9911796707
TMI Blog1951 (3) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in that house. The assessee whenever he visits British India stays in that house. Though there was no specific finding to that effect, it was throughout assumed that the house was available to him for staying during the whole of the account year. The assessee was in British India during the account year. The assessee's wife sometimes lives with his parents and sometimes with her own parents. The assessee meets the expenses of the family at Sathankulam. For the assessment year 1941-42 the assessee claimed that he was a non-resident. The Income-tax Officer rejected that contention and held that the house at Sathankulam was maintained for the assessee within the meaning of Section 4A (a) (ii) of the Indian Income-tax Act. On appeal to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh India within the meaning of Section 4A (a) (ii) in the year of account ? and we refer it to the High Court for its decision. The draft statement has been perused by both sides and no objection is raised. K. Srinivasan and M. J. Swami, for the assessee C. S. Rama Rao Saheb, for the Commissioner JUDGMENT The Judgment of the Court was delivered by VISWANATHA SASTRI, J.--The question referred for decision is as follows:- Whether on the facts and in the circumstances of the case the applicant had a dwelling place maintained for him and was a resident in British India within the meaning of Section 4A(a)(ii) in the year of account? The years of assessment in question are 1941-42 and 1942-43. The facts found by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his mother where she and the assessee's father lived. The expression maintains a dwelling place connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and as of right occupy, if he is so minded, during his visit to British India. That is not the case here for the assessee has no legal right to occupy the house in Sathankulam which belongs exclusively to his mother. The further question is whether it can be said that the assessee has maintained for him a dwelling place at Sathankulam . In our opinion, the expression has maintained for him would certainly cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of it, and the power of coming to it were concerned, then it can be said that the house was maintained for the assessee. In that case the assessee maintained an establishment for throughout the year in the house and as the director of a limited company in which he held 90 per cent. of the shares, the assessee was in a position to occupy the house belonging to the company without applying for or obtaining any formal permission from the company. Rowlatt, J., also observed that in determining a question like residence, one had to consider a bundle of facts and their cumulative effect. The House of Lords has laid down the rule that the question of residence is one of fact and degree and depends upon a consideration of various factors. See ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest in ancestral property during the lifetime of their parents. Moreover, we are not here concerned with the dictionary meaning of the word reside or residence but with the statutory definition of residence given in Section 4A(a)(ii) of the Income-tax Act. In referring the question to us in the form in which it has been referred the Tribunal evidently required our opinion on the point whether on the facts found by them they could come to the conclusion that the assessee was a resident in British India. The outstanding fact is that the assessee's mother owns a house at Sathankulam and she and the assessee's father permanently reside there. A dwelling house is maintained by the parents and for the parents of the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
