1983 (10) TMI 82

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..... port the ITO concluded that the assessee has not been able to prove by any documentary evidence like the passport that he was non-resident in the earlier two assessment years. As such, the ITO considered it proper to attach as residential status, the status of resident and ordinarily resident. On appeal, it was urged by the assessee before the AAC that production of passport was not relevant at all for determination of status since that question was automatically decided by the residential status adopted in the income-tax assessment for the earlier two assessment years. It is pointed out that for the asst. yrs. 1975-76 and 1976-77 the assessee was assessed as a non-resident. The AAC found as a fact that the assessee left India in July 1976 .....

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..... arwala submits that this is an understanding of the department for which purposes, Shri Berarwala has produced a copy of the Departmental Circular No. J/28320/4A/10/5/58-59 dt. 5th December 1962 addressed by the CIT, W.B. to the Indian Chamber of Commerce, Calcutta Regarding the assessee's inability to produce the passport before the ITO and the AAC, Shri Berarwala stated that at that stage, the old passport was not immediately traceable. Shri Berarwala then pointed out that there after, the assessee has been able to trace the passport. Since the ITO had required the production of the passport in order to ascertain whether the assessee was a non-resident in the earlier two assessment years, Shri Berarwala filed a statement reproduced below .....

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..... he decision of the issue concerning the correct residential status of the assessee. Now, it is clear that in terms of s. 6(1) (a) the assessee is resident. On this, there is no dispute. What is disputed is whether he is a resident and ordinarily resident or he is resident but not ordinarily resident. This issue has to be decided in terms of s. 6 (6) (a) of the Act. On this issue, the ld. authors Kanga and Palkhivala's The Law and Practice of Income-tax, 7th Edition, Vol. 1 at p. 192 have observed: "In order to claim the status of being "not ordinarily resident" under the first part of this clause, residence in India for less than nine years out of the preceding ten years is sufficient (Marimuthu Pillai vs. CIT (1943) 13 ITR 186 at 188). Th .....

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