Facts
- A is a resident individual of India.
- A left India on December 24, 2022 to pursue further studies abroad.
- The relevant financial year is 2022-23 (April 1, 2022 to March 31, 2023).
- A wants to determine his residential status under FEMA.
What does FEMA say?
- Under FEMA, residential status is an ongoing process, not just a point in time.
- Generally, an individual is considered a resident if he has stayed in India for more than 182 days during the preceding financial year (i.e., April 1 to March 31).
- Exceptions where a person leaving India is still considered resident under FEMA include individuals leaving India for:
- Taking up employment abroad,
- Carrying on business or vocation abroad,
- Or leaving for an uncertain period.
Application to A’s case
- A stayed in India from April 1, 2022, to December 24, 2022, which is 267 days (more than 182 days).
- A left India for studies abroad, which is not explicitly listed as an exception under FEMA.
- Therefore, since A stayed for more than 182 days in the preceding financial year, and studying abroad is not an exception, A remains a resident of India under FEMA for the year 2022-23.
Summary
| Condition | A’s Status |
|---|---|
| Days stayed in India > 182 days | Yes (267 days) |
| Reason for leaving India | Studies (not an exception) |
| Residential status under FEMA | Resident in India |
Conclusion
- A, having stayed in India for more than 182 days in the preceding financial year, continues to be treated as a resident under FEMA.
- The purpose of leaving India for studies does not qualify for an exception, unlike employment or business.
- Hence, A’s residential status remains Resident in India under FEMA for 2022-23.
If you want, I can also help you with the difference in residential status under Income Tax Act for such a case or with related foreign exchange compliance.
