Mrs. Zarina Begum & others, Kumbakonam v. DCIT, Kumbakonam

ITA 814/CHNY/2006 | 1999-2000
Pronouncement Date: 30-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 81421714 RSA 2006
Assessee PAN ADAPR1742K
Bench Chennai
Appeal Number ITA 814/CHNY/2006
Duration Of Justice 5 year(s) 5 month(s) 27 day(s)
Appellant Mrs. Zarina Begum & others, Kumbakonam
Respondent DCIT, Kumbakonam
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 30-09-2011
Date Of Final Hearing 22-09-2011
Next Hearing Date 22-09-2011
Assessment Year 1999-2000
Appeal Filed On 03-04-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE ACCOUNTANT MEMBER I.T.A. NO. 814/MDS/2006 (ASSESSMENT YEAR : 1999-2000) LATE A. RAJA MOHAMED BY L/R SMT. ZARINA BEGUM & OTHERS 81 EAST KUDIYANA STREET KUMBAKONAM 612 001. PAN : ADAPR1742K (APPELLANT) V. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE I KUMBAKONAM. (RESPONDENT) APPELLANT BY : SHRI V.D. GOPAL ADVOCATE RESPONDENT BY : SHRI K.E .B. RANGARAJAN JUNIOR STANDING COUNSEL DATE OF HEARING : 22.09.2011 DATE OF PRONOUNCEMENT : 30.09.2011 O R D E R PER ABRAHAM P. GEORGE ACCOUNTANT MEMBER : IN THIS APPEAL GROUNDS RAISED BY THE ASSESSEE REA D AS UNDER:- II. (A) IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE BEEN PLEASED TO HOLD THAT THE REOPENING IS BAD IN LAW. I.T.A. NO. 814/MDS/06 2 (B) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) SHOULD HAVE BEEN PLEASED TO ALLOW THE APPEAL HOLDIN G THAT THE APPELLANT IS ENTITLED TO RELIEF U/S. 10(15)(IV) (FA). III. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SH OULD HAVE BEEN PLEASED TO HOLD THAT THE REOPENING IS BAD IN LAW IN AS MUCH AS NO FRESH INFORMATION HAD COME INTO TH E POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO T HE ACCEPTANCE OF THE RETURN U/S. 143(1)(A). IV. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE HELD THAT THE APPELLANTS STATUS DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 1999-20 00 WAS RESIDENT NOT ORDINARILY RESIDENT. V. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SH OULD HAVE BEEN PLEASED TO APPRECIATE THAT THE APPELLANT HAD ALWAYS BEEN CANVASSING THE POSITION THAT HE SHOULD B E ASSESSED ONLY ON CASH BASIS ESPECIALLY WHEN ADMITTEDL Y HE IS NOT MAINTAINING ANY BOOKS OF ACCOUNTS AND HE DOES NOT HAVE ANY INCOME UNDER THE HEAD BUSINESS. VI. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN STATING THAT THE APPELLANT HAD ACCEPTED DEPARTME NTS PRACTICE OF TAXING INTEREST ON ACCRUAL BASIS PARTIC ULARLY WHEN FACTUALLY THE APPELLANT HAD CONTENDED IN THE C OURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 96 -97 TO 1998-99 THAT THE APPELLANT SHOULD BE ASSESSED ON LY ON CASH BASIS AND THAT THE DEPARTMENT SHOULD NOT BLOW HOT AND COLD. VII. