Income Tax Officer-3(4) , Kanpur V. Shri Sharad Mishra , Kanpur

ITA 599/LKW/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0564 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Residential status; Salary income
• Section: 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.599/LKW/2012 ASSESSMENT YEAR:2009 - 10 INCOME TAX OFFICER - 3(4), KANPUR. VS. SHRI SHARAD MISHRA, 128/304, H - 2 BLOCK, KIDWAI NAGAR, KANPUR. PAN:AKOPM9807F (APPELLANT) (RESPONDENT) O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF CIT(A) ON A SOLITARY GROUND THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.17,33,293/ - BY ALLOWING THE STATUS OF NON - RESIDENT TO THE ASSESSEE IGNORING THE FACT THAT THE ASSESSEE HAD HIMSELF CLAIMED HIS STATUS AS RESIDENT IN THE RETURN OF INCOME , THOUGH VARIOUS GROUNDS ARE RAISED ASSAILING THE ORDER OF CIT(A). 2. THE FACTS IN BRIEF, BORNE OUT FROM THE RECORD, ARE THAT THE ASSESSEE F ILED IT RETURN OF INCOME AT NIL AND CLAIMED HIS RESIDENTIAL STATUS AS RESIDENT THEREIN BESIDES CLAIMING A REFUND OF RS.2,66,000/ - RELATED TO TDS DEDUCTED ON SALARY INCOME OF RS.10,99,261/ - , WHICH WAS CLAIMED AS EXEMPT U/S 10 AS NRI. INTIMATION U/S 143(1) WAS ISSUED TO THE ASSESSEE RAISING DEMAND OF RS.2,66,510/ - . THE ASSESSEE MOVED AN APPLICATION U/S 154 OF THE ACT WITH THE SUBMISSIONS THAT THE ASSESSEE INADVERTENTLY MENTIONED THE APPELLANT BY SHRI HARISH GIDWANI, D. R. RESPONDENT BY SHRI RAKESH GARG, ADVOCATE DATE OF HEARING 20 /0 4 /201 5 DATE OF PRONOUNCEMENT 1 2 / 06 /201 5 2 RESIDENTIAL STATUS AS RESIDENT WHEREAS HE HAS RAISED THE CLAIM OF EXEMPTIO N U/S 10 AS NRI AND CLAIMED REFUND OF RS.2,66,000/ - RELATED TO TDS ON SALARY. BEFORE THE CIT(A), HE HAS ALSO FURNISHED THE NUMBER OF DAYS AVAILABLE IN INDIA AND OUTSIDE INDIA. THE ASSESSING OFFICER HAS EXAMINED THE NUMBER OF DAYS AVAILABLE IN INDIA AND C AME TO THE CONCLUSION THAT THE 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. ACCORDINGLY, THE APPLICATION U/S 154 WAS REJECTED. 3. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WITH THE SUBMISSIONS THAT THE FACTUAL POSITION IS SLIGHTLY DIFFERENT . T HE PERIOD OF STAY OF THE ASSESSEE IS LESS THAN 18 2 DAYS AGAINST THE CALCULATION OF THE ASSESSING OFFICER. THE CALCULATION IS TO BE T AKEN AS PER THE AVAILABLE SETS OF FACTS AND NOT AS PER AVERAGE PERIOD OF TREATING ONE DAY EQUIVALENT BY LEAVING ONE DAY OUT OF TWO DATES OF LEAVING AND ARRIVING IN INDIA. THE TIMES OF LEAVING INDIA AND ARRIVING INTO INDIA ARE CRUCIAL. ON 25/10/2008, THE ASSESSEE WAS NOT PRESENT IN INDIA FOR MORE THAN 2 - 3 HOURS. THE ASSESSEE HAS TRAVELLED IN THE IMPUGNED TRIP ALONG WITH HIS WIFE SMT. PURNIMA MISHRA AND MINOR DAUGHTER KM. ADYA MISHRA. THE DIRECTOR OF IMMIGRATIONS PERMIT CLEARLY DISPLAYS THE NUMBER AND NAM E OF FLIGHT AS AI 315. HE HAS ALSO FURNISHED FLIGHT SCHEDULE BEFORE THE CIT(A) ACCORDING TO WHICH, THE FLIGHT ARRIVES IN INDIA AT 9.10 P.M. THUS, WHILE CALCULATING THE PERIOD OF STAY IN INDIA, DATE OF TRAVEL I.E. 25/10/2008 CANNOT BE INCLUDED. ORIGINAL PASSPORTS WERE ALSO FURNISHED BEFORE THE CIT(A). THE