SENGUPTA, J. - (1.) IN this reference under S. 256(2) of the IT Act, 1961 ('the Act') for the asst. yr. 1979-80 the following question has been referred to this Court: "Whether on the facts and in the circumstances of the case, the Tribunal was justified in treating the status of the assessee as not 'resident and ordinarily resident' during the asst. yr. 1979-80?" The question which calls for determination in this case is whether the assessee was resident and ordinarily resident in the previous year relevant to the assessment year in question. Shortly stated, the facts are that the assessee was assessed in the status of individual.
(2.) THE ITO held that the assessee was resident and ordinarily resident. The assessee went in appeal before the AAC who upheld the order of the ITO and dismissed the appeal of the assessee on this point. The assessee then came up in second appeal before the Tribunal. It was contended before the Tribunal that the assessee was minor and he used to stay with his relations during his visit to India and that the flat which was contracted to be purchased on his behalf was not legally transferred to him though its possession was given to him since registered sale deed was not executed in his favour. It was contended before the Tribunal that on the basis of taking possession of the flat which the assessee was not legal owner and even otherwise it could not be said that the assessee was maintaining any dwelling house in India. The Tribunal held that the status of the assessee was not 'resident and ordinarily resident' during the assessment year. From the facts found by the Tribunal it would appear that in the original return of income the assessee claimed its residential status as resident but in the revised return it was shown as a non- resident. He had been in India in nine out of the ten previous years preceding the instant year. His stay in India during 9 years from the accounting period 1970-71 to the accounting period 1978-79 was 723 days. His stay in India during the assessment year in question was for 64 days. During the asst. yr. 1975-76, the assessee was resident within the meaning of cl. (c) of S. 6(1) of the Act. During the asst. yr. 1976-77, the assessee was non-resident. During the asst. yrs. 1977-78 & 1978-79, the assessee was resident within the meaning of cl. (b) of S. 6(1) as he was maintaining a flat for dwelling in India. The assessee had contracted to purchase a flat at Calcutta and had advanced certain amount therefor and had taken possession of the said flat pursuant thereto prior to the asst. yr. 1977-78.
(3.) SEC . 6(1) lays down the tests to be applied for finding out whether an individual is a resident in India during the relevant previous year. The tests of residence provided in s. 6(1) are not cumulative but alternative. Each of the two tests requires the personal presence of the assessee in India for the stated period in course of the accounting year. Under S. 6(1)(a) if an individual stays in India for at least 182 days in the aggregate in the course of the relevant accounting year, he will be regarded as a resident irrespective of any other consideration, but in this case the test has not been fulfilled. Under S. 6(1)(b), a person would regarded as a resident in India if two conditions are fulfilled: firstly, he maintains or causes to be maintained a dwelling place in India for a period amounting in all to at least 182 days in the accounting year and subsequently he has been in India for at least 30 days in that year.;