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TMI Blog1970 (4) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... muga. After the death of Subramania and Arumuga their sons formed a Hindu undivided family. But it is admitted that Subramania himself was born and bred in Ceylon and so is the assessee. The assessee has his own business in Ceylon and has properties therein. All his eight children were born in Ceylon and educated there. The family had several nonresidential buildings and one ancestral house in Orathanad, Thanjavur District. It had also lands. All the joint family properties were managed by Ganesa, son of Arumuga. The house was occupied by the step-mother of the assessee and his brothers. The joint family properties were maintained out of the agricultural and rental income and the assessee never enjoyed any portion of the family income. The assessee's movements, since 1946, were as under: 1-4-1946 to 31-3-1950 Stayed wholly in Ceylon 1-4-1950 to 31-3-1951 Stayed 18 days in India 1-4-1951 to 31-3-1952 Stayed 12 days in India 1-4-1952 to 31-3-1953 Stayed 9 days in India 1-4-1953 to 31-3-1954 NIL 1-4-1954 to 3 1-3-1955 Stayed 28 days in India 1-4-1955 to 31-3-1956 Stayed 47 days in India 1-4-1956 to 31-3-1957 Stayed 23 days in India. The assessee started constructing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...... the assessee as well as his father were natural born Ceylon citizens staying in Ceylon most of the time; that the visits to India amounted to 137 days in the period, April 1, 1946, to March 31, 1957; that the evidence supported the theory that the assessee 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 reserved for him on his sojourn in India and that there was not enough materials to say that there was a residence either run or maintained by the assessee in India." In the result the Appellate Assistant Commissioner's order of caiicellation of the assessment orders were upheld. In the earlier assessment proceedings action under section 28(1) was also contemporaneously initiated by the revenue and penalty for the respective assessment years was imposed. The Tribunal, in the view they have taken in the main proceedings, cancelled the levy of penalty as well. There were, therefore, eight appeals before the Tribunal in all of which the assessee succeeded. The subject has then come up before us to render an answer on the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or providing hospitality as if he is a stranger are all after-thoughts and ought not to be given credence. An organised house, as is popularly understood, is not necessary, because it is stated that the second limb of section 4A(a)(ii) says that any individual is resident in the taxable territory in any year if he is there for any time in that year. Mr. Karim argues contra and relies upon Commissioner of Income-tax v. Fulabhai Khodabhai Patel, Commissioner of Income-tax v. Janab A. R Mohamed Noohu and J. M. Abdul Aziz v. Commissioner of Income-tax, and states that a mere colourable theory of maintenance of a family house by a circuitous reasoning based on the conception of Hindu undivided family is not permissible under the section. According to him concrete evidence is required to prove the factum of maintenance or proof of the maintenance of the house for the benefit of the assessee and there being no evidence in this case, and as the Tribunal as a fact has found that there was no such maintenance of the family house by the assessee, the answer to the questions should be in his favour. The application of the personal law of Hindus cannot change the pattern of the fiscal law as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the sub-section which has a far-reaching fiscal effect on the status of an individual. The inherent concept in the words provokes a sense of continuity, periodicity or permanence which invariably would prompt a well-instructed judge to declare that the dwelling place is a house away from home, which he should be deemed to be maintaining for his own purposes. Such constructive maintenance leading us to the presumption of quasi-permanent dwelling cannot be lightly confused with aceidental residence. A mere right in property does not always lead to the conclusion that the person in whom the right is vested is bound to maintain the same or cause to be maintained for him by others, who are admittedly possessing it. Further, the maintenance is for dwelling. A dwelling house, as the words imply, projects the meaning that the house or a portion thereof is an abode of his, available to him at all times without any let or hindrance by others. A joint family may own many properties. One or more of the coparceners or members may reside in one or the other of the family houses but as no member of the family can predicate with certainty his share in a joint family until a partition takes p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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." This was referred to and explained by Rajagopalan, Offg. Chief Justice, in Commissioner of Income-tax v. Janab A. P. Mohamed Noohu, at page 90, as follows: "We do not understand the passage in Zackariah's case, taken in its content, as it should be, to lay down as a proposition of law that mere ownership of a fractional share in a house with nothing more is enough to constitute it a dwelling house of such an owner within the meaning of section 4A(a)(ii), and it must be remembered that there is a further statutory requirement; not only must it be a dwelling house, but it must also be maintained, either by the assessee himself or by someone else for his benefit. Neither of the requirements was satisfied in this case." Again, the above observation was considered by another Division Bench of this court in J. M. Abdul Aziz v. Commissioner of Income-tax as wide. We are also of the same view. The observation in Ramjibhai Hansjibh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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