No. of days for calculating residential status.

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  1. CA JOGY PAUL

    CA JOGY PAUL New Member

    Sir,

    It is stated in your article that in borderline cases for calculating the days 24 Hours can be taken as 1 day. Is there any Case Law supporting this case.

    If a person return to india and reached India at 4AM Oct 1st 2014 can he be considered as NRI for the FY 2014-15
     
  2. ZED

    ZED Well-Known Member

    Shri Sharad Mishra ,, Kanpur vs Department Of Income Tax on 12 June, 2015 (judgement attached)
    [ITAT]
    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 Kong 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 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 treated 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 confirm the same.


    In Walkie vs. IRC [1952] 1 AER 92 in, 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 .

    Contra
    In 223 ITR462 AAR New Delhi
    It was ruled that "both the day of entry into India and exit from India will have to be counted as stay in India"



    The rulings of AAR are binding on the assessee who made the application and as such is not binding and can not be Directly applied in other cases. But the judgement of ITAT can be applied in case of all assesssees whose case is being covered.

    I am in favour of hourly basis.
     
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