Definition of resident

Dear all

One of the eligibility conditions for appointment of a managerial person mentioned under Schedule XII is that he should be resident in India. The provisions are reproduced hereunder:

(e) he is resident in India.

Explanation : [I] For the purpose of this Schedule, resident in India includes a person who has been staying in India for a continuous period of not less than twelve months immediately preceding the date of his appointment as a managerial person and who has come to stay in India,—

(i) for taking up employment in India, or

(ii) for carrying on a business or vocation in India.

[Explanation II : This condition shall not apply to the companies in Special Economic Zones as notified by Department of Commerce from time to time :

Provided that a person, being a non-resident in India shall enter India only after obtaining a proper Employment visa from the concerned Indian mission abroad. For this purpose, such person shall be required to furnish, along with the visa application form, profile of the company, the principal employer and terms and conditions of such person's appointment.

Please explain whether the term resident is defined anywhere in the Companies Act? Whether the definition of resident means resident and ordinarily resident or simply resident as defined under the Income Tax Act.

Our Company wants to appoint a whole time employee of the Company as a Director. The employee had come to India in September 2007. As per the Income Tax Act, he satisfies the conditions of Resident and ordinarily resident. But as far as the explanation I given in Schedule XIII is concerned, he was staying in India for a period of 12 months apart from short trips abroad. Please advise whether he can be appointed as director as per Schedule XIII? Whether the proviso after Expl II only applies to Expl II?

Thanks
Preeti Gandhi