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TMI Blog1996 (9) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... hree references. Reading the questions in both these references, the question for consideration and the consequent decision get circumscribed within a narrow compass. The question to be answered is whether the assessee would have to be understood as " a person resident outside India ", as a result of which in the computation of the income or wealth, money standing to his credit in a Non-resident (External) Account in any bank in India could be included or not. Similar would be the question on the strength of the extension of logic as to whether such money would be includible as wealth under the Wealth-tax Act. After hearing the submissions of learned senior counsel for the Revenue and also of learned counsel for the assessee in these proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue is whether the appellant is a non-resident within the meaning of section 2(q) read with paragraphs (c) and (d) of sub-clause (iii) of section 2(p) of the Foreign Exchange Regulation Act, 1973 ' as above and is not the above question wrongly posed and wrongly considered by the Tribunal ? 2. Whether, on the facts and in the circumstances of the case, should not the Tribunal have considered the question only under section 6 of the Wealth-tax Act read with the relevant provisions of the Income-tax Act and section 2(q) of the Foreign Exchange Regulation Act ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is justified at all in considering the question in the light of section 2(p) of the Foreign Exchange Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Non-resident (External) Account, the assessee contended for a claim for non-inclusion in the total income under the provisions of section 10(4A) of the Income-tax Act. In these proceedings, the trial authority treated the assessee as a resident in India, as a person satisfying the requirements that during the previous year, he was in India living with his wife and children. The appellate authority considered the question to confirm the order of the trial authority. The Income-tax Appellate Tribunal considered these proceedings and with regard to the question arising out of income-tax proceedings, decided it by the judgment dated October 24, 1990. With regard to the assessment years 1983-84 and 1984-85 arising out of wealth-tax proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (q) of section 2 of the Foreign Exchange Regulation Act, 1973 (46 of 1973). " A bare reading of the statutory provision would show that its applicability is dependent on a situation as to whether a person is resident outside India. The statutory provision of the Explanation thereto would take us to understand what is statutorily meant by " a person resident outside India ". This would take us to consider the provisions of section 2(p) of the Foreign Exchange Regulation Act, 1973 (46 of 1973), which requires reproduction : " 2. (p) ' Person resident in India ' means--- (i) a citizen of India who has, at any time after the 25th day of March, 1947, been staying in India, but does not include a citizen of India who has gone out of, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India stays in India for any such purpose and in such circumstances. Explanation. --- A person, who has, by reason only of paragraph (a) or paragraph (b) or paragraph (d) of sub-clause (iii) been resident in India, shall, during any period in which he is outside India, be deemed to be not resident in India. " A bare reference to clause (p)(iii)(c) would show that a person who is not a citizen of India, but has come to or stays in India for staying with his or her spouse, such spouse being a person resident in India would have to be regarded and understood as a person resident in India. This position is also applicable to such a person who is not a citizen of India coming to India for any other purpose indicating his intention to stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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