COMMISSIONER OF INCOME-TAX VS P. GANGADHARAN
2001 P T D 97
[238 I T R 945]
[Kerala High Court (India).]
Before Om Prakash, C. J. and J. B. Koshy, J
COMMISSIONER OF INCOME‑TAX
versus
P. GANGADHARAN
I.T.R. Nos.68 of 1994 and 55 of 1996, decided on 31/07/1998.
Income‑tax‑‑
‑‑‑‑Non‑resident‑‑‑Test of residence‑‑‑Maintenance of dwelling house in India for 182 days in relevant previous year ‑‑‑Assessee, member of HUF, which owned a house in India‑‑‑Though assessee might have a share in house, no evidence to indicate that Karta of family maintained house for benefit or at behest of assessee as dwelling place in India for 182 days in relevant previous year ‑‑‑Assessee not resident in India and could not be subjected to assessment‑‑‑Indian Income Tax Act, 1961, S.6(1)(b).
Section 6(1)(b) of the Income Tax Act, 1961, states that an individual can be said to be resident in India in any previous year, if he maintains or causes to be maintained for him a dwelling place in India for a period or periods amounting in all to one hundred and eighty‑two days or more in that year. Therefore, to contend that the assessee was resident in India in the previous year, relevant to the assessment year 1980‑81, the Revenue must establish two things concomitantly: (1) that the assessee maintained or caused to be maintained for him a dwelling place in India for 182 days or more in that year; and (2) that the assessee has been in India for 30 days or more in the relevant previous year. Both the conditions are to be established concomitantly and not alternatively.
The assessee was a member of a Hindu undivided family which owned a house in India. In that house the family of the assessee also stayed. The question arose whether in the house belonging to the coparcenary of the assessee and the same being maintained by the corparcenary, a portion of that house, if notionally partitioned, could be said to have been maintained or caused to be maintained by the assessee or for him as a dwelling place in India for 182 days in the relevant previous year:
Held, that there was nothing on record to indicate that the Karta of the family maintained the house for the benefit or at the instance of the assessee. The house belonged to the Hindu undivided family. The assessee might have a share in the said house, but the fact was that neither the house was maintained by the assessee nor was the house maintained by the Karta at the behest of the assessee, and therefore, the requirements of section 6(1)(b) had not been fulfilled. Therefore, the assessee was not resident in India in the previous year relevant to the assessment year 1980‑81 and he could not be subjected to an assessment.
CIT v. K.S. Ramaswamy (1980) 122 ITR 217 (SC) fol.
Ramjibhai Hansjibhai Patel v. ITO (1964) 53 ITR 547 (Guj,) ref,
P.K.R. Menon and N.R.K. Nair for the Commissioner.
K.M.V. Pandalai for the Assessee.
JUDGMENT
OM PRAKASH, C.J.‑‑‑Heard counsel for the parties
The Income‑tax Appellate Tribunal referred the following questions Nos. l, 2 and 3 under section 256(1) of the Income Tax Act, 1961, and question No.4 under section 256(2) of the Income‑tax Act, relating to the assessment year 1980‑81 for the opinion of this Court:
"(1) Whether, on the facts and in the circumstances of the case and also in view of the fact that the assessee's family was residing in the house at Ottapalam and the house was maintained/being maintained by his family (as good as by him) as his house, the tribunal is right in law and fact in holding that "a house at Ottapalam in which he had rights as a coparcener and his family was residing therein cannot be a ground for treating the assessee as a resident?
(2) Whether, on the facts and in the circumstances of the case and also in view of the fact that the house was being maintained by his family members who were residing therein, the Tribunal is right in law in holding that though the assessee had a share in the residential house as a result of notional partition by operation of law pursuant to the abolition of Hindu joint family system in Kerala, it does not mean that the assessee was maintaining a house for purpose of his residence and is not the finding wrong in law and fact?
(3) Whether, on the facts and in the circumstances of the case and according to the salary certificate the assessee was paid remuneration of Rs.90,229 the Tribunal is right in holding that the said sum of Rs.90,229 is not taxable?
