Assessee need not reside abroad permanently to be treat as non-resident

Assessee need not reside abroad permanently to be treat as non-resident

It is a trite law that in Income tax proceedings the words shall be given plain and ordinary meaning and interpretation should be resorted only when the meaning is ambiguous. We are unable to see any ambiguity in these provisions. Hon’ble Kerala High Court has held that for determining the status as Non Resident is to be decided in terms of no. of days of stay in India. This being the only judgment available on this issue, is binding and is to be respectfully followed by us. The AAR judgment have a persuasive value and the decisions in the case of Dr. Virendra Kumar and Canoro Resources also AAR has adopted the ratio of Hon’ble Kerala High Court judgment. Thus, the test of residence will be determined on the basis of number of days of stay in India and not by the interpretation adopted by the lower authorities in this case. It has not been disputed by the revenue that the number of days of the stay of assessee in India are less than 182 days. In these facts and circumstances the assessee’s arguments on this issue deserve to be upheld.

In view of the facts, circumstances and case laws cited and referred above on behalf of the assessee we hold that the determinative test for the status of Non Resident being number of days of stay in India and in assessee’s case in these three years, the days of stay being less than 182 days; the status to be applied in this case is to be held as Non Resident as claimed by assessee. Thus, the assessee will be liable to tax on income accrued in India only. The assessee’s grounds in this behalf are allowed.

IN THE ITAT DELHI BENCH ‘G’

Suresh Nanda

v.

Assistant Commissioner of Income-tax, Central Circle-13

IT Appeal NOS. 1428 to 1430 (DELHI) OF 2012

[ASSESSMENT YEARS 2001-02, 2002-03 & 2004-05]

JULY 24, 2012

ORDER

R.P. Tolani. Judicial Member – These are three appeals by the assessee against separate orders of CIT(A)-I, New Delhi dated, 8-2-2012 for A.Y. 2001-02 & 2002-03; dated 10-2-2012 for A.Y. 2003-04. Since common grounds are involved for adjudication in these appeals, the same are heard together and being disposed of by a consolidated order, for the sake of convenience.

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