I moved to Singapore with my family. Can the AO's tie-breaker questionnaire alone make me an Indian resident?
No. A tie-breaker questionnaire is an important aid but cannot be the exclusive basis for the conclusion, and permanence of a home is assessed qualitatively as well as by duration, so a flat taken on rent abroad can be a permanent home. The Tribunal decided the tie-breaker principally on the centre of vital interests - the assessee had moved to Singapore with his family to earn there, so his personal and economic relations for that period were in Singapore - with habitual abode offered as an additional reason. The addition of global income was deleted and the Assessing Officer directed to accept the revised return.
Decided by the ITAT (ITAT Delhi Bench 'D' - Anil Chaturvedi (Accountant Member) and N.K. Choudhry (Judicial Member); order delivered by N.K. Choudhry, JM; ITA No. 4040 (Delhi) of 2019; AY 2015-16) on 2022-12-28, reported as [2023] 146 taxmann.com 158 (Delhi)(Trib.); (2023) 199 ITD 317 (Delhi)(Trib.); ITA No. 4040 (Delhi) of 2019; AY 2015-16 (FY 2014-15). It bears on section 6(1)(a), section 6(6), section 90, section 90(2), section 90(4) of the Income Tax Act 1961, in Residence & Treaty Benefit matters.
Officers increasingly decide treaty residence by scoring a questionnaire and then treating the score as the finding. This order says the questionnaire is an input and not the determination, and that permanence of a home is judged qualitatively as well as by duration, so that a flat taken on rent abroad can be a permanent home. What carried it was that the assessee had moved with his family to Singapore to earn there, that the income had been returned and taxed in Singapore, and that neither authority below doubted the residency certificate. Do not overstate the documentary evidence: the order records that he held a driving licence in both countries and that both were shown as his country of residence on official forms, so the licence cuts both ways. It is also useful where a client filed a global-income return first and revised it on treaty grounds, since the revised return was directed to be accepted.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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For AY 2015-16 the assessee drew salary from DBOI Global Services (P.) Ltd. in India for 1 April to 25 November 2014 and from J.P. Morgan Chase & Co., Singapore from 15 December 2014, having moved to Singapore with his family on 6 December 2014. His original return of 29 August 2015 declared Rs. 1,59,36,999, being his global income. A revised return of 7 August 2016 restricted the income to Rs. 47,82,630, the Indian portion only, claiming relief under s.90 and a refund of Rs. 22,19,630. The Assessing Officer found him physically present in India for 182 days or more and resident under s.6(1)(a); the assessee's own case was that he was resident and ordinarily resident under s.6(6) and simultaneously a resident of Singapore, so that Article 4(1) of the India-Singapore agreement made him a dual resident and the tie-breaker in Article 4(2) had to be run. The Assessing Officer used a tie-breaker questionnaire, held him a resident of India, rejected the revised return and taxed the global income. The house he owned in India was let to a tenant from 1 December 2014 for eleven months; the flat in Singapore was taken on rent from 1 January 2015 to 31 December 2016. He produced a Singapore residency certificate, and the income had been returned and taxed in Singapore. The charge on the Singapore salary was resisted under Article 15(1).
The assessee was a resident of Singapore under Article 4(2) for the period in question. The Tribunal worked through the limbs rather than jumping to habitual abode. Permanence of a home is assessed qualitatively as well as quantitatively, and any form of home counts, including a rented apartment (paras 7.4, 7.5 and 7.8). The centre of vital interests was decided in the assessee's favour at para 7.10: he had gone to Singapore with his family to earn income there, so his personal and economic relations at that particular time and period could not be brushed aside and remained in Singapore. Habitual abode at para 7.11 was offered as an additional reason. The addition was deleted and the Assessing Officer directed to accept the revised return (paras 7.12 and 8); nothing was restored to the Assessing Officer.
The Tribunal took the concept of a permanent home from the UN Model Commentary: any form of home counts, including a rented apartment or a rented furnished room, but permanence is essential, meaning the dwelling is available continuously and not occasionally for a stay necessarily of short duration (paras 7.4 and 7.5). From the same commentary it took the proposition that shapes the case - that the facts to which the special rules apply are those existing during the period when the residence of the taxpayer affects tax liability, which may be less than an entire taxable period. Treaty provisions prevail over the general provisions of the Act unless in derogation of the law of the land, and the assessee and his family had shifted to Singapore on 6 December 2014 and remained there, earning there (para 7.6). The questionnaire is important but cannot be exclusively taken into consideration as a base for deciding residency, and permanence of home is assessed qualitatively as well as quantitatively (para 7.8). Against the first appellate authority's finding that the savings, investments and personal bank accounts were in India, the Tribunal held that personal and economic relations at that particular time and period could not be brushed aside, and remained in Singapore only (para 7.10); neither authority below had doubted the Singapore residency certificate and tax had been paid there. Habitual abode is not permanent residence but the place where one normally resides, which during the period was Singapore, and that was given as an additional reason (para 7.11). The driving licence does not point one way: para 7.7 records that the assessee held a licence in both countries and that both were shown as country of residence on official forms.
