Not Ordinarily Resident: statutory residence tests require showing non residence in nine of ten years or under two years' presence in seven years, yielding relief.

The central issue was whether the individual qualified as "not ordinarily resident" under section 6(a) by application of the statutory residence tests. The court construed the provision as requiring initial determination of "resident" status and then applying the two alternative statutory tests: absence of residence in nine of the ten preceding years, or absence of presence exceeding two years in the seven preceding years. Relying on legislative exposition and contemporaneous notes, the court held that an emphatic negative to the question whether the assessee had been resident in nine of the ten years establishes "not ordinarily resident," and answered the reference for the assessee accordingly.

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Issues: Whether the assessee is "not ordinarily resident" in Travancore in the accounting years 1945, 1946, 1947 and 1948 within the meaning of section 6(a) of the Travancore Income-tax Act, 1121 (corresponding to section 4B(a) of the Indian Income-tax Act).

Analysis: The Court examined the language of section 6(a) which provides that an individual is "not ordinarily resident" if he has not been resident in Travancore in nine out of the ten years preceding that year or if he has not during the seven years preceding that year been in Travancore for periods amounting in all to more than two years. The Court contrasted the statutory concepts of "resident" (defined by section 5(a) of the Travancore Income-tax Act, 1121) and "ordinarily resident" and accepted the view that the statute contemplates first determining residency under section 5 and then, for individuals, applying the nine-out-of-ten-years and two-years-in-seven-years tests in section 6(a). The Court rejected the Department's argument that the statute requires proof of "not resident" in nine out of ten years rather than the converse showing of not having been "resident" in nine out of ten years. The Court relied on legislative exposition and contemporaneous notes and concluded that the proper inquiry is whether the assessee had been resident in nine out of the ten years; an emphatic negative to that question establishes that the individual is "not ordinarily resident."

Conclusion: The assessee is "not ordinarily resident" in Travancore in the accounting years 1945, 1946, 1947 and 1948 under section 6(a) of the Travancore Income-tax Act, 1121; the reference is answered in favour of the assessee.

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