TaxTMI 
TaxTMI 
2011 (8) TMI 424
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..... 92,962/- wherein the status of the assessee was claimed as 'Non resident'. During the assessment proceedings, information was sought from the employer of the assessee by the Assessing Officer in order to verify the 'non-resident' status of the assessee. As per the information obtained from the employer of the assessee, the exact number of days of service of the assessee abroad was found to be 158 days, which according to the Assessing Officer, was less than the days specified in section 6(1) of the Act for being treated as a 'non-resident'. The assessee was thus required to justify the claim of non-resident status. In support of his claim, assessee furnished copies of Passport, which showed that the period of stay outside India during the relevant year was 201 days. On the basis of the entries in the Passport of the assessee, the Assessing Officer adopted the status of the assessee as 'non-resident'. 4. It was further observed by the Assessing officer that the assessee has received salary amounting to Rs. 15,33,810/- from his employer in Indian currency, which was claimed to be exempt in the return of income filed on the ground that the same was in the nature of foreign income....
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.... on the part of the Assessing Officer to bring the income earned by the assessee outside India. 6. After considering the submissions of the assessee with reference to the material available on record and filed during the proceedings before him, the Commissioner of Income-tax (Appeals), proceeded to consider the issues, (a) what is the status the assessee under section 6 of the Act for the year under consideration, and (b) whether the salary income in question earned by the assessee during the year as a member of Crew of an Indian ship(s) is taxable in India. The Commissioner of Income-tax (Appeals) observed the tests provided in section 6(1) of the Act for determining the residential status of an individual are alternative and not cumulative. As per the Commissioner of Income-tax (Appeals), an individual is said to be resident when he satisfies any one of the basic conditions in clause (a) or (c) of section 6(1) of the Act. From the details of stay in India furnished by the assessee within four years preceding the year under appeal was for a period exceeding 365 days and for more than 60 days during the year under consideration. The Commissioner of Income-tax (Appeals) further f....
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.... in India. In this regard, reference can be made to the decision of the ITAT, Mumbai (TM) in the case reported in 81 ITD 203 wherein it is held that 'although assessee is a non-resident, the salary that accrues or arises to him India as the contract of employment was entered in India and the rights arising from such contract of employment are enforceable in India.' Therefore, in the case of the appellant, by virtue of contract of employment with the employer in India, it is not necessary to examine the question whether the salary is deemed to accrue or arise to the appellant by applying provisions of section 9 and the Explanation thereto. the reliance placed by the appellant on the decision of the ITAT, Mumbai in the case of Avtar Singh Wadhwan reported in 28 TTJ (Bom.) 390 does not come to the aid of the appellant in view of the subsequent decision of a Larger Bench of ITAT, Mumbai in the case cited above (81 ITD 203). 5.2.1 Therefore, in the case of the appellant, even presuming that appellant is a non-resident during the year, the entire salary income received by virtue of the contract of employment with the Indian shipping company is taxable in India." In view of the abov....
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....onstrued as a 'non-resident' during the previous year relevant to the year under consideration. 10. On the other hand, the learned Departmental Representative, appearing for the Revenue has primarily reiterated similar reasoning as taken by the Commissioner of Income-tax (Appeals) in order to defend the stand of the Revenue. The learned Departmental Representative specifically pointed out that the Commissioner of Income-tax (Appeals) has considered the status of the assessee as 'resident' in terms of section 6(1)(c) of the Act, because there was no material brought on record to show that the assessee was abroad for the prescribed period for the purposes of employment, during the previous year relevant to the assessment year under consideration. 11. We have carefully considered the rival submissions. The sum and substance of the controversy relates to determination of the residential status of the assessee during the previous year relevant to the assessment year under consideration. In this regard, section 6(1) which is relevant for the purpose of determination of residential status, reads as under: "6. For the purposes of this Act,- (1) An individual is said to be resid....
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....iod exceeding 182 days, i.e. for 201 days during the previous year relevant to the assessment year under consideration and, therefore, he qualifies to be a non-resident for the year under consideration. However, the Commissioner of Income-tax (Appeals) has made out a case that as per section 6(1)(c), the assessee has been in India for a period exceeding 365 days in the four years preceding the year under consideration and therefore, the assessee is required to establish that during the previous year relevant to the assessment year under consideration he has been in India for a period less than 182 days so as to qualify to be a non-resident. According to the Commissioner of Income-tax (Appeals), the assessee has not been able to establish that assessee has remained abroad for the purpose of employment for a period exceeding 182 days and, therefore, it follows that assessee is a resident within the meaning of section 6(1)(c) read with Explanation (a) thereof. In this regard, we find that as per the certificate of employment issued by the assessee's employer, the assessee has spent 158 days in foreign waters while being employed on the ship during the previous year relevant to the ass....