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TMI Blog1984 (7) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... urning the appeal. We, therefore, dispose of the appeal as under after taking into account the submissions made on behalf of the department at the time of hearing. 2. The assessee claimed in the return filed for the year under consideration, that she was resident but not ordinarily resident during the previous year for this assessment year and, therefore, the salary income earned by her in Iran was not assessable to tax. A little digression at this stage is necessary to explain the scope of total income under section 5 of the Income-tax Act, 1961 ('the Act'). In the case of a person, who is resident and also ordinarily resident, all income from whatever source derived which, (a) is received or deemed to be received in India in such year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. 4. Aggrieved with the same, an appeal was preferred to the AAC who in his impugned order, allowed the claim of the assessee to be treated as resident but not ordinarily resident for the year under consideration. The argument advanced before the AAC in this behalf was that the assessee, to be treated as 'ordinarily resident' should satisfy two conditions laid down in section 6(6)(a), namely (i) she should have been resident in India in 9 out of 10 previous years preceding the previous year in question and (ii) she should have been in India for a period or periods amounting in all to 730 days or more during the 7 previous years preceding that previous year. It was submitted, that the assessee did not satisfy the first requirement in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India on 13-9-1977 during the previous year for the assessment year under consideration. She was, therefore, in India during the previous year for a period amounting to 200 days, i.e., more than 182 days as required under section 6(1)(a). Under section 6, an individual is resident in India for any assessment year, if he fulfils any one of the following three tests, which tests are alternative and not cumulative: (i) if he is in India in the accounting year relevant to the assessment year for a period amounting in all to 182 days or more, or (ii) he maintains or causes to be maintained for him a dwelling place in India for periods amounting in all to 182 days or more in the accounting year, and has been in India for 30 days or more in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year [first part of sub-clause (a) of section 6(6)], or (ii) he has not during the 7 'previous years' preceding the relevant accounting year been in India for a period or periods amounting in all to 730 days or more [second part of clause (a) of section 6(6)]. Thus, in order that an individual may be treated as 'ordinarily resident' in India in any previous year, he must not come within the mischief of either of the two conditions aforesaid---C.N. Townsend v. CIT [1974] 97 ITR 185 (Pat.). For the purpose of the above tests, the residential status of the assessee for the 'previous year' relevant to the assessment year in question will have first to be ascertained in the usual manner, by the application or the three tests for a 'resident', b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious year. During the period 1-4-1967 to 31-3-1975 comprising of 8 previous years, the assessee was resident and ordinarily resident. As mentioned earlier, she was also a resident during the previous year 1-4-1975 to 31-3-1976 as per section 6(1)(c). In view of this, the requirement in the first part of section 6(6)(a) that the individual should have been a resident in India in 9 out of 10 previous years preceding that year, for being treated as ordinarily resident, is satisfied. An alternative requirement, namely, that the individual should have been in India for a period or periods amounting in all to 730 days or more during the 7 previous years preceding that year is also satisfied in this case inasmuch as, the assessee was physically re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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