S. 90 (4) of the Act, as inserted by the Finance Act 2013 w.e.f 1.4.2012 provides that an assessee, not being a resident, to whom an agreement referred to in sub-section (1) of s. 90 applies, shall not be entitled to claim any relief under a Double Taxation Avoidance Agreement unless a certificate, containing such particulars as may be prescribed, of his being a resident in any country outside India or specified territory outside India, as the case may be, is obtained by him from the Government of that country or specified territory. A similar provision has been inserted in sub-section (4) of s. 90A of the Act. Pursuant therto, the CBDT has issued Notification dated 17.09.2012 to insert Rule 21BA and Forms 10FA and 10FB specifying the manner in which the aforesaid Certificate of Tax Residency should be obtained.
[TO BE PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY, PART II, SECTION 3, SUB-SECTION (ii)]
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
[CENTRAL BOARD OF DIRECT TAXES]
New Delhi, the 17th day of September, 2012
S.O. 2188(E).- In exercise of the powers conferred by section 90 and 90A read with section 295 of the Income-tax Act, 1961 (43 of 1961), the Central Board of Direct Taxes hereby makes the following rules further to amend the Income-tax Rules, 1962, namely:-
1. (1). These rules may be called the Income-tax (12th Amendment) Rules, 2012.
(2). They shall come into force on the 1st day of April, 2013.
2. In the Income-tax Rules, 1962 (hereafter referred to as the principal rules), –
(a) after rule 21AA, the following rule shall be inserted, namely.-
“Certificate for claiming relief under an agreement referred to in section 90 and 90A.
21AB (1) The certificate referred to in sub-section (4) of section 90 and subsection (4) of section 90A to be obtained by an assessee, not being a resident in India, from the Government of the country or the specified territory shall contain the following particulars, namely:
(i) Name of the assessee;
(ii) Status (individual, company, firm etc.) of the assessee;
(iii) Nationality (in case of individual);
(iv) Country or specified territory of incorporation or registration (in case of others);
(v) Assessee’s tax identification number in the country or specified territory of residence or in case no such number, then, a unique number on the basis of which the person is identified by the Government of the country or the specified territory;
(vi) Residential status for the purposes of tax;
(vii) Period for which the certificate is applicable; and
(viii) Address of the applicant for the period for which the certificate is applicable;
(2) The certificate referred to in sub-rule (1) shall be duly verified by the Government of the country or the specified territory of which the assessee, referred to in sub-rule (1), claims to be a resident for the purposes of tax.
(3) An assessee, being a resident in India, shall, for obtaining a certificate of residence for the purposes of an agreement referred to in section 90 and section 90A, make an application in Form No. 10FA to the Assessing Officer.
(4) The Assessing Officer on receipt of an application referred to in sub-rule (3) and being satisfied in this behalf, shall issue a certificate of residence in respect of the assessee in Form No. 10FB.”;
(b) in Appendix-II, after the Form No. 10F, the following Forms shall be inserted, namely:
“FORM No. 10FA
[See rule 21AB (3)]
Application for Certificate of residence for the purposes of an agreement under section 90 and 90A of the Income Tax Act, 1961.
The Assessing Officer,
I request that a certificate of residence in Form No.10FB be granted in my case/in the case of _______________________________ [for person other than individual].
2. The relevant details in this regard are as under: –
(i) Full Name and address of the applicant
(State whether individual, Hindu undivided family, firm, body of individuals, company etc.)
(iii) Nationality (in case of individual). __________________________
(iv) Country of incorporation/ registration (in case of others).
(v) Address of the applicant during the period for which TRC is desired. __________________________
(vi) Email ID
(vii) PAN/ TAN No. (if applicable)
(viii) Basis on which the status of being resident in India is claimed.
(ix) Period for which the residence certificate is applicable.
(x) Purpose of obtaining Tax
Residency Certificate (must
(xi) Any other detail
3. The following document in support are enclosed: –
I, __________ [full name in block letters] ___ son/daughter of __________________________, in the capacity of ____________ [designation for person other than individual], verify that to the best of my knowledge and belief, the information given in this form is correct and complete and that the other particulars shown therein are truly stated.
Verified today the _____________day of ____________.
Place Signature of the Applicant
FORM No. 10FB
[See rule 21AB (4)]
Certificate of residence for the purposes of section 90 and 90A
1. Name of the Person __________________________
2. Status __________________________
3. Permanent Account Number __________________________
4. Address of the person during the
period of Tax Residency Certificate.
It is hereby certified that the above mentioned person is a resident of India for the purposes of Income-tax Act, 1961.
This certificate is valid for the period ___________
Issued on the ______ day of ______, _________.
Name of the Assessing Officer
[Notification No.39/ F.No.142 /13/2012–SO (TPL)]
Note. – The principal rules were published vide Notification No. S.O.969 (E), dated the 26th March, 1962 and last amended by Income-tax (11th Amendment) Rules, 2012 vide Notification S.O. No.37/2012 dated 12-09-2012.