TMI Blog2006 (8) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... it was found by the Assessing Officer that during the last 10 years the assessee s status in India is as under : Assessment year 1998-99 Financial year No. of days stayed Status 88-89 365 Resident 89-90 365 Resident 90-91 186 Resident 91-92 289 Resident 92-93 73 Non-resident 93-94 96 Non-resident 94-95 104 Non-resident 95-96 257 Resident 96-97 165 Non-resident 97-98 267 Resident Assessment year 1999-2000 89-90 365 Resident 90-91 186 Resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 61 (AAR) 6. The Ld. CIT(A) after considering the submissions of the Ld. A.R. observed that the assessee was non-resident in financial years 1992-93, 1993-94, 1994-95 and 1996-97. Hence the condition under section 6(6) is fulfilled and the Assessing Officer was directed to adopt the status of not ordinarily resident. 7. During the course of proceedings before us the Ld. D.R. pointed out that one has to see as whether the assessee has been a resident in 9 out of 10 previous years. The Act has not given any definition of ordinarily resident. For ascertaining the status of not ordinarily resident, one has to verify as to whether the assessee has been a resident or not in 9 out of 10 previous years. It was further stated that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has been placed by the Ld. CIT(A) in respect of section 6(6) means that if an individual has been resident in India for 8 years out of 10 previous years, he should be treated as not ordinarily resident in India for all the remaining 8 years even though he has been resident in India within the meaning of section 6(1) of the Act. If the assessee has been resident in India for 9 out of 10 years, he will be ordinarily resident in India otherwise he will be not ordinarily resident in India. This contention appears to be attractive but the interpretation of section 6(6)( a ) does not support such view. Section 6(6) does not define ordinarily resident in India. It describes not ordinarily resident in India. It means one has to take the concept o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narily resident" irrespective of the period during those seven years in which he has been outside the country as held by the Madras High Court in K.M.N.N. Swaminathan Chettiar v. CIT [1947] 15 ITR 418 Mad. 189, 191. In the concurring judgment, Patanjali Sastri, J. vividly illustrated the matter by observed as under (page 425) : A person by adopting the simple expedient of being absent, say, in a neighbouring India State for 3 months every year during the seven years period referred to in the section, could relieve himself of his status as an ordinarily resident , however close in quality and preponderating in duration his connection with British India may be. This, it seems to me, could not have been intended by the Legislature, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t becomes clear that the assessee has been resident in all the 10 years preceding the year for which the status is to be determined. Hence the first condition of section 6(6)( a ) is not satisfied to make the assessee as not ordinarily resident. The second condition is obviously not satisfied because the assessee has been in India for more than 730 days during the seven previous years preceding the year for which status is to be determined. For arriving at the above conclusion in respect of status of the assessee, we also rely on the decision of the Debapriya Guha v. Asstt. CIT [2004] 88 ITD 404 (Kol.). 12. The Ld. Gujarat High Court in the case of Pradip J. Mehta ( supra ) has discussed all the case laws on which the reliance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceding that year, or has not during the seven previous years preceding that year been in India for a period of, or period amounting in all to, seven hundred and thirty days or more; or is a Hindu undivided family whose manager has not been resident in India in nine out of the ten previous years preceding that year, or has not during the seven previous years preceding that year been in India for a period of, or period amounting in all to, seven hundred and thirty days or more. This definition has been subject to differing legal interpretations. In order to remove any doubts in this regard, it is proposed to substitute the existing definition with a new one to provide that a person would be "not ordinarily resident" in India in any previou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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