My passport was seized and I could not leave India. Do those days count towards the 182 days?
No, where the stay was involuntary and the seizure itself was found to be wrongful. The Delhi High Court upheld the Tribunal and held that the period for which a citizen is in India against his will, brought about by executive action later found to be without authority of law, must be excluded in calculating the period under s.6(1)(a). The test it laid down is one of animus: there must be something to show that the individual intended, or had the animus, of residing in India for the minimum prescribed duration. The Court added that this is not a thumb rule - each case has to be examined on its own facts.
Decided by the High Court (Delhi High Court — S. Ravindra Bhat and R.K. Gauba, JJ. (judgment delivered by Gauba, J.)) on 2015-05-27, reported as (2015) 375 ITR 172 / 233 Taxman 4 / 278 CTR 21 (Del.)(HC); [2015] 57 taxmann.com 448 (Delhi); IT Appeal Nos. 715, 722 and 723 of 2014 with C.M. No. 19243 of 2014. It bears on section 6, section 6(1), section 6(1)(a) of the Income Tax Act 1961, in Residence & Treaty Benefit and Evidence & Burden of Proof matters.
This is the only High Court authority located for the proposition that a day physically spent in India may still not be a day of stay for s.6. It is the answer to an officer who treats the passport and the immigration record as conclusive arithmetic, and it is the doorway to any argument that the record overstates the count. Its limits matter as much as its holding — the department will say, correctly, that it turns on unlawful state action and not on inconvenience.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
Read aloud by your device. Press again to stop.
The assessee had been assessed as a non-resident throughout the years from 1985 to 2006, present in India for under 182 days in each of them, living and working for gain largely from the United Arab Emirates. He came to India on 28 September 2006. The Central Bureau of Investigation impounded his passport on 10 October 2006, and it was released only on 21 September 2011 under orders of the court. He was therefore on Indian soil continuously from 28 September 2006 to 21 September 2011, which put him in India for 185 days in financial year 2006-07 and for the whole of financial year 2007-08. A search under s.132 followed on 28 February 2007. He had made repeated applications, not merely for removal of restraints on his movement but specifically for release of the passport so that he could travel abroad and retain his non-resident status, and the Tribunal had found the impounding to be unjustified, illegal and untenable and in the nature of an illegal restraint - a finding the revenue did not challenge in these appeals. Assessment years 2007-08 and 2008-09 were in issue.
The revenue's three appeals were dismissed and the question of law answered against it. Executive action had made it impossible for the assessee to leave, so that he virtually became an unwilling resident on Indian soil without his consent and against his will; the involuntary stay, until the passport was restored under the Court's directive, must be excluded in calculating the period under s.6(1)(a). The Court did not re-tally the days; it excluded the compelled period from the computation. Non-resident status being restored, the Tribunal was right to delete the addition on the Singapore bank deposit for assessment year 2007-08 and on the foreign remittance for 2008-09. The Court also recorded that no evidence of a nexus between the assessee and the entities whose funds went into the investments in question had been gathered, and that the jewellery addition was unfair because the same value had been added in his wife's hands.
The Court accepted that on a strict reading of s.6(1)(a) the day counts made the assessee a resident, and asked whether that reading must prevail. It held, on the authority of the Supreme Court in J.H. Gotla and C.W.S. (India), that a literal interpretation is not to be adopted where it produces manifestly unjust results or absurdly unreasonable consequences which could never have been intended, and that even in a taxing statute a construction producing equity may be preferred to a literal meaning that is unjust. It then put the test in terms of animus. The statutory test is a minimum period of presence, but the period for which a citizen desires to be in India is a matter of his own discretion, so presence against his will or without his consent should not ordinarily be counted against the course he has chosen, particularly where it is brought about under compulsion. There has to be something to show that the individual intended, or had the animus of, residing in India for the minimum prescribed duration. The Court gave an example on each side: an omission to take steps to go abroad can itself show an intention to be resident, while material showing that the stay lacked volition and was compelled by circumstances beyond the individual's control defeats residence. On the facts, the choice had been made and maintained since 1985, the assessee had applied repeatedly for release of his passport so as to travel and keep his status, and the Tribunal's unchallenged finding was that the impounding was illegal. The Court expressly rejected the submission that s.6(1)(a) must be strictly construed and admits of no exception, observing that a literal reading might be not only unjust or absurd but open to abuse. It then confined the conclusion: it is not a thumb rule that every period of involuntary stay is excluded, the view having been taken on peculiar facts where the assessee was inhibited from travelling by law-enforcement action found wholly unjustified and where the impounding order was invalidated as without authority of law.