CIT(A) REEXAMINED THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE JUDGMENT IN THE CASE OF WALKIE VS. IRC [1952] 1 AER 92 IN WHICH, IT HAS BEEN 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 AND WAS OF THE VIEW THAT THE ABOVE EVIDENCES ARE SUFFICIENT TO PROVE THAT THE PERIOD OF STAY IN INDIA OF THE ASSESSEE DURING 3 THE IMPUGNED YE AR WAS LESS THAN 182 DAYS THEREFORE, HIS INCOME HAS TO BE CALCULATED TREATING HIM NRI. 4. AGGRIEVED, THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER WHEREAS THE LEARNED COUNSEL FOR THE A SSESSEE HAS INVITED OUR ATTENTION TO THE DETAILS O F HIS ARRIVAL IN INDIA AND DEPARTURE FROM INDIA . B ESIDES HE HAS ALSO PLACED RELIANCE UPON THE FLIGHT SCHEDULE AND THE PASSPORTS OF THE ASSESSEE, HIS WIFE AND CHILDREN IN WHICH THE STAMP OF IMMIGRATION AUTH ORITIES ARE AVAILABLE SHOWING DATE OF 25/10/2008. THEREFORE, ON 25/10/2008, THE ASSESSEE WAS IN HONG KONG AND NOT IN INDIA . HE SIMPLY REACHED INDIA BY AI - 315 AFTER 9.10 P.M. THEREFORE, ON 25/10/2008 THE ASSESSEE WAS IN INDIA ONLY FOR THREE HOURS. THUS, 25/10/2008 CANNOT BE INCLUDED IN COUNTING THE NUMBER OF DAYS AVAILABLE IN INDIA. 5. WE HAVE CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS AND WE FIND THAT THERE WAS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE WAS OUTSIDE INDIA FOR 183 CLEAR DAYS. AS PER THE ASSESSING OFFICER, THE ASSESSEE WAS IN INDIA FOR 182 DAYS WHEREAS THE ASSESSEE HAS CONTENDED THAT HE WAS IN INDIA LESS THAN COMPLETE 182 DAYS. HE HAS ALSO PLACED RELIANCE UPON THE JUDGMENT IN TH E CASE OF WALKIE VS. IRC [1952] 1 AER 92, COPY OF WHICH IS PLACED ON RECORD WITH THE SUBMISSIONS THAT IN ORDER TO COUNT NUMBER OF DAYS, THE FRACTION OF DAY CAN BE COUNTED. HERE THE DISPUTE IS WITH REGARD TO THE ONE CLEAR DAY WHETHER THE ASSESSEE WAS PRESE NT IN INDIA OR HE WAS IN INDIA FOR FEW HOURS. IN SUCH A SITUATION, IT WAS HELD IN THE AFORESAID CASE THAT FRACTION OF DAY SHOULD BE EXAMINED. IN THE INSTANT CASE, THE ASSESSEE HAS PLACED THE PHOTOCOPY OF THE PASSPORT, WHICH IS BEARING THE STAMP OF HONG K ONG IMMIGRATION AUTHORITIES OF 25/10/2008. IN THIS STAMP, TIME WAS NOT GIVEN BUT THE DATE IS AVAILABLE AS 25/10/2008 BESIDE THE FLIGHT NUMBER AI 315. FROM THE DETAILS OF THE FLIGHT , AVAILABLE ON PAGE 3 OF THE COMPILATION, WE 4 FIND THAT THE FLIGHT REACHES DELHI AT 9.10P.M. THEREFORE , IF THE FLIGHT WAS IN TIME, IT COULD HAVE REACHED DELHI AT 9.10 P.M. FROM HONG KONG ON 25/10/2008. THEREFORE, THE ASSESSEE WAS IN INDIA ON 25/10/2008 IS ONLY FOR LESS THAN THREE HOURS. THUS, THE DATE 25/10/2008 CANNOT BE TREA TED AS COMPLETE DAY AND SHOULD BE EXCLUDED WHILE COMPUTING THE NUMBER OF DAYS IN INDIA. THESE FACTORS WERE TAKEN INTO ACCOUNT BY CIT(A) WHILE HOLDING THE ASSESSEE TO BE NON - RESIDENT. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN HIS ORDER AND ACCORDINGLY C ONFIRM THE SAME. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1 2 / 06 /201 5 ) SD/. SD/. ( A. K. GARODIA ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 2 / 06 /201 5 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR