COMMISSIONER OF INCOME TAX Vs. GOPAL KRISHNA KEJARIWAL

JUDGEMENT

(1.) The Income Tax Appellate Tribunal, Allahabad has referred the following question of law under Section 256(1) of the Income Tax Act 1961 (hereinafter referred to as the Act) for opinion to this Court: "Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal

(2.) Briefly stated the facts of the case giving rise to the present reference are as follows:- The assessee respondent filed his return for the assessment year 1980-81. In the return the status of residence of the assessee was disclosed as of a "resident". The assessment order under Section 143(1) of the Act was made on 5th of July 1982. During the assessment proceedings for the next assessment year namely 1981-82, the Income Tax Officer found that the assessee had earned income which in terms of Indian currency amounted to Rs. 93,663/- as salary from M/s. J.H. Lloyd Davies. Inc. The assessing Officer was of the view that the aforesaid income has escaped assessment even though it was earned in U.S.A. Proceedings under Section 147 (a) of the Act were initiated. In response to the reassessment notice, the assessee respondent claimed exemption from tax on the aforesaid income on the ground that his residence is of "Non-resident". The Income Tax Officer was of the view that the assessee had been in India for 372 days in 4 preceding assessment years and was in India for 62 days in the relevant assessment year, therefore, the assessee was a resident in terms of Section 6(1)(c) of the Act. He, therefore, levied income tax on the amount of Rs. 93,336/- as tax in the assessment year in the status of a resident.

(3.) Feeling aggrieved the assessee respondent preferred an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) dismissed the appeal on the ground that the assessee respondent who originally disclosed his status as "resident" could not be allowed to change his residence status to a "Non-resident" in reassessment proceedings. However, on further appeal to the Tribunal, the reassessment order was set aside. Before the Tribunal by way of preliminary objection an argument was raised by the Department that the matter already concluded by the original assessment cannot be reopened in the reassessment proceedings.