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

1. In 1936 the assessee, B. K. Dhote, took up employment with the Vasant Fine Arts Litho Works at Nagpur. In November, 1943, the assessee migrated to the territory of H. E. H. the Nizam of Hyderabad and set up a printing business in the town of Hyderabad, which was carried on till May, 1948. He submitted a voluntary return of income for the assessment year6 before the Thirdx Officer,, Bombay, on January 30, 1951. Thex Officer accepted the claim of the assessee that he was at during the previous year relevant to the assessment year6 and assessed him accordingly. In November, 1951, the assessee commenced trading in Calcutta in the Province of West Bengal. The assessee was assessed as resident and ordinarily resident in British India by thex Officer,District II(2), Calcutta, under section 23(4) read with section 34 for the assessment year, and under section 23(3) read with section 34 for the assessment year7 in respect of his business income for the relevant previous years. The Appellate Assistant Commissioner reversed the orders passed by thex Officer Thex Officer appealed to thex Appellate Tribunal. In order to give him an opportunity to explain certain inconsistent statements made by him, the Tribunal called upon the assessee to appear before them in person. The Tribunal recorded the statement of the assessee. The Tribunal was of the view that the assessees statements were " discrepant and highly contradictory " and no reliance could be placed on his version about the reasons for his visits to British India during the two previous years. On a consideration of the evidence in the light of his statement made before them, the Tribunal held that the assessee failed to prove that his visits to British India in the previous two years were occasional or casual. The Tribunal accordingly reversed the order passed by the Appellate Assistant Commissioner and restored the order of thex Officer assessing the assessee as resident and ordinarily resident in British IndiaThe Tribunal drew up a statement of the case and submitted the following questions for the opinion of the High Court:" (1) Whether the Tribunals order is vitiated in law by the Tribunal casting the onus on the assessee to prove that he did not satisfy the requirements of section 4(a) of thex Act, instead of casting the onus on the department to prove that every essential ingredient to make the assessee resident was satisfied in the present case ?(2) Is there any evidence and/or material upon which the Tribunal could hold that the assessee was a resident in British India during the relevant previous year?(3) Does an occasional or casual visit in connection with the assessees business make the assessee resident within the purview of section 4A(a)(iii) ? "The High Court recorded answers to the first two questions in the negative, and declined to answer the third question. The Commissioner ofx has appealed against the decision of the High Court on the second question. There is no appeal before us by the assessee against the answer to the first question

Court's reasoning:
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