also be suitably reduced by the amount derived as cost of the units of the segregated portfolio.
These provisions are similar to those applicable to allocation of cost of acquisition of shares on demerger of a company.
This amendment will take effect from 1st April, 2020 and will, accordingly, apply in relation to the Assessment Year 2020-21 and subsequent assessment years.
Cost of acquisition in case of land or building as on 1.4.2001 – Section 55
Presently, section 55 provides that where capital asset became property of the assessee before 1.4.2001, the assessee has an option to adopt fair market value of the asset transferred as on 1.4.2001 to be its cost of acquisition. Similarly, where the capital asset has been received by the assessee in a mode mentioned in section 49(1) i.e. by way of gift, inheritance, will, etc., and the capital asset became property of the previous owner before 1.4.2001 then the assessee has an option to adopt fair market value of the asset as on 1.4.2001 to be its cost of acquisition.
Section 55 has now been amended to provide that if the capital asset transferred is land or building or both then its fair market value on 1.4.2001 cannot be greater than its stamp duty value on that date, wherever available.
This amendment will take effect from 1st April, 2020 and will, accordingly, apply in relation to the Assessment Year 2020-21 and subsequent assessment years.
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