The taxability of various non-residents artist or performer in India and the facts and circumstances of each event is needed to consider. A few situations are considered as below:
- If an artist performs in India gratuitously without any consideration there would be no income and consequently no income;
- Where the artist performs in India to promote sale of his records and no consideration is paid for his performance by the record company or anyone else; there will be no tax as he does not receive any income for performance in India;
- Any consideration received by an artist or performer for the live performance or simultaneous live telecast or broadcast (on radio, television, internet etc.) in India would qualify as income and consequently should be taxable. Even if separate consideration is received for simultaneous live telecast etc. of performance, the same shall be taxable in India and is to be treated under the Article on â€˜Artists and Sportsmenâ€™ in the DTAA;
- The consideration paid to the artist to acquire the copyrights of performance in India for subsequent sale abroad (of records, CDs etc.) or the consideration paid to the artist for acquiring the license for broadcast or telecast overseas is not taxable in India Â due to exclusion provided in section 9(1)(vi) of the Income Tax Act, 1961;
- The consideration paid to the artist to acquire the copyrights of performance in India for subsequent sale in India (as records, CDs etc.) or the consideration paid to the artist for acquiring the license for broadcast or telecast in India is taxable in IndiaÂ as per section 9(1)(vi) of the Income Tax Act, 1961 as royalties. Under the DTAA also, this would fall under the Article â€˜Royaltiesâ€™;
- The portion of endorsement fees (for launch or promotion of products etc.), which relates to artistâ€™s performance in India shall be taxable in India in accordance with the provision of section 5 of the Income Tax Act, 1961. Under DTAA, this would fall under the Article on â€˜Artists and Sportsmenâ€™.
In view of the above, the contracts of the artists or performers with event managers, sponsors etc. are of vital importance in deciding the taxability of their income in India. It is therefore necessary to obtain and examine the contracts of the artists or performers relating to the event. The apportionment of income attributable to India would have to be done by the Assessing Officer. The situations cited above are of the purpose of illustration and do not cover all cases.
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