- (1.) ASSESSEE is the appellant herein.
(2.) IN this appeal the assessee has challenged the final judgment and order dated 3rd May, 2002 passed by the High Court of Gujarat in ITR no. 7 of 1988. Reported in 2002 Taxlr 1026 the High Court has disposed of the Reference upholding the view taken by the Income Tax Appellate Tribunal, Ahmedabad Bench-A (for short "the Tribunal") that the status of the assessee for the assessment year 1982-83 was not that of "not ordinarily resident". The High Court also recorded that the tribunal has not committed any error in interpreting the provisions of Section 6 (6)of the Income-tax Act, 1961 (for short "1961 Act" ). Brief facts of the case culminating into filing of the present appeal, are as under: The assessee was appointed as Marine Engineer by wallem Shipping Management Ltd. , Hong Kong on 5th October, 1976 and, during the course of his employment, he was posted to work on high seas and paid abroad for many years. The assessee while filing his return for the assessment year 1982-83 (for short "relevant year") claimed the status of "not ordinarily resident in India" as defined in Section 6 (6) (a) of the 1961 Act and to exclude income accruing outside India under Section 5 (1) (c ) of the 1961 Act, which provides that in the case of a person not ordinarily resident in India within the meaning of sub-section (6) of Section 6, the income which accrues or arises to him outside India shall not be so included in his total income.
(3.) RELEVANT portion of Sections 5 and 6 of 1961 Act is quoted as under: "section 5 - Scope of total income (1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which- (a ). . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . (c) accrues or arises to him outside India during such year: provided that, in the case of a person not ordinarily resident in India within the meaning of sub-section (6) of section 6 the income which accrues or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set up in India. " "section 6 - Residence in India for the purposes of this Act,-Xxxx [ (6)A person is said to be "not ordinarily resident" in India in any previous year if such person is - (a) an individual who has not been resident in India in nine out of the ten previous years preceding that year, or has not during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and thirty days or more ; or. . . . . . . . . . . . . . . . "] As the assessee was not resident in India in 9 out of 10 previous years preceding that year (which is finding of fact), he claimed the status of "not ordinarily resident" for the relevant year.;