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SH OULD HAVE BEEN PLEASED TO HOLD THAT THE ORIGINAL RETURN WAS FILED BY THE APPELLANT WITHIN THE TIME PERMITTED U/S. 139 AND THAT THEREFORE THE APPELLANT IS ENTITLED TO SECTION 115H RELIEF AS THE ALTERNATIVE PLEA. VIII. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED COMMISSIONER OF INCOME TAX SHOULD HAVE HELD THAT TH E INCOME TAX APPELLATE TRIBUNAL DECISION IN THE APPEL LANTS OWN CASE IN I.T.A. NOS. 1844 TO 1846 OF 2003 FOR I.T.A. NO. 814/MDS/06 3 ASSESSMENT YEARS 1996-97 TO 1998-99 AS BINDING DECIS ION IN AS MUCH AS THE SAID DECISION WAS RENDERED IN THE APPELLANTS OWN CASE WHEREIN THE HON'BLE TRIBUNAL H AD ACCEPTED THE APPELLANTS PLEA THAT THE ORIGINAL DEP OSIT SHOULD BE IN FOREIGN CURRENCY AS WAS THE POSITION IN THE APPELLANTS CASE. 2. THE QUESTIONS ARISING THROUGH THESE GROUNDS ARE THREE-FOLD. FIRST ONE IS WHETHER ASSESSEE WAS A RESIDENT AND NO T ORDINARILY RESIDENT DURING THE RELEVANT PREVIOUS YEAR SECOND IS WHETHER ASSESSEE WOULD BE ELIGIBLE FOR EXEMPTION TO THE INT EREST EARNED ON DEPOSITS IN INDIAN OVERSEAS BANK MADE IN FOREIGN C URRENCY BY VIRTUE OF SECTION 10(15)(IV)(FA) OF INCOME-TAX ACT 1961 ( IN SHORT THE ACT) AND THIRD IS WHETHER THE ASSESSEE WOULD BE ENTITLED TO CLAIM RELIEF UNDER SECTION 115H OF THE ACT IF THE EARLIER TWO QU ESTIONS DO NOT FIND AN ANSWER IN HIS FAVOUR. THOUGH ONE MORE ISSUE RE GARDING VALIDITY OF REOPENING HAS BEEN RAISED THIS WAS NOT SERIOUSLY A RGUED BY THE LEARNED A.R. AND HENCE NOT CONSIDERED. 3. SHORT FACTS APROPOS ARE THAT ASSESSEE IN HIS RET URN OF INCOME HAD NOT OFFERED INTEREST OF ` 12 22 950/- WHICH HAD ACCRUED ON HIS NRNR ACCOUNT WITH INDIAN OVERSEAS BANK. CLAIM OF T HE ASSESSEE WAS THAT HE WAS A RESIDENT BUT NOT ORDINARILY RESID ENT DURING THE I.T.A. NO. 814/MDS/06 4 RELEVANT PREVIOUS YEAR AND THEREFORE BY VIRTUE OF SECTION 10(15)(IV)(FA) OF THE ACT INTEREST ON DEPOSITS MAD E IN INDIAN OVERSEAS BANK NRNR ACCOUNT BY FOREIGN CURRENCY CRED ITS THOUGH CONVERTED INTO INDIAN RUPEE WAS ELIGIBLE FOR EXEMP TION. ASSESSEE ALTERNATIVELY REQUESTED THE ASSESSING OFFICER TO GI VE HIM BENEFIT OF SECTION 115H OF THE ACT. NONE OF THESE WERE ACCEPT ED BY THE ASSESSING OFFICER. HE WAS OF THE OPINION THAT ASSE SSEE WAS A RESIDENT AND ORDINARILY RESIDENT AND BEING RESIDENT AND ORDINARILY RESIDENT HE COULD NOT CLAIM ANY EXEMPTION UNDER SE CTION 10(15)(IV)(FA) OF THE ACT. 4. ASSESSEES APPEAL BEFORE LD. CIT(APPEALS) WAS NO T SUCCESSFUL. LD. CIT(APPEALS) HELD THAT DECISION OF HON'BLE GUJA RAT HIGH COURT IN THE CASE OF PRADIP J. MEHTA V. CIT (256 ITR 647) CL EARLY WENT AGAINST THE ASSESSEE SINCE ASSESSEE WAS NOT A RESIDENT FOR 9 OUT OF 10 PREVIOUS YEARS PRECEDING THE RELEVANT PREVIOUS YEAR AND ALSO SINCE HIS STAY IN INDIA IN 7 PREVIOUS YEARS PRECEDING THE RELEVANT PREVIOUS YEAR EXCEEDED 730 DAYS. AS PER THE