Conversely put, presence in India against the will or without the consent of the citizen, should not ordinarily be counted adverse to his chosen course or interest, particularly if it is brought about under compulsion or, to put it simply, involuntarily. There has to be, in the opinion of this Court, something to show that an individual intended or had the animus of residing in India for the minimum prescribed duration.
Upload it and we will read it, work out your deadline and draft the reply. A CA reviews before anything is filed.
Handle my notice → Ask a CA on WhatsAppNo, where the stay was involuntary and the seizure itself was found to be wrongful. The Delhi High Court upheld the Tribunal and held that the period for which a citizen is in India against his will, brought about by executive action later found to be without authority of law, must be excluded in calculating the period under s.6(1)(a). The test it laid down is one of animus: there must be something to show that the individual intended, or had the animus, of residing in India for the minimum prescribed duration. The Court added that this is not a thumb rule - each case has to be examined on its own facts. This was decided by the High Court (Delhi High Court — S. Ravindra Bhat and R.K. Gauba, JJ. (judgment delivered by Gauba, J.)) and bears on section 6, section 6(1), section 6(1)(a) of the Income Tax Act 1961. It is reported as (2015) 375 ITR 172 / 233 Taxman 4 / 278 CTR 21 (Del.)(HC); [2015] 57 taxmann.com 448 (Delhi); IT Appeal Nos. 715, 722 and 723 of 2014 with C.M. No. 19243 of 2014. This is the only High Court authority located for the proposition that a day physically spent in India may still not be a day of stay for s.6. It is the answer to an officer who treats the passport and the immigration record as conclusive arithmetic, and it is the doorway to any argument that the record overstates the count. Its limits matter as much as its holding — the department will say, correctly, that it turns on unlawful state action and not on inconvenience. If it applies to you, the first step is this: Do not treat the immigration record as the end of the count; establish first whether any part of the stay was involuntary and what made it so.
The assessee had been assessed as a non-resident throughout the years from 1985 to 2006, present in India for under 182 days in each of them, living and working for gain largely from the United Arab Emirates. He came to India on 28 September 2006. The Central Bureau of Investigation impounded his passport on 10 October 2006, and it was released only on 21 September 2011 under orders of the court. He was therefore on Indian soil continuously from 28 September 2006 to 21 September 2011, which put him in India for 185 days in financial year 2006-07 and for the whole of financial year 2007-08. A search under s.132 followed on 28 February 2007. He had made repeated applications, not merely for removal of restraints on his movement but specifically for release of the passport so that he could travel abroad and retain his non-resident status, and the Tribunal had found the impounding to be unjustified, illegal and untenable and in the nature of an illegal restraint - a finding the revenue did not challenge in these appeals. Assessment years 2007-08 and 2008-09 were in issue. The matter was decided on 2015-05-27 by the High Court (Delhi High Court — S. Ravindra Bhat and R.K. Gauba, JJ. (judgment delivered by Gauba, J.)). On those facts the High Court held as follows. The revenue's three appeals were dismissed and the question of law answered against it. Executive action had made it impossible for the assessee to leave, so that he virtually became an unwilling resident on Indian soil without his consent and against his will; the involuntary stay, until the passport was restored under the Court's directive, must be excluded in calculating the period under s.6(1)(a). The Court did not re-tally the days; it excluded the compelled period from the computation. Non-resident status being restored, the Tribunal was right to delete the addition on the Singapore bank deposit for assessment year 2007-08 and on the foreign remittance for 2008-09. The Court also recorded that no evidence of a nexus between the assessee and the entities whose funds went into the investments in question had been gathered, and that the jewellery addition was unfair because the same value had been added in his wife's hands.
