1955 (3) TMI 32

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..... ax Act . It was agreed at the Bar that we need concern ourselves only with the first portion of section 6(a) of the Travancore Income-tax Act, 1121 [Section 4B(a) of the Indian Act], which we have underlined in the extract given below: an individual is 'not ordinarily resident' in Travancore in any year if he has not been resident in Travancore in nine out of the ten years preceding that year or if he has not during the seven years preceding that year been in Travancore for a period of, or for periods amounting in all to, more than two years. 2. Under section 5(a) of the Travancore Income-tax Act, 1121, an individual is resident in Travancore in any year if he,- (i) is in Travancore in that year for a pe .....

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..... enough if the assessee establishes, as he has done in this case, that he has not been resident in Travancore in nine out of the ten years preceding the accounting years concerned. According to him what he should establish is that he was not resident in Travancore in nine out of the ten years preceding the accounting years 1945, 1946, 1947 and 1948. 3. We cannot agree. The clause no doubt is a model of ambiguous and obscure drafting as observed by Sir Jamshedji Kanga in his Law and Practice of Income-tax (p. 362) but the basic outlines are clear enough to support the conclusion reached by the Appellate Assistant Commissioner of Income-tax, Trivandrum. His approach was right when he said: In my opinion, the only .....

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..... t an individual has to be resident in Travancore in nine out of the ten years preceding the accounting year in respect of which the assessment is made. Not resident and not ordinarily resident are not positive concepts but only the converse of resident and ordinarily resident and a category of persons not resident and not ordinarily resident is impossible to imagine and unknown to the Act. 5. In other words the position was correctly summed up by Sir James Grigg during the Assembly Debates on section 4B when he said: a man is not ordinarily resident unless he satisfies both of those conditions and both of those conditions amount to saying that he must have been resident in nine out of ten years and he must .....

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