9911796707
TMI Blog1969 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... . C Madha & Bros of Rangoon, the National Bank of India Ltd., remitted a total amount of Rs. 5 lakhs between 5th April, 1946, and 10th April, 1946, to its branch in Calcutta where an account had been opened in the name of the firm. Again, on 26th October, 1947, a further sum of Rs. 2 lakhs was transferred from the firm's account with the National Bank of India Ltd., Rangoon, to its account in the National Bank of India Ltd., Calcutta. Out of this amount of Rs. 7 lakhs remitted from Rangoon to the firm's account in Calcutta, Rs. 5 lakhs was utilised for the purchase of two properties in Calcutta being premises No. 12, Ram Lochan Mullick Street, Calcutta, and 16, Zakeria Street, Calcutta, in the name of the assessee during the calendar years 1948 and 1949. On 8th April, 1953, the assessee filed a voluntary disclosure petition before the income-tax department at Calcutta and also filed nine voluntary returns for the years 1944-45 to 1952-53, disclosing certain income from the properties in India and income from business in Burma for these years and also declaring the status to be non-resident. Inasmuch as returns were filed beyond the time the Income-tax Officer issued notices under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the year 1945 and a semi-resident from 1945 to 1947 and since then, according to the assessee, he had been a non-resident in India. From this the Appellate Assistant Commissioner concluded that on his own admission the assessee was a resident in India from 1942 to 1945 and during the years 1945 to 1947 he was in India for a part of the period and for the remaining part he was outside India. The Appellate Assistant Commissioner also referred to the assessee's income-tax proceedings in the State of Baroda before its merger with the Union of India for the assessment year 1942-43. Certain statements of the assessee's son, Ahmad Suleman Madha, who represented the assessee in these proceedings were recorded. Ahmad Suleman Madha had stated that in 1942 as the war broke out they had come and settled in Variav with their families. They also maintained a house in Bombay and stayed there and also an office in Bombay. In 1943 a soap shop had been started in Bombay and accounts of the same were maintained at Bombay. The office had been transferred from Rangoon to Bombay. There was also a report from Sar Suba Saheb, who seems to be an officer of the income-tax department of the Baroda State, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Income- tax Act, 1922, could be sustained. The Appellate Assistant Commissioner rejected the said contentions. There was a further appeal before the Tribunal. The assessee died in the meantime and was represented by his legal representatives. Before the Tribunal it was contended on behalf of the assessee that even assuming that the assessee was in the taxable territories for a period of 365 days during the four years preceding the previous year and even assuming that the assessee was on a visit to India during the relevant previous year, there was no evidence upon which it could be held that such visit during the previous year was otherwise than of a casual or occasional nature. So far as the assessment for the year 1947-48 was concerned, the Tribunal was of the opinion that it has not been established that the visit of the assessee during the relevant previous year was not of a casual or occasional nature and, as such, the order of the income-tax authorities could not be sustained. The appeal for the said assessment year was, therefore, allowed. So far as the assessment for the assessment year 1948-49 was concerned the Tribunal agreed with the Appellate Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier years ? " The question No. 1 has to be determined with reference to the provisions of section 4A(a)(iii) of the Indian Income-tax Act, 1922. In order that the assessee may be treated as a resident under that sub-clause it is necessary that the assessee should be in the taxable territories during the four years preceding the previous year for a period or for periods in the aggregate of not less than 365 days and in the relevant previous year at any time and then his visit in the relevant previous year was not casual or occasional. The assessment year with which we are concerned in this reference is assessment year 1948-49 for which the relevant previous year is the calendar year 1947. Therefore, in order to attract the provisions of section 4A(a)(iii) of the Indian Income-tax Act, 1922, it would be necessary to establish : (1) that during 1st of January, 1943, to 31st December, 1946, the assessee was in India for a period of 365 days or more, (2) that the assessee was in India at any time between 1st of January, 1947, to 31st December, 1947, and (3) that the presence of the assessee in 1947 in India was not due to any casual or occasional visit. So far as the first two condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 137 days. Then from October, 1937, to December, 1938, he stayed in British India for a period of 13 months. In the accounting year 1941-42 on account of the fear of invasion from Japan the assessee came to British India, lived in a rented house from 1st January, 1942, till 1st of July, 1942. During the accounting period remittances were received from Ceylon and they were sent to his father who was also residing in British India very near the assessee's place. The assessee returned to Ceylon after the fear of Japanese invasion was removed. The question was whether the assessee was a resident in British India under section 4A(a)(iii) of the Indian Income-tax Act. It was held that the assessee was in British India for more than 365 days within the period of four years preceding the year of account and he was in British India in the year of account otherwise than on an occasional or casual visit. He was, therefore, a resident of British India. It was further observed that in order to determine whether his visit to British India was of a casual or occasional nature, the assessee's conduct prior to the period of charge could be taken into consideration. Satyanarayana Rao J. observed in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccurs with any fixed regularity or at uncertain intervals. As regards the word 'occasional ' it would ordinarily mean 'on an occasion', that is, 'on the happening of a certain event '. " Bearing the above principles in mind and keeping in view the observations of the Supreme Court in the case of Commissioner of Income-tax v. B. K. Dhole, we have to examine the facts of this case. Here the assessee in his voluntary disclosure which is at page 12 of the paper-book stated as follows : " I was a resident in India up to the year 1945 and a semi resident from 1945-47 and since then I have been a non-resident in India. " In his affidavit affirmed on the 1st July, 1953, which is at pages 27-28 of the paper-book the assessee has stated in paragraph 7 as follows : " That during the year from 1st April, 1947, to 31st March, 1948, I resided at Rangoon from the Ist April, 1947, to the 9th September, 1947. I then went to India where I resided in India for two months and at Variav for the rest of the year. " It is clear, therefore, that after the 9th September, 1947, the assessee has stated clearly that he had resided in India for two months. The purpose of his residence in India has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken note of them. It does not appear from the papers that the Tribunal granted leave to the assessee to adduce additional evidence or that these documents were admitted in evidence. In any case, this point has not been stated either in the statement of the case or in the appellate order. The Tribunal has also not included these papers alleged to have been filed before the Tribunal. The assessee has made no application for the inclusion of these papers. In those circumstances, we are unable to agree with Mr. Banerjee that the Tribunal should have considered these accounts. The onus being on the assessee to establish that the remittances were out of capital, and in view of the facts and circumstances of the case and the materials available, the Tribunal was justified in holding that the conditions of section 4(1)(b)(iii) of the Income-tax Act have been complied. In the facts of this case we do not think that the decision of the Supreme Court in the case of Parimisetti Seetharamamma v. Commissioner of Income-tax , relied on by Mr. Banerji, is relevant or material. In that view of the matter the question No. 2 referred to this court must be answered in the affirmative and in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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