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TMI Blog1952 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... id appeal related to the assessment made on Mr. Manibhai S. Patel for the year 1945-46, the year of account being the calendar year 1944. The question that the Tribunal had to determine was whether in the year of account, namely calendar year 1944, the assessee was not ordinarily resident . This question arose because, according to the Income-tax Officer a sum of $ 1,67,391 accrued to the assessee in the year of account in Africa. The assessee's claim was that this sum was not liable to be included in his total income under the second proviso to Section 4 (1) of the Indian Income-tax Act. In other words, according to the assessee, in the year of account he was not ordinarily resident in British India. 3. Section 4B (a) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A and forms part of the case. It may be added that in the year of account the assessee was resident in British India. 7. The question of law that, therefore, arises is whether in the year of account, that is to say, calendar year 1944, the assessee was not ordinarily resident . R. J. Kolah, for the Appellant Sir N. P. Engineer with G. N. Joshi, for the Respondent JUDGMENT CHAGLA, C.J.― The assessment year we are concerned with in this reference is the year 1945-46 and the accounting year is the calendar year 1944, and the question that arises for our determination is whether the assessee was not ordinarily resident within the taxable territories during these years. It has been found by the taxing authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident within the meaning of this sub-section. Now, in order that an individual is not ordinarily resident he should satisfy one of the two conditions laid down in Section 4B(a). The first condition is that he should be not resident in the taxable territories in nine out of the ten years preceding the accounting year, and the second condition is that he should not have during the seven years preceding that year been in the taxable territories for a period of, or for periods amounting in all to, more than two years. In the case we are considering it has been found as a fact by the Tribunal that the assessee was not residing in the taxable territories in nine out of the ten years preceding the year in question and therefore the at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies for more than two years then he is not not ordinarily resident in the taxable territories, or, in other words, if an assessee does not reside in the taxable territories for more than two years he is entitled to the exemption which not ordinarily resident gives to him. In this particular case it is clear that he was in the taxable territories for more than two years. Mr. Kolah says that from one point of view he was not in the taxable territories for more than two years. But the only aspect we are concerned with in construing Section 4B is, what was the period of his residence during the seven years in the taxable territories? Was his residence more or less than two years out of those seven years? On these facts it is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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