TMI Blog2006 (2) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... consolidated order for the sake of convenience. 3. The assessees have preferred the following common grounds before us in case of all five appeals:- (i) For that the ld. CIT(A)-XI, Kolkata without considering the provisions of law and submissions made before him by the appellant, has confirmed the order of the Assessing Officer which is not justice and lawful. (ii) For that the ld. CIT(A)-XL, Kolkata has confirmed the order passed by the ld. Assessing Officer in respect of the determination of residential status accepting a controversial and subjudice decision of the Hon'ble Gujarat High Court but ignoring and accepted the decision of the Hon'ble ITAT, 'B' Bench, Kolkata which is arbitrary and unjust. (iii) For that the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998-99) ----------------------------------------------------------- Since the assessees had been resident in India for more than one previous year and as their stay in India during the seven previous years preceding the previous year in question were more than 730 days or more, the Assessing Officer concluded that the assessees did not qualify for the status as "not ordinarily resident in India" in the concerned previous year and held that the salaries earned abroad was taxable in India. The Assessing Officer while arriving at this conclusion also relied on the judgment of the Hon'ble Gujarat High Court in case of Pradip J. Mehta v. CIT [2002] 256 ITR 647. 5. Being aggrieved, the assessees went in first appeal before the ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer and CIT(A) and has once again stated that since the above decision of the Hon'ble Gujarat High Court has been challenged by the assessee in above case by filing appeal before the Hon'ble Supreme Court, the same has become a controvertial ruling and, therefore, cannot be relied upon for adjudicating and deciding the residential status of all five assessees. The ld. counsel has further pointed out that all the five assessees were not ordinarily resident in view of the provisions as laid down in section 6(6)(a) of the Act. He has also relied upon the judgment of Authority for Advance Ruling in XYZ In re [1997] 223 ITR 379 while disposing the application No. P-5 of 1995, wherein it was held that a person will become "Resident" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and, therefore, we first for the sake of clarity reproduce the relevant portion of section 6(6)(a) which reads as under:- "A person is said to be "not ordinarily resident" in India in any previous year if such person is an individual who has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less". From the perusal of above definition as laid down in section 6(6)(a), it is apparent that only those individuals can be assessed in the status of not ordinarily resident in India who were nonresident in nine out of ten previous years or has duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 199 days Non-Resident 1996-97 1997-98 182 days 183 days RBNOR 1997-98 1998-99 198 days 169 days -Do- 1998-99 1999-2000 278 days 87 days -Do- 1999-2000 2000-01 186 days 180 days -Do- 2000-01 2001-02 45 days 320 days Non-Resident 2001-02 2003-03 Stayed RBNOR more than 182 days in India ------------------------------------------------------------- Sine none of the five assessees fulfilled one of the above two conditions as laid down in clause (a) of sub-section (6) of section 6 of Income-tax Act, in our considered opinion the Assessing Officer has rightly treated these assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid down in clause (a) of subsection (6) of section 6 while deciding the status of Non-Ordi-narily Residents in India. We also find that the case law relied by the ld. Counsel of Calcutta Tribunal in case of Rajat Deb is not identical to the facts involved in the present before us, wherein the judgment of the Hon'ble Gujarat High Court relied by the Revenue in case of Pradip J. Mehta is squarely applicable wherein their Lordships while disposing the identical issues has held as under:- "Held, that the Tribunal had found as a fact that the assessee was a resident in India for eight out of the ten preceding years and his case, therefore, could not full under the first part of clause (a) of sub-section (6) of section 6 of the Act. His case w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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