9911796707
TMI Blog1973 (2) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... hered 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, thereafter, the business was carried on by a partnership consisting of the assessee and his sons. The assessee had ancestral property in Variav. He purchased a plot of land in Bombay in 1942. After the bombing of Burma in 1942, the assessee came over to India and remained in India till 1946. He returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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 Assistant Commissioner remanded the case back to the Income-tax Officer for the reason that on the materials collected by the Income-tax Officer, he was unable to come to any firm conclusion. Thereafter, the Income-tax Officer held further enquiries and reached the very conclusion which he had reache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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--- ... (iii) having within the four years preceding that year been in the taxable territories for a period of or for periods amounting in all to three hundred and sixty-five days or more, is in the taxable territories for any time in that year otherwise than on an occasional or casual visit ;. . . " To deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to India in 1947 was casual or occasional. This is essentially a finding of fact. Hence, the only point that calls for decision is whether the finding reached by the Tribunal is unsupported by any evidence. We have earlier stated the legal position. The burden of proving that the assessee's visit to India in 1947 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 income, he failed to produce his account books. It was contended by Mr. Goswani that he produced certified photostat copies of his accounts before the Tribunal and the Tribunal erred in not considering those documents. In the first place, it must be noted that the assessee has no satisfactory explanation for not p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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