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TMI Blog1989 (4) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... mitting a net wealth of Rs. 4,91,000. While completing the assessment for 1985-86 the Wealth-tax Officer disallowed the claim of the assessee for exemption of Rs. 12,01,916 being the investment made out of the remittance from Maur, Malaysia under section 5(1)(xxxiii) of the Act. On appeal the Commissioner (Appeals) confirmed the order of the Wealth-tax Officer. Hence this appeal before us. 3. The only point that falls for consideration in this appeal is whether the assessee is entitled to get the exemption under section 5(1)(xxxiii) of the Wealth-tax Act. According to the assessee as long as the karta of the Hindu undivided family satisfies the criteria required by the provision, the assessee shall also have to be treated to be a person of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing assets, and such assets shall not be included in the net wealth of the assessee-- (xxxiii) in the case of an assessee being a person of Indian origin or a citizen of India (hereafter in this clause referred to as such person) who was ordinarily residing in a foreign country and who, on leaving such country, has returned to India with the intention of permanently residing therein, moneys and the value of the assets acquired by him out of such moneys within one year immediately preceding the date of his return and at any time thereafter : Provided that this exemption shall apply only for a period of seven successive assessment years commencing with the assessment year next following the date on which such person returned to India. Expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian origin. A Hindu undivided family cannot be a citizen of India and hence the alternate requirement which was inserted by the Taxation Laws (Amendment) Act, 1984 with retrospective effect from 1-4-1977 to extend the benefit (See notes on clauses -- 149 ITR Statutes page 65) to all Indian citizens whether they were of Indian origin or not cannot also be satisfied by the assessee Hindu undivided family. 7. In S. Sundaram Pillai v. V. R. Pattabiraman AIR 1985 SC 582 the Supreme Court has dealt with what is the scope of a 'proviso' and what is the ambit of an 'explanation' either to a proviso or to any statutory provision. It is held that : "A proviso may serve four different purposes, viz., (1) qualifying or excepting certain provisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pale of any ambiguity. In view of this Explanation 1 to section 5(1)(xxxiii) we have to construe that the benefit thereunder is available to nobody other than a person of Indian origin, i.e. only to such person who, or either of whose parents, or any of his grand-parents, was born in India. So the assessee-Hindu undivided family has not satisfied the first condition as provided in section 5(1)(xxxiii) for invoking the same in its favour. 9. Viewing the matter independently can it be considered that the assessee has satisfied the other condition that the assessee was ordinarily residing in a foreign country during the year ending on the valuation date. The provisions of section 6 of the Income-tax Act, 1961 read as follows : "6. Resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Act are incorporated into the Wealth-tax Act through section 6 thereof. The term 'ordinarily resident' in the Income-tax Act is as seen above a concept which has a statutory connotation. The words used in section 5(1)(xxxiii) of the Wealth-tax Act is 'ordinarily residing' as contradistinct from 'ordinarily resident'. The word 'residing' is to be given its natural meaning, namely the act of physically residing. This only an 'individual human being' can do. A Hindu undivided family is incapable of doing this. We are fortified in our view that what is contemplated is 'physical residence' and not any statutory concept because the proviso states that the exemption is applicable "only for a period of seven successive assessment years com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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