TMI Blog2021 (11) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. In that view of the matter the impugned assessment made against the assessee considering him as the resident of India is not sustainable in the eye of law and thus deleted. - Decided in favour of assessee. - I.T.A. No. 452/Ahd/2020 - - - Dated:- 29-10-2021 - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Assessee : Shri Divyang Shah, AR For the Revenue : Shri Purushottam Kumar, Sr. DR ORDER PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the assessee is directed against the order dated 11.03.2020 passed by the Ld. CIT(A)-13, Ahmedabad arising out of the order dated 30.11.2018 passed by the ITO, Ward-1, International Taxation, Ahmedabad under Section 143(3) of the Income Tax Act, 1961(hereinafter referred as to the Act ) for A.Y. 2016-17with the following grounds:- 1. Whether, on facts and in circumstances of the case and in law, Ld. CIT(A) and Ld. AO have erred in holding appellant to be a resident in India for financial year 2015-16? 2. Whether, on facts and in circumstances of the case and in law, both the lower authorities have erred in making addition of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the assessee stayed in India for 184 days. According to the assessee consideration of both the date of arrival and date of departure from India as stayed in India as made by the Revenue is not correct. Rather it has been decided that only date of departure should be considered as stay in India . On this aspect the assessee relied upon the judgment passed by the Authority for Advance Rulings, vide an order dated 08.02.1996 in Petition No. 7 of 1995 (1997) 90 taxman 62 (AAR- New Delhi) wherein the following has been held:- 7. It is not possible to accept the contention put forward on behalf of the applicant. The calculation relevant for the purposes of section 6(1)(a) is that of the number of days during the previous year on which the applicant was present in India. For this purpose, the days on which the applicant entered India as well as the days on which he left India have to be taken into account. 5. It is relevant to reproduce the computation made by the assessee regarding counting of days of stay in India which is as follows:- 5.2.2 Computation by the Assessee vide Submission/Paperbook Dated 25.02.2019: Sr. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 3.15 AM 17.08.2015 15.15 PM 26 4. 16.09.2015 8.10 AM 10.10.2015 15.30 PM 24 5. 09.11.2015 8.20 AM 07.12.2015 22.05 PM 28 6. 06.01.2016 8.25 AM 01.02.2016 19.07.PM 26 7. 04.03.2016 8.25 AM 05.03.2016 23.20 PM 1 8. 18.03.2016 22.00 PM 22.03.2016 20.55 PM 4 176 6. In support of the case of excluding the date of arrival in India as made by the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded then the appellant's stay in India from 1-4-2005 to 31-3-2005 is only 59 days and, therefore, the appellant becomes non-resident. 3.21 On the other hand, the learned PR submitted that there is no provision under the Act that fraction of a day is to be excluded. Section 6(l)(c ) provides that he should be in India for a period or period amounting in all to 60 days or more in that year. In case, the fraction of a day is to be ignored when a person who is coming to India on different occasions during the previous year then such fraction of day. i.e., day of arrival and day of departure will have to be excluded. This is not the case and the intention of the Legislature when it has provided the period or periods amounting in all to 60 days or more. 3.22 We have heard both the parties. The Hon'ble Delhi High Court in the case of Praveen Kumar (supra] had an occasion to consider as to whether the suit was filed in time. In that case, deed of performance was stipulated as 30-7-2002. In case the deed of performance was to be excluded then the limitation will commence from the next date, i.e., 31-7-2005. The Hon'ble Delhi High Court referred to section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o compute the period for which an assessee is in India, one has to start the counting from a particular day and to end the same with specific day. The period is to be counted from the date of arrival of the assessee in India to the date he leaves India. Thus, the words 'from' and 'to' are to be inevitably used for ascertaining the period though these words are not mentioned in the statute. Section 9 of the General Clauses Act is as under - _ (1) In any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word from , and, for the purpose of including the last in a series of days or any other period of time, to use the word to . (2) This section applies also to all (Central Acts) made after the third day of January 1868. and to all Regulations made on or after the fourteenth day of January, 1887. 3.25 As per the General Clauses Act, the first day in a series of a day is to be excluded if the word from is used. Since for computation of the period, one has to necessarily import the word 'from' and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete day, the stay of assessee is less than 182 days. Accordingly there is no merit in Revenue appeal. The case law relied is in support of the contention that day of arrival, particularly late in the day should be excluded. If that day was excluded the stay in India by assessee was less than 180 days. Therefore, the grounds raised by the Revenue are dismissed and accordingly the appeal is dismissed. 5.5 In this regard it is noted that the date of arrival and date of departure are stamped by the immigration Authorities at the Airports on the passport of the person travelling but the time of arrival and time of departure are not mentioned otherwise also the stamping by the Immigration Authority will be few hours after the arrivals (due to deplaning, arrival at lounge queeing) and few hours before the departure (as passengers arrive about 3 hours before the scheduled departure of plane) and therefore for the purpose the expected time of arrival (ETA) and the standard time of departure (STD) in the tickets have to be taken. As per the relied upon judgement of the ITAT, Mumbai the days of arrival in India has to be ignored for counting of the period of stay in India if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken for other purposes and managed for the purpose of reducing the stay of India below 182 days to avoid becoming the resident of India in the said financial year. In this regard it is noted that as perthe existing provisions of Section 6 as applicable in the case no adverse view as to the visit to Bangkok for the purpose other than for the purpose of employment can be drawn because the conditions of maintenance of a dwelling place in India has been done away with. 9. It appears that though it has already been held by different benches that while counting days of stay in India for considering the status of Resident the days of arrival has to be excluded, the Ld. CIT(A) while counting days of stay in India purportedly counted the date of arrival of the assessee in India without giving any cogent reason thereon which in our considered opinion having no basis. 10. We do not find any reason to deviate from the ratio laid down by the Honb le Bangalore Bench as narrated thereinabove and relying upon the identical facts in the case in hand we exclude the date of arrival in counting the days of stay in India in the case of the assessee. 11. We, thus, hold that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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