TMI Blog2010 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ys or more during 4 preceding few years, then clause (c) of sub-section (1) to section 6 read with Explanation (a) would apply and it requires stay of 182 days or more for a person who leaves India for employment outside, to be treated as resident of India - the applicant satisfies neither clause (a) nor clause (c) of section 6(1) so as to merit treatment as a resident of India during the relevant period - the applicant was a ‘non-resident’ during the relevant period. - Consequently his income that accrued outside India in USA by reason of his employment there cannot form part of the total income taxable in India. - 839 of 2009 - - - Dated:- 11-2-2010 - P.V Reddi J. and J. Khosl, JJ. Name address of the applicant: Shri Anurag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s liable to be taxed under section 5(1)(c) or any other provision of the Income-tax Act, 1961 on the basis that the applicant's status was that of a 'resident' during that year? 4. The applicant did not appear in person or through authorized representative. 5. The relevant provisions of the Income-tax Act are quoted below: Section 5: Scope of Total Income (1) Subject to the provisions of this Act, the total income of any previous year of person who is a resident includes all income from whatever source derived which - (a) is received or is deemed to be received in India in such year by or on behalf of such person ; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year; or (c) accrues or ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted; The term 'non-resident' is defined in Section 2(30) to mean "a person who is not a resident". 6. From a reading of Section 5(1)(c) it is clear that for the income earned by the applicant on account of employment in USA to be taxable in India, the applicant should have been resident of India during the relevant previous year. In other words, if the applicant is held to be a 'resident' of India during the financial year 2008-09, then, his salary income from employment in USA would be taxable under the Income-tax Act, 1961. Section 6 sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 4 preceding few years, then clause (c) of sub-section (1) to section 6 read with Explanation (a) would apply and it requires stay of 182 days or more for a person who leaves India for employment outside, to be treated as resident of India. 8. From the facts available in the application, the applicant satisfies neither clause (a) nor clause (c) of section 6(1) so as to merit treatment as a resident of India during the relevant period. It necessarily follows that the applicant was a 'non-resident' during the relevant period. Consequently his income that accrued outside India in USA by reason of his employment there cannot form part of the total income taxable in India. The Department in its comments dated 28.1.10 has also clarified that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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