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Residential status determination based on stay in India for assessees working abroad. Analysis: The appeals were against the order of the ld. CIT(A)-XL, Kolkata regarding the residential status determination for the assessment years 2002-03 and 2003-04 for five appellants. The assessees were Indian citizens working as Maritime Executives for a company abroad. The Assessing Officer concluded that since the assessees had been resident in India for more than one previous year and their stay in India during the past seven years exceeded 730 days, their salaries earned abroad were taxable in India. The Assessing Officer relied on the judgment of the Hon'ble Gujarat High Court in a specific case. In the first appeal before the ld. CIT(A), the assessees argued that the decision of the Hon'ble Gujarat High Court was subjudice before the Supreme Court, making it a controversial ruling. They also cited a judgment by ITAT, 'B' Bench, Kolkata in a similar case where salary income earned abroad was held not taxable in India. However, the ld. CIT(A) upheld the Assessing Officer's decision, stating that the assessees were ordinarily resident in India based on the provisions of the Income-tax Act. The assessees contended that they should be treated as "Resident but not Resident" as per section 6(6)(a) of the Act, emphasizing that they did not meet the criteria for ordinary residency. The Departmental Representative for the Revenue supported the Assessing Officer's and CIT(A)'s decisions, relying on the legal provisions and the judgment of the Hon'ble Gujarat High Court. After careful consideration, the ITAT analyzed the provisions of section 6(6)(a) and the assessees' stay history in India. None of the assessees met the conditions for not ordinarily resident status as per the Act. Additionally, the ITAT found that all assessees met the criteria for being considered residents in India as per section 6(1) of the Act. The ITAT rejected the arguments based on the Authority for Advance Ruling and the ITAT Kolkata judgment, stating that the facts were not identical. Ultimately, the ITAT upheld the decision of the ld. CIT(A) and dismissed the appeals of all five assessees, affirming that they were to be taxed as residents in India.
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