Civil Appeal Nos
2007 2014 of 1972
From the Judgment and Order dated 24 4 1970 of the Madras High Court in Tax Case No 15667 Ref
No 5467
section T Desai section P Nayar and Miss A Subhashini for the Appellant
T A Ramachandran Amicus Curiae for the Respondent
The Judgment of the Court was delivered by TULZAPURKAR J
These appeals by certificates under section 66A2 of the Indian Income Tax Act 1922 hereinafter referred to as the Act  raise the question whether the respondent assessee was a resident in the taxable territories under section 4Aaii of the Act for the concerned assessment years The facts giving rise to the aforesaid question are these Subramania and Arumuga were two brothers the former had three sons Ratnaswamy the assessee Ganpathi and Velayudham while the latter had only one son Ganesa
After the death of Subramania and Arumuga their sons formed a Hindu Undivided Family that family owned an ancestral house at Orthanad in Tanjore District which was used as dwelling by the step mother of the assessee his full brother and his cousin Ganesa the family also owned shops and agricultural lands
The family properties were managed by Ganesa and were maintained by him out of the agricultural and rental income
Admittedly the 522 assessee never enjoyed any portion of the family income
Born and brought up in Ceylon the assessee had his own business and properties in Ceylon
He had eight children all born and educated in Ceylon
It appears that he started constructing a theatre in Orthanad in 1953 which was completed in 1957 and during the said construction he paid occasional visits and stayed sometimes in the family house sometimes in a chatram in Tanjore and at times in a hotel
Thus from 1 4 1952 to 31 3 1953 he stayed for 8 days in India from 1 4 1953 to 31 3 1954 he did not come to India at all from 1 4 1954 to 31 3 1955 he stayed for 28 days in India from 1 4 1955 to 31 3 1956 he stayed for 47 days in India and from 1 4 1956 to 31 3 1957 he stayed for 23 days in India
In July 1958 the assessee on the one hand and other members of the family on the other executed a mutual deed of release relinquishing each party s rights in favour of the other inter alia the assessee released all his rights title and interest in the family properties in favour of his brothers reciting therein that the family properties were never enjoyed by him but only by others
There is no dispute and the Tribunal has also found that the deed of release was an instrument bona fide entered into between the parties
In the above circumstances for the assessment year 1952 53 1953 54 1956 57 and 1957 58 the assesses filed returns but for the first two years after proceedings were initiated under section 341a of the Act and for the latter two years on his own offering his income in Ceylon for assessment
The status declared in all the returns was that he was a resident and ordinarily resident person  The Income Tax Officer completed the assessments on the basis of the returns filed
He also initiated penalty proceedings against the assessee under section 281a for not filing the returns in time and levied penalties on him
In the appeals preferred by the assessee which were principally directed against the rejection of the claim made by him in respect of the double taxation relief an additional ground was taken that the assessee should have been treated as a non resident  in all the years
The Appellate Assistant Commissioner upheld this additional ground taking the view that since during his sojourn in India the assessee was staying in the family house more as a guest he neither maintained nor had maintained for him a dwelling place in the taxable territories and therefore section 4A a ii of the Act was inapplicable
The Department carried the matter in further appeals to the Tribunal but the Tribunal called for a remand report from the Appellate Assistant Commissioner after a fuller examination as to the factual position whether the assessee did maintain a dwelling place in India or the same was maintained for him by others inasmuch as the Tribunal felt that the Department did not have an effective opportunity to meet the 523 aspect raised for the first time before the Appellate Assistant Commissioner
In the remand proceedings oral evidence was recorded by examining the assessee and two others and the final report was forwarded to the Tribunal
On the basis of the material collected and forwarded to it the Tribunal took the view that the assessee was a natural born Ceylon citizen staying in Ceylon most of the time that his visits to India in the aggregate were for 137 days in the period of 11 years from 1 4 46 to 31 3 67 that the evidence supported the theory that he was more a guest in family house in India than an inhabitant of his own house or home that there was nothing to show that the assessee enjoyed any of his family income or had any separate portion of the family house reserved for him during his sojourn to India and that there were no enough materials to say that there was a residence either run or maintained by the assessee in India
