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TMI Blog1957 (2) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... o each one of his four sons including the assessee; and the evidence on the record shows that, as the father had no house left to stay in a and as there was no likelihood of the assessee coming to India as he had his business in Africa to look after, he permitted the father to continue to stay in the house which had been gifted to him. The assessee's wife came in India with her four children on the 17th of April, 1946, and she lived in his house which was gifted to her husband and in which her father-in-law was staying. She lived in India up to the 14th February, 1947, and in the meanwhile one of her sons got married on the 23rd of May, 1946. The assessee himself came to India on the 3rd of September, 1946, and stayed in this house up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46 and also for a slightly longer period his wife and children stayed, can be considered to be a dwelling house maintained by him or maintained for him, then no difficulty arises with regard to the period in this case, because undoubtedly that dwelling place was therefore the whole of the accounting period. When we look at the language used by the Legislature, it is clear that what is sought to be emphasized is that there must be not only a residence or a house for the assessee in the taxable territories, but there must be a home. The connotation of a dwelling place is undoubtedly different from a mere residence or a mere house in which one finds oneself for a temporary or short period. A dwelling place connoted a sense of permanency, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n immaterial. Just look at it from different points of view. The owner of a house may not maintain it as his dwelling place: he may let it out; he may give it to a licensee; he may lock it up; he may keep it in a state of disrepair so that it would not be possible for him to reside there. On the other hand, he may maintain a house as a dwelling place of which he is not the owner: he may rent it; he may take a room in a friend's house, furnish it, spend money on it and keep it as his dwelling place. On the other hand, even though he may be the owner of a house, someone else may maintain it for him as a dwelling place; and also a dwelling place may be maintained for him by someone else of which he is not the owner. Therefore the vital fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house as his dwelling place. The other factor that the Advocate-General has emphasized is that both the assessee and his wife and children resided in the house with the father. Now, mere residence by itself is not sufficient for the purpose of drawing the inference that the residence was in a dwelling house maintained for the assessee: the residence may be as a guest, as a casual visitor, as a license. What we require is that, when the assessee and his family lived with the assessee's father, they were living in is dwelling house maintained for him; or, in their words, the son was not merely living in his own house, but he was living in his home. Our attention was drawn to an Indian decision and two English decisions on this questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py means not necessarily a proprietary right, but a right which may even be the right of a licensee, and if what the Madras High Court seeks to emphasize by this expression is that a particular premises must be available to the assessee and at his disposal without the permission of any person, then with respect, we agree with the decision. The Advocate-General has sought to distinguish this case by saying that in this case the house in which the assessee lived was the house of his mother and not of himself. But whether it was the house of the assessee or of the mother, the ratio of the decision is that that house was not maintained as a dwelling place of the assessee in British India and that that house was maintained for the parents of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belongs to someone else. The other case is Loewenstein v. De Salis. In that case the assessee was a Belgian subject who had residence in Brussels, visited the United Kingdom each year, and occupied hunting box belonging to a company of which he was director and in which he held over 90 per cent. of shares. He could, without obtaining formal permission, use the hunting box at any time when in the United Kingdom. On these facts Mr. Justice Rowlatt held that, since the hunting box was de facto available for the assessee's occupation whenever he came to that country, notwithstanding that he was neither the owner not the lessee of the property, he was chargeable to income-tax as a person residing in the United Kingdom. Now it would be no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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