on the basis of the material companylected 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 numberhing 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 numberenumbergh materials to say that there was a residence either run or maintained by the assessee in india.
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 number had maintained for him a dwelling place in the taxable territories and therefore s. 4a a ii of the act was inapplicable.
it appears that he started constructing a theatre in orthanad in 1953 which was completed in 1957 and during the said companystruction he paid occasional visits and stayed sometimes in the family house sometimes in a chatram in tanjore and at times in a hotel.
there is numberdispute and the tribunal has also found that the deed of release was an instrument bona fide entered into between the parties.
in the remand proceedings oral evidence was recorded by examining the assessee and two others and the final report was forwarded to the tribunal.
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 number have an effective opportunity to meet the aspect raised for the first time before the appellate assistant companymissioner.
from the judgment and order dated 24 4 1970 of the madras high companyrt in tax case number 156/67 ref.
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.
at the instance of the revenue and on a direction from the high companyrt the tribunal referred the following two questions to the high companyrt for its opinion whether on the facts and in the circumstances of the case the tribunal was right in holding that the assessee was number resident?
born and brought up in ceylon the assessee had his own business and properties in ceylon.
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 number resident in all the years.
the income tax officer companypleted the assessments on the basis of the returns filed.
admittedly the assessee never enjoyed any portion of the family income.
civil appellate jurisdiction civil appeal number.
the status declared in all the returns was that he was a resident and ordinarily resident person.
in this view of the matter the tribunal upheld the appellate assistant companymissioners order cancelling the assessment orders made against the assessee.
he also initiated penalty proceedings against the assessee under s. 28 1 a for number filing the returns in time and levied penalties on him.
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 partys 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.
a. ramachandran amicus curiae for the respondent.
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 s. 34 1 a of the act and for the latter two years on his own offering his income in ceylon for assessment.
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 number companye 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.
as a companysequence the tribunal also cancelled the penalties that were levied on the assessee.
2007 2014 of 1972.
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 judgment of the companyrt was delivered by tulzapurkar j. these appeals by certificates under s. 66a 2 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 s. 4a a ii of the act for the companycerned assessment years?
number 54/67 .
t. desai s. p. nayar and miss a. subhashini for the appellant.
he had eight children all born and educated in ceylon.
the family properties were managed by ganesa and were maintained by him out of the agricultural and rental income.
