TMI Blog2014 (1) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... s than 182 days in India – thus, his status was non-resident during the relevant financial year. Relying upon Shri Anurag Chaudhary v. CIT [2010 (2) TMI 15 - AUTHORITY FOR ADVANCE RULINGS] - All the evidences establish that assessee was non-resident and earned salary outside India which was received by him outside India and therefore was not taxable in India - order of the CIT(A) upheld – Decided against Revenue. - ITA No.1636/Del/2011 - - - Dated:- 31-7-2013 - B.C. MEENA AND C.M. GARG, JJ. For the Appellant : Bhim Singh. For the Respondent : Ashwani Taneja and Somil Aggarwal. ORDER:- PER : B.C. MEENA This appeal filed by the revenue emanates from the order of the CIT (Appeals)-XXX, New Delhi dated 31.01.2011. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itten submissions have perused the paper book. Having gone through all these documents, I am of the considered view that assessee is bound to succeed in appeal in the matter. Assessee is not a resident during the year under consideration, inter alia, for the reason as he has been out of India 182 days (to be precise 236 days) during the year under appeal which has been verified by me from the copy of the passport filed in the assessment proceedings and now filed in the paper book. Thus, according to section 6 of the Act, he is non-resident as he being citizen of India has remained out of India for more than 182 days during the previous year relevant to A.Y. under appeal. His visit to India during the year under appeal was in all for less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. This is equally settled law that there can be no estoppel against law. The Assessing Officer's contention that assessee travelled to India quite often and therefore salary should be treated to be earned in India is misplaced because in the facts of the case at hand, assessee was employed by Whirlpool, China and services were rendered in China and therefore salary would be treated as earned in China. If assessee has undertaken the travel to India, it may be relevant for counting the physical presence of the assessee, in India so as to determine the residential status of the assessee. In this case the copy of passport clearly demonstrates that he has been out of India for 232 days during the year under appeal. Though Form No. 16 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of provisions of section 9(1)(i) even though the status of the assessee was Non-Resident, (b) the salary certificate issued by Whirlpool India Ltd shows the status of the assessee as Regional Head- Marketing Prod. which substantiate the fact that the assessee went to China on official visits only (c) revised return was not filed by the assessee. The appellant craves the right to alter, amend, add or substitute the grounds or appeal." 3. We have heard both the sides on the issue. We have also perused the material available on record. We have also gone through the case laws relied upon by both the sides. In this case, the undisputed facts are as under. During the relevant period the assessee was working for Whirlpool Chin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India for 365 days or more during 4 preceding previous years, he cannot be treated as a resident of India. There is no information regarding applicant's stay in India during 4 preceding years. If the applicant was not present in India for more than 365 days in 4 preceding years, then cl. (a) of sub-so (1) of S. 6 would apply and it requires stay of 182 days or more in India to be treated as resident. On the other hand, if the applicant was present in India for 365 days or more during 4 preceding few years, then cl. (c) of sub-s. (1) to s. 6 r/w Expln. (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. From the facts available in the application, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be endorsed. A careful reading of Expln. (a) would show that the requirement of the Explanation is not leaving India for employment but it is leaving India for the purposes of employment outside India. For the purpose of the Explanation, an individual need not be an unemployed person who leaves India for employment outside India. Therefore, the fact that G was already an employee at the time of leaving India is hardly material or relevant. For all these reasons, G is not a resident in India in the financial year 2005-06.' In view of the established legal position, the assessee was not resident during the relevant period as he has left India for the purpose of employment outside India. His stay during the relevant financial year was le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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