9911796707
TMI Blog2006 (2) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... , decide to dispose of the same by a common 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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) wherein it was submitted that the above case law relied by the Assessing Officer did not apply to the fact of their cases as the above ruling of the Hon'ble Gujarat High Court was subjudice before the Hon'ble Supreme Court and, therefore, such decision of the Hon'ble Gujarat High Court had become a controversial ruling. They have also submitted before the ld. CIT(A) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" and ordinarily Resident only if (a) he has been "Resident" in nine out of ten preceding previous years, and (b) has been in India for at least 730 days in seven preceding previous years, and that he will be treated as "Resident but not Ordinarily Resident if either of these conditions are not fulfilled". It has, therefore, been contended that the action of Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding 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 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. Now while reading the above section with the facts of the stay by the respective five assessees during the last ten years, we find that none of these five assessees were either nonresident in India in nine out of the ten prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ordinarily Resident in India in lieu of Non-Ordinarily Resident in India as claimed by the assessees. Even otherwise, we find that the action of Assessing Officer in treating the above assessees as Resident in India was well justified in view of the provisions as laid down in sub-section (1) of section (6) of the Income-tax Act, which is re-produced hereunder for the sake of clarity:- "(1) An individual is said to be resident in India in any previous year if he- (a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more; or (b) [] (c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall in the second part of that clause, because in the seven years preceding the relevant previous year, the assessee had been in India for one thousand four hundred and two days, that is, much more than seven hundred and thirty days being the upper limit referred to in that clause. Therefore, the Tribunal was right in holding that the status of the assessee for the year in question was not that of 'not ordinarily resident' as claimed by him". We, therefore, considering the above facts and circumstances and in the light of above discussion, are of the opinion that the status of the assessee for the year in question was not that of "non-ordinarily resident" as claimed by them as none of them satisfied the provisions as laid down in section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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