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Mrs.

Diya Varwani Income Tax


Introduction & Definitions
Introduction – In Indian Economy, the Govt. plays a crucial role by making heavy investments /
expenditure on core areas like heavy industries, infrastructure, defense, internal security, education,
poverty alleviation, employment generation, health, etc. For this purpose Govt. raises funds by levying
various taxes, other receipts & also borrowings from market.
Types of Taxes – Direct Taxes & Indirect Taxes
Direct Taxes – Tax which is paid by a person on whom it is legally imposed & the burden of which can
not be shifted to any other person is called a direct tax. Tax payer is the tax bearer. Eg. Income Tax,
Wealth Tax, Capital gains Tax, etc.
Indirect Taxes – Tax, the burden of which can be shifted to others. Tax payer is not the tax bearer. Eg.
Sales tax, Excise Duty, Customs Duty, VAT, etc.
What is Income Tax? Income Tax is a tax on income earned by a person. Any person, who is having the
income in excess of non-taxable limit, is required to pay tax.
Income Tax in India – Income Tax was first introduced in India in 1860but a systematic legislation was
passed only in 1866. Since then, there have been constant changes in the structure of this law. The
whole act was completely revised in 1961. The result was the Income Tax Act, 1961 which came in
force from 01-04-1962. This act undergoes changes every year when the budget is passed by the
parliament. The Income Tax is the machinery, which determines who is to be charged tax and in respect
of what income. But the income is classified under various heads and then it is taxed. But the income
tax does not prescribe the rates at which different persons and different income would be taxed. The
rates of taxation are prescribed every year by the Finance Act.
Definitions
Assessee Section 2(7) – “Assessee means a person by whom any tax or any other sum of money (i.e.
Penalty or Interest) is payable under the act”.
The term assessee includes the following:
1. A person [sec. 2(31)] by whom any tax or any other sum of money (including Penalty or
Interest) is payable under the act.
2. Every person in respect of whom any proceeding under this act has been taken for the
assessment of –
i) his own income or income of any other person in respect of whom he is assessable or
ii) the loss sustained by him or such other person or
iii) the amount of refund due to him or such other person.
3. Every person who is Deemed to be an Assessee under the provisions of this Act. For e.g. an
agent of a non-resident, the guardian of a minor, a trustee, on the death of a person his legal
representative shall be treated as assessee.
4. Every person who is Deemed to be Assessee in Default under any provisions of this Act. E.g.
i) a person who fails to pay installment of advance tax
ii) a person who is liable to deduct tax at source but does not deduct it
iii) a person who deducts the tax a t source but fails to pay it to the Government.
Assessment Section 2(8) – “An Assessment includes reassessment”.
An Assessment means the process of determining and computing the amount of income and the tax due
of a person.
Assessment Year Section 2(9) – “The period of 12 months commencing on the first day of April every
year”.
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Mrs. Diya Varwani Income Tax
st st
Thus an assessment year begins on 1 April and ends 31 March. For eg. The current assessment year
2008-09, has begun on 1st April 2008 and will end on 31st March 2009. Income earned in Previous year
is taxed in assessment year which is following the previous year.
Income Section 2(24) - Income includes –
1. Profits & Gains
2. Dividends
3. Voluntary Contributions received by a charitable or religious trust or institution or approved
scientific research association or sports association.
4. Value of perquisites or profit in lieu of salary.
5. Any special allowance or benefit specially granted to the assessee to meet expenses wholly,
reasonably and exclusively for the performance of his duties (eg. Entertainment Allowance).
6. Any allowance granted to the assessee – to meet his personal expenses at the place where he
performs his duties or to compensate him for the increased cost of living (eg. Dearness
Allowance)
7. The Value of any benefit or perquisite, whether convertible into money or not, which is obtained
from a company by – a director or his relative or a person who has a substantial interest in the
company or his relative. It also includes any sum paid by the company in respect of any
obligation which otherwise would have been payable by aforesaid persons.
8. The value of any benefit or perquisite, convertible into money or not, obtained by a trustee on