In our considered view, no doubt the tie-breaker questionnaire having importance in determining the residency of a person, but cannot be exclusively taken into consideration as a base for deciding the residency. The permanence of home can be determined on qualitative and quantitative basis.
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Handle my notice → Ask a CA on WhatsAppNo. A tie-breaker questionnaire is an important aid but cannot be the exclusive basis for the conclusion, and permanence of a home is assessed qualitatively as well as by duration, so a flat taken on rent abroad can be a permanent home. The Tribunal decided the tie-breaker principally on the centre of vital interests - the assessee had moved to Singapore with his family to earn there, so his personal and economic relations for that period were in Singapore - with habitual abode offered as an additional reason. The addition of global income was deleted and the Assessing Officer directed to accept the revised return. This was decided by the ITAT (ITAT Delhi Bench 'D' - Anil Chaturvedi (Accountant Member) and N.K. Choudhry (Judicial Member); order delivered by N.K. Choudhry, JM; ITA No. 4040 (Delhi) of 2019; AY 2015-16) and bears on section 6(1)(a), section 6(6), section 90, section 90(2), section 90(4) of the Income Tax Act 1961. It is reported as [2023] 146 taxmann.com 158 (Delhi)(Trib.); (2023) 199 ITD 317 (Delhi)(Trib.); ITA No. 4040 (Delhi) of 2019; AY 2015-16 (FY 2014-15). Officers increasingly decide treaty residence by scoring a questionnaire and then treating the score as the finding. This order says the questionnaire is an input and not the determination, and that permanence of a home is judged qualitatively as well as by duration, so that a flat taken on rent abroad can be a permanent home. What carried it was that the assessee had moved with his family to Singapore to earn there, that the income had been returned and taxed in Singapore, and that neither authority below doubted the residency certificate. Do not overstate the documentary evidence: the order records that he held a driving licence in both countries and that both were shown as his country of residence on official forms, so the licence cuts both ways. It is also useful where a client filed a global-income return first and revised it on treaty grounds, since the revised return was directed to be accepted. If it applies to you, the first step is this: Answer the questionnaire, but file alongside it the objective evidence of where the person actually lived and earned during the period - family relocation, employment, local accommodation, tax actually paid abroad and the residency certificate - and ask that the conclusion be drawn from those facts.
For AY 2015-16 the assessee drew salary from DBOI Global Services (P.) Ltd. in India for 1 April to 25 November 2014 and from J.P. Morgan Chase & Co., Singapore from 15 December 2014, having moved to Singapore with his family on 6 December 2014. His original return of 29 August 2015 declared Rs. 1,59,36,999, being his global income. A revised return of 7 August 2016 restricted the income to Rs. 47,82,630, the Indian portion only, claiming relief under s.90 and a refund of Rs. 22,19,630. The Assessing Officer found him physically present in India for 182 days or more and resident under s.6(1)(a); the assessee's own case was that he was resident and ordinarily resident under s.6(6) and simultaneously a resident of Singapore, so that Article 4(1) of the India-Singapore agreement made him a dual resident and the tie-breaker in Article 4(2) had to be run. The Assessing Officer used a tie-breaker questionnaire, held him a resident of India, rejected the revised return and taxed the global income. The house he owned in India was let to a tenant from 1 December 2014 for eleven months; the flat in Singapore was taken on rent from 1 January 2015 to 31 December 2016. He produced a Singapore residency certificate, and the income had been returned and taxed in Singapore. The charge on the Singapore salary was resisted under Article 15(1). The matter was decided on 2022-12-28 by the ITAT (ITAT Delhi Bench 'D' - Anil Chaturvedi (Accountant Member) and N.K. Choudhry (Judicial Member); order delivered by N.K. Choudhry, JM; ITA No. 4040 (Delhi) of 2019; AY 2015-16). On those facts the ITAT held as follows. The assessee was a resident of Singapore under Article 4(2) for the period in question. The Tribunal worked through the limbs rather than jumping to habitual abode. Permanence of a home is assessed qualitatively as well as quantitatively, and any form of home counts, including a rented apartment (paras 7.4, 7.5 and 7.8). The centre of vital interests was decided in the assessee's favour at para 7.10: he had gone to Singapore with his family to earn income there, so his personal and economic relations at that particular time and period could not be brushed aside and remained in Singapore. Habitual abode at para 7.11 was offered as an additional reason. The addition was deleted and the Assessing Officer directed to accept the revised return (paras 7.12 and 8); nothing was restored to the Assessing Officer.
