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One of the significant proposals in this year's Union Budget is that residents will have to file the tax return where they hold any foreign asset (including financial interest in any entity) or are signing authority in any account located outside India even though they do not have taxable income to report. Although the Budget is yet to be passed by the Parliament, but the Central Board of Direct Taxes (CBDT) has recently amended Rule 12 of the Income-Tax Rules, 1962 and released the new income-tax return forms to capture the relevant details for the financial year 2011-12 in line with the above proposed amendment. Filing of tax return in electronic mode has also been made mandatory where the total income exceeds . 10 lakh.
What Are These New Forms ?
Various forms and to whom they apply:
• ITR – 1 (SAHAJ): Salaries; House Property (where the individual does not own more than one house property); Income from Other Sources (except winnings from lottery or income from race horses)
• ITR – 2: Other than income from business and profession
• ITR – 3: Partners in firms and not carrying out business or profession as a proprietorship concern
• ITR – 4: Proprietary business or profession
• ITR – 44S(SUGAM): Business and profession and opted for being taxed under presumptive basis of taxation under sections 44AD and 44AE
Who Is Impacted?
• Expatriate employees and their accompanying family members who come into India generally qualify to be resident but not ordinarily residents (RNORs) for the first 2 to 3 years. Such individuals may have to provide details of their overseas investments and bank details even though their overseas income may not be taxable in India. Accompanying family may not even have taxable income in India, yet they may have filing obligation now.
• Another category of individuals who may get impacted are those employees who are resident of India and are the signing authorities as representative of a company in any account outside India. It is not clear whether such employees can exclude to report particulars of all such accounts/investments.
• Individuals who are residents and have assets (including financial interest in any entity) located outside India or signing authority in any account located outside India, will no longer be able to use Forms ITR-1 (SAHAJ) or ITR – 4S (SUGAM).
• Such individuals are also mandatorily required to file their returns electronically, even though their total income does not exceed . 10 lakh.
Challenges And The Way Forward
Expatriate employees and their accompanying family members with RNOR status are the ones hit hard by these changes. RNORs do not pay tax on their global income and obtaining overseas bank/investments details in their return may not be relevant. Reporting of bank accounts/investments details by employees who are merely representatives and not having any real financial interest in those investments may also not be relevant. But changes in forms seem to be sweeping and even the definition of any other assets is not provided and taxpayers are left to make their own judgment in this regard.
It is interesting to note that the returns forms have three categories under residency: Resident, Non Resident and RNOR. If one strictly goes by the form, the details are required to be given by residents and not by the RNORs. But CBDT needs to clarify as under the Income Tax Act, 1961, the term resident includes RNOR.
It would be helpful if CBDT comes out with a clarification sooner rather than later on the above aspects to give breather to the affected individuals. Think of the old saying: Prevention is better than cure. Until clarifications are provided, it is better for everyone to get organised and start compiling the details keeping in view the fact that the due date of filing the return, i.e. July 31, is approaching fast. It is also relevant to maintain full documentation and trail of investments as the next logical question would be to explain such investments or income from such investments, when questioned by the tax authorities. It is important to note that the Budget also has a proposal where the taxman can go back up to last 16 years to investigate where income in relation to any such asset located outside India has escaped assessment.
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