behalf of the beneficiary.
9. Any sum chargeable to income tax under section 28(ii), (iii); or section 41 or section 59.
- Section 28(ii) deals with any compensation received by a person for termination of
agency
- Section 28(iii) deals with income derived by a trade or professional association for
specific services rendered to its members
- Section 41 deals with profits chargeable to tax as income from business. E.g. recovery of
bad debts, sale of scientific research asset, etc.
- Section 59 deals with profits chargeable to tax as income from other sources e.g. recovery
of expenses claimed earlier
10. Profit on sale of an import license taxable u/s 28(iiia)
11. Export cash assistance received or receivable by any person against exports under any
Government Scheme taxable u/s 28(iiib)
12. Refund of customs duty or excise duty or receivable against exports, taxable u/s 28(iiic)
13. The value of any benefit or perquisite whether convertible into money or not, taxable u/s 28(iv)
i.e. arising from any business or profession. For e.g. A gift received by a doctor from a patient
14. Any Interest, salary, bonus, commission or remuneration, by whatever name called, due to or
received by a partner of a firm from the firm taxable u/s 28(v)
15. Capital gains chargeable u/s 45
16. Profits of any business of insurance carried on by a mutual insurance company or a co-
operative society taxable u/s 44.
17. Income of a banking business of a co-operative society
18. Any winning from lotteries, crossword puzzles, races including horse races, card games, game
show, entertainment programme on television in which people compete to win prizes, gambling,
betting, etc.
19. Any sum received by the employer from his employees as contribution to any provident fund or
superannuation fund or any fund set up under employees state insurance act, 1948, or any other
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Mrs. Diya Varwani Income Tax
fund for the welfare of the employees (only if received by employer & not paid to the fund
before the due date).
20. Any sum received under a keyman insurance policy including policy the sum allocated by way
of bonus on such policy.
21. Any sum exceeding Rs. 50,000 received without consideration (i.e. gift) from non-relatives by
an individual or an HUF after 01-04-2006 shall be treated as income and chargeable to Tax.
The following important points should be noted in this regard:
Regular and definite source
The term ‘income’ in normal course denotes a periodical monetary return coming in with some sort of
regularity or expected regularity from definite sources.
Different Forms of Income
Income may be received in cash or in kind. When income is received in kind, its valuation is to be
made according to income tax rules.
Illegal income
The income tax act does not make any distinction between legal and illegal incomes, both of which are
equally liable to tax. Thus, income earned by a honest teacher is charged to tax at the same rate as
income earned by a smuggler.
Basis
Income may be taken either on accrual basis or on receipt basis depending upon the facts and nature of
income.
Gift
A personal gift, such as gifts at the time of marriage or gifts at birthday celebrations, etc., received from
relatives is not income chargeable to tax in the hands of person who receives it. However gift received
by professionals in appreciation of their professional skill is considered as an income.
Loss
The term ‘Income’ also includes loss. Loss is to be taken as minus income.
Lumpsum Receipt
If a receipt is an income, then whether it is received in lumpsum or in installments would not affect its
taxability, for example, if a person receives arrears of salary in a lumpsum amount, it would still be his
income.
Real Income
Income must be real and not imaginary. A person can not earn income by trading with himself or from
transferring his funds from one account to another. No income can arise in a transfer of goods from
head office to a branch office even if the goods are invoiced at a price higher than cost. Similarly, no
income can arise on passing entries in the accounts on mere revaluation of assets or on mere production
or purchase of goods till the goods are actually sold.
Mutual Activity
Income has to arise from an outside source. Thus, a co-operative society (or a club) does not earn any
income when it collects contributions from its members for common expenses, as the amounts are not
received from an outsider. The members who contribute the money are the same members who obtain
the common benefits and amenities. Such amounts, whose contributors and beneficiaries are the same,
are known as receipts from ‘Mutual activity’ which are not treated as income.

