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TMI Blog1988 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... see subsequently joined her husband in Japan and began to reside with him. The flat at Bombay which was permanent residence of the couple was locked during their stay in Japan. When the couple returned to India, they again resided in said flat. 4. We are not concerned with the assessment of assessee's husband. He was in India for less than thirty days in the relevant year and as such, on that ground alone section 6(1)(b) was not attracted in his case and he was clearly a non-resident. As far as the assessee is concerned, she was in India from 1-4-1977 to 11-5-1977 for 41 days in the relevant accounting year as she had left India on 11-5-1977 and had returned on 29-7-1978. The question is whether she should be treated as resident and ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He argued that the flat in Bombay which was owned by the assessee's husband and which was locked during the period when the assessee's husband and the assessee resided in Japan (which period was more than 182 days) would not come in the category of a dwelling place maintained or caused to be maintained by the assessee and as such the said condition in clause (b) of section 6(1) was not satisfied. He relied on certain decisions which we shall discuss subsequently. 7. Shri P.K. Sridharan, the learned representative for the department on the other hand, submitted that the assessee as wife had a legal right to reside with her husband and the flat in question was a dwelling place for the couple and the same must be regarded as having been mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Japan in the course of employment that the couple had to go to Japan and reside there for a temporary period. They had no intention to migrate to Japan permanently. They had gone to Japan with full consciousness that they would return to India after the temporary period and then, as before, continue their residence in the flat in question, which, as already stated, was their "home", "abode" or "dwelling place". We asked the learned counsel for the assessee as to why the couple locked the flat in Bombay while they were in Japan and had not given it on rent. The answer was that if it had been given on rent it would have been difficult to obtain possession at the time when they returned to India. In other words, the intention was that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the rules provided for such surrender. It could be renewed on return to India. Nothing turns on that. 12. The decisions cited by the assessee are of no assistance to the assessee. In CIT v. Smt. Sharda Ajmani [1971] 81 ITR 197 (Punj. Har.), it was held that wife of member of staff of an embassy would be assessable as non-resident if she has not fulfilled any of the conditions of residence laid down in section 4A of Income-tax Act, 1922. The question which arises before us was not there. 13. In J.M. Abdul Aziz v. CIT [1963] 48 ITR 602 (Mad.) which is also relied on by Shri R.C. Desai, the assessee was co-owner of a house in India but the evidence indicated that he did not have dwelling place in India. The ratio is contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee regarded the said flat as his dwelling place. It was held that the assessee could not be assessed as resident. It is to be noted that in this case the assessee had not established his household in India. He was a South African national and his wife and children were residing in his sister's house. In our case, there was an organised household of assessee in India unlike in that case. Hence, that case has no application. 16. Another decision relied on by Shri Desai is CIT v. K.S. Ratnaswamy [1980] 122 ITR 217 (SC). In that case the assessee was a resident of Ceylon and had his own properties and business there. All his eight children were born and brought up in Ceylon. There was an ancestral house in India which he visited on o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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