The Rajasthan High Court has observed that the condition imposed by the Income Tax Act that a person residing in India for a continuous period of 180 days would be considered to be a resident of India, is for the purpose of bringing such person within the purview of the Income Tax Act.
The court added that the definition is simply designed for the purpose of including the persons who are in India for a period of 180 days to bring in the tax net and not for the purpose of determining the citizenship or for deciding the permanent resident status of such person.
Justice Sandeep Mehta and Justice Vinod Kumar Bharwani, while dismissing an appeal, observed,
"We are prima facie of the view that there is no reason to accept the assertion of the appellant that the respondent was not a resident of India by applying the provisions of the Foreign Exchange Management Act, 1999 and the Income Tax Act, 1961 because, both the acts have a different object and purposes. The condition imposed by the Income Tax Act that a person residing in India for a continuous period of 180 days would be considered to be a resident of India, is for the purpose of bringing such person in the purview of the Income Tax Act. The definition is simply designed for the purpose of including the persons who are in India for a period of 180 days to bring in the tax net and not for the purpose of determining the citizenship or for deciding the permanent resident status of such person."
Essentially, the present intra court appeal was filed by the appellant writ petitioner Smt. Kamla for assailing the order passed by the Single Bench rejecting the petition preferred by her for assailing certain orders whereby, one Jagdish Suthar-respondent No.4, who was allegedly not qualified to be appointed as distributor under point No.2(b) of 'Common Eligibility Criteria for all Categories' in the notice and the guidelines applicable in the Hindustan Petroleum Corporation Ltd, was awarded the LPG distributorship for the location Baytu, in District Barmer.
The petitioner's counsel urged that it is an admitted position that the respondent was not residing in India within a period of previous 180 days as on the date of award of dealership and thus, he was not a resident of India in terms of the definition of resident of India provided under the Income Tax Act and consequently, he could not have been awarded the dealership.
He also urged urged that as it is a case of fraud, the limitation of 30 days for filing the complaint would not preclude the appellant from filing the appeal beyond the period of thirty days because the case would be covered under clause 23 of the guidelines and as the information furnished by the applicant was false, the allotment can be cancelled at any point of time.
The court noted that the respondent apparently owns properties in India and is a bonafide resident of District Barmer and has all necessary identification documents which conclusively establish his status as a resident of India. The court added that the Single Bench extensively dealt with this aspect of the matter and turned down the argument advanced by the appellant's counsel by assigning valid reasons.
The division bench ruled,
"In view of the above facts, on both counts i.e. non filing of the compliant within the stipulated period of one month and on merits as well, the petitioner has no grounds to challenge the impugned order, which does not suffer from any infirmity whatsoever warranting interference therein."
Adv. Muktesh Maheshwari appeared for the appellant.
Case Title: Smt Kamla v. Hindustan Petroleum Corp. Ltd & Ors.
Citation: 2022 LiveLaw (Raj) 189