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2019 (4) TMI 1533 - HC - Income TaxResident of India - Assessee not an ordinary resident - number of days of stay in India - a citizen of India, or a person of Indian origin - scope of amendment brought in Section 6(6) by the Finance Act, 2003 w.e.f. 1.4.2004 - Assessee shifted to USSR for his higher education in 1978 and worked there and get permanent resident status in Ukraine till 2002 thereafter shifted to England but continued his business interest in Ukraine, Russia and CSI Countries - HELD THAT:- Tribunal on material on record came to factual finding that the assessee was in India during the previous year relevant to the assessment year in 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 whatever travels to India, would be in the nature of visits, unless contrary brought on record. We do not find that the Tribunal, therefore, committed any error. Revenue submitted that Section 6(6) has been amended by virtue of Finance Act of 2003 and this amendment is declaratory in nature. We need not go into this issue because in our opinion, Section 6(6) has no relevance. The question in the present case is not whether the assessee is “not ordinary resident” of India. The question is during the previous year relevant to the present assessment year, whether he was a resident in India which question must be answered with reference to sub-section (1) of Section 6. In some of the appeals, Revenue has raised additional question as to the date of the travel outside India should be included as a day of resident in India or not. This question would be academic since even after inclusion of the said day, the assessee would not cross the minimum 182 days required for his residence in India - revenue appeals are dismissed
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