9911796707
TMI Blog1969 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... name and style of E. C. Madha Bros. and this firm became prosperous. The father of the assessee, Mr. E. C. Madha, died in 1946, and, thereafter, the firm had been carried on in partnership between the assessee and his sons. It appears that the assessee had an ancestral property in Calcutta being premises Nos. 68/1 and 68/2, Lower Chitpur Road, which had been let out to tenants. After the bombing of Rangoon and threat of invasion of Burma by the Japanese, the assessee evacuated to India, some time in January, 1942, and returned to Burma on or about the 10th of February, 1946. On instructions from M/s E. C Madha Bros of Rangoon, the National Bank of India Ltd., remitted a total amount of Rs. 5 lakhs between 5th April, 1946, and 10th April, 1946, to its branch in Calcutta where an account had been opened in the name of the firm. Again, on 26th October, 1947, a further sum of Rs. 2 lakhs was transferred from the firm's account with the National Bank of India Ltd., Rangoon, to its account in the National Bank of India Ltd., Calcutta. Out of this amount of Rs. 7 lakhs remitted from Rangoon to the firm's account in Calcutta, Rs. 5 lakhs was utilised for the purchase of two properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le territories. The Appellate Assistant Commissioner, therefore, decided the issue of residence on the basis of the materials before him. He took into consideration the disclosure petition filed by the assessee on the 8th April, 1953, and the assessee's affidavit affirmed on 1st July, 1953, and certain income-tax proceedings of the assessee before the State authorities of the then Indian State of Baroda within which the assessee's native village, Variav, was situated before its merger with the Union of India. In his disclosure petition the assessee had stated that the assessee was a resident in India upto the year 1945 and a semi-resident from 1945 to 1947 and since then, according to the assessee, he had been a non-resident in India. From this the Appellate Assistant Commissioner concluded that on his own admission the assessee was a resident in India from 1942 to 1945 and during the years 1945 to 1947 he was in India for a part of the period and for the remaining part he was outside India. The Appellate Assistant Commissioner also referred to the assessee's income-tax proceedings in the State of Baroda before its merger with the Union of India for the assessment year 1942-43. Cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner, therefore, was of the opinion that the status of the assessee has been correctly determined by the Income-tax Officer. It was then contended before the Appellate Assistant Commissioner that the two amounts had been remitted by the firm of E. C. Madha Bros. of Rangoon from its account in the National Bank of India, Rangoon, to its account in the National Bank of India, Calcutta. Though ultimately the remittances were utilised by the assessee for investment in properties in subsequent years there was no evidence, according to the assessee, by which a finding in terms of section 4(1)(b)(iii) of the Indian Income- tax Act, 1922, could be sustained. The Appellate Assistant Commissioner rejected the said contentions. There was a further appeal before the Tribunal. The assessee died in the meantime and was represented by his legal representatives. Before the Tribunal it was contended on behalf of the assessee that even assuming that the assessee was in the taxable territories for a period of 365 days during the four years preceding the previous year and even assuming that the assessee was on a visit to India during the relevant previous year, there was no evidence upon w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade under section 66(1) of the Indian Income-tax Act, 1922, the following questions have been referred to this court : " (i) On the facts and in the circumstances of the case, was there any material or evidence for the Tribunal to hold that the assessee was a resident but not ordinarily resident in the taxable territories for the assessment year 1948-49 ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the amount of Rs. 2 lakhs had been remitted to the taxable territories by the assessee during the accounting year out of his accrued profits of earlier years ? " The question No. 1 has to be determined with reference to the provisions of section 4A(a)(iii) of the Indian Income-tax Act, 1922. In order that the assessee may be treated as a resident under that sub-clause it is necessary that the assessee should be in the taxable territories during the four years preceding the previous year for a period or for periods in the aggregate of not less than 365 days and in the relevant previous year at any time and then his visit in the relevant previous year was not casual or occasional. The assessment year with which we are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his conduct. Accidental presence in or visit for a social purpose to the taxable territory may be regarded as occasional or casual, but a visit in connection with the business carried on by the assessee may not normally be regarded as occasional or casual. What is casual and occasional in this context has also been considered in the case of A. M. M. Sayed Abdul Cadar v. Commissioner of Income-tax. There what happened was, the assessee who was once a resident of British India, went to Ceylon several years ago and was carrying on a business there. In 1936 he came to British India and stayed for a period of 137 days. Then from October, 1937, to December, 1938, he stayed in British India for a period of 13 months. In the accounting year 1941-42 on account of the fear of invasion from Japan the assessee came to British India, lived in a rented house from 1st January, 1942, till 1st of July, 1942. During the accounting period remittances were received from Ceylon and they were sent to his father who was also residing in British India very near the assessee's place. The assessee returned to Ceylon after the fear of Japanese invasion was removed. The question was whether the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for four days. It was held that these visits were " occasional or casual " visits within the meaning of section 4A(a)(iii) of the Indian Income-tax Act, 1922. Malik C.J., delivering judgment at page 843 of the report, observed as follows : " We do not think that a casual visit necessarily means an unintentional visit. In Murray's Oxford Dictionary the word 'casual' when relating to persons or their actions is said to mean ' not depended on ; uncertain ; unmethodical ; haphazard; happy-go-lucky '. It would appear from this that a 'casual visit ' means a visit which cannot be defined as a regular visit which occurs with any fixed regularity or at uncertain intervals. As regards the word 'occasional ' it would ordinarily mean 'on an occasion', that is, 'on the happening of a certain event '. " Bearing the above principles in mind and keeping in view the observations of the Supreme Court in the case of Commissioner of Income-tax v. B. K. Dhole, we have to examine the facts of this case. Here the assessee in his voluntary disclosure which is at page 12 of the paper-book stated as follows : " I was a resident in India up to the year 1945 and a semi resident from 1945-47 and since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the assessee in the books of the firm to satisfy the Income-tax Officer that the remittances were made out of the assessee's capital in the firm. The Tribunal has further observed that the assessee has failed to produce such accounts or in any other way to substantiate his claim that the remittances were out of capital. Reliance may be made for this on the decision of the Supreme Court in the case of Bipin Lal Kuthiala v. Commissioner of Income-tax. Mr. Banerjee, the learned counsel for the assessee, made a point that certain account books were filed before the Tribunal and the Tribunal has not considered or taken note of them. It does not appear from the papers that the Tribunal granted leave to the assessee to adduce additional evidence or that these documents were admitted in evidence. In any case, this point has not been stated either in the statement of the case or in the appellate order. The Tribunal has also not included these papers alleged to have been filed before the Tribunal. The assessee has made no application for the inclusion of these papers. In those circumstances, we are unable to agree with Mr. Banerjee that the Tribunal should have considered these accou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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