The central legal point established in the judgment is the entitlement of non-resident Indians to tax benefits under Section 115E and 115H of the Income Tax Act.

D. MURUGESAN, J.

1. The above Tax Case appeals have been preferred by the Revenue under Section 260-A of the Income Tax Act against the order dated 29.12.2003 passed by the Income Tax Appellate Tribunal, Chennai "A" Bench, in I.T.A.Nos.1379/Mds/2003 to 1382/Mds/2003 respectively, raising the following substantial questions of law:-

"1.Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the assessments for the assessment years 1994-95 to 1996-97 have not been validly re-opened?

2. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that notices under section 143(2) were not issued within twelve months from the end of the month in which the return was filed in response to the notice under section 148, which finding is contrary to facts on record, and, therefore, the orders of reassessment were invalid without noticing that the notice under section 143 (2) have been actually issued within the time prescribed under the proviso to the said section contrary to the facts on record?

3. Without prejudice to question No.2 above, whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the time limit prescribed under the proviso to section 143(2) is applicable to cases where notice under section 148 have been issued for reopening the assessments?

4. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the assessee was entitled to the concessional rate of tax under section 115H when the assessee has not satisfied the procedural and substantive requirements under Chapter XIIA of the Income Tax Act?

5. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the status of the assessee was that of "Resident but not Ordinarily Resident" and in directing to grant exemptions under section 115E and / or provisions of section 10(15)(iv)(fa) to the assessee in respect of his income from deposits in his name and also deposits of the assessee's wife which has been clubbed to the assessee's total income under section 64(1)(iv)?"

2. The above appeals are by the Revenue in respect of the assessment years 1994-95 to 1997-98. The assessee was employed with UNICEF and he had been residing outside India since 14.02.1977. He returned to India on 06.02.1992 on his superannuation, barring certain intervening visits. Thereafter, again he had gone out of India, on UNICEF duty, on 05.04.1992 and returned on 07.05.1992. From that date onwards, he has been residing in India permanently.

3. During his employment in UNICEF outside India, he had earned considerable sums of money by way of salary and had remitted the same in India in foreign exchange. The investments had been made mainly in bank deposits. The core question that arose before the Assessing Officer was, whether the assessee could be considered as a Resident or Non-Resident Indian and consequently, he would have the tax benefit under section 115E or under section 115H of the Income Tax Act. The assessee filed return of income claiming tax benefit under Section 115 E /115 H of the Income Tax Act, 1961. The same was processed under Section 143(1)(a) of the Act. Later, the Assessing Officer reopened the assessment on the ground that there is escapement of income tax. Therefore, on reopening the assessment under Section 147 of the Act, the assessing officer denied the exemption. Aggrieved by that order, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) held that reopening is valid and accordingly, denied the benefit of tax payment at 20%. Aggrieved by that order, the assessee filed appeal before the Income Tax Appellate Tribunal. The Tribunal held that the Assessing Officer was not justified in reopening the asse