JUDGEMENT
R.N. Puri, Accountant Member -
(1.)THE appeal filed by the assessee is directed against the order dated 13-7-1985 of the Appellate Asstt. Commissioner in ITA. 98/Sal/84-85, pertaining to assessment year 1983-84. THE previous year relevant to this assessment year was the year ended 31-3-1983. THE question to be decided is whether the assessee was during this year "not ordinarily resident".
(2.)This appeal was fixed up for hearing on 4-4-1989. Even though the notice for the hearing of the appeal was received by the assessee on 21-3-1989, as is apparent from the acknowledgement slip placed on records, the assessee did not appear for the hearing of the appeal. Under the circumstances, we are disposing of the appeal after hearing the departmental representative and after consulting the records.
The assessee had claimed that during the year under consideration he was "not ordinarily resident". This claim of the assessee had been negatived both by the ITO and the AAC and now the assessee has brought the matter before us. For resolving the dispute whether the assessee was or was not "not ordinarily resident" we have to decide two questions. The first issue is as to what is the meaning of the expression "who has not been resident in India in nine out of the ten previous years" appearing in Sub-clause (a) of Clause (6) of Section 6. The AAC is of the view that the meaning of this expression is that the assessee should have been non-resident for nine out of the ten previous years. According to the assessee, the meaning of the expression is that the assessee should be resident in India for less than nine out of the ten years. For deciding whether in a given year a person was or was not "ordinarily resident", we have to take into consideration ten preceding previous years. The question to be decided is whether in order to claim the status of "not ordinarily resident", the assesses is required to be non-resident in nine out of the ten years, as held by the AAC, or whether the requirement of law is that the assessee should have been resident in India for less than nine years, as contended by the assessee.
(3.)THE second question to be decided is as to what is the law that is to be taken into consideration for finding out whether in a given previous year the person was resident or not. As stated above, for deciding as to whether in a given year the assessee was "not ordinarily resident", we have to find out as to what the status of the assessee was in each of the preceding ten years, whether he was a resident or not. THE question that has arisen is as to what is the law that is to be applied for finding out whether in a given previous year the person was resident or not. Is it the law prevailing in that previous year, that is to be applied, or is it the law prevailing in the assessment year for which the issue whether the assessee was "not ordinarily resident" is under determination, which is to be applied ? To elaborate, in the case under consideration, it is for the assessment year 1983-84 that we have to determine whether the assessee was "not ordinarily resident". For the determination of this issue, we have to take into consideration ten preceding previous years and we have to find out for each of those years whether the assessee was a resident or not. THE question that has arisen is whether, for finding out whether the assessee was a resident or not, say, in respect of the previous year ended 31st March, 1981, we have to take into consideration the law prevailing in that previous year or the law obtaining for the assessment year 1983-34 for which we have to decide whether the assessee was or was not "not ordinarily resident".
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