TMI Blog1996 (8) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... re, defective. Thereafter, the applicant has rectified the position and filed a fresh application duly signed by him which has been received on 5th July, 1996. 3. It is stated by the applicant that he is a doctor specialising in Radiology. He left India along with his family and went to the United Arab Emirates on 2nd Jan., 1977. He stayed there for about 11 years and returned to India on 27th June, 1988. It is stated that his reasons for so doing were that proper educational facilities for his children were not available in the UAE and the applicant was not willing to send his children to the United Kingdom for studies. However, he did not stay long in India and went back once again, this time alone, to the UAE in May, 1991 and he has been staying there since then. He has been working as a Radiologist in the Government Hospital at Abu Dhabi drawing a monthly salary of 12,100 Dirhams, equivalent to approximately ₹ 14 lakhs per annum. He has, during the past several years, invested substantial sums in shares and debentures of Indian companies, units of the Unit Trust of India (UTI) and other mutual funds (MF), dividends and interest income wherefrom is of the tune of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to maintain the present application, since only non-residents are entitled to make applications under s. 245Q. From the details given by the applicant, it is seen that the total stay of the applicant in India has been as follows : Financial year No. of days of stay in India 1990-91 365 1991-92 83 1992-93 56 1993-94 39 1994-95 81 1995-96 67 On the basis of this data, the applicant will be a resident but nor ordinarily resident (R OR) in the financial year 1994-95 but a non-resident in the financial year 1995-96. It has been held by this Authority that, for maintaining an application under s. 245Q, the applicant should have been non-resident in the financial year preceding the date of his application. If, in the present case, the application is taken as having been filed on 19th Jan., 1996, it will not be maintainable as the applicant was not a non-resident in the financial year 1994-95. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. Under Art. 4(1), the applicant will be a resident of India since he is liable to tax in India on his Indian income even though his residential status is non-resident . It is submitted on behalf of the applicant that though he is liable to tax in India, he is so liable only by reason of the fact that some income has accrued in India and not by reason of his residence in India and that, therefore, the provisions of Art. 4(1) will not make him a resident in India. This contention has been answered in the negative by this Authority in Mohsinally Alimohmed Rafik, In re (1995) 126 CTR (AAR) 311: (1995) 213 ITR 317(AAR), and the submission of the applicant is that this requires re-consideration. It is, however, not necessary to go into this question because for the reasons to be discussed later, it will make no difference to the applicant even if one proceeds on the footing that he is a `resident' of India within the meaning of Art. 4(1) of the DTAA. 8. On behalf of the Department it is contended that, in any event, the applicant is not a resident in the UAE within the meaning of Art. 4(1) of the DTAA. It is said that, on the information available with the Department, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome available to him in both the States. 10. This takes one to a consideration of the second part of sub- cl. (a) of cl. (2). Under this part of the sub-clause, a person will be considered to be a resident of that State with which his personal and economic ties are closer. In the present case, the personal ties of the applicant in India are clearly more dominant. Even according to him, he does not wish to take his family to the UAE and has got reasons for keeping them here. So far as economic ties are concerned, he has income and property in both the places. On behalf of the Department it is pointed out that the value of the assets and income in India far outweigh the value of assets and income at Abu Dhabi. This is true but, in the opinion of the Authority, the closeness of economic ties cannot be determined entirely on the basis of an arithmetical comparison of the value of the assets or the quantum of income. Here, clearly, is an applicant whose vital interests are divided between the two States. His economic interests lie in his professional work at Abu Dhabi. However, since, for the reasons mentioned already, he is not able to take his family with him he does make investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expression `dividend' is defined as : income from shares or other rights, not being debt claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the contracting State of which the company making the distribution is a resident . Though the Unit Trust of India has been declared by s. 32(3) of the Unit Trust of India Act, 1963, to be a company for the purposes of the IT Act, and income distributions by it treated as `dividends' for the purposes of certain provisions of the Act such as s. 80L [vide CBDT Circular No. 567 dt. 19th July, 1990 printed at (1990) 86 CTR (St) 5 : (1990) 184 ITR (St) 164], the Act refers to income from units separately from `dividends' at several places and it is also not certain that the `units' can be said to be `shares' within the meaning of the above definition. They are, however, other rights participating in profits and will fall within the definition if the income from them is accorded the same tax treatment by the Act as `dividend' income from shares. On this aspect it is found that the Act accords the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
