TMI Blog1989 (5) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... see had been negatived both by the ITO and the AAC and now the assessee has brought the matter before us. For resolving the dispute whether the assessee was or was not "not ordinarily resident" we have to decide two questions. The first issue is as to what is the meaning of the expression "who has not been resident in India in nine out of the ten previous years" appearing in sub-clause (a) of clause (6) of section 6. The AAC is of the view that the meaning of this expression is that the assessee should have been non-resident for nine out of the ten previous years. According to the assessee, the meaning of the expression is that the assessee should be resident in India for less than nine out of the ten years. For deciding whether in a given year a person was or was not "ordinarily resident", we have to take into consideration ten preceding previous years. The question to be decided is whether in order to claim the status of "not ordinarily resident", the assessee is required to be non-resident in nine out of the ten years, as held by the AAC, or whether the requirement of law is that the assessee should have been resident in India for less than nine years, as contended by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nine out of the ten previous years preceding that year, or has not during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and thirty days or more ; or (b) ..................................................................." Before the ITO, the assessee had claimed that as he had not been resident in India in nine out of the ten previous years preceding the previous year under consideration, he was "not ordinarily resident" for the previous year under consideration. This contention of the assessee that he had not been resident in India in nine out of the ten previous years preceding the previous year under consideration, was not accepted by the ITO. The assessee had claimed that in respect of the previous year ended on 31-3-1981 and also in respect of the previous year ended on 31-3-1982, he was not resident in India. The ITO accepted the claim of the assessee of not being resident in India in respect of the previous year ended on 31-3-1982, but he did not accept such claim of the assessee in respect of the previous year ended on 31-3-1981. Hence, according to the ITO, the assessee had not been resident in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. According to the ITO, for deciding whether the assessee was a resident for the previous year ended on 31-3-1981, it was the law obtaining for that year which was required to be applied. 10. The assessee had left India to take up his assignment in Nigeria on 29-6-1980. Admittedly, in the previous year from 1-4-1980 to 31-3-1981, the assessee was in India for less than 182 days. As such, sub-clause (a) of clause (1) of section 6 did not become applicable. Then it was to be seen as to whether as per sub-clause (c), the assessee could be regarded as being resident in India. Under sub-clause (c), an individual is said to be resident in India in any previous year if having been in India for at least 365 days during the four preceding years, he is in India for at least 60 days in that year. Clause (a) of the Explanation brought on the Statute with effect from 1-4-1983 provides that where an individual citizen leaves India in any previous year for the purpose of employment outside India, the period of 60 days referred to in sub-clause (c) will, in the case of such Indian citizen, be extended to 182 days. The assessee was a citizen of India. He had left India in the previous year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. Thus, after careful consideration of the facts of the case and the law relating to the determination of the status of the appellant, I do not find any merits in the ground taken by the appellant and I decline to interfere with the order of the ITO as far as the question of status is concerned." 13. Being aggrieved by the decision of the AAC, the assessee has come up in further appeal before us. The contention of the assessee is that the department was not justified to hold that the assessee was not "not ordinarily resident". 14. The departmental representative relied on the orders of the authorities below. He urged that it was justified to hold that the assessee could not be regarded as being "not ordinarily resident" for the year under consideration. 15. We have considered the matter carefully. As per sub-clause (a) of clause (6) of section 6, an individual will be "not ordinarily resident" in India in any previous year, if either he has not been resident in India in nine out of the ten previous years preceding that year or has not during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and thirty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That is, if he is resident for less than nine out of the ten previous years, he will be "not ordinarily resident". In order to claim the status of being "not ordinarily resident", what is needed is that he should be a resident in India for less than nine years i.e. "he has not been resident in India in nine out of the ten previous years". The expression is "who has not been resident in India in nine out of the ten previous years" ; the expression is not "who has been not resident in India in nine out of the ten previous years". The Travancore-Cochin High Court had the occasion to consider the meaning of this expression in P.B.I. Bava v. CIT [1955] 27 ITR 463. The High Court held : "A person is 'not ordinarily resident' in any year if he has not been 'resident' in nine out of the ten years preceding that year ; he need not establish that he was 'not resident' in nine out of the ten years." In that case, the AAC of Income-tax, Trivandrum, had held as under : "In my opinion, the only direct way of deciding whether the appellant was 'not ordinarily resident' in the relevant years is to formulate and answer the direct question, 'Has the appellant been resident in Travancore in 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year. It is for finding out the status of the assessee for the assessment year 1983-84 that we have been called upon to determine as to whether the assessee was a resident in India in respect of the previous year ended on 31-3-1981. We fail to understand as to how we can accept the contention of the department that for finding out whether the assessee was a resident in the previous year ended on 31-3-1981, it is the law prevalent for that year which is to be applied. If the contention of the department were to be accepted, then the result would be that the status of the assessee for the assessment year 1983-84, which is under our consideration, would not have been determined in accordance with law applicable to this assessment year and, hence, not correctly determined. We are of the view that as the question whether the assessee was a resident in India or not for the previous year ended on 31-3-1981 is being examined for the purposes of finding out the status of the assessee for the assessment year 1983-84, we have to determine this question by applying law applicable to assessment year 1983-84. As to when an individual is said to be resident in India in any previous year is de ..... 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