LD. CIT(APPEALS ) ASSESSEE COULD NOT BE CONSIDERED AS PERSON WHO WAS RESIDENT BUT NOT ORDINARILY RESIDENT. ON THE OTHER HAND ACCORDING TO LD. CIT(APPEALS) I.T.A. NO. 814/MDS/06 5 ASSESSEE WAS ORDINARILY RESIDENT AND HENCE COULD NO T CLAIM EXEMPTION UNDER SECTION 10(15)(IV)(FA) OF THE ACT. LD. CIT(APPEALS) ALSO RULED AGAINST ASSESSEE REGARDING APPLICABILITY OF SECTION 115H SINCE ASSESSEE HAD NOT FILED THE DECLARATION ENVISA GED UNDER SECTION 115H OF THE ACT ALONG WITH HIS ORIGINAL RETURN OF I NCOME. 5. NOW BEFORE US LEARNED A.R. STRONGLY ASSAILING THE ORDER OF LD. CIT(APPEALS) SUBMITTED THAT PARA 4 OF THE CIT(APPE ALS)S ORDER BROUGHT OUT THE FACTUAL POSITION REGARDING PERIOD O F STAY OF THE ASSESSEE IN INDIA DURING FINANCIAL YEARS 1985-86 TO 1999-2000. ACCORDING TO HIM THE DECISION OF HON'BLE GUJARAT H IGH COURT IN THE CASE OF PRADIP J. MEHTA (SUPRA) OUGHT NOT HAVE BEEN APPLIED SINCE THERE WAS A DECISION OF DELHI HIGH COURT IN THE CAS E OF CIT V. KARAN BIHARI THAPAR (335 ITR 541) WHICH CLEARLY HELD THAT INTERPRETATION GIVEN BY THE AUTHORITY FOR ADVANCE RULINGS IN THE C ASE OF A.NO. P-5 OF 1995 (223 ITR 379) WAS CORRECT. THEREFORE ACCORD ING TO HIM AN ASSESSEE COULD BE CONSIDERED AS A RESIDENT AND ORDI NARILY RESIDENT ONLY IF HE WAS RESIDENT IN 9 OUT OF 10 PREVIOUS YEA RS PRECEDING THE RELEVANT PREVIOUS YEAR AND HE WAS IN INDIA FOR A PE RIOD OF 730 DAYS OR MORE DURING THE SEVEN PREVIOUS YEARS PRECEDING THAT YEAR. ACCORDING I.T.A. NO. 814/MDS/06 6 TO LEARNED A.R. ASSESSEE WAS NOT A RESIDENT IN 9 O UT 10 PREVIOUS YEARS PRECEDING FINANCIAL YEAR 1998-99 THOUGH HE MI GHT HAVE BEEN IN INDIA FOR PERIODS EXCEEDING 730 DAYS OR MORE DURING THE SEVEN YEARS PRECEDING SAID FINANCIAL YEAR. 6. PER CONTRA LEARNED D.R. SUPPORTING THE ORDER O F LD. CIT(APPEALS) SUBMITTED THAT THE INTERPRETATION GIV EN BY HON'BLE GUJARAT HIGH COURT HAD TO BE FOLLOWED SINCE THIS PO SITION CAME TO BE ACCEPTED BY VIRTUE OF AN AMENDMENT TO SECTION 6(6) OF THE ACT THROUGH FINANCE ACT 2003 WITH EFFECT FROM 1 ST APRIL 2004. ACCORDING TO LEARNED D.R. SUCH AMENDMENT WAS RETROSPECTIVE I N NATURE. 7. IN REPLY TO THE ABOVE LEARNED A.R. SUBMITTED TH AT DELHI HIGH COURT IN THE CASE OF KARAN BIHARI THAPAR (SUPRA) HA D CLEARLY HELD THAT THE AMENDMENT WAS NOT RETROSPECTIVE IN NATURE AND T HEREFORE THE INTERPRETATION GIVEN BY THE AUTHORITY FOR ADVANCE R ULINGS IN THE CASE OF A.NO. P-5 OF 1995 (SUPRA) SHOULD BE PREFERRED T HIS BEING ACCEPTED BY HON'BLE DELHI HIGH COURT IN THE CASE OF KARAN BI HARI THAPAR (SUPRA). I.T.A. NO. 814/MDS/06 7 8. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL C ONTENTIONS. THE RELEVANT PREVIOUS YEAR IS 1998-99. ASSESSEE UN DISPUTEDLY WAS A NON-RESIDENT DURING FINANCIAL YEARS 1985-86 TO 1992 -93 CONTINUALLY. STAY OF THE ASSESSEE IN INDIA THEREAFTER BUT PRIOR TO FINANCIAL YEAR 1998-99 EXCEEDED 730 DAYS. LD. CIT(APPEALS) HAD FO LLOWED THE VIEW TAKEN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF PRADIP J. MEHTA (SUPRA) FOR CONCLUDING THAT ASSESSEE COULD NO T BE CONSIDERED AS NOT ORDINARILY RESIDENT DURING THE RELEVANT PR EVIOUS YEAR BUT ONLY AS RESIDENT AND ORDINARILY RESIDENT. IN OUR OPINIO N BOTH SIDES HAD COMPLETELY OVERLOOKED THE DECISION OF HON'BLE APEX COURT IN THE CASE OF PRADIP J. MEHTA V. CIT (300 ITR 231) WHEREBY HON'BLE APEX COURT REVERSED THE DECISION OF HON'BLE GUJARAT HIGH COURT IN PRADIP J. MEHTA (SUPRA) RELIED ON BY LD. CIT(APPEALS). AFTER GOING THROUGH THE PROVISIONS OF SECTION 6(6) OF THE ACT WHICH DESCRI BE WHO IS NOT ORDINARILY RESIDENT THOUGH A RESIDENT HON'BLE APEX COURT HELD THAT THE SAID SECTION WAS PARI MATERIA WITH SECTION 4B OF INCOME-TAX ACT 1922. HON'BLE APEX COURT ALSO HELD THAT THE AMENDM ENT MADE THROUGH FINANCE ACT 2003 WITH EFFECT FROM 1 ST APRIL 2004 IN SECTION 6(6) WAS PROSPECTIVE IN NATURE. RELEVANT PARAS 23 TO 29 OF THE I.T.A. NO. 814/MDS/06 8 JUDGEMENT OF HON'BLE APEX COURT IS REPRODUCED HEREU NDER FOR BREVITY:- 23. IT MAY BE NOTED HERE THAT THE PARLIAMENT HAS AMENDED S. 6(6) OF THE 1961 ACT BY FINANCE ACT 200 3 W.E.F. 1ST APRIL 2004 WHICH READS AS UNDER: SEC.6 (6)A PERSON IS SAID TO BE 'NOT ORDINARILY RESIDENT' IN INDIA IN ANY PREVIOUS YEAR IF SUCH PERSON IS- (A) AN INDIVIDUAL WHO HAS NOT BEEN RESIDENT IN INDI A IN NINE OUT OF THE TEN PREVIOUS YEARS PRECEDING THAT YEAR OR HAS NOT DURING THE SEVEN PREVIOUS YEARS PRECEDING THAT YEAR BEEN IN INDIA FOR A PERIOD OF OR PERIODS AMOUNTING IN ALL TO SEVEN HUNDRED AND THIRTY DAYS OR MORE; OR' HOWEVER THE SAID AMENDMENT WILL NOT BE APPLICABLE TO THE PRESENT CASE AS THE NOTES ON CLAUSES OF THE FINANCE BILL 2003 PROVIDE THAT THE SAID AMENDMENT WILL HAVE EFFE CT ONLY FROM 1ST APRIL 2004. 24. ALTHOUGH THE JUDGMENTS REFERRED TO ABOVE WERE CITED AT THE BAR IN THE HIGH COURT WHICH WERE TAKE N NOTE OF BY THE LEARNED JUDGES OF THE BENCH OF THE HIGH COURT BUT WITHOUT EITHER RECORDING ITS AGREEM ENT OR DISSENT ANSWERED THE TWO QUESTIONS REFERRED TO I T IN FAVOUR OF THE REVENUE. JUDICIAL DECORUM PROPRIETY AND DISCIPLINE REQUIRED THAT THE HIGH COURT SHOULD ESPECIALLY IN THE EVENT OF ITS CONTRA VIEW OR DISSE NT HAVE DISCUSSED THE AFORESAID JUDGMENTS OF THE DIFFERENT HIGH COURTS AND RECORDED ITS OWN REASONS I.T.A. NO. 814/MDS/06 9 FOR ITS CONTRA VIEW. WE QUITE SEE THE FACT THAT THE JUDGMENTS GIVEN BY A HIGH COURT ARE NOT BINDING ON THE OTHER HIGH COURT(S) BUT ALL THE SAME THEY HAVE PERSUASIVE VALUE. ANOTHER HIGH COURT WOULD BE WITHI N ITS RIGHT TO DIFFER WITH THE VIEW TAKEN BY THE OTHE R HIGH COURTS BUT IN ALL FAIRNESS THE HIGH COURT SH OULD RECORD ITS DISSENT WITH REASONS THEREFOR. THE JUDGMENT OF THE OTHER HIGH COURT THOUGH NOT BINDIN G HAVE PERSUASIVE VALUE WHICH SHOULD BE TAKEN NOTE OF AND DISSENTED FROM BY RECORDING ITS OWN REASONS. 