Person Section 2(31) - Person includes –


i) An Individual;
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Mrs. Diya Varwani Income Tax
ii) A Hindu Undivided Family;
iii) A Company;
iv) A Firm;
v) An Association of person (AOP) or a body of Individuals (BOI), whether incorporated or not;
vi) A Local Authority;
vii) Every artificial juridical person not falling within any of the preceding sub-clauses.
Explanations
Individual - Individual means a natural person i.e. a human being. Individual also includes a minor or
a person of unsound mind.
Hindu Undivided Family - A Hindu Undivided Family consists of persons governed by Hindu code
who are lineally descended from common ancestors and includes their wives, sons and unmarried
daughters.
Company - A Company is taxable entity (person) distinct from its shareholders. Section 2(17) of the
Act defines “company” as follows:
(i) any Indian Company,
(ii) any body corporate incorporated under the laws of a country outside India,
(iii) any institution, association, or body which is/was assessed/assessable as a company for
assessment year on before 1st April 1970.
(iv) any institution, association, or body whether incorporated or not and whether Indian or
not, which is declared by the Central Board of Direct Taxes (CBDT) to be a Company.
Thus, a company means, in brief, an Indian company, a foreign Company, any entity assessed as a
company up to the assessment year 1970-71, and an entity declared to be a company by the CBDT.
Firm - A firm means a partnership firm, whether registered or un-registered. For the purpose of income
tax act, a ‘Firm’ is treated as an entity separate and distinct from its partners, though under the
partnership law, a firm has not been accorded such a separate entity.
Association of Persons or Body of Individuals - An ‘Association of Persons’ (AOP) means an
association in which two or more ‘persons’ join for a common purpose or a common purpose or a
common action for earning income. An SOP can have any ‘person’ i.e. an individual, a firm, a HUF, a
Company, etc. as a member.
Following are the examples of an association of persons –
(i) Firm attempted to be formed but where due to legal defect in partnership deed,
partnership is not valid
(ii) Members of formers Hindu Undivided Family earning income jointly even after partition
of the HUF
(iii) A company joining with two other companies in a joint venture
(iv) A trust
(v) A Club
(vi) A co-operative society
Body of Individual (BOI) - BOI means a team of individuals carrying on some activity with the object
of earning income.
There are two major differences between ‘Association of persons’ and ‘Body of Individuals’.
1) An association of persons may consist of non-individuals but a body of individuals consists of
only ‘individuals’ or human beings and can not have any other person (e.g. a firm, a HUF, etc.)
as a member.

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Mrs. Diya Varwani Income Tax
2) Further, an association of persons denotes a voluntary, deliberate or contractual coming together.
A body of individuals, on the other hand, may arise due to operation of law e.g. heirs of a
deceased person earning income from property inherited under law of succession.
Local Authority - Local authority includes a Municipality District Board, Port Trust, Gram Panchayat,
Municipal Corporation or any other authority entrusted by the government with the control and
management of a local fund.
Artificial Juridical Person - The term Artificial Juridical Person covers any entity having a separate
legal existence, not covered under any of the above categories i.e. all such persons who can not be
included under any of the first six categories. It is a residency category. It includes a university, a bar
council, LIC etc.
Previous Year Section 2(34) –
Previous year means the previous year as defined in section 3 of the Income tax. Section 3 defines
previous year as “Financial Year immediately preceding the assessment year”. Financial Year generally
means a year starting from 1st April & ends on 31st March.
Previous Year in case of newly setup business or profession - Previous Year commences on the date of
setting up of business / profession or on the date when new source of business comes into existence &
ends on 31st March immediately following. In this case duration of 1 st Previous year can be 12 months
or less.
In Case of Closure of Business / Profession – In case of existing business, which gets closed in the
financial year, Previous year will be starting from 1st April & ends on the day business / profession is
closed.
Exceptions to above rule:
1. Shipping Business of Non-Resident
2. Non-Resident owns a ship, carries passengers, livestock, goods or mail shipped at a port in
India, NR may or may not have an agent / representative in India.
3. Persons leaving India.
4. Bodies formed for short duration.
5. Person likely to transfer property to avoid tax.
6. Discontinued Business.

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Mrs. Diya Varwani Income Tax
Scope of Total Income & Residential Status
Calculation of Total Income
Income under different heads
Salary XX
House Property XX
Profits/Gains from Business or Profession XX
Capital Gains XX
Other Sources XX
Gross Total Income XXX
Less: Deductions under chapter VI-A (u/s. 80C to 80U) XX
Total Income XXX
Basis of Charge or Charge of Income Tax Section 4
1. Income Tax is an annual tax
2. Income Tax is charged on every person as defined u/s. 2(31)
3. Income Tax is charged in the assessment year, on the Total Income of the Previous Year
4. Income Tax Act does not specify rates at which tax is to be levied. The rates are prescribed for
each assessment year by the respective Finance Act (i.e. Budget).
5. Income tax is also deducted at source or paid in advance as per the provisions of the Act.
Rules of determining Residential status
1. Sec. 2(42) defines Resident as a person who is resident in India within the meaning of section 6.
2. Residential status is different from citizen.
3. The Residential status of an assessee is to be determined in respect of each previous year.
4. For the purpose of determining residential status, assesses have been grouped into 5 categories –
Individual, HUF, Firm, Company & Every other person.
Person (Assessee)

