TMI Blog2008 (1) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee furnished a chart showing his stay in India in the preceding years as under:- "Stay in India Assessment year 1991-92 29 days (28-2-1993 to 29-3-1991) Assessment year 1992-93 15 days (9-12-1991 to 11-12-1991 and 19-3-1992 to 31-3-1992) Assessment year 1993-94 23 days (1-4-1992 to 24-4-1992) Assessment year 1994-95 24 days (13-!-1993 to 6-9-1993) Assessment year 1995-96 92 days (19-5-1994 to 27-5-1994 + 30-10-1994 to 5-11-1994 + to 31-3-1995) Assessment year 1996-97 366 days Resident Assessment year 1997-98 365 days Resident Assessment year 1998-99 359 days Resident Assessment year 1999-2000 365 days Resident Assessment year 2000-01 366 days Resident --------------------------------- Total 1937 days (in 7 preceding years)" --------------------------------- 4. The Assessing Officer observed that the above chart showed that the assessee was not "non-resident" in 9 out of 10 years and had also resided in India for more than 730 days in the preceding 7 years. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this exemption except the residential status of the assessee, are fulfilled. The moot question requiring adjudication at our end is to find out the correct residential status of the assessee. In other words if the residential status of the assessee is determined as ROR, there will not be available any benefit of exemption as claimed by the assessee and in the alternative if the assessee's view is accepted that he was RNOR, then the benefit of exemption could not be denied. 8. At this juncture it would be apt to note down the material part of clause (6) of section 6 prior to its substitution by the Finance Act, 2003, with effect from 1-4-2004 which is as under:- "(6) A person is said to be "not ordinarily resident" in India in any previous year if such person is- (a) an individual who 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 days or more." It is equally important to consider section 6(1) which runs as follows:- "6. For the purposes of this Act,- (1) An individual is said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31-3-2001) he was in India for 365 days, thereby successfully satisfying the test of section 6(1) and was also not resident in two years, i.e. assessment years 1994-95 and 1995-96 in 10 years preceding the previous year (i.e. 1-4-1990 to 31-3-2000) thereby fulfilling the criteria as per section 6(6), being not resident in India in 9 out of 10 previous years preceding that year. 10. Now we will focus on the view point canvassed by the learned CIT(A) in the penultimate para of the impugned order, that in order to claim residential status of RNOR both the conditions set out in section 6(6)(a) be cumulatively fulfilled, that is the assessee should not be resident in India in 9 out of 10 previous years preceding that year and also should not be in India for 730 days or more in 7 years preceding that year. From the factual position noted supra, we note that the assessee is satisfying the first condition of section 6(6)(a) and not the second. 11. Here, we are reminded of the well-settled literal rule of interpretation as per which the language of the section should be construed as it exists. The intention of the Legislature is to be gathered from the words used and should not be ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed the BHEL about the approval of the Government for engaging his services in that case for a period of 1.5 years in India on terms of payment of daily allowance or Rs. 500 per day in India. On the basis of the said approval the petitioner came to India for rendering the service to BHEL on deputation basis. The petitioner in that case by way of revision application under section 264 claimed that the salary was not received in India and hence, he was not liable to pay any tax in India. When the controversy reached the High Court, it held in para 6 as under:- "Considering the aforesaid provisions of law, I find that a person is "not ordinarily resident" in India if in nine out of the ten preceding years he had stayed outside India. Admittedly, it is nobody's case that the petitioner had stayed in India during the preceding nine years. In that view of the matter, I have no doubt in my mind that the petitioner is "not ordinarily resident" in India and will be governed by the proviso to section 5(1)(c) of the Act." The Hon'ble Supreme Court affirmed the view of the Hon'ble High Court holding that the assessee was a person "not ordinarily resident" in India as the High Court found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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