TaxTMI 
TaxTMI 
2014 (2) TMI 901
X X X X Extracts X X X X
X X X X Extracts X X X X
.... application, her total stay in India was 119 days. The applicant continues to enjoy status of non-resident as per domestic tax laws of India during the financial year 2010-11. 2. During the financial year 2010-11 relevant for assessment year 2011-12, the applicant realized proceeds from exercise of ESOPs and RSUs which were awarded to her by her employer in China, vested and exercised by her during the tenure of her employment with Hewitt China. The entire grant, vesting the exercise of the ESOPs and RSUs happened during the course of employment with Hewitt China. The proceeds in US Dollars upon exercise of ESOPs & RSU's was credited in applicant's name to her individual account with Morgan Stanley Smith Berne US from where the money was remitted to her Indian savings account after conversion into Indian rupees, during the financial year 2010-11 and before returning to India on 12th February, 2011. 3. Presenting the above facts, the applicant seeks ruling of this Authority on the following questions:- 1. Whether Ms. Smita Anand (hereinafter referred to as the "Applicant"), a non-resident Individual as per the provisions of the Income-tax Act, 1961....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-resident in view of Explanation (b) to section 6(1) of the Act. 6. Regarding the ESOPs & RSUs it was submitted that those were granted to the applicant during her employment with Hewitt China as a gesture of appreciation and motivation being a foreign employee, both the grant and exercise of the ESOPs & RSUs took place before the date of her resignation from Hewitt China and the remittance to India after first crediting to her Bank Account in USA took place before her return to India and hence the remission of the money on conversion of the ESOPs & RSUs is not taxable in India. 7. The Revenue on the other hand contended that provision of Explanation (a) or (b) to section 6(1) of the Act is not applicable in the case as the applicant returned to India after resigning from her employment in Hewitt China. It was submitted that the applicant's case does not fall within the ambit of Explanation (b) to section 6(1) of the Act. Relying on the Explanatory notes to the Finance Act relating to the amendments of proviso of 6 of the Act, it was argued that if the applicant is given benefit of the said Explanation (b), it will go against the legislative intent which was to confer the ben....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dia in any previous year [as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or] for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eight-two days" had been substituted; (b) being a citizen of India, or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause(c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and [eighty-two] days had been substituted." 9. There are two conditions in section 6 of the Act, when an individual is said to be resident in India in any previous year namely sub-section (a) and sub-section (c); sub-section (b) was omitted by the Finance Act 1982 w.e.f. 1.4.1983. The requirement of sub-section (a) is not met by the applicant as her stay during any of the previous year after going abroad for employment is less ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urring therein, the words "182 days" had been substituted". "In relation to that year" relates to the previous year in which a person leaves India. In effect if a person leaves India in any particular year for the purpose of employment outside India and if his/her stay in India in that particular year is for a period or periods amounting in all to 182 days, his/her status will be resident in India. This is not the case in the present applicant's case. The applicant left India on 22nd September, 2007 for the purpose of employment with Hewitt Consulting (Shanghai) Company Limited, China. The relevant FY in which the applicant left India for the purpose of employment was therefore 2007-08 which is not the subject matter in this case. Besides the applicant left India in September, 2007 and come back to India on 12th February, 2011 after resigning from her employment in China effective on 31st January, 2011. In the decision of the ITAT Bangalore Bench in the case of Manoj Kumar ReddyNare v. ITO (supra) it was held that the assessee has come to India after leaving his employment outside India, the Explanation (a) to section 6(1)(c) will not be applicable. That....