The Court accepted that on a strict reading of s.6(1)(a) the day counts made the assessee a resident, and asked whether that reading must prevail. It held, on the authority of the Supreme Court in J.H. Gotla and C.W.S. (India), that a literal interpretation is not to be adopted where it produces manifestly unjust results or absurdly unreasonable consequences which could never have been intended, and that even in a taxing statute a construction producing equity may be preferred to a literal meaning that is unjust. It then put the test in terms of animus. The statutory test is a minimum period of presence, but the period for which a citizen desires to be in India is a matter of his own discretion, so presence against his will or without his consent should not ordinarily be counted against the course he has chosen, particularly where it is brought about under compulsion. There has to be something to show that the individual intended, or had the animus of, residing in India for the minimum prescribed duration. The Court gave an example on each side: an omission to take steps to go abroad can itself show an intention to be resident, while material showing that the stay lacked volition and was compelled by circumstances beyond the individual's control defeats residence. On the facts, the choice had been made and maintained since 1985, the assessee had applied repeatedly for release of his passport so as to travel and keep his status, and the Tribunal's unchallenged finding was that the impounding was illegal. The Court expressly rejected the submission that s.6(1)(a) must be strictly construed and admits of no exception, observing that a literal reading might be not only unjust or absurd but open to abuse. It then confined the conclusion: it is not a thumb rule that every period of involuntary stay is excluded, the view having been taken on peculiar facts where the assessee was inhibited from travelling by law-enforcement action found wholly unjustified and where the impounding order was invalidated as without authority of law. In the words reproduced by the source cited on this page: "Conversely put, presence in India against the will or without the consent of the citizen, should not ordinarily be counted adverse to his chosen course or interest, particularly if it is brought about under compulsion or, to put it simply, involuntarily. There has to be, in the opinion of this Court, something to show that an individual intended or had the animus of residing in India for the minimum prescribed duration."
It was decided by the High Court on 2015-05-27 and is reported as (2015) 375 ITR 172 / 233 Taxman 4 / 278 CTR 21 (Del.)(HC); [2015] 57 taxmann.com 448 (Delhi); IT Appeal Nos. 715, 722 and 723 of 2014 with C.M. No. 19243 of 2014. Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section 6, section 6(1), section 6(1)(a), the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The revenue's three appeals were dismissed and the question of law answered against it. Executive action had made it impossible for the assessee to leave, so that he virtually became an unwilling resident on Indian soil without his consent and against his will; the involuntary stay, until the passport was restored under the Court's directive, must be excluded in calculating the period under s.6(1)(a). The Court did not re-tally the days; it excluded the compelled period from the computation. Non-resident status being restored, the Tribunal was right to delete the addition on the Singapore bank deposit for assessment year 2007-08 and on the foreign remittance for 2008-09. The Court also recorded that no evidence of a nexus between the assessee and the entities whose funds went into the investments in question had been gathered, and that the jewellery addition was unfair because the same value had been added in his wife's hands. It arises in Residence & Treaty Benefit and Evidence & Burden of Proof matters, on section 6, section 6(1), section 6(1)(a) of the Income Tax Act 1961, and was decided by Delhi High Court — S. Ravindra Bhat and R.K. Gauba, JJ. (judgment delivered by Gauba, J.). Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Put the enquiry where the Court put it - on animus. Show what the client did to leave, and be ready for the converse point, that an omission to take steps to go abroad is itself evidence of an intention to be resident. Where you rely on this, put on record the order or judgment that held the restraint unlawful; the Court placed weight on the impounding having been invalidated as without authority of law. Frame it as the exclusion of the compelled period from the computation under s.6(1)(a), not as a general equity, because the Court expressly refused a thumb rule. Do not stretch it to a stay caused by illness, a visa delay, a family emergency or a flight cancellation - the judgment supports none of those.
