TMI Blog1973 (2) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta in a reference under section 66(1) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as " the Act "). It relates to the assessee's income-tax for the assessment year 1948-49, the relevant accounting year being the calendar year 1947. The material facts as could be gathered from the statement of case submitted by the Tribunal are as follows : The assessee, one S. C. Madha (since deceased), appears to have migrated with his father to Burma in about the year 1901. They were originally the resident of the village, Variav, in the erstwhile State of Baroda. In Burma the assessee carried on business in soap and umbrella. It is seen that he was a successful businessman. The assessee's father died in 1936, and, therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e status of a " resident " but " not ordinarily resident " on a total income of Rs. 6,24,478 for the assessment year 1947-48 and Rs. 3,55,214 for the assessment year 1948-49. In determining the assessee's residential status in these two assessment years the Income-tax Officer relied on the facts stated by the assessee in his voluntary disclosure statements as well as on the affidavit filed by him. He also took into consideration the fact that the assessee had purchased a property in Bombay in the year 1942, and the further fact that in the years 1948 and 1949, he had purchased two premises in Calcutta. Aggrieved by the order of the Income-tax Officer the assessee went up in appeal to the Appellate Assistant Commissioner. The Appellate As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries 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 asseessee during the accounting year out of his accrued profits of earlier years ? " The High Court answered both those questions in favour of the revenue. Hence this appeal. For deciding the question whether the assessee was a " resident " in India but " not ordinarily resident " in India in the calendar year 1947, we must first examine the scope of section 4A(a)(iii). That section reads : " For the purposes of this Act--- (a) any individual is resident in the taxable territories in any year if he--- ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the assessee may be treated as resident in British India under section 4A(a)(iii) of the Act the onus of proving that the assessee was in British India during the four years preceding the previous year for a period of or for periods amounting in all to three hundred and sixty-five days and in the relevant previous year at any time, lies upon the department. But, if these two conditions are established or admitted, the onus lies upon the assessee to prove that his visits in the previous year were occasional or casual. In the present case it may be noted that the Income-tax Officer, the Appellate Assistant Commissioner, the Tribunal as well as the High Court have come to the conclusion that the assessee failed to prove that his visit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst question. Now, turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947, Rs. two lakhs were remitted from Burma to India. It is seen from the evidence on record that the assessee did purchase a house in Calcutta in 1948. The assessee contended before the Tribunal as well as before the High Court that the money transferred from Burma to India was his capital asset and not income earned from business in Burma. This was a matter which the assessee had to prove. He has failed to prove the same. Even though the Income-tax Officer gave him several opportunities to produce his account books to establish his case that the money remitted to India did not represent his business ..... X X X X Extracts X X X X X X X X Extracts X X X X
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