TaxTMI 
TaxTMI 
TaxTMI 
1979 (12) TMI 2
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....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 April 1, 1954, to March 31, 1955, he stayed for 28 days in India, from April 1, 1955, to March 31, 1956, he stayed for 47 days in India and from April 1, 1956, to March 31, 1957, he stayed for 23 days in India. In July, 1958, the assessee on the one hand and other members of the family on the other executed a mutual deed of release, relinquishing each party's rights in favour of the other ; inter alia, the assessee released all his rights, title and interest ....
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.... 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 Court for its opinion : " 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was a non-resident ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no liability to penalty under section 28(1)(a) ? The High Court answered both the questions in favour of the assessee and against the revenue. While dealing with the first question, which ....
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....welling 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 maintained by Ganesa as the manager of the HUF. If the family house, which was maintained by Ganesa as the karta, in which the assessee had a share or interest and stayed for short periods during the previous years relevant to the assessment years in question could be considered to be a dwelling house or a dwelling place maintained for him or for his benefit, then no difficulty would arise with regard to the requisite period because undoubtedly that dwelling place was there d....
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....ssessee 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 for the benefit of the assessee as his abode or home away from Ceylon, and, therefore, he was rightly regarded as a non-resident. At the outset it may be pointed out that the section uses the expression " dwelling place ", a flexible expression, but the expression must be construed according to the object and intent of the particular legislation in which it has been used. Primarily, the expression means " residence ", " abode " or " home " where an individual is supposed....
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.... 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 for him a dwelling place ". The latter expression obviously means he causes to be maintained for him a dwelling place. This is clear from the fact that the relevant provision in the 1961 Act has now been altered and it says " he causes to be maintained for him " and in the Notes on Clauses to the concerned Bill it has been explained that the words " has maintained " in s. 4A(a)(ii) have been replaced in the draft by the words " causes to be maintained ", which express the inte....
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....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 shows that the family house in which he stayed was neither his abode or home nor was it maintained by Ganesa at the instance of the assessee or for his benefit. Turning to the two decisions--one of the Madras High Court and the other of the Gujarat High Court--on which reliance was placed by counsel for the revenue, we may at once say that both the decisions are clearly distinguishable. The decision of the Madras High Court in Zackariah Sahib's case [1952] 22 ITR 359 dealt with a c....