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2011 (3) TMI 1322 - HC - Income TaxExemption u/s 10(15)(iv)(fa) - interest on the FCNR deposits - Status of individual - Two application for revision is rejected u/s 264 - It was submitted that merely because in the original return filed by him the petitioner has shown certain amount to be his income, does not mean that the said error cannot be rectified by the respondent - Held that:- Commissioner was not justified in dismissing the said application merely on the ground that it was the petitioner who had shown the said income to be his income for the year under consideration. It may be safely assumed that the said assertion has crept in on account of inadvertent error on the part of the draftsman. In the circumstances, the court is not inclined to dismiss the petition on the ground of having made an incorrect statement on oath. The petitioner has set out the details of his stay in India, which clearly indicate that the conditions precedent for the petitioner to be said to be resident in India in the year under consideration are not satisfied. From the details given the revision application, it is apparent that though the second condition is satisfied, viz., the petitioner has been in India for at least 730 days in the previous seven years ; the first condition, viz., that the petitioner should have been residing in India in nine out of ten preceding years, is clearly not satisfied. Besides, as is apparent from the order made by the Commissioner (Appeals) in respect of the preceding two years and the subsequent two years, wherein the Commissioner (Appeals) upon appreciation of the evidence on record has, as a matter of fact, found that the petitioner was not ordinarily resident during the said periods. The present assessment year falls between the said assessment years. Hence, it is apparent that the petitioner was "not ordinarily resident" for the year under consideration. The Commissioner was, therefore, not justified in rejecting the application under section 264 - Decided in favor of the assessee.
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