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TMI Blog1983 (2) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... id not fulfil the conditions laid down in section 6(6)(a) of the Income-tax Act, 1961 (' the Act '). Therefore, he treated the status of the assessee as ' resident '. 2. When the matter was taken in appeal before the AAC, he concurred with the view held by the ITO and dismissed the appeal. He held that a person can claim the status of not ordinarily resident in India only if the following conditions are fulfilled : (i) if such a person is an individual (ii) he has not been resident in India in nine out of ten previous years preceding that year ; and (iii) he has not during the seven previous years preceding that year been in India for a period of 730 days or more. The AAC found that the assessment year is 1981-82 and the previous year i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent second appeal is filed before this Tribunal. The assessee worked in Arabian and American Oil Co. which is an undertaking run by the Government of Saudi Arabia. He retired and returned to India on 6-1-1978 and finally he settled in India. Till 6-1-1978 he was in Saudi Arabia right from 1957. The case of the assessee was that his pension money was being received in Alginia Bank in Saudi Arabia. From Alginia Bank it goes to City Bank, New York, and from New York it comes to India (Madras) where the City Bank has got a branch. According to him the whole pension money was earned by him abroad and also received on his behalf abroad. In such a case, if he is found to be a resident but not ordinarily resident in India within the meaning of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong been that an individual is ' not ordinarily resident ' unless he satisfies both the conditions in section 4B(a), i.e.,--- (i) he must have been a resident in nine out of ten preceding years ; and (ii) he must have been in India for more than two years in the preceding seven years. Thus, a person will be ' resident and ordinarily resident ' if both these conditions are satisfied but he will be ' resident but not ordinarily resident ' if either of those conditions is not satisfied." From the above circular it is very clear that the department is accepting the status of a person as not ordinarily resident, if either of the two conditions set out below is not satisfied or fulfilled : (i) he must have been a resident in nine out of ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t simply because a person was found to be a resident for 182 days or more in any previous year and simply because he is found to be a resident in India within the meaning of section 6(1)(a), his status cannot be determined only on the outcome of that investigation. One should also investigate whether he comes within the mischief of either of the two conditions mentioned in section 6(6)(a). If he comes within the mischief of either of the two conditions mentioned in section 6(6)(a), then he should be treated not ordinarily resident. Therefore, in view of the clear law enunciated by the Patna High Court in the above decision and in view of the Board's circular, we have no difficulty in coming to the conclusion that the status of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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