w w w . L a w y e r S e r v i c e s . i n



Tapas Kumar Basak v/s Assistant Director of Income Tax, International Taxation-II & Others


Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- D B H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1950PTC057209

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- H G E INTERNATIONAL PRIVATE LIMITED [Active] CIN = U19115UP2011PTC045112

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- H C S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15312PB2012PTC036219

Company & Directors' Information:- L N G INTERNATIONAL LIMITED [Active] CIN = U51909DL1993PLC053438

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- R T S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U63022DL1997PTC089328

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- V. S. Y. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035521

Company & Directors' Information:- U M I INTERNATIONAL LTD [Strike Off] CIN = U51909WB1990PLC049671

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- H AND Z INTERNATIONAL LIMITED [Active] CIN = U10102AS1995PLC004509

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- D. J. INTERNATIONAL LIMITED [Strike Off] CIN = U65910MH1999PLC119298

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- J M INTERNATIONAL PVT LTD [Active] CIN = U45201WB1991PTC050829

Company & Directors' Information:- D P C INTERNATIONAL PVT LTD [Active] CIN = U74210WB1984PTC037378

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- N H B INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U67190MH1997PTC107387

Company & Directors' Information:- P D K INTERNATIONAL PVT LTD [Active] CIN = U74140WB1992PTC056468

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- M K N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2002PTC117207

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- A & F INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U00265KA1995PTC018998

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- B L S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UR2010PTC033210

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- N J INDIA INTERNATIONAL LIMITED [Strike Off] CIN = U70101UP2004PLC028722

Company & Directors' Information:- TAPAS INTERNATIONAL LIMITED [Strike Off] CIN = U51420CH1996PLC018206

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- K K M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17110MH1995PTC089836

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- H P AND B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50500DL1999PTC100851

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- KUMAR (INDIA) PVT LTD [Strike Off] CIN = U51909WB1986PTC041038

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- S. S. N. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29306DL1981PTC012616

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- A H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U55101RJ2021PTC073171

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- P KUMAR & CO PRIVATE LIMITED [Strike Off] CIN = U27105WB1998PTC087242

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- J D K INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC014087

Company & Directors' Information:- KUMAR L P G PRIVATE LIMITED [Strike Off] CIN = U23201DL2001PTC113203

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- KUMAR INTERNATIONAL LIMITED [Strike Off] CIN = U51909DL1990PLC042409

Company & Directors' Information:- B P INTERNATIONAL PVT LTD [Strike Off] CIN = U31909HP1984PTC005785

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- R A R E INTERNATIONAL PRIVATE LIMITED [Active] CIN = U31900DL2005PTC134395

Company & Directors' Information:- TAXATION INDIA PRIVATE LIMITED [Strike Off] CIN = U74140DL2000PTC106716

Company & Directors' Information:- D I D INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U28112MH2014PTC258750

Company & Directors' Information:- S R A INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1980PTC010389

Company & Directors' Information:- R Z INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900KA2012PTC064445

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- A P M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900TN2014PTC095953

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- R I K INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U52590DL2015PTC283801

Company & Directors' Information:- Y & H INTERNATIONAL PRIVATE LIMITED [Active] CIN = U63000DL2014PTC266649

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- INTERNATIONAL CO PRIVATE LIMITED [Strike Off] CIN = U51109UR1935PTC000663

Company & Directors' Information:- P. BASAK & CO PVT LTD [Strike Off] CIN = U35921WB1955PTC022298

Company & Directors' Information:- A B C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1990PTC041062

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

Company & Directors' Information:- B C I INTERNATIONAL LIMITED [Strike Off] CIN = U74900DL1977PLC008468

    W.P.O. No. 931 of 2007

    Decided On, 16 September 2021

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE MD. NIZAMUDDIN

    For the Petitioner: Ananda Sen, Advocates. For the Respondents: P.K. Bhowmik, Asok Bhowmik, Advocates.



