TMI Blog2012 (9) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee Penalty u/s 271(1)(c) – Held that:- Since in assessment proceedings, assessee status is confirmed as Non Resident, there is no question of addition of the amount. Therefore, penalty u/s 271(1)(c) does not survive. Even otherwise the issue is one of the debatable nature. There is only a claim of status. Therefore, even otherwise also penalty u/s 271(1)(c) was not called for - Decided in favor of assessee - IT Appeal Nos. 4933 & 4934 (Mum.) of 2011 - - - Dated:- 29-6-2012 - B. Ramakotaiah, Vivek Verma, JJ. M. Rajan for the Appellant C.N. Vaze for the Respondent ORDER B. Ramakotaiah, Accountant Member These are two Revenue appeals filed against the orders of the CIT (A) dated 3.3.2011 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n) [2009] 34 SOT 180 (Bang.) and allowed assessee's contention that he staying was less than 180 days in India during the relevant period. The order of the CIT (A) is as under: 1.3 I have considered the facts and perused the material on record. I find that there is mistake in counting number of days as per the method of AO. The No. of days stay in India comes to 26 days as per the entry at Sl.No.3 of the table as given above and not at 27 considered by AO. Therefore, the total number of days of stay in India as per AO's own method should be 186 days and not 187 days. On going through the above table, I find that AO has counted both days i.e. arrival date and also departure date. It is seen that the appellant is employed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: After carefully considering the arguments of the parties as well as the facts and also the copy of the air ticket of Air India, which has been filed, which shows that assessee took the flight on 2nd of October, which left Tehran at 5.25 pm. According to assessee, according to the Indian Standard Time, the departure by him was 7.25p.m.and the flight landed at 10.30pm in the night. Normally, in these circumstances, it has to be calculated that the prime hours of work having expired, assessee could not have done any useful work for the one and a half hours of 2-10-1979 and it is also the normal practice to count a day to mean 24 hours and part of the day is usually excluded. This, to our, mind, is keeping in line with the provisions contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted. In view that matter, the appeal on ground No.1 and 2 of appeal is allowed in favour of the appellant . 4. It was the learned DR's contention that assessee has stayed more than 182 days in India and therefore, income from salary is taxable in India, whereas the learned Counsel relied on the orders of the CIT (A) to submit that the day of arrival is to be excluded. He placed on record the decision of the ITAT Jaipur Bench in the case of R.K. Sharma, Manoj Kumar Reddy's case ( supra ), ITO v. Gautam Banerjee (ITAT L Bench Mumbai) in ITA No.2374/Mum/2004 dated 18.6.2008. The learned Counsel also placed on record the decision of the Karnataka High Court in the case of DIT International Taxation v. Manoj Kumar Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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