The Tribunal took the concept of a permanent home from the UN Model Commentary: any form of home counts, including a rented apartment or a rented furnished room, but permanence is essential, meaning the dwelling is available continuously and not occasionally for a stay necessarily of short duration (paras 7.4 and 7.5). From the same commentary it took the proposition that shapes the case - that the facts to which the special rules apply are those existing during the period when the residence of the taxpayer affects tax liability, which may be less than an entire taxable period. Treaty provisions prevail over the general provisions of the Act unless in derogation of the law of the land, and the assessee and his family had shifted to Singapore on 6 December 2014 and remained there, earning there (para 7.6). The questionnaire is important but cannot be exclusively taken into consideration as a base for deciding residency, and permanence of home is assessed qualitatively as well as quantitatively (para 7.8). Against the first appellate authority's finding that the savings, investments and personal bank accounts were in India, the Tribunal held that personal and economic relations at that particular time and period could not be brushed aside, and remained in Singapore only (para 7.10); neither authority below had doubted the Singapore residency certificate and tax had been paid there. Habitual abode is not permanent residence but the place where one normally resides, which during the period was Singapore, and that was given as an additional reason (para 7.11). The driving licence does not point one way: para 7.7 records that the assessee held a licence in both countries and that both were shown as country of residence on official forms. In the words reproduced by the source cited on this page: "In our considered view, no doubt the tie-breaker questionnaire having importance in determining the residency of a person, but cannot be exclusively taken into consideration as a base for deciding the residency. The permanence of home can be determined on qualitative and quantitative basis." The decision followed or applied Raman Chopra v. Dy. CIT [2016] 69 taxmann.com 452/158 ITD 904 (Delhi)(Trib.) - noted at para 7.9 as a coordinate-bench decision applying the Article 4(2) tie-breaker to a part-year under the India-USA agreement; the order carries no case review and does not record it in terms as followed.
It was decided by the ITAT on 2022-12-28 and is reported as [2023] 146 taxmann.com 158 (Delhi)(Trib.); (2023) 199 ITD 317 (Delhi)(Trib.); ITA No. 4040 (Delhi) of 2019; AY 2015-16 (FY 2014-15). Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section 6(1)(a), section 6(6), section 90, section 90(2), section 90(4), the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The assessee was a resident of Singapore under Article 4(2) for the period in question. The Tribunal worked through the limbs rather than jumping to habitual abode. Permanence of a home is assessed qualitatively as well as quantitatively, and any form of home counts, including a rented apartment (paras 7.4, 7.5 and 7.8). The centre of vital interests was decided in the assessee's favour at para 7.10: he had gone to Singapore with his family to earn income there, so his personal and economic relations at that particular time and period could not be brushed aside and remained in Singapore. Habitual abode at para 7.11 was offered as an additional reason. The addition was deleted and the Assessing Officer directed to accept the revised return (paras 7.12 and 8); nothing was restored to the Assessing Officer. It arises in Residence & Treaty Benefit matters, on section 6(1)(a), section 6(6), section 90, section 90(2), section 90(4) of the Income Tax Act 1961, and was decided by ITAT Delhi Bench 'D' - Anil Chaturvedi (Accountant Member) and N.K. Choudhry (Judicial Member); order delivered by N.K. Choudhry, JM; ITA No. 4040 (Delhi) of 2019; AY 2015-16. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Establish first whether the client is a resident under s.6 at all; here he was, on presence of 182 days or more, which is why the tie-breaker was reached. Work the Article 4(2) criteria in the treaty's own sequence, and do not lead with habitual abode: here it was an additional reason and the case was decided on the centre of vital interests. Expect savings, investments and Indian bank accounts to be put on the India side, and answer them with where the person was actually living and earning during the period. If a revised return restricted the charge to Indian-source income, put the reason for the revision on record at the time rather than defending it later as an afterthought.
