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September 2015

IT A No. 599/LKW/2012 (Unreported) IT O vs. Shri Sharad Mishra A.Y. 2009-10 Order dated: 12-06-2015

By Geeta Jani
Dhishat B. Mehta Chartered Accountants
Reading Time 1 mins
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Presence in India for less than three hours on the day of arrival cannot be considered as one complete day in order to compute number of days of stay in India for determining residential status.

Facts:
Taxpayer arrived in India on 25.10.2008 from Hong-Kong by a flight at 9.10 P.M. Relying on Walkie vs. IRC [1952] 1 AER 92, Taxpayer contended that as his presence in India on the day of arrival to India was less than 3 hours, it should not be included in calculating the number of days of stay in India and since his total stay in India is 181 days in the relevant financial year, he qualifies as a nonresident for the relevant financial year. However, the Tax Authority contended that the day of arrival of the Taxpayer in India should be included for calculating the number of days of stay in India. Thus, the Taxpayer would qualify as a resident of India.

Held:
Arrival of the Taxpayer in India at 9.10 P.M and consequent presence in India for less than three hours cannot be treated as his stay for one complete day and should be excluded while computing the number of days of his stay in India.

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