TMI Blog2013 (5) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 6 for being outside India for 182 days, he become 'non-resident'. Accordingly order of CIT(A) confirmed and the appeal of revenue is dismissed. - I.T.A No. 09/Kol/2012 - - - Dated:- 13-5-2013 - Shri K. K. Gupta, AM And Shri Mahavir Singh, JM,JJ. For the Appellant : Shri K. N. Jana, Sr. DR For the Respondent : Shri A. K. Chakraborty, Advocate ORDER Per Shri Mahavir Singh, JM:- This appeal by revenue is arising out of order of CIT(A), Jalpaiguri in Appeal No. 656/CIT(A)/JAL/08-09 dated 26.09.2011. Assessment was framed by ITO, Ward-1(1), Jalpaiguri u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2006-07 vide his order dated 31.12.2008. 2. This appeal by revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee's case was selected for scrutiny under CASS system. According to assessee, during his service period while in Indian vessel, he was 130 days outside Indian territorial water and 100 days in foreign vessel in other territorial water. According to him, assessee was outside Indian territory for 230 days and so he claimed his income as exempt claiming residential status as 'Non-Resident'. The AO while completing assessment treated the assessee as "Resident". For doing so, AO opined that 130 days claimed by assessee as outside Indian territorial water, being Indian vessel , as deemed to be in India and accordingly, he charged the income of the assessee under the I. T. Act by opining on the basis of meaning of section 2(25A) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has been in India for 365 days or more.". In my opinion, even after the amendment of the provisions of Sec.2(25A) of the I T Act, the new definition of ' India' cannot change the context of the aforesaid Circu1ar. In view of the above fact, it is held that the submission made by the assessee has force and the assessee cannot be treated as a 'resident'. In this connection, the ratio of the decision in CIT vs ICL Shipping Ltd (2009) 315 ITR 195 (Mad) can also be referred to." Aggrieved, revenue is now in appeal before us. 6. We find that the facts are undisputed. The only issue now to be considered by us is whether those 130 days when assessee was in Indian vessel but it was outside Indian territorial water and also was in foreign ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded as a resident in India only if he is in India for 182 days or more during the relevant year irrespective of the extent of his stay in India in earlier years. For this purpose, it is necessary to note that the term "India" as defined in section 2(25A) of the Income-tax Act, 1961, does not extend to Indian ships operating beyond Indian territorial waters. However, if he is outside India and comes on a visit to India in any year, and leaves India otherwise than as a member of the crew of an Indian Ship, he will be regarded as a resident in India if his stay in India during that year is for 150 days or more if during the four years preceding that year he has been in India for 365 days or more." Further, Hon'ble Madras High Court in ICL S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chant Shipping Act, 1958 (44 of 1958), or for the purposes of employment outside 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." Having regard to the said specific statutory provisions providing for the benefit of grant of exemption for a non-resident, we are convinced that in the case on hand having regard to the fact that the crew with reference to whom the exemption was availed of and who offered their services outside the territorial waters for an Indian shipping company, the period of which exceeded 182 days, there was no scope to find fault with the action of the Indian shipping comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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