Judgment Text

1. Heard Learned Counsel appearing for the parties.2. In this Writ Petition petitioner has challenged the impugned order of the Director of Income Tax (International Taxation), Kolkata/respondent no. 1 dated 25th January, 2007 passed under Section 264 of the Income Tax Act, 1961 which arises out of the assessment order passed under Section 147/144 of the Income Tax Act, 1961 treating the assessee/petitioner as “Resident” for having stayed in India for 182 days during the relevant previous year as per Section 6 (1) (a) of the Act and the Assessing Officer brought the entire salary of the petitioner amount to Rs. 12,26,822/- under the tax net as the global income of the resident as taxable while it is the claim of the petitioner that it is not taxable by taking the ground that during the financial year relevant to assessment year 2004-05 he was on foreign water for a total period of 184 days and his residential status should have been taken as “Non-Resident” and salary received by him should have been treated as exempted by relying on Circular no. 586 of the CBDT dated 28th November, 1990 which is calculable for the crew members.3. It appears from the record that in response to the notice under Section 148 of the Income Tax Act no return was filed by the assessee-petitioner and the Assessing Officer had no occasion to issue notice under Section 143 (2) of the Act and he had to complete the assessment under Section 147/144 of the Act.4. It appears from the aforesaid assessment order under Section 147/144 of the Act being Annexure - P3 to the Writ Petition that in course of the said assessment proceeding assessee himself had filed a letter dated 27th January, 2005 from the contents of which it appeared that the petitioner’s employer has calculated his stay in India for 182 days and had deducted tax at source under Section 192 of the Act. It also appears from the aforesaid assessment order that the Assessing Officer had issued a notice under Section 142 (1) of the Act dated 24th February, 2006 and served the same on the assessee requesting him to furnish the information or explanations which are as follows:“(i) Whether you filed any return of income in compliance to notice under Section 148 served to you? If yes, furnish proof thereof. If no, explain the reasons thereof.(ii) In the computation sheet enclosed with the original return of income for the AY 2004-05 submitted on 26.07.04, it was stated that you stayed in India for 182 days during the relevant previous year. In fact, your employers have also certified to that effect to that effect. Please explain as to why you should not be treated as Resident under Section 6 (1) (a) of the Income Tax Act, 1961.(iii) In the case of an assessee being resident, his global income is liable to tax in India. Showcause as to why the portion of salary claimed exempt on the wrong presumption of being Non Resident should not be denied and the same be included in the total income.(iv) Furnish details of your global income received/receivable from whatever source which is liable to income tax in India.(v) Produce copies of all bank statements for verification.”5. In response to the aforesaid queries petitioner’s representative filed written submission and contended that his reply dated 27th January, 2005 may be treated as reply to notice under Section 142 (1) of the Act and also contended that the said letter should be treated as return to the said notice under Section 148 of the Act and claimed that petitioner has no taxable income apart from what has been declared in his return filed on 26th July, 2004. It is also an admitted position from the petitioner’s own documents filed before the authorities that he has stayed in India during the previous year for 182 days for treating him as “Resident” within the meaning of Section 6 (1) (a) read with Section 2 (42) of the Income Tax Act, 1961, the aforesaid Sections are quoted below:“Section 2 (42). “resident” means a person who is resident in India within the meaning of Section 6.”“Section 6. Residence in India. - For the purposes of this Act,—(1) An individual is said to be resident in India in any previous year, if he—(a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more ; or”6. It is also relevant to mention that against the aforesaid assessment order petitioner neither filed any application under Section 154 of the Act for rectification of the assessment order if according to him if it was mistake apparent from record nor any Appeal before the Commissioner of Income Tax (Appeals) though this order was an Appealable order and the Commissioner of Income Tax (Appeals) has got ample power to consider the facts, evidence and law and the scope of such Appeal is much much wider and his order is further Appealable before the Tribunal and instead of finding Appeal against the aforesaid assessment order before the Commissioner of Income Tax (Appeals) petitioner had chosen to invoke the provision of revision under Section 264 of the Income Tax Act, 1961, scope of which is much narrower than the Appeal and Commissioner of Income Tax under Section 264 of the Act has the power to pass such order which are an order not prejudicial to the assessee if he thinks fit but