In this appeal by revenue, issue posed for our consideration is, whether AAC was justified in holding, that assessee was 'resident but not ordinarily resident' during previous year as against ITO's decision, that she was resident and also ordinarily resident during previous year. Though appeal was posted for hearing number of times, none appeared on behalf of assessee. Hence, we do not see, that any purpose would be served by adjourning appeal. We, therefore, dispose of appeal as under after taking into account submissions made on behalf of department at time of hearing. 2. assessee claimed in return filed for year under consideration, that she was resident but not ordinarily resident during previous year for this assessment year and, therefore, salary earned by her in Iran was not assessable to tax. little digression at this stage is necessary to explain scope of total income under section 5 of Income-tax act, 1961, ('the Act'). In case of person, who is resident and also ordinarily resident, all income from whatever source derived which, (a) is received or deemed to be received in India in such year or on behalf of such person, or (b) accrues or arises or is deemed to accrue or arise to him in India during such year, or (c) accrues or arises to him outside India during such year, is assessable. It should, therefore, be noticed, that in case of person who is resident and ordinarily resident, income accruing or arising to him outside India during such year is also taxable and, therefore, if assessee should be treated as resident and ordinarily resident, her income from salary in Iran would also be includible in her total income for this year. By means of proviso to section 5(1) , it is laid down in Act, that in case of person not ordinarily resident in India within meaning of clause (6) of section 6 of Act, income which accrues or arises to him outside India, shall not be so included unless it is derived from business controlled in or profession set up in India. assessee's claim was, that she was not ordinarily resident in India during previous year and, therefore, her income from salary in Iran was not assessable as part of her total income for year under consideration. 3. ITO did not accept this claim and held, that she was resident and also ordinarily resident in India during previous year for year under consideration as she fell squarely within mischief or either of two conditions set out in section 6(6) (a). He, therefore, included salary income earned in Iran in total income of assessee. 4. Aggrieved with same, appeal was preferred to AAC who in his impugned order, allowed claim of assessee to be treated as resident but not ordinarily resident for year under consideration. argument advanced before AAC in this behalf was that assessee, to be treated as 'ordinarily resident' should satisfy two conditions laid down in section 6(6) (a) , namely (i) she should have been resident in India in 9 out of 10 previous years preceding previous year in question, and (ii) she should have been in India for period or periods amounting in all to 730 days or more during 7 previous years preceding that pervious year. It was submitted, that assessee did not satisfy first requirement in this behalf and as both requirements were cumulatively to be satisfied, assessee would not fall within ambit of definition of ordinarily resident as per section 6(6) (a). Reliance for this interpretation of section 6(6) (a) , was placed on Board's Circular Letter No. J/28320/4A/10/5/58-59, dated 5-12-1962 reproduced in Chaturvedi and Pithisarial's Income-tax Law, Third edn., Vol. 1, page 309. Accepting this argument, without any discussion of details of basis on which his conclusion has been formulated, AAC allowed appeal of assessee and directed ITO to treat assessee as resident but not ordinarily resident and, therefore, exclude salary income earned in Iran from total income. 5. Aggrieved with same, department has filed this appeal before us. After hearing factual submissions made by senior departmental representative in this behalf, we are of opinion, that assessee was resident and ordinarily resident during previous year relevant to assessment year under consideration and, therefore, AAC was not justified i n directing ITO to treat her as resident but not ordinarily resident. Our conclusion in this behalf has been arrived at after considering following facts and submissions. 6. previous year for year under consideration is period of 12 months from 1-4-1977 to 31-3-1978. assessee who is medical practitioner, left India for Iran on 3-9-1975 and she returned to India on 13-9-1977 during previous year for assessment year under consideration. She was, therefore, in India during previous year for period amounting to 200 days, i.e., more than 182 days as required under section 6(1) (a). Under section 6 , individual is resident in India for any assessment year, if he fulfils any one of following three tests, which tests are alternative and not cumulative: (i) if he is in India in accounting year relevant to assessment year for period amounting in all to 182 days or more, or (ii) he maintains or causes to be maintained for him dwelling place in India for periods amounting in all to 182 days or more in accounting year, and has