TaxTMI 
TaxTMI 
2008 (1) TMI 421
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....50. On being called upon to prove the status as claimed, the assessee 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 &n....
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....non-residents from any source outside India is immune from taxation under the Income-tax Act, 1961. The third category of the assessees having status of "Not ordinarily resident" within the meaning of section 6(6) is subject to tax in respect of income received or accruing or arising or deemed to be received, accruing or arising in India unconditionally and insofar as the income accruing or arising outside India is concerned, it would be put to tax only if it is derived from a business controlled in or a profession set up in India. 7. The assessee in the instant case has earned interest income on Term Fixed Deposits from bank, which was claimed as exempt under section 10(15)(iv)(fa). This exemption is available to the assessees having status of non-residents or not ordinarily residents provided the acceptance of such deposits in foreign currency by banks is approved by the RBI. The Assessing Officer has not denied that all the requisite conditions for claiming 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 resident....
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....en years preceding that year, then his residential status will become RNOR. Thus in order to acquire the status of RNOR, it is sine qua non that on one hand the individual should not be non-resident in that year and on the other hand he should firstly be resident in that year and thus should fulfil either of the conditions of section 6(6). That is, he should meet either of the conditions of section 6(1), say, be in India for 182 days or more in the previous year and thereafter either of the conditions enshrined in section 6(6) be fulfilled, say, he should not be the resident in India in 9 out of 10 previous years preceding that year. 9. Adverting to the facts of the case as borne out from the assessment order we note that the assessee was residing in India from 1-4-1995 to 31-3-2001 and during that period he was out of India only for 6 days, i.e. from 8th June, 1997 to 14 June, 1997. The position which, therefore, emerges is that in the previous year (i.e. from 1-4-2000 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 pre....
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....d not both be complied with for acquiring the residential status of RNOR. As in the facts and circumstances of the present case, the assessee has satisfied the first condition and not the second, we are of the considered opinion that the learned CIT(A) erred in holding that the residential status of the assessee was ROR. 13. Now we will refer to the legal position arising out of the judicial precedents on the issue; which seems to be no more res integra in view of the judgment of the Hon'ble Apex Court in the case of CIT v. Morgenstern Werner [2003] 259 ITR 486 in which the judgment of the Hon'ble Allahabad High Court in Morgenstern Werner v. CIT [1998] 233 ITR 751 was affirmed. The facts of the case as recorded by the Hon'ble High Court are that the petitioner worked with the Kraft Work Union (Siemens), Germany and drawing his salary of DM 3882 per month in Germany. BHEL sought the services of a technical liaison officer. The Ministry of Industries, Government of India informed 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....