AI Drafter 
TaxTMI 
TaxTMI 
2021 (11) TMI 144
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....ng addition of Rs. 87,31,506/- for salary earned outside India? 3. Whether, on facts and in circumstances of the case and in law, both the lower authorizes have erred in making addition of Rs. 18,21,987/- for FDR Interest earned from NRE Account? 4. Whether, on facts and in circumstances of the case and in law, both the lower authorities have erred in making addition of Rs. 1,999/- as short-term capital gain on mutual fund? 5. Whether, on facts and in circumstances of the case and in laws, Ld. Assessing Officer has erred in levying interest u/s. 234B & 234C of the act? 6. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal." 2. There is a delay of 124 days in filing the instant appeal before us. The explanation in this regard as made by the Ld. AR is this that the assessee's legal heir received the order passed by the First Appellate Authority only on 15.03.2020. Immediately thereafter the lock down started on 25.03.2020 due to Covid-19 pandemic and remained for approximately two months all over the country. Hence, "The Taxation a....
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....Time of arrival Departure from India Time of departure No. of Days of stay in India 1. 31.03.2015 9.05 AM 26.04.2015 9.35 AM 26 2. 12.05.2015 8.15 AM 22.06.2015 4.25 AM 41 3. 22.07.2015 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 29 6. 06.01.2016 8.25 AM 01.02.2016 19.05.PM 27 7. 04.03.2016 8.25 AM 05.03.2016 23.20 PM 2 8. 18.03.2016 22.00 PM 22.03.2016 20.55 PM 4 179 5.2.3 Computation by the Assessee vide Submission Dated 11.03.2019: Sr. No. Arrival in India Time of arrival Departure from India Time of departure No. of Days of stay in India 1. 31.03.2015 9.05 AM 26.04.2015 9.35 AM 26 2. 12.05.2015 8.15 AM 22.06.2015 4.25 AM 41 3. 22.07.2015 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 ....
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....ording to the learned AR, the fraction of a day is not to be counted while determining the period. For this proposition, the learned AR has relied on the decision of the Hon'ble Delhi High Court in the case of Praveen Kumar v. Sunder Singh Makkar (sic). The learned AR, therefore, contended that if 31-1-2005 is excluded 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 ....
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....n each year: if the owner be personally present at the house for any part of one day, that will be sufficient residence for that day - Walcot v. Botfield 69E.R. 226." 3.24 Thus, there are two views in respect of ignoring the fraction of a day. However, we can look at the issue from a different angle. When one has to 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 th....
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..... The Hon'ble ITAT, Mumbai held that "We have considered the rival contentions and examined the facts. As rightly pointed out by the CIT (A), there was a mistake of taking number of days at Item No.3. Therefore, according to AO's own method it should be 186 days. If we exclude the date of arrival as it is not a complete 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 hou....