been in India for 30 days or more in that year, or (iii) having within four years preceding accounting year been in India for period or periods amounting in all to 365 days or more, he is in India for period or periods amounting in all to 60 days or more in that year. 7. As mentioned earlier, these tests are alternative and not cumulative. It is, however, found, that assessee satisfied all above three tests. As regards first test, she returned to India on 13-9-1977 and, therefore, she was in India during relevant accounting year for period amounting in all to 200 days and, therefore, exceeded requirement of 182 days. Even as regards second test, she qualifies to be treated as resident as she maintained dwelling house as mentioned in assessment order for more than 182 days during previous year and also she was physically present in India for 30 days or more. Even by third test, she qualifies to be treated as resident. Therefore, there is no doubt, that assessee has to be taken as resident during previous year for assessment year under consideration. 8. next question is whether she can be treated as resident and also ordinarily resident in previous year relevant to assessment year under consideration. Under section 6(6) (a) , individual will be not ordinarily resident if he satisfies either of two following conditions, namely, (i) he has not been resident in India in 9 out of 10 previous years preceding relevant accounting year [first part of sub-clause (a) of section 6(6)] , or (ii) he has not during 7 'previous years' preceding relevant accounting year been in India for period or periods amounting in all to 730 days or more [second part of clause (a) of section 6(6)]. Thus, in order that individual may be treated as 'ordinarily resident' in India in any previous year, he must not come within mischief of either of two conditions aforesaid - C. N. Townsend v. CIT [1974] 97 ITR 185 (Pat.). For purpose of above tests, residential status of assessee for 'previous year' relevant to assessment year in question will have first to be ascertained in usual manner, by application or three tests for 'resident', being those mentioned in sub-clauses (a), (b) and (c) of section 6(1). We have already found, that by applying tests prescribed in clauses (a), (b), and (c) of section 6(1) assessee is found to be resident during previous year relevant to assessment year in question. In present case, applying test contained in first part of section 6(6) (a), assessee has to show, that in 9 out of 10 'previous years' preceding previous year in question, she has not been resident in India to qualify for status of 'not ordinarily resident'. By 'resident' is meant 'resident in technical sense as defined in Act'. In present case, 10 previous years immediately preceding previous years in question are years 1-4-1976 to 31-3-1977, 1-4-1975 to 31-3-1976, 1-4-1974 to 31-3-1975, 1-4-1973 to 31-3-1974, 1-4-1972 to 31-3- 1973, 1-4-1971 to 31-3-1972, 1-4-1970 to 31-3-1971, 1-4-1969 to 31-3-1970, 1- 4-1968 to 31-3-1969, and 1-4-1967 to 31-3-1968. Out of 10 previous years preceding previous years in question, assessee was non-resident during 1-4-1975 to 31-3-1976 as she left India on 3-9-1975 and returned back only on 13-3-1977. However, during previous year from 1-4-1975 to 31-3-1976, she was resident in India in technical sense as under section 6(1) (c) she was in India for period amounting in all to 365 days or more during four years preceding that previous year and was in India for period of more than 60 days during that previous year. During period 1-4-1967 to 31-3-1975 comprising of 8 previous years, assessee was resident and ordinarily resident. As mentioned earlier, she was also resident during previous year 1-4-1975 to 31-3-1976 as per section 6(1) (c). In view of this, requirement in first part of section 6(6) (a) that individual should have been resident in India in 9 out of 10 previous years preceding that year, for being treated as ordinarily resident, is satisfied. alternative requirement, namely, that individual should have been in India for period or periods amounting in all to 730 days or more during 7 previous years preceding that year is also satisfied in this case inasmuch as, assessee was physically resident in India during all previous years comprised in period commencing from 1-4-1970 to 31-3- 1976. Board in its circular referred to earlier has required that both conditions should be satisfied for individuals to be treated as resident and ordinarily resident. In present case, assessee was resident in India in 9 to 10 previous year preceding previous years in question and she was also during 7 previous year preceding accounting year was physically present in India for period of more than 730 days. Therefore, both conditions required for treatment of individual as ordinarily resident, are satisfied in this case. Therefore, we have to hold, that assessee was resident and ordinarily resident during previous year relevant to assessment year under consideration and, consequently, income accruing or arising outside India is taxable as part of total income of assessee. We, therefore, allow appeal filed by department and restore assessment made by ITO. *** SECOND INCOME TAX OFFICER v. DR. MRS. ARCHANA P. ACHARYA