TMI Blog2011 (3) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. - 3193 of 2001 - - - Dated:- 18-3-2011 - HARSHA DEVANI MS., ANTANI H. B., JJ. JUDGMENT Ms. Harsha Devani J.- 1. By this petition under article 226 of the Constitution of India, the petitioner challenged the order dated March 26, 2001, made by the Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the revisional authority has rejected the application mainly on the ground that the petitioner had himself disclosed the amount as his income which, according to the revisional authority, clearly proved that the petitioner was not entitled to the said benefit. It was submitted that the revisional authority has not applied his mind to the fact as to whether the said income was liable to be taxed under the provisions of the Act and had without examining the merits of the case, rejected the revision application simply on the ground that the petitioner had himself disclosed the said amount as his income. 4. 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. It was submitted that under the Act, it is only income that is chargeable to tax that can be taxed. The interest on the FCNR deposits not being chargeable to tax as the petitioner was not ordinarily resident in India during the year under con-sideration ; the respondent was not justified in rejecting the application. Reliance was placed upon a decision of this court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act in not considering the case of the petitioner on the merits. 8. On the merits of the case, the learned counsel invited attention to the revision petition filed by the petitioner wherein the period of his stay in India and abroad has set out in detail. Attention was also invited to the order dated October 19, 2000, made by the Commissioner (Appeals) in the appeals preferred by the petitioner in relation to the assessment years 1993-94, 1994-95 and 1997-98 wherein the Commissioner (Appeals) had held that the petitioner was entitled to exemption on the deposits in the FCNR accounts for the said assessment years under section 10(15)(iv)(fa) of the Act. It was submitted that in the present case, the assessment year is 1996-97 which falls within the aforesaid assessment years. It was submitted that when for the preceding as well as subsequent assessment years, the petitioner has been held to be eligible to the benefit of exemption under section 10(15)(iv)(fa) of the Act, it is not possible that the petitioner would not fulfil the condition of not ordinarily resident in respect of the year under consideration. Reliance was placed upon a decision of the Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the inadvertent mistake caused due to oversight on his behalf while filing the affidavit for the petition. It is categorically averred that he had no intention of giving an incorrect fact and the error was committed unintentionally. The petitioner has tendered apology for the same and sought permission to correct the error. The learned counsel for the petitioner has also submitted that it was on account of inadvertent error on the part of the concerned advocate who drafted the petition that it was stated in the petition that the petitioner is a citizen of India, since most petitions are filed on behalf of the citizens of India and it is the usual practice to make an averment to that effect in the petition, and that, through oversight, the said mistake which had crept in while drafting the petition had not been corrected by the petitioner. It was submitted that there was no deliberate attempt on part of the petitioner to mislead the court and as such, the objection raised by the respondent as regards the assertion made on oath does not merit acceptance. 12. Having regard to the averments made in the additional affidavit filed by the petitioner as well as considering the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had given the actual days of the petitioner's stay in India, which also negatives the claim of the petitioner without any discussion as to what were the number of actual days of the petitioner's stay in India, on account of which the petitioner's claim was required to be negatived. It is not stated in the impugned order that the details submitted by the petitioner in the revision application are incorrect, nor has the Commissioner considered the period of stay of the petitioner in India in respect of the preceding assessment years as well as the subsequent assessment years. The main refrain of the Commissioner seems to be that the petitioner himself having filed the return showing the said income to be the assessable income, the petitioner was not entitled to the benefit of exemption under section 10(15)(iv)(fa) of the Act. 15. This court in the case of S. R. Koshti v. CIT [2005] 276 ITR 165 (Guj), has held that the income-tax authorities under the Act are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over-assessed, the authorities un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly negatived the claim of the petitioner, without entering into any discussion in respect thereof. The apex court in the case of Pradip J. Mehta v. CIT [2008] 300 ITR 231 (SC), in the context of sub-section (6) of section 6 of the Act has after referring to a circular issued by the Board, held that a person will become ordinarily resident only if (a) he has been residing in India in nine out of ten preceding years ; and (b) he has been in India for at least 730 days in the previous seven years. Thus, if either of the aforesaid conditions are not satisfied a person would be "not ordinarily resident" in India. Examining the facts of the present case in the light of the aforesaid legal position, in the memo of the revision application, 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., t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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