TMI Blog1982 (7) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... hese premises were transferred to the name of the assessee's sister, Miss Sudhaben Kanji and the said M/s. Arvind Industries Pvt. Ltd. started charging rent at Rs. 250 per month in respect of the said premises. Even after the assessee left India, his family continued to stay in India in the flat allotted to his sister. According to the assessee, he kept his wife and children in India for the purposes of educating his children. The expenses of the family as well as the sister were borne by the assessee even after his departure. The assessee claimed that he was non-resident during the relevant year. The ITO held that he was a resident, but not ordinarily resident in view of the provisions of s. 6(1)(b) of the, said Act. The assessee preferred an appeal against this decision to the AAC. The order of the AAC shows that the AAC found that the assessee was born in Johannesberg, South Africa, where his father had set up substantial business. According to the AAC, the assessee, his wife, three children, sister and his mother returned to India in April, 1962, and the said M/s. Arvind Industries Pvt. Ltd. allowed the family to stay in the said flat at the request of the mother of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that, in reality, the said flat was given by the said M/s. Arvind Industries Pvt. Ltd. to the assessee, who was a director and a substantial shareholder in the said Arvind Industries. The entire expenses of the household were paid by the assessee and even after he left India on May 25, 1964, his wife and children continued to live in the flat with his sister and the entire expenses of the entire household including that of the sister were borne by the assessee. He pointed out that although the mother of the assessee might have been a director of the said M/s. Arvind Industries, his sister had nothing to do with the said concern and submits that, really speaking, the said flat was given to the assessee although the tenancy was later given in the name of his sister. It is urged by him that in this case, the said flat must be regarded as a dwelling house maintained by the assessee. It is, on the other hand, contended by Mr. Khatri, learned counsel for the assessee, that there is nothing to show that the assessee regarded the said flat as his dwelling house. He stayed there only for short span of 54 days in the relevant previous year and then left it. The flat never belonged to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as the father had no house and the assessee was in East Africa, the father lived in the house gifted to the assessee. On April 17, 1946, the assessee's wife came to India with her children and resided up to February 14, 1.947, in the assessee's house with her father-in-law. The assessee himself came to India on September 3, 1946, and stayed in this house for about four months. The I.T. authorities held on these facts that for the assessment year 1947-48 the assessee had maintained for him a dwelling place in India for more than 182 days and was, therefore, a " resident " within s. 4A(a)(ii) of the Indian I.T. Act, 1922 as it then stood. In connection with what can be considered as dwelling place, Chagla C. J., with his usual felicity of expression, observed as follows (p. 777): " The connotation of a dwelling place is undoubtedly different from mere residence or a mere house in which one finds oneself for a temporary or short period. A dwelling place connotes a sense of permanency, sense of attachment, a sense of surroundings, which would permit a person to say that this house is his home. Undoubtedly, a man may have more than one home; he may have a home at different places; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eally, in truth, a period of enforced absence from what is truly his residence. Now it may be one, or it may be the other. " The principles laid down by Chagla C.J. in CIT v. Fulabhai Khodabhai Patel [1957] 31 ITR 771 (Bom) have been approved by the Supreme Court in CIT v. K. S. Ratnaswamy [1980] 122 ITR 217. It was held that the expression "a dwelling place" in s. 4A(a)(ii) of the Indian I.T. Act, 1922, primarily meant " residence abode " or " home " where an individual was supposed usually to live and sleep and since the expression was used in a taxing statute in the context of a provision which laid down a technical test of territorial connection amounting to residence, the concept of an " abode " or " home " was implicit in it. It was further held that the expression " he has maintained for him a dwelling place " in s. 4A(a)(ii) of the Indian I.T. Act, 1922, meant " he causes to be maintained for him a dwelling place ". In either of these expressions, the volition on the part of the assessee in the maintenance of a dwelling place emerged very clearly; whether he maintained it or he caused it to be maintained, the maintenance of the dwelling place had to be at his instance, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been necessary for him to keep a dwelling place in India. In the statement of the case, there is, however, no mention of the assessee having returned to India, although the order of the AAC does mention that he came to India again in 1969. If these facts noted by the AAC are taken into account, even then it would show that for a period of five years or so, the assessee never returned to India after leaving India on May 25, 1964. We, therefore, find it difficult to accept the conclusion of the Tribunal that the assessee maintained the said flat belonging to the Arvind Industries as his dwelling house. We are fully conscious of the fact that, as pointed out by justice Rowlatt in Pickles v. Foulsham [1923] 9 TC 261 (KB), this is primarily an inference from the facts. But as pointed out by Malik G.J. in Shiva Narayan Sharma v. CIT[1950] 18 ITR 844 (All), the question whether a person is or is not a resident of British India is a question of fact for the decision of the Tribunal but, in making the reference of the question it must be assumed they intended to have the opinion of the court on the point whether, on the facts found by them, they could come to the conclusion that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that both these documents have been noted in the order of the AAC, but have not been annexed to the original statement of the case and hence they should be taken on record by way of a supplementary statement of the case. Mr. Joshi has strongly objected to the supplementary statement of the case being taken on record and submitted that the parties are completely bound by the agreed statement of the case and the documents annexed thereto. In our view, it is not necessary for us to resolve this controversy, because even without taking the supplementary statements on record, we are of the view that the said premises at Arvind House cannot be considered to be a dwelling house maintained by Or caused to be maintained for the assessee during the relevant year. As far as question No. 2 referred to us is concerned, it is common ground that the answer to that would follow the answer to question No. 1. As far as question No. 3 is concerned, it is agreed between the counsel for the assessee and the Commissioner, that the said question is covered by the decision of a Division Bench of this court in CIT v. Shri Ramnath A. Podar [1978] 112 ITR 436, and in accordance with the said decision, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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