As per RBI- A ‘Non-resident Indian’ (NRI) is a person resident outside India who is a citizen of India.
As per Income Tax Act, 1961 "non-resident" means a person who is not a "resident", and for the purposes of sections 92, 93 and 168, includes a person who is not ordinarily resident within the meaning of clause (6) of section 6 ;
The word “person" includes—
(i) an individual,
(ii) a Hindu undivided family,
(iii) a company,
(iv) a firm,
(v) an association of persons or a body of individuals, whether incorporated or not,
(vi) a local authority, and
(vii) every artificial juridical person, not falling within any of the preceding sub-clauses.
Explanation.—For the purposes of this clause, an association of persons or a body of individuals or a local authority or an artificial juridical person shall be deemed to be a person, whether or not such person or body or authority or juridical person was formed or established or incorporated with the object of deriving income, profits or gains;
How to determine that an Individual is NRI?
'Non-resident Indian' is an individual who is a citizen of India or a person of Indian origin and who is not a resident of India. Thus, in order to determine whether an Individual is a non-resident Indian or not, his residential status is required to be determined under Section 6. As per section 6 of the Income-tax Act, an individual is said to be non-resident in India if he is not a resident in India and an individual is deemed to be resident in India in any previous year if he satisfies any of the following conditions:
1. If he is in India for a period of 182 days or more during the previous year; or
2. If he is in India for a period of 60 days or more during the previous year and 365 days or more during 4 years immediately preceding the previous year.
However, in respect of an Indian citizen and a person of Indian origin who visits India during the year, the period of 60 days as mentioned in (2) above shall be substituted with 182 days. The similar concession is provided to the Indian citizen who leaves India in any previous year as a crew member or for the purpose of employment outside India.
The Finance Act, 2020, w.e.f., Assessment Year 2021-22 has amended the above exception to provide that the period of 60 days as mentioned in (2) above shall be substituted with 120 days, if an Indian citizen or a person of Indian origin whose total income, other than income from foreign sources, exceeds Rs. 15 lakhs during the previous year. Income from foreign sources means income which accrues or arises outside India (except income derived from a business controlled in or a profession set up in India).
An Indian citizen shall be deemed to be resident in India only if his total income, other than income from foreign sources, exceeds Rs. 15 lakhs during the previous year. For this provision, income from foreign sources means income which accrues or arises outside India (except income derived from a business controlled in or a profession set up in India).
However, such individual shall be deemed to be Indian resident only when he is not liable to tax in any country or jurisdiction by reason of his domicile or residence or any other criteria of similar nature.
Thus, from Assessment Year 2021-22, an Indian Citizen earning total income in excess of Rs. 15 lakhs (other than from foreign sources) shall be deemed to be resident in India if he is not liable to pay tax in any country.
A person shall be deemed to be of Indian origin if he, or either of his parents or any of his grand-parents, was born in undivided India.
6. For the purposes of this Act,—
(1) An individual is said to be resident in India in any previous year, if he—
(a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more ; or
(b) [***]
(c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year.
Explanation 1.—In the case of an individual,—
(a) being a citizen of India, who leaves India in any previous year as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted ;
(b) being a citizen of India, or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted 30[and in case of 31[such person] having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year, for the words "sixty days" occurring therein, the words "one hundred and twenty days" had been substituted.]
Explanation 2.—For the purposes of this clause, in the case of an individual, being a citizen of India and a member of the crew of a foreign bound ship leaving India, the period or periods of stay in India shall, in respect of such voyage, be determined in the manner and subject to such conditions as may be prescribed.32
33[(1A) Notwithstanding anything contained in clause (1), an individual, being a citizen of India, having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year shall be deemed to be resident in India in that previous year, if he is not liable to tax in any other country or territory by reason of his domicile or residence or any other criteria of similar nature.]
A Hindu undivided family, firm or other association of persons is said to be resident in India in any previous year in every case except where during that year the control and management of its affairs is situated wholly outside India.
A company is said to be a resident in India in any previous year, if—
(i) it is an Indian company; or
(ii) its place of effective management, in that year, is in India.