25. OTHERWISE ALSO WE FIND OURSELVES IN AGREEMENT WITH THE VIEW TAKEN BY THE THREE HIGH COURTS NAMELY TH E PATNA HIGH COURT IN C.N. TOWNSEND (SUPRA) THE BOMB AY HIGH COURT IN MANIBHAI S. PATEL (SUPRA) AND THE HIG H COURT OF TRAVANCORE AND COCHIN IN P.B.I. BAVA (SUPR A). 26. THE LAW COMMISSION OF INDIA HAD RECOMMENDED THAT THE PROVISIONS OF S. 4B OF 1922 ACT DEFINING 'ORDINARY RESIDENCE' OF THE TAXABLE ENTITIES BE DEL ETED BUT THE SUGGESTION WAS NOT ACCEPTED BY THE LEGISLAT URE. RATHER ON THE LEGISLATIVE ANVIL IT WAS FELT NECES SARY TO KEEP S. 4B OF 1922 ACT INTACT AND ACCORDINGLY S. 6(6) WHICH CORRESPONDS TO AND IS PARI MATERIA WITH S. 4B OF 1922 ACT WAS ENACTED IN 1961 ACT. THIS SHOWS THE LEGISLATIVE WILL. IT CAN BE PRESUMED THAT THE LEGIS LATURE WAS IN THE KNOW OF THE VARIOUS JUDGMENTS GIVEN BY T HE DIFFERENT HIGH COURTS INTERPRETING S. 4B BUT STILL THE LEGISLATURE CHOSE TO ENACT S. 6(6) IN THE 1961 ACT IN ITS WISDOM THE LEGISLATURE FELT NECESSARY TO KEEP THE PROVISIONS OF S. 4B OF 1922 ACT IN TACT. IT SHOWS T HAT THE LEGISLATURE ACCEPTED THE INTERPRETATION PUT BY THE VARIOUS HIGH COURTS PRIOR TO ENACTMENT OF 1961 ACT. IT IS ONLY IN THE YEAR 2003 THAT THE LEGISLATURE AMEND ED S. 6(6) OF THE 1961 ACT WHICH CAME INTO EFFECT FRO M 1ST APRIL 2004. I.T.A. NO. 814/MDS/06 10 27. IT IS WELL-SETTLED THAT WHEN TWO INTERPRETATIONS ARE POSSIBLE THEN INVARIABLY THE COURT WOULD ADOP T THE INTERPRETATION WHICH IS IN FAVOUR OF THE TAXPAYER A ND AGAINST THE REVENUE. REFERENCE MAY BE MADE TO THE DECISION IN SNEH ENTERPRISES VS. COMMR. OF CUSTOMS (2006) 7 SCC 714 OF THIS COURT WHEREIN INTER ALIA IT WAS OBSERVED AS UNDER: 'WHILE DEALING WITH A TAXING PROVISION THE PRINCIP LE OF 'STRICT INTERPRETATION' SHOULD BE APPLIED. THE COU RT SHALL NOT INTERPRET THE STATUTORY PROVISION IN SUC H A MANNER WHICH WOULD CREATE AN ADDITIONAL FISCAL BURD EN ON A PERSON. IT WOULD NEVER BE DONE BY INVOKING THE PROV ISIONS OF ANOTHER ACT WHICH ARE NOT ATTRACTED. IT IS ALSO TR ITE THAT WHILE TWO INTERPRETATIONS ARE POSSIBLE THE COURT O RDINARILY WOULD INTERPRET THE PROVISIONS IN FAVOUR OF A TAXPA YER AND AGAINST THE REVENUE.' 28 . THIS COURT IN A CATENA OF DECISIONS HAS HELD THA T THE CIRCULARS ISSUED BY THE DEPARTMENT ARE BINDING ON THE DEPARTMENT. SEE: K.P. VARGHESE VS. ITA (1981) 24 CT R (SC) 358 : (1981) 4 SCC 173 UCO BANK VS. CIT (1999) 154 CTR (SC) 88 : (1999) 4 SCC 599 CCE VS. DHIREN CHEMICA L INDUSTRIES (2002) 172 CTR (SC) 670 : (2002) 2 SCC 1 27 ETC. IN ALL THESE CASES IT HAS BEEN HELD THAT THE C IRCULARS ISSUED UNDER THE IT ACT OR CENTRAL EXCISE ACT ARE B INDING ON THE DEPARTMENT. IT MAY BE NOTED THAT IN THE CIRC ULAR