Explanation-1 under Section 264 of the Act clearly says that an order by the Principal Commissioner or Commissioner of Income Tax declining to interfere with the order proposed to be revised shall not be deemed to be an order prejudicial to the assessee and the same is not Appealable.7. Furthermore, petitioner failed to establish his case and could not deny the factual and legal position either before the Assessing Officer or before the Commissioner of Income Tax in the proceeding under Section 264 of the Act that he stayed in India during the relevant financial year for 182 days which is the criteria for treating the assessee-petitioner as “Resident” rather petitioner would contend that he stayed more than 182 days in foreign soil and he should be treated as “Non-Resident” while wordings of Section 6 (1) (a) of the Act says that the staying of assessee for 182 days or more in India is the factor for deciding whether the petitioner is a “Resident” or not and not that the assessee stayed for more than 182 days on the foreign soil.8. In support of this calculation of how many days petitioner stayed on foreign soil he wants to rely on a document being the certificates issued by his employer to establish his claim as a “Non-Resident” and this document/certificate petitioner has produced for the first time before this Writ Court which appears at Page – 30 of the Writ Petition and wants this Writ Court to appreciate this piece of evidence for the purpose of calculation of number of days petitioner stayed on foreign soil while it was neither produced before the Assessing Officer nor before the Commissioner/Revisional Authority which learned Advocate for the petitioner has admitted in course of hearing when query was put to him by this Court. In my considered opinion Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India should not appreciate and scrutinize this piece of evidence particularly when this document/ evidence was never produced/filed either before the Assessing Officer or before the Commissioner in the proceeding under Section 264 of the Income Tax Act, 1961.9. Petitioner in support of his contention has relied on the following two judgments and a Circular which are as follows:(i) (1977) 2 Supreme Court Cases 777 ( State of Kerala –vs- K.T. Shaduli Grocery Dealer Etc.)(ii) (1999) 4 Supreme Court Cases 599 (UCO Bank, Calcutta – vs- Commissioner of Income Tax, W.B).(iii) Circular No. 586 dated 28th November, 1990 issued by the Central Board of Direct Taxes (CBDT).10. The aforesaid judgments of the Hon’ble Supreme Court has no application in the peculiar facts involved in the case that is that the petitioner himself has claimed in his return as “Resident” secondly, he did not file any reply to the notice under Section 148 of the Income Tax Act, 1961 neither at any point of time he challenged the notice under Section 148 of the Act before this Court nor he has filed any application for rectification under Section154 of the Act for the assessment under Section 147/144 of the Act by which assessee was held as “Resident” nor he filed any Appeal before the Commissioner of Income Tax (Appeals) against the aforesaid assessment order though it was an Appealable and was further Appealable before the Tribunal. Furthermore the evidence by way of certificate of his employer upon which petitioner wants to rely for his period of stay in question on foreign water was never produced or filed either before the Assessing Officer or before the Commissioner of Income Tax during the impugned proceeding under Section 264 of the Act in which the Commissioner of Income Tax has upheld the order of the assessment under Section 147/144 of the Act treating the petitioner as “Resident” and for the first time petitioner has produced the aforesaid certificate issued by his employer in this writ proceeding and wants this Writ Court to appreciate and consider the aforesaid piece of evidence in exercise of its constitutional writ jurisdiction under Article 226 of the Constitution of India while all these facts are totally absent in the aforesaid decisions/judgments upon which petitioner wants to rely and furthermore in addition to th

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ese facts, circulars/notifications upon which petitioner wants to rely is in conflict with Section 6 (1) of the Income Tax Act, 1961 and it is settled principle of law that if there is a conflict between a circular or notification and an Act the Act will prevail.11. In view of the factual and legal discussion made above I am not inclined to interfere with the impugned order of the respondent Commissioner of Income Tax dated 25th January, 2007 passed in exercise of his revisional jurisdiction under Section 264 of the Income Tax Act, 1961, confirming the order of assessment under Section 147/144 of the Income Tax Act, 1961 treating the petitioner as “Resident”, in exercise of limited scope of judicial review by this Court under constitutional writ jurisdiction under Article 226 of the Constitution of India.12. Accordingly this Writ Petition being WPO No. 931 of 2007 is dismissed with no order as to costs.13. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
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