In this view of the matter the Tribunal upheld the Appellate Assistant Commissioner s order cancelling the assessment orders made against the assessee
As a consequence the Tribunal also cancelled the penalties that were levied on the assessee
At the instance of the Revenue and on a direction from the High Court the Tribunal referred the following two questions to the High Court for its opinion 1
Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the assessee was non resident 2
Whether on the facts and in the circumstances of the case the Tribunal was right in holding that there was no liability to penalty under section 281a  The High Court answered both the questions in favour of the assessee and against the Revenue
While dealing with the first question which was the principal question raised in Reference the High Court took the view that the answer to that question depended upon a bundle of facts and their cumulative effect and in its view the cumulative effect of the totality of facts found by the Tribunal did not lead to the inference that a dwelling place or dwelling house was maintained by the assessee or the same was maintained by others for him but on the other hand the evidence showed that the assessee was enjoying the hospitality of his kith and kin during his stay in the family house where he was treated as a guest
The High Court further held that the mere fact that the assessee had a right in the family house at Orthanad in Tanjore District and that he was occasionally lodging 524 there did not mean that he was maintaining the same or had it maintained for him and that what the law required was the maintenance of a dwelling place which should be his domus mansionalis in other words if the dwelling place was not his second home or the real centre of his life then the assessee would be a non resident
It is this view of the High Court that is being challenged before us in these appeals by the Revenue
Since the question raised before us pertains to the proper construction of section 4A a ii of the Act and the requirements thereof it will be desirable to set out the said provision
It runs thus For the purposes of this Act a any individual is resident in the taxable territories in any year if he  ii maintains or has maintained for him a dwelling place in the taxable territories for a period or periods amounting in all to one hundred and eighty two days or more in that year is in the taxable territories for any time in that year
 Since the section is prefaced by the phrase for the purposes of this Act it is clear that it raises a statutory fiction further the language of the provision makes it clear that it lays down a technical test of territorial connection amounting to residence applicable to all individuals foreigners as well as Indians including Hindus Christians Muslims Parsis and others irrespective of the personal law governing them
On a reading of the provision it becomes clear that before any individual can be said to be a resident in the taxable territories in any previous year two conditions are required to be fulfilled a there must be a dwelling place maintained in the taxable territories either by the assessee himself or by some one else for him for the requisite period and b the assessee must live in the taxable territories though not necessarily therein for some time howsoever short in the previous year
In the instant case it was not disputed before us that the second condition was satisfied in regard to the assessee
The question that we have to consider is whether on the facts found by the Tribunal it could be said that the assessee maintained or had maintained for him a dwelling place in the taxable territories for the requisite period
It was not disputed that the assessee himself did not maintain the family house but it was maintained by Ganesa as the manager of the Hindu Undivided Family
If the family house which was maintained by Ganesa as the Karta in which the assessee had a share or interest and stayed for short periods during the previous years 525 relevant to the assessment years in question could be considered to be a dwelling house or a dwelling place maintained for him or for his benefit then no difficulty would arise with regard to the requisite period because undoubtedly that dwelling place was there during all the previous years relevant to the assessment years and the assessee will have to be regarded as a resident in the taxable territories for the concerned years
Counsel for the Revenue contended that the expression maintains a dwelling place inter alia connotes the idea that an assessee owns a dwelling house which he can legally and as of right occupy if he is so minded during his visits to India while the expression has maintained for him a dwelling place would cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in India though the expenses of maintaining such dwelling place are not met by him wholly or in part and since in the instant case it was a joint family dwelling house maintained by the Manager for the family wherein the assessee had a right of dwelling without any let or hindrance it must be held that the assessee had maintained for him a dwelling house
