Case: Commissioner of Income Tax, West Bengal Vs. B. K. Dhote

1945, he had not visited any place in British India " at any time "In his statement before the Tribunal the assessee admitted that he had in his letter dated November 5, 1956, stated that, after his departure from British India, he had paid a few visits to British India which did not exceed seven days in any year. He, however, stated that he had visited British India " once or twice " and during his stay he was not in British India for more than two or three days on any single occasion. He admitted that he had visited Nagpur for two days in 1945, to attend the wedding of his brother and that he had again visited Nagpur in November-December, 1946, because of his mothers illness. He denied that he had visited Bombay in connection with his business. He admitted that an amount of Rs. 12, 000 was sent in cash to Indo-Europa Trading Company in connection with the purchase of machinery, but he claimed that the money was sent with his cashier, Patwardhan. Called upon to state whether he had any evidence to show how the money was sent to Indo-Europa Trading Company, the assessee stated that he " can call " Patwardhan and the Tribunal " can put questions " to Patwardhan. He asserted that he had no business transactions in Bombay in the year 1946. The Tribunal in its order observed " We have had the advantage of having had the assessee before us examined by the departmental representative with regard to the assessees contention that his visits to the taxable territory during the accounting years were casual. In this we had the advantage of noting the demeanour of the assessee while he was answering the questions. We are sorry to say that we were not very much satisfied with the way he was giving answers to the questions put both by the departmental representative and by us and we are constrained to say that the assessee was not speaking the truth. "After referring to the oral and documentary evidence, the Tribunal concluded " From the version of the assessees doing business in Hyderabad to the extent he has admittedly done, we hold that the assessees visits to the taxable territories were for his business and for some business in British India. " 4. Proof of a visit or visits in the relevant previous years to the taxable territory coupled with evidence of being in the taxable territory for three hundred and sixty-five days in the aggregate during the last four years preceding that previous year is not decisive of the status of the assessee as a resident in the previous year. It is open to the assessee still to prove that his visit or visits in the previous year were occasional or casual. In determining whether the visits are occasional or casual, the Tribunal has to consider the presence of the assessee in the taxable territory in relation to the object of the visit which must, in each case, be gathered from the circumstances in which the assessee paid the visit, and his conduct. Accidental presence in or a visit for a social purpose to the taxable territory may be regarded as occasional or casual, but a visit in connection with the business carried on by the assessee may not normally be regarded as occasional or casual 5. The assessee carried on the trade of a printer in Hyderabad. He had in connection with that trade to deal with business houses in Bombay ; this was admitted by the assessee. He had made remittances to Bombay in both the years---the first remittance was by a bank draft and the second in cash. The assessee denied that he visited Bombay during the two previous years, but that part of his testimony was disbelieved by the Tribunal 6. Mr. Chatterjee contended that the assessee had claimed that an amount of Rs. 12, 000 sent to Indo-Europa Trading Company, Bombay, though sent in cash, was delivered by Patwardhan, the assessees cashier, and that the Tribunal should have examined Patwardhan as a witness. But no request was made by the assessee to examine Patwardhan. The assessee merely stated that the Tribunal " can call Patwardhan and " can question him ".. The assessee did not produce his books of account, not even his bank pass books. In connection with the remittance of Rs. 10, 000 and Rs. 12, 000 in the two years, no correspondence was produced by the assessee. The Tribunal, on a consideration of statements made by him, the other evidence, and his conduct, came to the conclusion that the visits of the assessee were in connection with his business, and not social visits as claimed by him. It cannot be said that the Tribunal recorded its conclusion on no evidence or on irrelevant considerations or acted on conjectures or surmisesWe are, therefore, unable to agree with the answer to the second question recorded by the High Court. The answer recorded by the High Court on the second question will be discharged and an answer in the affirmative will be recorded on that question 7. The third question has not been answered by the High Court, and it need not be answered by us. The scope of the question is, having regard to the order of the Tribunal, obscure. If the visit of an assessee to the taxable territory is occasional or casual, obviously he is not a resident. If the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in connection with his business may in certain circumstances be regarded as occasional or casual, we do not think it arises out of the order of the Tribunal and we do not propose to enter upon that enquiry. The third question does not arise out of the order of the Tribunal ; it does not relate to the facts of the case, and is again abstract and hypothetical

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

Explanation:
1[ds]The Tribunal, on a consideration of statements made by him, the other evidence, and his conduct, came to the conclusion that the visits of the assessee were in connection with his business, and not social visits as claimed by him. It cannot be said that the Tribunal recorded its conclusion on no evidence or on irrelevant considerations or acted on conjectures or surmisesWe are, therefore, unable to agree with the answer to the second question recorded by the High Court. The answer recorded by the High Court on the second question will be discharged and an answer in the affirmative will be recorded on that question7. The third question has not been answered by the High Court, and it need not be answered by us. The scope of the question is, having regard to the order of the Tribunal, obscure. If the visit of an assessee to the taxable territory is occasional or casual, obviously he is not a resident. If the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in connection with his business may in certain circumstances be regarded as occasional or casual, we do not think it arises out of the order of the Tribunal and we do not propose to enter upon that enquiry. The third question does not arise out of the order of the Tribunal ; it does not relate to the facts of the case, and is again abstract and hypothetical