CA K Sanjay BhargavChartered Accountant
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A foreign national's Indian tax residence: why the 60-day test applies to you in full

CA K Sanjay Bhargav, Chartered Accountant, Bengaluru

Membership No. 250054 · DISA (ICAI)

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A software engineer from Germany moves to Bengaluru in May on an employment visa. She reads that you become an Indian tax resident at 182 days, counts four months to the end of the tax year, and concludes she is safely non-resident.

She is resident, and she was resident from well before she did the arithmetic.

The 182 days she read about is not the general rule. It is a relief, and the relief was written for someone else.

Where the 182 days actually comes from

The ordinary test of residence has two limbs. Under Section 6(1) of the Income-tax Act 1961 — Section 6(1) of the Income-tax Act 2025 from tax year 2026-27 — you are resident in India in a tax year if either:

  • you were in India for 182 days or more in that year; or
  • you were in India for 60 days or more in that year and 365 days or more in the four preceding years.

Both limbs are live. The second one is the one that catches people, because 60 days is a little over eight weeks.

What the commentary usually quotes is Explanation 1(b) to Section 6(1) of the 1961 Act — Sections 6(4) and 6(5) of the 2025 Act — which replaces that 60-day figure with 182 days. But read who it is for:

a citizen of India or a person of Indian origin … who, being outside India, comes on a visit to India

Two conditions, and both have to hold. You must be an Indian citizen or a person of Indian origin, and you must be coming on a visit.

A German passport holder with no Indian ancestry satisfies neither. The relief is simply not available, and the 60-day limb applies to her in full.

The visa decides nothing

This is worth saying plainly because it is the single most common assumption.

Residence under the Income-tax Act is a day count. An employment visa, a business visa, an e-visa, a long-term entry permit, an OCI card — none of them is a tax status. None of them appears in Section 6. A person on a five-year employment visa who spends 50 days a year in India is not resident; a person on a tourist visa who spends 200 days is.

The corollary matters as much: your employer's view of your status is not determinative either, and payroll set up on an assumption about residence is one of the more expensive things to unwind after the year has closed.

Are you of Indian origin? It is a question about birthplaces

If you might fall inside the relief, the test is specific. Under Section 2(78) of the 2025 Act — carried over from the Explanation to Section 115C(e) of the 1961 Act — you are of Indian origin if you, either of your parents, or any of your grandparents were born in undivided India.

So the question needs seven answers: your place and date of birth, both parents', and all four grandparents'. Not nationality, not surname, not where the family considers itself from. Appearance and the colour of a passport decide nothing at all.

Two points to raise rather than assume:

  • "Undivided India" means pre-partition British India, so a grandparent born in what is now Pakistan or Bangladesh can bring you inside the definition.
  • Whether a birth in India after 1947 counts is genuinely arguable on the wording. Where a case turns on it, it should be argued both ways, not assumed in the taxpayer's favour.

And even for a person who is of Indian origin, the second condition remains: the relief needs a visit. Someone living in India for most of the year is not obviously visiting, and that reading is open to the department.

If you are resident, you are probably not ordinarily resident

Being resident is not the end of it, and this is where most of the relief for a newly arrived foreign national actually sits.

Section 6(6)(a) of the 1961 Act — Section 6(13)(a) of the 2025 Act — makes you not ordinarily resident (RNOR) if either:

  • you were non-resident in nine of the ten preceding years; or
  • you were in India for 729 days or fewer in the seven preceding years.

Someone who has just moved to India will almost always satisfy at least one. The consequence is substantial: an RNOR is taxed on Indian income but not on foreign income. Your salary from abroad, your investments at home, your rental property in Munich — outside Indian tax while the window lasts.

It is a window, not a status. It closes, and there is no split year in India: each tax year is tested on its own facts, from scratch.

The exception that catches remote workers

Here is the part that is routinely got wrong, and it was the question behind one of the enquiries that prompted this note.

The RNOR shelter for foreign income does not extend to income from a business controlled in India, or a profession set up in India. That carve-out is in the proviso to Section 5(1) of the 1961 Act and Section 5(1)(c) of the 2025 Act.

Consider a consultant who moves to Goa, keeps every client in Europe, invoices in euros and is paid into a European bank account. Nothing about the money is Indian. But the work is being done from India, so the profession is set up in India — and the fees are Indian-taxable even as an RNOR.

The test is where the professional activity is carried on, not where the client is, where the invoice is raised, or where the money lands. A remote worker who assumes RNOR covers freelance earnings because the clients are abroad has the rule backwards.

Where the income is taxable in both countries, the treaty with your country of residence is the next question — and under an Article 14 or 15 type test a day-count window that ends in the Indian tax year can reach back into the previous one, so a light year is not automatically a protected year.