ISSUED BY THE CIT OF WEST BENGAL REFERENCE HAS BEE N MADE TO THE CORRESPONDENCE RESTING WITH THE MINISTR Y OF FINANCE (DEPARTMENT OF REVENUE) LETTER NO. 4/22/61- IT(AT) DT. 25TH NOV. 1961 WHEREIN IT IS STATED T HAT THE DEPARTMENT'S VIEW HAS ALL ALONG BEEN THAT AN INDIVI DUAL IS 'NOT ORDINARILY RESIDENT' UNLESS HE SATISFIES BOTH THE CONDITIONS IN S. 4B(A) I.E. (I) HE MUST HAVE BEEN A RESIDENT IN NINE OUT OF TEN PRECEDING YEARS; AND (II) HE MUS T HAVE BEEN IN INDIA FOR MORE THAN TWO YEARS IN THE PRECED ING I.T.A. NO. 814/MDS/06 11 SEVEN YEARS. IN THE PRESENT CASE THE CIRCULAR ISSU ED BY THE BOARD IN WHICH THE OPINION OF THE CENTRAL GOVERNMEN T THE MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) LETTER NO. 4/22/61-IT (AT) DT. 25TH NOV. 1961 HAS BEEN NOTED THE INTERPRETATION SIMILAR TO THE ONE PUT BY THE VARIOU S HIGH COURTS ON S. 4B HAS BEEN ACCEPTED TO BE THE CORRECT POSITION. 29. IN THESE CIRCUMSTANCES A PERSON WILL BECOME AN ORDINARILY RESIDENT ONLY IF (A) HE HAS BEEN RESIDIN G IN NINE OUT OF TEN PRECEDING YEARS; AND (B) HE HAS BEE N IN INDIA FOR AT LEAST 730 DAYS IN THE PREVIOUS SEVEN YEARS. IN THE GIVEN CASE BEFORE US IT IS CLEAR THAT ASSES SEE CONCERNED WAS NOT A RESIDENT IN INDIA FOR ALL THE 9 YEARS OUT OF 10 PREVIOUS YEARS THOUGH HE WAS IN INDIA FOR MORE THAN 730 DAYS WITHI N 7 PREVIOUS YEARS PRECEDING THE RELEVANT PREVIOUS YEAR. THIS B EING THE CASE BY VIRTUE OF RULING GIVEN BY HON'BLE APEX COURT AT PAR A 29 OF THE ORDER ASSESSEE HERE COULD BE DEEMED ONLY AS RESIDENT AND NOT ORDINARILY RESIDENT IN THE RELEVANT PREVIOUS YEAR. 9. COMING TO THE ASPECT OF ELIGIBILITY OF ASSESSEE TO CLAIM BENEFIT UNDER SECTION 10(15)(IV)(FA) OF THE ACT LEARNED A. R. PLACED ON RECORD A DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 1996-97 TO 1998-99 IN I.T.A. NOS. 1844 1845 & I.T.A. NO. 814/MDS/06 12 1846/MDS/2003 WHERE IT HAS BEEN HELD BY THIS TRIBUN AL THAT CLAIM OF THE ASSESSEE WAS FULLY COVERED BY THE SAID PROVISIO N. THE TRIBUNAL WAS CONSIDERING THE SAME DEPOSIT ON WHICH INTEREST HAD ACCRUED TO THE ASSESSEE IN THE RELEVANT PREVIOUS ALSO. WE AR E THEREFORE OF THE OPINION THAT IN VIEW OF THE CO-ORDINATE BENCH DECIS ION OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE ASSESSEE WAS ELIGIBLE F OR EXEMPTION UNDER SECTION 10(15)(IV)(FA) OF THE ACT. SINCE WE HAVE ANSWERED THE FIRST TWO QUESTIONS IN FAVOUR OF ASSESSEE THE THIR D QUESTION VIZ. WHETHER THE ASSESSEE WAS ELIGIBLE FOR RELIEF UNDER SECTION 115H OF THE ACT HAS BECOME INFRUCTUOUS. 10. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 30 TH SEPTEMBER 2011. SD/- SD/- (HARI OM MARATHA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI DATED THE 30 TH SEPTEMBER 2011. KRI. COPY TO: APPELLANT/RESPONDENT/CIT(A) TIRUCHIRAPAL LI/ CIT-II TIRUCHIRAPALLI/D.R./GUARD FILE