Individual / HUF All Other Assessees

Resident (R) Non-Resident (NR) Resident (R) Non-Resident (NR)

Resident and Resident and Not


Ordinarily Ordinarily Resident
Resident (R & OR) (R & NOR)

Residential Status – Individual Section 6(1)


An Individual is said to be Resident in India if he satisfies any one of the following two conditions:
1. He is in India for a period or periods amounting in all to 182 days or more in the relevant
previous year: OR
2. He is in India for 60 days or more during the relevant previous year and has been in India for
365 days or more during four previous years immediately preceding the relevant previous year.

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Mrs. Diya Varwani Income Tax
Exceptions:
1. In case of Individual who is a citizen of India and who leaves India for the purpose of
employment outside India or as a member of the crew of an Indian ship, the period of 60 days in
condition no. 2 above shall be substituted with 182 days.
2. In case of Individual who is a citizen of India, or a person of Indian origin, who being outside
India, comes on a visit to India, the period of 60 days in condition no. 2 above shall be
substituted with 182 days.
Resident & Ordinarily Resident Section 6(6)
An Individual is said to be Not Ordinarily Resident in India if he satisfies any one of the following
conditions:
1. He has been a non-resident in India in 9 out of 10 previous years immediately preceding the
relevant previous year; OR
2. He has been in India for a period of 729 days or less in 7 previous years immediately preceding
the relevant previous year.
This says that An Individual is said to be ordinarily resident if he satisfies both the following
conditions:
1. He has been Resident in India for at least 2 out of 10 previous years immediately preceding the
relevant previous year; And
2. He has been in India for 730 days or more, during 7 previous years immediately preceding the
relevant previous year.
Illustration 1: Indian Citizen & businessman Shri Raj Gopal, who resides in Jaipur, went to germany
for employment purposes on 15-08-2007 and came back to India on 10-11-2008. He has never been out
of India in the past. a) Determine residential of Shri Raj Gopal for the assessment year 2008-09.
b) Will your answer be different if ha had gone for leisure trip?
Illustration 2: ‘U’ was born in 1975 in India. His parents were also born in India in 1948. His grand
parents were, however, born in England. ‘U’ was residing in India till 15-03-2005.Thereafter, he
migrated to England and took the citizenship of that country on 15-03-07. He visits India during 2007-
08 for 90 days. Determine the residential status of ‘U’ for assessment year 2008-09.
Residential Status – HUF Section 6(2)
A HUF is said to be resident in India in any previous year in every case except where during the year
the control & management of its affairs is situated wholly outside India.
Place of Control and Management of the Affairs of a HUF

Wholly in India Wholly out of India Partly in India & partly outside India

Resident Non- Resident Resident


A HUF is said to be resident & ordinarily resident in India if the Karta of the HUF satisfies both the
following conditions:
1. He must be Resident in at least 2 out of 10 previous years immediately preceding the relevant
previous year.
And

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Mrs. Diya Varwani Income Tax
2. He must be in India for 730 days or more during 7 previous years immediately preceding the
relevant previous year.
Residential Status – Firm, AOP, BOI & all others (Except Companies) Section 6(4)
A Firm, AOP or BOI is said to be resident in India in any previous year in all cases except where
during the year the control & management of its affairs is situated wholly outside India. Control &
Management in case of Firm is in the hands of Partners.
Residential Status – Companies Section 6(3)
A company is said to be Resident in India in any previous year if:
a) It is an Indian Company; OR
b) During the relevant previous year, the control and management of its affairs is situated wholly
in India.
That means a company is said to be Non- Resident in India –
a) it is not a Indian Company And
b) the control & management o its affairs is situated wholly or partially outside India.
COMPANY