Explanation- For the purposes of this clause "place of effective management" means a place where key management and commercial decisions that are necessary for the conduct of business of an entity as a whole are, in substance made.
Every other person is said to be resident in India in any previous year in every case, except where during that year the control and management of his affairs is situated wholly outside India.
NOT ORDINARILY RESIDENT
A person is said to be "not ordinarily resident" in India in any previous year if such person is—
(a) an individual who has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less; or
(b) a Hindu undivided family whose manager has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less 35[; or
(c) a citizen of India, or a person of Indian origin, having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year, as referred to in clause (b) of Explanation1 to clause (1), who has been in India for a period or periods amounting in all to one hundred and twenty days or more but less than one hundred and eighty-two days; or
(d) a citizen of India who is deemed to be resident in India under clause (1A).
Explanation- For the purposes of this section, the expression "income from foreign sources" means income which accrues or arises outside India (except income derived from a business controlled in or a profession set up in India) and which is not deemed to accrue or arise in India.
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Procedure for attestation of documents:
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In case, the Designated partner is residing outside India, then the attached supporting documents should be attested as follows:
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A.
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Proof of Identity-Passport/PAN Card
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Authority of attestation
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For Indian National (Non-Resident)-who is residing in country which is part of Commonwealth countries
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Attested by India Embassy
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For Indian National (Non-Resident)-who is residing in country which is part of Hague countries
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Attested by India Embassy
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For Indian National (Non-Resident)-who is residing in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961
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Attested by India Embassy
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B
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Proof of Address for Indian Citizen (RI or NRI)
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Authority of attestation
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For Indian National (Non-Resident)-Permanent address in India
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Any professional CA/CS or CMA (Practising)
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For Indian National (Non-Resident)-Present address at overseas - which is a country under CommonWealth countries
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Notarised by Public Notary
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For Indian National (Non-Resident)-Present address at overseas - which is a country under hague Convention
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1. Notarised by the Public Notary of that foreign country; and
2. Apostilled by the competent authority of that foreign country
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For Indian National (Non-Resident) - Present address at overseas - -who is residing in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961
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1. Notarised before the Notary (Public) of such country; and
2. The certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer
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In case, the Designated Partner is a foreign national, then the attached supporting documents should be attested as follows:
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A.
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Proof of Identity-Passport
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Authority of attestation
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For Foreign National residing in his own country which is under Hague Convention
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1. Notarised by the Public Notary of that foreign country; and
2. Apostilled by the competent authority of that foreign country
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For Foreign National residing outside his country and that country where he resides is under Hague Convention
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Option A- Notarised by the Public Notary of that foreign country; and
Apostilled by the competent authority of that foreign country
Or
Option B - Attested by Embassy of his country of origin at place where he resides
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For Foreign National residing in his own country which is under commonwealth country
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Notarised by the Public Notary
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For Foreign National residing outside his country and that country where he resides is under commonwealth country
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Option A- Notarised by the Public Notary of that foreign country;
Or
Option B - Attested by Embassy of his country of origin at place where he resides
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B.
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Proof of Address (Foreign National)
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Authority of attestation
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For Foreign National residing in his own country which is under Hague Convention
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1. Notarised by the Public Notary of that foreign country; and
2. Apostilled by the competent authority of that foreign country
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For Foreign National residing outside his country and that country where he resides is under Hague Convention
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Option A- Notarised by the Public Notary of that foreign country; and
Apostilled by the competent authority of that foreign country
Or
Option B - Attested by Embassy of his country of origin at place where he resides
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For Foreign National residing in his own country which is under commonwealth country
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Notarised by the Public Notary
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For Foreign National residing outside his country and that country where he resides is under commonwealth country
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Option A- Notarised by the Public Notary of that foreign country;
Or
Option B - Attested by Embassy of his country of origin at place where he resides
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For Foreign National who is from a country which is outside the Commonwealth and also not a party to the Hague Apostille Convention, 1961
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1. Notarised before the Notary (Public) of such country; and
2. The certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer
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http://thecommonwealth.org/member-countries
http://www.internationalapostille.com/hague-apostille-member-countries/