Searched for later treatment; none was found. That is not the same as a source affirming it. No decision applying, following or affirming this judgment was found. The two Tribunal decisions that cite it were read in full and neither adopts it: in Smt. Basaribanu Mohd. Rafiq Latiwala v. ITO [2017] 81 taxmann.com 62 / 164 ITD 346 (Mum.)(Trib.), 30 March 2017, and in Sadhvi Securities (P.) Ltd. v. ACIT [2019] 109 taxmann.com 245 / 179 ITD 197 (Del.)(Trib.), 16 July 2019, it appears only in counsel's list of authorities for the general proposition that an unjust literal construction yields to an equitable one, and in each the Bench decided against the party citing it. That is citation without adoption and does not meet the requirement. There is no reversal, no citator entry against it and nothing disclosing a leave petition. Two professional articles on pandemic-era residence rely on it, which is commentary rather than treatment. The judgment itself has now been read in full, so everything else in this entry is first-hand. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The judgment was read in full and the facts, the reasoning and the quoted sentence now come from its numbered paragraphs. The sentence this entry previously carried - that for the purposes of s.6(1)(a) each case has to be examined on its own merits in the light of the facts and circumstances leading to an involuntary stay - was described here as a headnote; it is in fact the Court's own last sentence in para 27, and it states the limit of the decision rather than its ratio. Three appeals were before the Court, two for assessment year 2007-08 and one for 2008-09, all out of a single Tribunal order of 11 April 2014; the earlier surmise of a second untraced appeal is answered. This judgment is the Delhi High Court decision of 27 May 2015 and is not to be confused with the Tribunal order in the same assessee's case, which it affirmed. The judgment answers only part of the question about what an officer may demand before going behind a passport record: it makes animus the enquiry and gives an example on each side, but it sets no standard for the ordinary case where the stay was inconvenient rather than compelled. It says nothing about how the count is done where a land crossing or an unstamped transit leaves no entry at all, and nothing about a stay compelled by something other than state action. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The revenue's three appeals were dismissed and the question of law answered against it. Executive action had made it impossible for the assessee to leave, so that he virtually became an unwilling resident on Indian soil without his consent and against his will; the involuntary stay, until the passport was restored under the Court's directive, must be excluded in calculating the period under s.6(1)(a). The Court did not re-tally the days; it excluded the compelled period from the computation. Non-resident status being restored, the Tribunal was right to delete the addition on the Singapore bank deposit for assessment year 2007-08 and on the foreign remittance for 2008-09. The Court also recorded that no evidence of a nexus between the assessee and the entities whose funds went into the investments in question had been gathered, and that the jewellery addition was unfair because the same value had been added in his wife's hands.
TaxSphere, “CIT v Suresh Nanda”, https://taxnotice.vittsphere.com/caselaw/case/cit-v-suresh-nanda-involuntary-stay-passport/ (validity last checked 2026-08-23)
The judgment itself is a government work and may be quoted freely. The summary, the validity note and the reasoning on this page are this library's own writing: quote them with attribution, and please do not present either as the words of the court — this page keeps the two apart and so should a quotation of it.
Every entry in this library links to where it was found, so you can check it yourself rather than take our word for it.
The AO counted 184 days and called me resident. Does the day I landed in India count?
The Assessing Officer has computed my days in India from immigration records instead of the stamps in my passport. Can he go behind the passport like that?
I flew out of India in October. Does the day I left count as a day of stay in India for the 182-day test, and does a part-day count?
I moved to Singapore with my family. Can the AO's tie-breaker questionnaire alone make me an Indian resident?