(4) Whether, on the facts and in the circumstances of the case is not the submission, 'the employer had given some loans' a make believe, fictitious, calculated, and the acceptance of the submission by the Tribunal wrong and against common sense (since the amount of Rs.34,127 being too low for the job) and unsupported by materials?"
First, we take up question No. l for consideration. The question for consideration is whether the assessee is a resident in India within the meaning of the Income Tax Act, 1961 (briefly "the Act"). The contention of the Revenue, based on section 6(1)(b) of the Act is that the assessee is a resident in India. Section 6(1)(b) read properly states that an individual can be said to be a resident in India in any previous year, if he maintains or causes to be maintained for him a dwelling place in India for a period or periods amounting in all to one hundred and eighty‑two days or more in that year. Therefore, to contend that the assessee was resident in India in the previous year, relevant to the assessment year 1980‑81, the Revenue must establish two things concomitantly: (1) that the assessee maintained or caused to be maintained for him a dwelling place in India for 182 days or more in that year; and (2) that the assessee has been in India for 30 days or more in the relevant previous year. Both the conditions are to be established concomitantly not alternatively. Admittedly, the assessee lived in India only for 75 days. It means, to satisfy condition No.2, he lived for more than 30 days in India. But the question is whether the Revenue has established that the assessee‑maintained or caused to be maintained for him a dwelling place in India for 182 days in the relevant previous year.
The facts are that the assessee is a member of a Hindu undivided family (HUF), which owns a house in India. In that house, the family of the assessee also stayed. The question is: Whether in the house, belonging to the coparcenary of the assessee and the same being maintained by the coparcenary, a portion of that house, if notionally partitioned, can be said to have been maintained or caused to be maintained by the assessee or for him. A similar question came up for decision before the Supreme Court in CIT v. K. S. Rathnawamy (1980) 122 ITR 217. In that case, the respondent, an individual, was a member of a Hindu undivided family, which owned an ancestral house in Tanjore District. The members of the family of the respondent used the ancestral house as their dwelling place. The karta of the Hindu undivided family maintained the Hindu undivided family's house. The respondent paid occasional visits in India and stayed sometimes in the ancestral house and sometimes elsewhere. On these facts, the Supreme Court held that to fulfil the requirement of section 4A(a)(ii) of the Indian Income -tax Act, 1922, analogous to section 6(1)(b) of the Act, not only must there be a dwelling place in which the assessee had a right to live, but he must maintain it as his home or he must have it maintained for him as his home. The Court continued to say that though the respondent could be said to have had s share in the joint family house with a consequent right to occupy it, it could not be said that the family house was maintained by the karta as a dwelling house for the respondent or for his benefit; nor was it maintained by the Karta at the instance of the respondent, and, therefore, the respondent was rightly held to be a non‑resident. No better is the position of the assessee herein. There is nothing on record to indicate that the karta of the family maintained the house for the benefit or at the instance of the assessee. The house belonged to the Hindu undivided family. The assessee may have a share in the said house, but the fact is that neither was the house maintained by the asses see nor was that maintained by the karta at the behest of the assessee and, therefore, the requirements of section 6(1)(b) of the Act have not been fulfilled.
A contrary view was taken in Ramjibhai Hansjibhai Patal v. ITO (1964) 53 ITR 547 (Guj. ), which was referred to by the Supreme Court in the case of Ratnaswamy (1980) 122 ITR 217 and was distinguished. The decision of the Supreme Court in Ratnaswamy's case (1980) 122 ITR 217 being direct on the fact situation we are concerned with, we hold that no reliance can be placed on Ramjibhai Hansjibahi Patel's case (1964) 53 ITR 547 (Guj.).
For the reasons, we agree with the view taken by the Appellate Tribunal that the assessee was not resident in India in the previous year, relevant to the assessment year 1980‑81, and, therefore, he could not be subjected to an assessment.
We, therefore, answer question No. l in the affirmative, that is, in favour of the assessee and against the Revenue. In view of the answer of question No. 1, it is not necessary to answer the remaining questions, and, therefore, the remaining questions are returned unanswered.
M.B.A./175/FC
Reference answered.