Case Law Details
Case Name : Shri Sharad Mishra Vs ITO (ITAT Lucknow)
Appeal Number : IT Appeal No.-599 of 2012
Date of Judgement/Order : 12/06/2015
Related Assessment Year : 2009-10
Courts :
All ITAT ITAT Lucknow
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Shri Sharad Mishra Vs ITO (ITAT Lucknow)
Brief of the case:
- The ITAT Lucknow in the case of Sharad Mishra vs. ITO held that the arrival of assessee in India at night cannot be treated as his stay for the complete day. Thus, the actual hours of the day stayed only could be counted as stay in India on that day.
- Therefore, the arrival of assessee at 9:10PM cannot be considered as stay of one clear day.
Facts of the case:
- The assessee filed its return declaring salary income with a refund claim of TDS of Rs 2,66, 000/-The refund was claimed for the salary income exemption to non-resident u/s 10 , though inadvertently in return the assessee claimed status as resident.
- The AO examined the case and concluded that total stay in India was of 182 days therefore, his residential status is of resident and the income earned by him is chargeable to tax in India.
- The CIT (A) reversed the order of AO and held that the day on which assessee arrived at India in night at 9:00 PM cannot be termed as his stay in India for that day.
Contention of the Assessee:
- On 25/10/2008, the assessee was arrived at India at 9:10 PM from Honkong, accordingly stay was only for less than 3 hours on that day which cannot be treated as stay of one day.
- The reliance was placed on the judgement of Walkie vs. IRC [1952] wherein the court held that where a person is in India only for a part of a day, the calculation of physical presence in India in respect of such broken period should be made on an hourly basis.
- Thus, the total period of stay was 181 days and remaining hours of 25/10/2008(i.e. 3hrs approx.).
Contention of the Revenue:
- The period of stay includes the full day of arriving or/and leaving the India irrespective of actual stay time for that day.
- Further, the assessee himself claimed to have been resident for the relevant assessment year.
- Therefore, the order of CIT(A) allowing exemption ignoring the fact that the assessee had himself claimed his status as resident in the return of income was erroneous
Decision of the ITAT:
- The point if dispute is as to the one clear day whether the assessee was present in India or he was in India for few hours.(on 25/10/2008)
- The assessee was in India on 25/10/2008 is only for less than three hours. Thus, the date 25/10/2008 cannot be treated as complete day and should be excluded while computing the number of days in India. Such exclusion would make assessee’s stay in India less than 182 days(i.e. his period of stay only 181 days+ 3 hours-approx of 25/10/2008)
- Thus, ITAT concurred with the case of Walkie vs. IRC [1952] relied upon by the assessee.
- Therefore, the assessee was eligible for exemption being a non-resident. In result , appeal of revenue was dismissed
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Author Bio
I request your kind help for one clarification on this ITAT judgement to
confirm my understanding. It is very useful to many Indians who return back to India.
Example we arrived from Frankfurt/Munich to New Delhi 3 times arrival time
at 10.20 pm in the night.
Do we count each day of arrival as one full day as out of India and
hence days in India becomes 182-3 = 179 days
or we have to calculate number of hours for each day in India on arrival
say 3 x 1 hr and 40 minutes = and hence claim 179 days and 4 and half
hours. or say less than complete 179 days.
What is correct procedure? Kindly guide me on this.
We have in our possession all e-tickets with airline name, flight number,
record locator, boarding pass counterfoils, passenger name, time of
arrival into Delhi and original stamps in passport showing date of
departure and arrival on day of travel.
Appreciate very much your kind help and clarification
Kind Regards
Shanta
Good Judgement Should be published in leading newspapers making NRI FEEL HAPPINESS
THAT EITHER YOU R INDIAN OR NRI ,THERE IS NO DIFFERENCE ,TO BE NRI IS BETTER BECAUSE OF THE FACT THAT OUR INDIAN GOVT. HAS GOT DTAA WITH LOT OF COUNTRIES TO HELP INDIAN CITIZENS (INDIAN/NRO/NRI) NOW (INDIAN/OCI/PIO etc.)
prem kumar goyal
Good Judgement .It should be PUBLISHED IN LEADING NEWSPAPER FOR THE AWARENESS OF
PUBLIC.THE PEOPLE SHOULD BE AWARE OF THE BENEFITS BEING INDIAN/NRI/NRO.ALSO THE SECTION AND AGREEMENT/S IN DETAIL OF DTAA FOR GETTING REBATES IN INCOME TAX ,SPECIALY WITH USA,UK ,CANADA ,GERMANY, WESTERN COUNTRIES ETC. ETC.
The assessee should have filed a revised return correcting the status . on facts the decision of the ITAT is perfectly n order for it can go into the facts of the case and decide The Assessing officer should have verified the status and he is entitled to correct the status
Sir, the assessee in his return has shown himself as resident and the AO also put forward that point before ITAT. What happened there?
Good Judgement .