TaxTMI 
TaxTMI 
2006 (2) TMI 206
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.... 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 should be treated as "Resident but not Resident" for the year in question as per provision of section 6(6)(a) of the Act and not a 'Resident' as determined by the Assessing Officer misapplying the provision of law and justice. 4. Facts in brief are that all the assessees are Indian Citizens, Maritime Executives and employees of M/s. Wallem Ship Management Ltd. The Assessing Officer during the course of assessment proceedings found the following facts in respect to the five assessees:- ----------------------------------------------------------- S. Name of assessee Resident in India No. of days spent No. during the past in India in the &nbs....
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....p; 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) 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. C....
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....tmental Representative for the Revenue has relied heavily on the order of Assessing Officer and CIT(A) and has submitted that the ld. CIT(A) while adjudicating the issue has passed a speaking order which does not need any interference. He has also relied upon the definition as laid down in section 6(6)(a) and the decision of the Hon'ble Gujarat High Court in case of Pradip J. Mehta. 10. We have given our careful consideration to the rival submission made before us and have perused the orders of tax authorities. We have also considered the paper book filed by the assessees and the case law relied upon. In this case, the contention of the assessee for being assessed in the status of not ordinarily resident of India has been rejected by the Assessing Officer in view of the provision as laid down in section 6(6)(a) of the Act which has been confirmed by the ld. CIT(A). The ld. Counsel for the assessee while challenging the order of ld. CIT(A) has also relied upon the same section 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 i....
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....; Resident 1992-93 1993-94 100 days 285 days -Do- 1993-94 1994-95 365 days 1994-95 1995-96 291 days 74 days RBNOR 1995-96 1996-97 166 days 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 ....