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TMI Blog1979 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... o brothers ; the former had three sons, Ratnaswamy, the assessee, Ganapathi and Velayudham, while the latter had only one son, Ganesa. After the death of Subramania and Arumuga their sons formed a Hindu undivided family ; that family owned an ancestral house at Orathanadu in Tanjore District, which was used as dwelling by the step-mother of the assessee, his full brothers and his cousin, Ganesa ; the family also owned shops and agricultural lands. The family properties were managed by Ganesa and were maintained by him out of the agricultural and rental income. Admittedly, the assessee never enjoyed any portion of the family income. Born and brought up in Ceylon, the assessee had his own business and properties in Ceylon. He had eight children, all born and educated in Ceylon. It appears that he started constructing a theatre in Orathanadu in 1953 which was completed in 1957 and during the said construction he paid occasional visits and stayed sometimes in the family house, sometimes in a chatram in Tanjore and at times in a hotel. Thus, from April 1, 1952, to March 31, 1953, he stayed for 8 days in India. From April 1, 1953, to March 31, 1954, he did not come to India at all, from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral evidence was recorded by examining the assessee and two others and the final report was forwarded to the Tribunal. On the basis of the material collected and forwarded to it, the Tribunal took the view that the assessee was a natural born Ceylon citizen staying in Ceylon most of the time, that his visits to India in the aggregate were for 137 days in the period of 11 years (from 1-4-46 to 31-3-57), that the evidence Supported the theory that he was more a guest in the family house in India than an inhabitant of his own house or home, that there was nothing to show that the assessee enjoyed any of his family income or had any separate portion of the family house reserved for him during his sojourn to India and that there were not enough materials to say that there was a residence either run or maintained by the assessee in India. In this, view of the matter, the Tribunal upheld the AAC's order cancelling the assessment orders made against the assessee. As a consequence, the Tribunal also cancelled the penalties that were levied on the assessee. At the instance of the revenue and on a direction from the High Court the Tribunal referred the following two questions to the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that it lays down a technical test of territorial connection amounting to residence applicable to all individuals--foreigners as well as Indians, including Hindus, Christians, Muslims, Parsis and others irrespective of the personal law governing them. On a reading of the provision it becomes clear that before any individual can be said to be a resident in the taxable territories in any previous year two conditions are required to be fulfilled : (a) there must be a dwelling place maintained in the taxable territories either by the assessee himself or by some one else for him for the requisite period ; and (b) the assessee must live in the taxable territories (though not necessarily therein) for some time, howsoever short, in the previous year. In the instant case, it was not disputed before us that the second condition was satisfied in regard to the assessee. The question that we have to consider is whether, on the facts found by the Tribunal, it could be said that the assessee maintained or had maintained for him a dwelling place in the taxable territories for the requisite period. It was not disputed that the assessee himself did not maintain the family house but it was maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et apart and kept fit for the dwelling of the assessee. According to him what is contemplated by s. 4A(a)(ii) is the de facto maintenance of a dwelling place for the assessee and not maintenance for him as one of a body of individuals ; in other words, the section cannot apply to a case where a dwelling place is in the possession of the other members of the HUF and the assessee has a right of common enjoyment. Counsel contended that, on the facts found in the case, the assessee had stayed in the family house as a guest and enjoyed the hospitality of his kith and kin and, therefore, though as a coparcener he had a right in the family house, his occasional lodging there could not mean that he was maintaining the same or had it maintained for him. In other words it was not his home. Strong reliance was placed by him on the Bombay High Court decision in CIT v. Fulabhai Khodabhai Patel [1957] 31 ITR 771, where the connotation of a " dwelling place " occurring in s. 4A(a)(ii) was equated with a house which could be regarded by the assessee as his home. He urged that both the Tribunal and the High Court were right in coming to the conclusion that the family house had not been maintained f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he can get away, always go there to see her ; but it may be that it is his mother's house, even if he is paying for it, and he is going there as a visitor. He keeps the house for his wife and children ; it may be that he is, going there as going home ; it may be that that is the centre really of his life, that he keeps many belongings there, and so on, and his time in Africa is really, in truth, a period of enforced absence from what is truly his residence. Now it may be one, or it may be the other." In other words, the test which the learned judge laid down was that when you go to a house you should be really going home, then you are going to a dwelling house whether maintained by you or by someone else, and a house may be your home whether it belongs to you or belongs to someone else. In other words, with regard to the house where he goes and lives, he must be able to say that it is his abode or home. It is, therefore, not possible to accept the contention of learned counsel for the revenue that it is erroneous to introduce the concept of home or abode into the section. Secondly, the section uses two expressions : " he maintains a dwelling place " and " he has maintained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his right, title or interest in the family properties in favour of his brothers. On these facts it becomes transparently clear that the assessee whenever he stayed in the family house during the relevant previous years, was more a guest therein enjoying the hospitality of his kith and kin than an inhabitant of his own abode or home and, further, that the family house was maintained by Ganesa not at the instance of the assessee nor for his benefit but it was maintained by him for the rest of the family. It is true that the house at Orathanadu was at the material time a joint family house in which the assessee as a coparcener had a share and interest ; it is also true that as a coparcener he had a right to occupy that house without any let or hindrance, but mere ownership of a fractional share or interest in the family house with the consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of s. 4A(a)(ii), for, the requirements thereof are : not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home. The material on record show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it can be said that the assessee has a dwelling place maintained for him by the manager of the family for he has a right to occupy the house during his visits to British India. " Relying on the aforesaid passage, counsel urged that, in the instant case, the house at Orathanadu was maintained by Ganesa as a karta of the family and since the assessee as a coparcener had a right to live in it during his visits to India, it must be held that the assessee had maintained for him a dwelling place in India. It is not possible to accept this contention, for, in our view, the aforesaid passage, taken in its content, does not lay down as a proposition of law that mere ownership of a fractional share in a family house with a consequent right to occupy the same with nothing more would constitute it a dwelling house of such owner within the meaning of s. 4A(a)(ii) ; for, it must further be shown that it was maintained by the manager at the instance of the assessee and for his benefit. That is how the aforesaid passage has been partly explained and, in our view, rightly, by the Madras High Court in a subsequent decision in CIT v. Janab A. P. Mohamed Noohu [1961] 43 ITR 88. The Gujarat decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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