Indian Company Foreign Company

Place of Control & Management Place of Control & Management

Wholly Wholly out Partly in India Wholly Wholly out Partly in India
in India of India Partly outside India in India of India Partly outside India

Resident Resident Resident Resident Non-Resident Non-Resident


Scope of Total Income / Incidence of Tax Section 5
Particulars of Income R & OR R but NOR NR
Income received in India or deemed to be Taxable Taxable Taxable
received, whether earned in India or elsewhere
Income which accrues or arises or deemed to Taxable Taxable Taxable
accrue or arise in India, whether received in
India or elsewhere
Income which accrues or arises outside India Taxable Taxable Not
and received outside India from a business Taxable
controlled from India
Income which accrues or arises outside India Taxable Not Taxable Not
from any other source Taxable
Income which accrues or arises outside India Not Taxable Not Taxable Not
and received outside India during the years Taxable
preceding the previous years and remitted to
India during the previous year
Note: Any item of income which is exempt under the provisions of the Act, it is to be excluded
from the scope of Income
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Mrs. Diya Varwani Income Tax
Highlights of provisions of Incidence of Tax:
(a) Ay Income which is either received in India or deemed to be received in India is taxable in
India, irrespective of the residential status.
(b) Ay Income which is either earned in India or is deemed to be earned in India is taxable in India,
irrespective of the residential status.
(c) For a Resident in India (For Individual & HUF, resident and ordinarily resident in India) all
global Income, wherever earned / received is taxable in India.
(d) For a Non Resident, an Income is taxable only if it is either earned in India or received in India.
(e) For not ordinarily resident, income earned and received outside India will be taxable only when
it is from a business or profession controlled or set up in India.
Important Note –
Receipt and Remittance - Receipt of income means the first occasion when the money comes under
the control or profession of the receiver. After the first occasion of receipt, if money is sent to another
place it is a mere remittance of money and not receipt of income.
Illustration - M receives $ 20,000 in USA on July 31, 2007. Out of that, he remits Rs. 1,00,000 to his
son R in India on November 9, 2007. In this case, income is received outside India on 31 July, 2007.
Cash or Kind - Income may be received in cash or in kind. For example a Doctor may receive a car in
lieu of fees from a rich patient; this would be receipt of income in kind and taxable. When income is
received in kind, amount of income is taken to be equal to the fair market value of the item on the date
of receipt.
Receipt by assessee or on his behalf - Income directly received by the assessee is no doubt taxable in
his hands. But income received on behalf of the assessee by another person is also taxable in his hands.
Thus income received on behalf of the assessee by his agent or his bankers is taxable in his hands.
Receipt and accrual - Income is said to be received when it reaches the assessee, on the other hand,
when the right to receive the incomes becomes vested with the assessee, income is said to accrue or
arise. Thus, accrual denotes right to receive any income while receipt denotes actual receipt of income.
Generally, income must accrue first Receipt normally is after such accrual.
Actual receipt and deemed receipt - It is not necessary that an income should be actually received in
India in order to attract tax liability. An income deemed to be received India in the previous year is also
included in the taxable income of the assessee. Section 7 enumerates the incomes deemed to received
in India.
Income deemed to accrue or arise in India - In some cases, income is deemed to accrue or arise in
India under section 9 even though it may actually accrue or arise outside India.
Accrued and Due - For example, Salary ‘accrue’ every day, but may become ‘due’ on the last day of
the month.
Methods of Accounting - Income ‘arises’ when it is shown as income in books. If the assessee’s
accounts are maintained on mercantile basis, income is taxable when it accrues or arises. If the
assessee’s accounts are maintained on cash basis, income is taxable when it is actually received.
However, this is subject to the specific provisions of the Act. Thus the Act provides that Salary is
taxable on accrual or receipt whichever is earlier, irrespective of the method of accounting followed by
the assessee.
Income deemed to be received in India [Section 7]
1. The annual accretion in the previous year to the balance of an employee to the extent

