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TMI Blog2010 (12) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... No controversy on the facts inasmuch as the assessee was in India for only 177 days in the previous year relevant for the assessment year 1989-90, and unless it is established that Explanation (a) to sub-clause (c) of section 6(1) of the Act is not available to the assessee, he cannot be treated as a resident in India for the purpose of assessing his global income including the business income earned abroad during the previous year - dismiss the appeal filed by the Revenue. - 1489 of 2009 - - - Dated:- 13-12-2010 - RAMACHANDRAN NAIR C. N., BHABANI PRASAD RAY JJ. JUDGMENT C. N. Ramachandran Nair J.- 1. The short question that arises for our decision in the appeal filed by the Revenue is whether the Commissioner of Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, and was in India for 177 days in the previous year and was in India for more than 365 days in the four years preceding to that year, the Assessing Officer declared the assessee's status as "resident" for the assessment year 1989-90. Even though the assessee sought exception under Explanation (a) to section 6(1)(c) contending that since he had gone abroad to take up employment in the previous year, in order to become a resident under the said Explanation, he should have stayed in India for not less than 182 days in that year, this claim of the assessee was turned down by the Assessing Officer for the simple reason that "employment outside India" covered by the Explanation does not include "doing business", by oneself. In other words, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xty days or more in that year. Explanation.-In the case of an individual,- (a) being a citizen of India, who leaves India in any previous year as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words 'sixty days', occurring therein, the words 'one hundred and eighty-two days' had been substituted ;" 5. There is no controversy on the facts inasmuch as the assessee was in India for only 177 days in the previous year relevant for the assessment year 1989-90, and unless it is established that Explanation (a) to sub-claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Son Ltd. v. Government of Hyderabad reported in [1954] 25 ITR 449 (SC). We do not think the decision is applicable to the facts of this case. Learned senior counsel for the assessee has relied on the Memorandum Explaining the Provisions of the Finance Bill introducing the Explanation, contained in [1981] 134 ITR (St.) 137 (para. 35 of the Finance Bill), which reads as follows : "(iii) It is proposed to provide that where an individual who is a citizen of India leaves India in any year for the purposes of employment outside India, he will not be treated as resident in India in that year unless he has been in India in that year for 182 days or more. The effect of this amendment will be that the 'test' of residence in (c) above will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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