TMI Blog1965 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ot relate to the losses incurred in the year 1946, but only those incurred in the year 1941. The question ex facie does not comprehend the losses incurred in 1946 or ascertained during that year. The High Court, therefore, rightly held that the question framed by it was confined to the losses of the year 1941. But on an assumption not warranted by the question, the learned judges of the High Court, in deference to the arguments advanced by the counsel appearing before them, proceeded to consider the argument now raised before us and came to the conclusion that the said losses could not be held to have been sustained in the year 1946. In our view, it was not open to the High Court to answer the question not referred to it by the Tribunal. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the Hong Kong business in 1941 should be set off against the said profits. The Income-tax Officer, by his order dated March 28, 1952, rejected the contentions of the assessee. On appeal, the Appellate Assistant Commissioner agreed with him. On a further appeal, the Income-tax Appellate Tribunal came to the same conclusion. At the instance of the legal representative of the assessee, the Tribunal, by its order dated March 6, 1959, referred the following question of law to the High Court : "Whether, on the facts and in the circumstances of the case, the income of the assessee from the Hong Kong branch should be apportioned either on a time basis or in any other manner for the purpose of inclusion of the total income of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es during such year,-- . . . (ii) accrue or arise to him without the taxable territories during such year, or ... (c) if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year : .... Provided further that, in the case of a person not ordinarily, resident in the taxable territories, income, profits and gains which accrue or arise to him without the taxable territories shall not be so included unless they are derived from a business controlled in or a profession or vocation set up in India or unless they are brought into or received in the taxable territories by him during such year." Under the proviso, if a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emporary absence of a proprietor of a business from the headquarters of the business in British India cannot by itself have the effect of removing the control of the business from British India to the place where the proprietor has gone. It may be a relevant piece of evidence but not conclusive. In addition to it there should be other evidence either direct or circumstantial to establish that fact. There does not appear to be any other piece of evidence on which reliance has been placed by the assessee. It is, therefore, difficult to accept the contention of the assessee, which had been raised before the Tribunal." It also pointed out that the Tribunal had also found as a fact that the business was controlled from India throughout the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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