A PAN, and the form that changed

You will need a PAN. The application for a person who is not an Indian citizen was Form 49AA under the 1962 Rules; under the Income-tax Rules 2026 the application for a non-citizen is Form 95.

One caution, offered rather than buried: the entire form set was renumbered with the 2026 Rules and the change is recent. Confirm the current form on the e-filing portal when you apply, rather than relying on a number quoted in any article, this one included.

The order to work in

  1. Get the passport stamps, for this year and the four before it. Everything else is downstream of the day count, and a count built from memory is not a count.
  2. Count both limbs — 182 days, and 60 days plus 365 across four years. Present the arrival and departure days both ways if you are near a threshold.
  3. Establish Indian origin on birthplaces, only if the relief might be in play.
  4. Test RNOR under Section 6(6)(a) / 6(13)(a).
  5. Separate the income into Indian-source, foreign-source, and the business-or-profession carve-out. That third category is the one that moves the number.
  6. Then look at the treaty, and only then at the return.

Steps 1 and 2 are arithmetic and cannot be argued with once the stamps are on the table. Everything contentious lives in steps 3 and 5.

If you are here because your employer set you up in India, or because an Indian company you own employs you, the entity side runs alongside this: the first 90 days of a foreign-owned company in India and the resident director requirement cover what the company has to do while you are working out what you have to do.

Frequently asked questions

Everyone says 182 days. Why does that not apply to me?

Because the 182-day figure people quote is usually the relief in Explanation 1(b) to Section 6(1) of the 1961 Act (Sections 6(4) and 6(5) of the 2025 Act), and that relief is written for "a citizen of India or a person of Indian origin" who comes on a visit to India. A foreign national who is not of Indian origin is outside it. For you the ordinary test applies: 60 days or more in India in the year, together with 365 days or more across the four preceding years, makes you resident.

I am here on an employment visa. Does that make me a non-resident, or a resident?

Neither. Residence under the Income-tax Act is a day count, not a visa category. An employment visa, a business visa, an e-visa and an OCI card all decide nothing by themselves. The only questions are how many days you were physically in India in the tax year and how many in the four years before it.

What counts as a person of Indian origin?

You are of Indian origin if you, either of your parents, or any of your grandparents were born in undivided India. That is the definition in Section 2(78) of the 2025 Act, carried over from the Explanation to Section 115C(e) of the 1961 Act. It is a question about birthplaces, so it needs the actual places and dates of birth for you, both parents and all four grandparents. Whether a birth in India after 1947 counts is genuinely arguable, so a case that turns on it should be put both ways rather than assumed.

I am of Indian origin but I live in India most of the year. Does the relief help me?

It may not. The relief applies to a person of Indian origin who "comes on a visit to India". Someone who lives here for long stretches is not obviously visiting, and the department can say so. Where that is the position, the answer should be worked out on both readings — with the relief and without it — because the difference is the whole of the liability, not a detail.

If I am resident, is my foreign income taxed in India?

Not necessarily. Check RNOR next: Section 6(6)(a) of the 1961 Act, Section 6(13)(a) of the 2025 Act. You are not ordinarily resident if you were non-resident in nine of the ten preceding years, or present for 729 days or fewer in the seven preceding years. A newly arrived foreign national usually qualifies. An RNOR is taxed on Indian income but not on foreign income — with one exception that catches people, below.

I freelance for clients abroad while living in India. Is that foreign income?

No, and this is the exception. The RNOR shelter does not extend to income from a business controlled in India or a profession set up in India — the proviso to Section 5(1) of the 1961 Act, Section 5(1)(c) of the 2025 Act. If you are doing the work from India, the profession is set up here, so the fees are taxable in India even though every client and every bank account is abroad. Plenty of people arrive believing the opposite.

How do I get a PAN as a foreign citizen?

The application for someone who is not an Indian citizen was Form 49AA under the 1962 Rules. Under the Income-tax Rules 2026 the form for a non-citizen is Form 95. The form set was renumbered wholesale and the change is recent, so confirm the current form on the e-filing portal before applying rather than relying on a form number quoted anywhere, including here.

Do my arrival and departure days count?

The department counts both, and an Authority for Advance Rulings decision supports that. Some Tribunal benches have excluded the day of arrival. If your count sits within a day or two of 60, or of 182 where the relief applies, the answer may turn on which approach is taken — so get the passport stamps with arrival times and present the count both ways rather than picking the favourable one.

Working in India on a foreign passport?

Send your passport stamps for the last five years, the dates you first arrived, and where you and your parents were born. Residential status for each year, whether the RNOR window helps, and what has to go in an Indian return are worked out from the dates rather than from the visa.

Related service: Income Tax & ITR Filing