Case: Moosa S. Madha &amp; Azam S. Madha Vs. Commissioner Of Income-Tax, West Bengal,Calcutta

facts of the present case we must find out:(1) Whether during the first of January 1943 to 31st of December 1946 the assessee was in India for a period of three hundred and sixty five days or more;(2) Whether the assessee was in India at any time between the 1st January 1947 to 31st December, 1947; and(3) Whether the presence of the assessee in India in 1947 was not an occasional or casual visit.10. So far as the first two ingredients are concerned there is no dispute. It is admitted that the assessee was in India during the years l943-46 for a period of more than three hundred and sixty-five days. It is also admitted that he was in India for a period of two months in the year 1947. Therefore, the only question that requires to be decided is whether his visit to India in 1947 was occasional or casual. The burden of proving this point is undoubtedly on the assessee. The Department cannot be expected to prove a negative. The assessee knows best why he staved in India for a period of two months in 1947. This question is no more res integra. In Commr. of Income Tax, West Bengal v. B. K. Dhote, (1967) 66 ITR 457 (SC) this court ruled that in order 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 Assistant Appellate 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 assessees visit to India in 1947 was occasional or casual is on the assessee. According to the Tribunal the assessee had not discharged that burden. The assessee had produced no evidence whatsoever to prove that his visit during the year in question was an occasional or casual. Worst still is, in the affidavit filed by him before the Department he merely stated that he visited India for a period of two months in 1947 but did not state the reason for visiting India nor did he state that his visit was occasional or casual. In the face of this affidavit it is idle for the assessee to contend that the Tribunal came to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 1947 was occasional or casual.11. The sole circumstance on which Mr. Goswami, the learned counsel for the appellant, relied on was that the assessee had no business in India. The fact that the assessee had no business in India during the period of his stay of two months in India does not discharge the onus which is placed on the assessee to show that his visit to India was occasional or casual.12. For the reasons mentioned above we agree with the High Court in the answer given to the first question.13. Now turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947, rupees 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 income, he failed to produce his Account Books. It was contended by Mr. Goswami 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 producing his account books before the Income Tax Officer as well as the Assistant Appellate Commissioner. Photostat copies have very little evidentiary value. Further it is seen from the order of the Tribunal that there is no reference to the photostat copies in that order. It does not appear from that order that any reliance was placed on those documents before the Tribunal. The complaint that the Tribunal ignored those documents without good reasons does not appear to have been made in the application filed by the assessee under Section 66 (l). The statement of the case submitted by the Tribunal does not refer to that fact. Admittedly the assessee did not take up any question regarding those documents. Hence the High Court is fully justified in not considering those documents. In our opinion the Tribunal was right in its conclusion that the remittance of Rs. 2 lakhs from Burma to India during the year 1947 is not proved to be the capital asset of the assessee. Hence, there is no reason to interfere with that finding of the Tribunal. In this respect also we are fully in agreement with the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The burden of proving that the assessees visit to India in 1947 was occasional or casual is on the assessee. According to the Tribunal the assessee had not discharged that burden. The assessee had produced no evidence whatsoever to prove that his visit during the year in question was an occasional or casual. Worst still is, in the affidavit filed by him before the Department he merely stated that he visited India for a period of two months in 1947 but did not state the reason for visiting India nor did he state that his visit was occasional or casual. In the face of this affidavit it is idle for the assessee to contend that the Tribunal came to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 1947 was occasional orfact that the assessee had no business in India during the period of his stay of two months in India does not discharge the onus which is placed on the assessee to show that his visit to India was occasional or casual.For the reasons mentioned above we agree with the High Court in the answer given to the first question.13. Now turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947, rupees 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 income, he failed to produce his Accountthe first place it must be noted that the assessee has no satisfactory explanation for not producing his account books before the Income Tax Officer as well as the Assistant Appellate Commissioner. Photostat copies have very little evidentiary value. Further it is seen from the order of the Tribunal that there is no reference to the photostat copies in that order. It does not appear from that order that any reliance was placed on those documents before the Tribunal. The complaint that the Tribunal ignored those documents without good reasons does not appear to have been made in the application filed by the assessee under Section 66 (l). The statement of the case submitted by the Tribunal does not refer to that fact. Admittedly the assessee did not take up any question regarding those documents. Hence the High Court is fully justified in not considering those documents. In our opinion the Tribunal was right in its conclusion that the remittance of Rs. 2 lakhs from Burma to India during the year 1947 is not proved to be the capital asset of the assessee. Hence, there is no reason to interfere with that finding of the Tribunal. In this respect also we are fully in agreement with the High Court.