In support of these contentions strong reliance was placed by him upon two decisions one of the Madras High Court in section M Zackariah Saheb vs CIT Madras and the other of Gujarat High Court in Ramjibhai Hansjibhai Patel vs Income Tax Officer Special Circle Ahmedabad
According to him the section merely speaks of a dwelling place of an assessee and does not require his actual residence in it nor does it require any establishment maintained by him or for him and it would be therefore erroneous to introduce into the section the concept of attachment  or permanence  or home 
On the other hand counsel for the assessee contended that three aspects emerge from the phrase he maintains or has maintained a dwelling place for him i the volition of the assessee in maintaining the dwelling place or its maintenance being at his instance behest or request ii the expenses of maintenance must be met by the assessee and iii the house or a portion thereof must be set apart and kept fit for the dwelling of the assessee
According to him what is contemplated by section 4A a ii is the de facto maintenance of a dwelling place for the assessee and not maintenance for him as one of a body of individuals in other words the section cannot apply to a case where a dwelling place is in possession of other members of the Hindu Undivided Family and the assessee has a right of common enjoyment
Counsel contended that on the facts found in the case the 526 assessee had stayed in the family house as a guest and enjoyed the hospitality of his kith and kin and therefore though as a co parcener he had a right in the family house his occasional lodging there could not mean that he was maintaining the same or had it maintained for him
In other words it was not his home
Strong reliance was placed by him on the Bombay High Court decision in CIT Bombay North etc
vs Falabhai Khodabhai Patel where the connotation of a dwelling place occurring in s4A a ii was equated with a house which could be regarded by the assessee as his hime
He urged that both the Tribunal and the High Court were right in coming to the conclusion that the family house had not been maintained for the benefit of the assessee as his abode or home away from Ceylon and therefore he was rightly regarded as a non resident
At the outset it may be pointed out that the section uses the expression dwelling place  a flexible expression but the expression must be construed according to the object and intent of the particular legislation in which it has been used
Primarily the expression means residence  abode  or home  where an individual is supposed usually to live and sleep and since the expression has been used in a taxing statute in the context of a provision which lays dawn a technical test of territorial connection amounting to residence the concept of an abode on home would be implicit in it
In other words it must be a house or a portion thereof which could be regarded as an abode or home of the assessee in the taxable territories
In our view this aspect of the matter has been rightly emphasized by the Bombay High Court in Phulabhai Khodabhai s case supra where Chief Justice Chagla has observed thus When we look at the language used by the Legislature it is clear that what is sought to be emphasized is that there must be not only a residence or a house for the assessee in the taxable territories but there must be a home
The connotation of a dwelling place is undoubtedly different from a 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 a 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 but with regard to each one of these he 527 must be able to say that it is something more than a mere house or a mere residence
 Similar view was expressed by Mr Justice Rowlatt in Pickles vs Foulsham where the question whether the assessee was a resident in England for the purpose of payment of Income tax had to be decided on general principles in the absence of any statutory provision in the English statute with regard to residence as we have in our taxing statute
At page 275 of the report the learned Judge observed thus A man I suppose may keep a house for his wife and come there merely as a visitor he may keep a house for his mother and when he can get away always go there to see her but it may be that it is his mother s house even if he is paying for it and he is going there as a visitor
He keeps the house for his wife and children it may be that he is going there as going home it may be that that is the centre really of his life that he keeps many belongings there and so on and his time in Africa is really in truth a period of enforced absence from what is truly his residence
Now it may be one or it may be the other
 In other words the test which the learned Judge laid down was that when you go to a house you should be really going home then you are going to a dwelling house whether maintained by you or by someone else a nda house may be your home whether it belongs to you or belongs to someone else
In other words with regard to the house where he goes and lives he must be able to say that it is his abode or home