Still good law. Good law. Narinder Pal Singh v. ACIT [2023] 152 taxmann.com 356 (Delhi)(Trib.), IT Appeal No. 3786 (Delhi) of 2019, decided 7 March 2023, expressly follows it: the case review of that order names this decision, cites it in full and records it as followed at para 16, where paras 7.4 to 7.12 of this order are reproduced verbatim and held to squarely apply to the facts there. The following Bench is a coordinate Bench of the same Tribunal. No decision doubting, distinguishing or reversing this order was found and no appeal to the High Court appears on the record. Two things must be carried with the upgrade. Narinder Pal Singh goes further than this order on the temporal point, holding at its para 15 that the period is irrelevant, and also holds that where the Indian house is let out and the foreign home is employer-leased the taxpayer has no permanent home available in either State, so that the permanent-home limb drops out and habitual abode governs. And on that temporal point this line is squarely opposed to Ashok Kumar Pandey v. ACIT (2024) 209 ITD 274 (Mum.)(Trib.), which this library carries alongside it and whose para 22 requires the test to be applied for the assessment year for which the liability is determined, and to Binny Bansal v. Dy. CIT [2026] 182 taxmann.com 226 (Bangalore)(Trib.), which applies Ashok Kumar Pandey and rejects a split-year argument in terms at its para 100. Neither side has noticed the other. On the weighting of personal and economic relations the two lines are consistent: this assessee's active earning was in Singapore and what was put on the India side was savings, investments and bank accounts, which the Mumbai framework itself treats as passive. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The order has been read in full and the gaps the earlier record disclosed are closed. It was decided on 28 December 2022 and reported in 2023, which is why secondary sources carried it as a 2023 decision. The Bench is Delhi Bench 'D', Anil Chaturvedi (Accountant Member) and N.K. Choudhry (Judicial Member), the order being written by N.K. Choudhry, in ITA No. 4040 (Delhi) of 2019 for AY 2015-16. The assessee was a domestic-law resident of India: the Assessing Officer found presence of 182 days or more and applied s.6(1)(a) at para 2.2, the assessee himself pleaded resident and ordinarily resident status under s.6(6) at para 5, and the Tribunal proceeded on dual residence under Article 4(1). The Tribunal did work through the earlier limbs of Article 4(2), and the decision rests principally on the centre of vital interests at para 7.10, with habitual abode at para 7.11 given as an additional reason. One warning before quoting para 7.11: its closing sentence is garbled by a double negative and reads as though the assessee had failed to produce the residency certificate and had not paid the relevant taxes, which contradicts paras 7.8 and 7.10 and the rest of the order. Quote paras 7.8 and 7.10 instead. The sentence previously quoted in this entry was a digest headnote and has been replaced. The order applies the tie-breaker to part of a previous year, and coordinate benches are divided on whether that is permissible - see the validity note. It does not deal with the reporting obligations that follow the annual status under the Act, the schedules in the return and the foreign-asset regime, for a year in which the treaty has allocated part of the period away. The interpretive work is done by the UN Model Commentary rather than by case law: the only decision in the order is a coordinate-bench order noted at para 7.9. The closing sentence of para 7.11 is garbled and should not be quoted. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The assessee was a resident of Singapore under Article 4(2) for the period in question. The Tribunal worked through the limbs rather than jumping to habitual abode. Permanence of a home is assessed qualitatively as well as quantitatively, and any form of home counts, including a rented apartment (paras 7.4, 7.5 and 7.8). The centre of vital interests was decided in the assessee's favour at para 7.10: he had gone to Singapore with his family to earn income there, so his personal and economic relations at that particular time and period could not be brushed aside and remained in Singapore. Habitual abode at para 7.11 was offered as an additional reason. The addition was deleted and the Assessing Officer directed to accept the revised return (paras 7.12 and 8); nothing was restored to the Assessing Officer.
TaxSphere, “Sameer Malhotra v ACIT”, https://taxnotice.vittsphere.com/caselaw/case/sameer-malhotra-v-acit-tie-breaker/ (validity last checked 2026-08-23)
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The Assessing Officer has computed my days in India from immigration records instead of the stamps in my passport. Can he go behind the passport like that?
My passport was seized and I could not leave India. Do those days count towards the 182 days?
I flew out of India in October. Does the day I left count as a day of stay in India for the 182-day test, and does a part-day count?
The AO counted 184 days and called me resident. Does the day I landed in India count?
