- (1.) The Court: In the present writ proceeding the writ petitioner has challenged the notices (1) dated 10.10.1995, (2) dated 30.11.1995 and (3) dated 8.1.1996 all were issued in connection with the assessment proceedings for the assessment years 1992-93 and 1993-94. The petitioner has also challenged the notice dated 8.1.1996 issued under section 154 of the Income Tax Act, 1961 (hereinafter referred to as the said Act), in respect of the assessment year 1989-90.
(2.) From the aforesaid notice dated 8.1.1996 it is evident that the said notice was issued under section 154 of the said Act with a view to rectify a mistake apparent from the record. It is evident from the assessment order dated 30.3.1992 for the assessment year 1989-90 that the residential status of the writ petitioner the assessee, was held and determined as ?non-resident? within the meaning of section 2(30) of the said Act. The relevant part of the aforesaid assessment order dated 30.3.1992 is set out hereunder: ?Residential status of the assessee: In the return filed, the assessee has shown his status as non-resident. The A/R filed a statement showing that during the relevant previous year the assessee was in India for 172 days and there abroad for the remaining 193 days. This verified with reference to copy of pass port produced by the A/R. Hence in view of provision of section 6(1)(a) of IT Act the assessee was not a resident for the relevant previous year?.
(3.) In my opinion while deciding the residential status of an assessee the Assessing Officer should consider the provisions of both sections 6(1)(a) and 6(1)(c) of the said Act and this is a mandatory requirement of law. An assessee may not be a ?resident? of India under section 6(1)(a) but may be a ?resident? of India under section 6(1)(c) of the said Act. In W.P. No. 213 of 1996 (Vijay Mallya v. Assistant Commissioner of Income Tax, Investigation Circle-4, Calcutta & Ors.) by judgment and order dated 10.9.2002 I held that an assessee may be a ?resident? in India either under section 6(1)(a) or section 6(1)(c) of the said Act. I held that an Assessing Officer while holding an assessee as ?non-resident? within the meaning of section 2(30) of the said Act, is duty bound to record his reasons as to why he is not holding the assessee as ?resident? either under section 6(1)(a) or section 6(1)(c) of the said Act. I further held that if the Assessing Officer fails to record the reasons why he is not holding the assessee as a ?resident? of India either under section 6(1)(a) or under section 6(1)(c) of the said Act then such failure would be a ?mistake apparent from the record? which would call for rectification. In Commissioner of Income Tax v. Kesaria Tea Co. Ltd., reported at (1998) 233 ITR 700 the Division Bench of Kerala High Court held that overlooking a mandatory provision of law which allows no discretion to the taxing authorities is a mistake from the record.;