It is therefore not possible to accept the contention of learned counsel for the Revenue that it is erroneous to introduce the concept of home or abode into the section
Secondly the section uses two expressions he maintains a dwelling place and he has maintained for him a dwelling place
 The latter expression obviously means he causes to be maintained for him a dwelling place
This is clear from the fact that the relevant provision in the 1961 Act has now been altered and it says he causes to be maintained for him and in the Notes on Clauses to the concerned Bill it has been explained that the words has maintained in section 4Aaii have been replaced in the draft by the words causes to be maintained which express the intention better
Now in either of these expressions the volition on the part of the assessee in the maintenance of the dwelling place emerges very clearly whether he maintains it or he causes 528 it to be maintained the maintenance of the dwelling place must be at his instance behest or request and when it is maintained by someone else other than the assessee it must be for the assessee or for his benefit
Therefore the question that will have to be considered in the instant case is whether on the facts found by the Tribunal the family house which was maintained by Ganesa as the Karta could be regarded as an abode or home of the assessee maintained at the instance of the assessee and for his benefit The facts found in the instant case are 1 the assessee born and brought up in Ceylon had his own business and properties in Ceylon 2 he had 8 Children all born and educated in Ceylon 3 the HUF of which the assessee was a coparcener at the material time owned an ancestral house at Orthanad which had been and was being used as a dwelling by the assessee s step mother his full brothers and his cousin Ganesa and the same was being maintained by Ganesa out of income of family properties 4 during the previous years relevant to the assessment years in question while the construction of the assessee s theatre in Orthanad was in progress the assessee paid occasional visits and stayed sometimes in the family house sometimes in chatram at Tanjore and at times in a hotel 5 there was positive evidence on record that during his stay in the family house the assessee was considered only as a guest enjoying the hospitality of the family 6 the assessee admittedly never enjoyed any portion of the family income nor was he connected with the management of the family properties including the house and 7 in July 1958 by a deed of release the assessee relinquished all his right title or interest in the family properties in favour of his brothers
On these facts it becomes transparently clear that the assessee whenever he stayed in the family house during the relevant previous years was more a guest therein enjoying the hospitality of his kith and kin than an inhabitant of his own abode or home and further that the family house was maintained by Ganesa not at the instance of the assessee nor for his benefit but it was maintained by him for the rest of the family
It is true that the house at Orthanad was at the material time a joint family house in which the assessee as a co parcener had a share and interest it is also true that as a coparcener he had a right to occupy that house without any let or hindrance but mere ownership of a fractional share or interest in the family house with the consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of section 4Aaii for the requirements thereof are not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home
The material on record shows that the family house in which he stayed was neither his abode or home nor 529 was it maintained by Ganesa at the instance of the assessee or for his benefit
Turning to the two decisions one of the Madras High Court and the other of the Gujarat High Court on which reliance was placed by counsel for the Revenue we may at once say that both the decisions are clearly distinguishable
The decision of the Madras High Court in Zackriah Sahib s case supra dealt with a case of an assessee who was a Muhammadan merchant
He carried on business in Ceylon and resided there
His parents lived in British India as it then was in a house owned by his mother
The assessee s wife also lived in British India sometimes with his parents and sometimes with her parents
The assessee was remitting monies now and then to his parents for their maintenance
He visited British India during the year of account and stayed in his mother s house with his parents
The Appellate Tribunal held that the assessee was resident in British India within the meaning of s 4Aaii
Reversing this decision the Madras High Court held that the assessee did not maintain a dwelling place in British India and that his mother s house was maintained for the parents of the assessee and not for the assessee himself
Obviously the house belonged to the mother of the assessee which he had no legal right to occupy and therefore it could not be said that the assessee maintained a dwelling place in British India
