- (1.) ALL these appeals preferred by the different assessees are directed against the common order passed by the ld. CIT(A)-XL, Kolkata dated 27th May, 2005 in the cases of these five appellants for the assessment year 2002-03 and 2003-04.
(2.) Since common facts and grounds are involved in all the five abovementioned appeals viz. I.T.A. Nos. 1837, 1838, 1839, 1850 & 1851/Kol./2005 filed by the different assessees, we, therefore, decide to dispose of the same by a common consolidated order for the sake of convenience. The assessees have preferred the following common grounds before us in case of ail five appeals: (i) For that the ld. CIT(A)-XL, Kolkata without considering the provisions of law and submissions made before him by the appellant, has confirmed the order of the A.O. which is not justice and lawful. (ii) For that the ld. CIT(A)-XL, Kolkata has confirmed the order passed by the ld. A.O. in respect of the determination of residential status accepting a controversial and subjudice decision of the Hon'ble Gujrat High Court but ignoring an accepted the decision of the Hon'ble ITAT, 'B' Bench, Kolkata which is arbitrary and unjust. (iii) For that the appellant should be treated as "Resident but not Resident" for the year in question as per provision of Section 6(6)(a) of the Act and not a 'Resident' as determined by the A.O. misapplying the provision of law and justice.
(3.) FACTS in brief are that all the assessees are Indian Citizens, Maritime Executives and employees of M/s. Wallem Ship Management Ltd. The A.O. during the course of assessment proceedings found the following facts in respect to the five assessees: JUDGEMENT_3946_TLIT0_20060.htm Since the assessees had been resident in India for more than one previous years and as their stay in India during the seven previous years preceding the previous year in question were more than 730 days or more, the A.O. concluded that the assessees did not qualify for the status as "not ordinarily resident in India" in the concerned previous year and held that the salaries earned abroad was taxable in India. The A.O. while arriving at this conclusion also relied on the judgment of the Hon'ble Gujrat High Court in case of Pradip J. Mehta v. CIT reported in 256 ITR 647.;