Section 6(1)(a)

Section 6(1)(a) — the law in short

What the courts have decided on section 6(1)(a), in one screen. Read this first; open an entry when you need the facts, the reasoning and the source.

• CIT v Suresh Nanda High CourtHelps taxpayerNo later treatment found
  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.
• DCIT v M. Mahadevan ITATHelps department
  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?
  Yes, on this decision. The Chennai Bench of the Tribunal upheld the officer's reliance on data of the Foreigners Regional Registration Office in preference to passport stamps, holding that the agency is mandated to keep data of entry and exit on a real-time basis and that, being a Central Government agency, its data cannot be suspected or doubted. It also held that the burden lies on the assessee to prove by demonstrative evidence that his case falls outside section 6, and that having overseas business and travelling does not by itself put him outside Indian tax. A tax residency certificate from the UAE, obtained in 2021 for earlier years, did not displace the domestic computation.
• Sameer Malhotra v ACIT ITATHelps taxpayer
  I moved to Singapore with my family. Can the AO's tie-breaker questionnaire alone make me an Indian resident?
  No. A tie-breaker questionnaire is an important aid but cannot be the exclusive basis for the conclusion, and permanence of a home is assessed qualitatively as well as by duration, so a flat taken on rent abroad can be a permanent home. The Tribunal decided the tie-breaker principally on the centre of vital interests - the assessee had moved to Singapore with his family to earn there, so his personal and economic relations for that period were in Singapore - with habitual abode offered as an additional reason. The addition of global income was deleted and the Assessing Officer directed to accept the revised return.
• Pradeep Kumar Joshi v ITO ITATHelps taxpayer
  The AO counted 184 days and called me resident. Does the day I landed in India count?
  No - the day of arrival is excluded. The first appellate authority had counted the arrival day without giving any reason for doing so when other benches had held it must be excluded, so his computation of exactly 182 days had no basis. Adopting the Bangalore Bench's ratio that s.9 of the General Clauses Act excludes the first day of a series, the Tribunal excluded the date of arrival, held the stay was less than 182 days and held the assessment made treating the assessee as resident to be unsustainable. Only the arrival limb is decided: the order assumes, without deciding, that the departure day counts.
• Petition No. 7 of 1995, In re ITATHelps departmentNo later treatment found
  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?
  Yes, on this ruling - and the day of arrival counts too. The Authority for Advance Rulings, working out whether the applicant was resident under section 6(1)(a), held that for that purpose the days on which he entered India as well as the days on which he left India have to be taken into account. An argument that the stay should instead be computed in hours was put aside as impractical, and in any event no data had been furnished from which an hours-based figure could be worked out. Counting both days made the applicant resident, and the application was rejected as not maintainable.

Listed strongest first: Supreme Court, then High Court, then Tribunal, then CBDT. Nothing here has yet been read in full by a chartered accountant — open an entry to see where it came from.