Counsel however relied upon certain observations made by Vishwanatha Sastri J in that Judgment which run thus The expression maintains a dwelling place  connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and as of right occupy if he is so minded during his visit to British India In our opinion the expression has maintained for him  would certainly cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in British India though the expenses of maintaining the dwelling place are not met by him in whole or in part
A member of an undivided Hindu family has a right to live in the family house when he goes there though the house is maintained by the manager of the family and not by the assessee from his own funds
In such cases it can be said that the assessee has a dwelling place maintained for him by the manager of the family for he has a right to occupy the house during his visits to British India
 Relying on the aforesaid passage counsel urged that in the instant case the house at Orthanad was maintained by Ganesa as a Karta of the family and since the assessee as a coparcener had a right to live in it 530 during his visits to India it must be held that the assessee had maintained for him a dwelling place in India
It is not possible to accept this contention for in our view the aforesaid passage taken in its content does not lay down as a proposition of law that mere ownership of a fractional share in a family house with a consequent right to occupy the same with nothing more would constitute it a dwelling house of such owner within the meaning of section 4Aaii for it must further be shown that it was maintained by the manager at the instance of the assessee and for his benefit
That is how the aforesaid passage has been partly explained and in our view rightly by the Madras High Court in a subsequent decision in CIT Madras vs Janab A P Mohamed Noohu  Ors
The Gujarat decision in Ramjibhai Hansjibhai s case supra was clearly a case where the joint family house was maintained as a dwelling place for the benefit of all members of the joint family including the assessee
The main contention urged on behalf of the assessee in that case was that the dwelling house was not maintained for the assessee as an individual but it was maintained not only for him but for other members of the joint family as well and therefore the requirements of the section were not satisfied
The contention was negatived
In other words it was not disputed in the Gujarat case that a dwelling house was maintained by the manager of the family for the benefit of the assessee
In the instant case on the facts it has been found that the family house was maintained by Ganesa not for the assessee nor for his benefit but for the other family members
Having regard to the above discussion it is clear that though the assessee could be said to have had a share in the joint family house with a consequent right to occupy the same it could not be said that the said family house was maintained by Ganesa as the Karta of the family as a dwelling place for the assessee or for his benefit nor was it maintained by him at the instance of the assessee
Moreover his stay in the family house has been found to be as a guest enjoying the hospitality of his kith and kin rather than as an inhabitant of his abode or home
In this view of the matter the assessee in our view was rightly regarded as a non resident
The appeals are therefore dismissed
SR Appeals dismissed


Summary:
The assessee one of the sons of Subramania was born and brought up in Ceylon and had his own business and properties in Ceylon
After the death of his father and his paternal uncle Arumugha the assessee s two other brothers Ganapathi and Velayadham and his cousin Ganesa son of Arumugha formed a Hindu Undivided Family
That family owned an ancestral house at Orthanad in Tanjore district which was used as dwelling by the step mother of assessee his full brothers and his cousin Ganesa
The family also owned shops and agricultural lands
The family properties were managed by Ganesa and were maintained by him out of the agricultural and rental income
The assessee never enjoyed any portion of the family income
In July 1958 the assessee on the one hand and other members of the family on the other executed a mutual deed of release relinquishing each party s rights in favour of the other inter alia the assessee released all his rights title and interest in the family properties in favour of his brothers reciting therein that the family properties were never enjoyed by him but only by others
This deed or release was found to be an instrument bona fide entered into by the parties
It appears that he started constructing a theatre in Orthanad in 1953 which was completed in 1957 and during the said construction he paid occasional visits and stayed sometime in the family house sometimes in a chatram in Tanjore and at times in a hotel
Thus from 1 4 52 to 31 3 53 he stayed for 8 days in India from 1 4 53 to 31 3 54 he did not come to India at all from 1 4 54 to 31 3 55 he stayed for 28 days in India from 1 4 55 to 31 3 56 he stayed for 47 days in India and from 1 4 56 to 31 3 57 he stayed for 23 days in India
