TMI Blog2019 (4) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... question for 173 days. This factual finding is unassailable. In that view of the matter, clause (a) of Section 6(1) would not apply. It is true that in absence of clause (b) of Explanation 1 below Section 6(1), the assessee would have fulfilled the requirements of clause (c) of Section 6(1). However, as per the explanation, if the assessee comes to a visit in India, the requirement of stay in India in the previous year would be 182 days and not 60 days as contained in clause (c). These facts would demonstrate that the assessee had migrated to a foreign country where he had set up his business interest. He pursued his higher education abroad, engaged himself in various business activities and continued to live there with his family. His w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C.: 1. These appeals involve the same assessee and involve identical issues. For convenience, we may refer facts from Income Tax Appeal No. 107 of 2017. 2. This appeal is filed by the Revenue to challenge the judgment of the Income Tax Appellate Tribunal, Mumbai ( the Tribunal for short) dated 18.12.2015. Following questions are presented for our consideration:- (a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in holding that the assessee was not an ordinary resident without appreciating that the amendment brought in Section 6(6) by the Finance Act, 2003 w.e.f. 1.4.2004 was clarificatory in nature and had to be given retrospective effect as communicated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act for short) pertaining to residence in India. Sub-section (1) of Section 6 reads as under:- (1) An individual is said to be resident in India in any previous year, if he- (a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more ; or (b) [***] (c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year. [Explanation. 1 -In the case of an individual,- (a) being a citizen of India, who leaves India in any previous year [as a member of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt facts. Before referring the said facts, we may take note of the provisions contained in Section 6(1) of the Act. As per this provision, an individual would be stated to be a resident in India in any previous years, if [by virtue of clause (a)], he is in India in that year for a period or periods amounting in all to one hundred and eighty two days or more ; or [by virtue of clause (c)], he having within the four years preceding that year been in India for a period or periods, amounting in all to three hundred sixty five days or more and is in India for a period or periods amounting in all to sixty days or more in that year. Clause (b) of Explanation 1 below Section 6(1) of the Act, however, clarifies that in case of an individual being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous year would be 182 days and not 60 days as contained in clause (c). It is, in this respect, the Tribunal had taken a note of relevant facts more minutely. Such facts were that the assessee who was born in India in the year 1960, after completing his higher education went to Soviet Union for further education in engineering. From 1978 to 1984, he persuaded his Masters in Engineering in Radio Technology. He also did post graduation in Russian language. From 1984 to 1986, he had worked in trading pharma company in USSR. From the year 1986-1987, he did his business management from Sweden. He again worked in a trading pharma company. Between 1989 to 1995, he had worked in Ukraine after which he set up his own business in pharmac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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