JUDGMENT:

BHAN, J.

1. Assessee is the appellant herein.

2. In this appeal the assessee has challenged the final judgment and order dated 3rd May, 2002 passed by the High Court of Gujarat in ITR No. 7 of 1988. The High Court has disposed of the Reference upholding the view taken by the Income Tax Appellate Tribunal, Ahmedabad Bench-A (for short "the Tribunal") that the status of the assessee for the assessment year 1982-83 was not that of "not ordinarily resident". The High Court also recorded that the Tribunal has not committed any error in interpreting the provisions of Section 6(6) of the Income Tax Act, 1961 (for short "1961 Act").

3. Brief facts of the case culminating into filing of the present appeal, are as under:

4. The assessee was appointed as Marine Engineer by Wallem Shipping Management Ltd., Hong Kong on 5th October, 1976 and, during the course of his employment, he was posted to work on high seas and paid abroad for many years. The assessee while filing his return for the assessment year 1982-83 (for short "relevant year") claimed the status of "not ordinarily resident in India" as defined in Section 6(6)(a) of the 1961 Act and to exclude income accruing outside India under Section 5(1)(c ) of the 1961 Act, which provides that in the case of a person not ordinarily resident in India within the meaning of sub-section (6) of Section 6, the income which accrues or arises to him outside India shall not be so included in his total income.

5. Relevant portion of Sections 5 and 6 of 1961 Act is quoted as under:

"Section 5 - Scope of total income

(1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which

(a)

(b)

(c) accrues or arises to him outside India during such year:

Provided that, in the case of a person not ordinarily resident in India within the meaning of sub-section (6) of section 6 the income which accrues or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set up in India."

"Section 6 - Residence in India For the purposes of this Act,-

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[(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 India 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 ."

6. As the assessee was not resident in India in 9 out of 10 previous years preceding that year (which is finding of fact), he claimed the status of "not ordinarily resident" for the relevant year.

7. The Assessing Officer by his Order dated 3rd September, 1984 refused to grant the assessee the status of "not ordinarily resident" for the relevant year, on the ground that the assessee was a non-resident in India for only 3 years during the last 10 years and during the past 7 years he had stayed in India for more than 730 days. The Assessing Officer found that the assessee had resided in India for the period which is shown below, in the last nine previous years:

Sr. No. Financial year Stay in

India

(1) 1980-81 91

(2) 1979-80 62

(3) 1978-79 272

(4) 1977-78 50

(5) 1976-77 197

(6) 1975-76 365

(7) 1974-75 365

(8) 1973-74 365

(9) 1972-73 365

8. The Assessing Officer further found that in view of the provisions of Section 6(6)(a) of the 1961 Act, the assessee was required to fulfil either of the following two conditions to claim the status of "not ordinarily resident":

"(1) in nine out of ten previous years, he should not be resident in India, or

(2) he should not have stayed in India for a period of seven hundred thirty days or more during the last seven previous years."

The Assessing Officer came to the conclusion that, during the last 9 previous years, the assessee was non-