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Mrs. Diya Varwani Income Tax
(a) the contribution made by the employer in excess of 12 per cent of the salary of the
employee;
(b) interest credited on the balance to the credit of the employee at a rate exceeding a rate of
9.5%.
2. Transferred balance in RPF
3. The contribution made by central government or any other employer in the previous year, to the
account of employee under a pension scheme.
4. Tax deducted at source is deemed to be received in the hands of the payee.
5. Investments, expenditure, cash credits detected during the previous year which is unexplained
and cash, bullion, gold, jewellery, or other valuable articles in respect of which the assessee
offers no satisfactory explanation about the nature and source of its acquisition shall be treated
as income deemed to be received.
Incomes which are deemed to accrue or arise in India [Section 9]
1. Income from a business connection in India.
2. Income from any property, asset or source of income situated in India.
3. Income from the transfer of a capital asset situated in India.
4. Any income which falls under the head salaries, if it is earned in India.
5. Salary payable by the government to an Indian citizen / national for services rendered outside
India.
6. Interest payable outside India.
7. Royalty Payable outside India.
8. Fee for technical services outside India.
Illustration 3: The following are particulars of income of R for the previous year 2007-08:
Rent from a Property in Delhi received in USA 80,000
Income from a business in USA controlled from Delhi 1,20,000
Income from a business in Bangalore controlled from USA 1,80,000
Rent from a property in USA received there but subsequently remitted to India 60,000
Interest from deposits with an Indian Company received in USA 20,000
Profits for the year 2006-07 of a business in USA remitted to India during the
Previous year 2007-08 (Not Taxed earlier) 75,000
Gifts received from his parents 45,000
Compute his income for the assessment year 2008-09 if he is:
(i) Resident & Ordinarily Resident in India.
(ii) Not Ordinarily Resident.
(iii) Non-Resident in India.

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Mrs. Diya Varwani Income Tax
Incomes which do not form part of Total Income

Section Description Conditions Exemption


10(1) Agricultural Agricultural Income means – (a) any rent or revenue Fully Exempt
Income derived from land situated in India & is used for
agricultural purposes (b) any income derived by
agricultural operations including processing or agricultural
produce, raised or received as rent-in-kind, or sale of such
agricultural produce (c) Income attributable to Farm House
(Income from land used for non-agricultural purposes is
not exempt)
10(2) Receipts by a Any sum received by a member of a HUF out of – Fully Exempt (to
member of HUF Income of the Family, Income of impartible estate avoid double
belonging to the family taxation)
10(2A) Share of Profit Sum Received by a partner from a firm as his share in the Fully Exempt.
from the Firm total income of the firm, which is separately taxed o nits
Income
10(10D) Amount Received Sum Received under a life insurance policy, including the Fully Exempt
under a life sum allocated by way of bonus on such policy.
insurance policy Following sum received will not be exempt u/s. 10(10D) -
Amount Received under Keyman Insurance policy &
amount received under a policy issued on or after 01-04-03
in respect of which premium payable for any of the years
during the term of policy exceeds 20% of actual sum
assured.
10(15) Interest, premium Interest on Specified Securities like Post Office Saving Fully Exempt
or bonus on Bank A/c, National Relief Bonds, R.B.I. Relief Bonds, etc.
specified
investments
10(16) Scholarships (a) Granted to meet the cost of education (b) Scholarship Fully Exempt
may be for a course not leading to a degree (c) Cost of (irrespective of
education covers tuition fees & other incidental expenses actual
related to education expenditure
done)
10(17) Allowance of Daily allowances received or allowances received by Fully Emempt
MP’s & MLA’s reason of his membership under the Members of
Parliament (constituency Allowance ) Rules, 1986 or any
Constituency allowance received by a MLA
10(17A) Awards & Any amount received whether in cash or kind, (i) in Fully Exempt
Rewards pursuance to any reward instituted in the public interest by
Central Govt. or by State Govt. or by any other body
approved by Central Govt. (ii) as a reward by Central
Govt. or State Govt. for such purpose as is approved by
Central Govt. in public interest.
10(32) Income of Minor Any Income arising to a minor child of an assessee is Fully Exempt if
added & clubbed to the parents income, however section Income < 1,500
10(32) gives exemption from such clubbing to the
maximum amount of Rs. 1,500.
10(34) Dividend Income Any sum received by shareholders as Dividend from a Fully Exempt in
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Mrs. Diya Varwani Income Tax
Domestic company, on which such domestic company has the hands of
paid tax. shareholders

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