TMI Blog1990 (9) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 In the months of April-May 1981, the assessee participated in a programme on Advance Credit Management, conducted by the Staff Training Centre, United Asian Bank Barhad, Kaula Lampur, Malaysia and earned an income of Rs. 14,860. He claimed non-taxability of such income on the ground that the same had been earned by him outside India in his status of "Not Ordinarily Resident" (NOR) in India. The income-tax authorities rejected his claim on the ground that during the year under consideration the assessee was "Resident" in India and the income in question was taxable u/s. 5(1)(c) of the Income-tax Act, 1961 ('the Act'). 2.2 It was urged on behalf of the assessee that the income in question was not taxable as per proviso to section 5(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to section 5(1)(c). It follows, therefore, that for the applicability of the proviso essential requirements are that (i) the person concerned must be a NOR in India, (ii) income in question must accrue or arise to him outside India, and (iii) such income should be derived from sources other than a business controlled in or a profession set up in India. In the instant case there is no dispute in so far as point Nos. (ii) (iii) above are concerned. But the condition or requirement at point No. (i) is not at all fulfilled. 4. Sub-section (6) of section 6, as is relevant for our purpose, defines the term "not ordinarily resident" in India as under:---- " Sec. 6 (6).----A person is said to be "not ordinarily resident" in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding the previous year under consideration. At page 2 of the paper book following details of his stay in India, during the relevant periods, have been given by the assessee :---- S.No. Previous year No. of days of stay in India 1. 1974-75 13 2. 1975-76 58 3. 1976-77 116 4. 1977-78 58 5. 1978-79 55 6. 1979-80 211 7. 1980-81 340 Total 851 days 8. 1981-82 (under account) 331 9. 1982-83 72 The assessee had, during the seven previous years preceding the year under account, been in India for periods amounting in all to 851 days, far exceeding the maximum prescribed (730 days). He cannot be said to be a NOR in the previous year under consideration, i.e., 1981-82. His status in the year under account was rightly adjudged as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Madras, was a pensioner of Malaysian Govt., and his pension was being received in Malaysia but the Madras High Court had held the same to be taxable in India u/s 5(1)(c), the I.T. authorities had taxed the pension received by the 'Resident but not Ordinarily Resident' Indian citizen. Reversing the orders of the I.T. authorities, the Tribunal held that as 'admittedly' the status of the assessee was of 'Resident but not Ordinarily Resident' in India and as also directed by the Board circular No. 4 [F.No. 73A/2/69-II(A-II)] dated 20-2-1969, the pension of the assessee was not taxable in view of clear provisions of sec. 9(1)(iii) read with proviso to sec. 5(1)(c) of the Act. Such are not the facts in the instant case. Herein the assessee is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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