In the above circumstances for the assessment years 1952 53 1953 54 1956 57 and 1957 58 the assessee filed returns but for the first two years after proceedings were initiated under section 34ia of the Act and for the latter two years on his own offering his income in Ceylon for assessment
The status declared in all the returns was he was a resident and ordinarily resident person
The Income Tax Officer completed the assessment on the basis of the returns filed
He also initiated penalty proceedings against the assessee under section 281a for not filing the returns in time and levied penalties against him
In the appeals preferred by the assessee which were principally directed against the rejection of the claim made by him in respect of the double taxation relief an additional ground was taken that the assessee should have been treated as a non resident  in all the years
The Appellate Assistant Commissioner upheld this additional ground taking the view that since during his sojourn in India
520 the assessee was staying in the family house more as a guest he neither maintained nor had maintained a dwelling place in the taxable territories and therefore section 4Aaii of the Act was inapplicable
Having lost their appeals before the Tribunal and on references to the High Court the Revenue came up in appeal by certificates to this Court
Dismissing the appeals the Court  HELD 1 Section 4Aaii of the Income Tax Act 1922 raises a statutory fiction since it is prefaced by the phrase for the purposes of this Act
Further the language of the provision makes it clear that it lays down a technical test of territorial connection amounting to residence applicable to all individuals foreigners as well as Indians including Hindus Christians Muslims Parsis and others irrespective of the personal law governing them
524 D E 2
Section 4Aaii makes it clear that before any individual can be said to be a resident in the taxable territories in any previous year two conditions are required to be fulfilled a there must be a dwelling place maintained in the taxable territories either by the assessee himself or by some one else for him for the requisite period and b the assessee must live in the taxable territories though not necessarily therein for sometime however short in the previous years
In the instant case the second condition was satisfied in regard to the assessee
524E G 3
Section 4Aa uses the expression dwelling place  a flexible expression which should be construed according to the object and intent of the particular legislation in which it has been used
Primarily the expression means residence  abode or home where an individual is supposed usually to live and sleep and since the expression has been used in a taxing statute in the context of a provision which lays down a technical test of territorial connection amounting to residence the concept of an abode or home would be implicit in it
In other words it must be a house or a portion thereof which could be regarded as an abode or home of the assessee in taxable territories
In other words when you go to a house you should be really going home then you are going to a dwelling house whether maintained by you or by some one else and a house may be your home whether it belongs to you or belongs to some one else
In other words with regard to the house where he goes and lives he must be able to say that it is his abode or home
Therefore there is no error in introducing the concept of home or abode into the section
526 C E 527 E F CIT Bombay North etc
vs Foolabhai Khodabhai Patel  approved
Pickles vs Foulsham 1925 9 Tax Cases 261 quoted with approval
Section 4Aa uses two expressions he maintains a dwelling place and he has maintained for him a dwelling place
The latter expression obviously means 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 the dwelling place emerges very clearly whether he maintains it or he causes it to be maintained the maintenance of the dwelling place must be at his instance behest or request and when it is maintained by someone else other than the assessee it must be for the assessee or for his benefit
527 G H 528 A 521 Mere ownership of a fractional share or interest in the family house with the consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of section 4Aaii for the requirements thereof are not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home
530 A B 528 H In the instant case i on the material on record the family house in which the assessee stayed was neither his abode or home nor was it maintained by Ganesa at the instance of the assessee or for his benefit even though it was true that the assessee as a coparcener had a share and interest in the family house and also a consequent right to occupy it without any let or hindrance
528 A 529 A 530 F ii his stay in the family house was found to be as a guest enjoying the hospitality of his kith and kin rather than as an inhabitant of his abode or home and iii therefore he was rightly regarded as non resident
530 F G CIT Madras vs Janab A P Mohamed Noohu and Ors  approved
section M Zackariah Sahib vs CIT Madras Mad Ramjibhai Hansibhai Patel vs Income Tax Officer Special Circle Ahmedabad  distinguished