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Girdharlal Ghelabhai Vs. Commissioner of Income-tax, Gujarat - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtGujarat High Court
Decided On
Case NumberIncome-tax Reference No. 3 of 1961
Judge
Reported in(1964)0GLR31; [1964]53ITR23(Guj)
ActsIncome Tax Act, 1922 - Sections 17(1)
AppellantGirdharlal Ghelabhai
RespondentCommissioner of Income-tax, Gujarat
Appellant Advocate R.R. Raya, Adv.
Respondent Advocate J.M. Thakore, Adv.
Cases ReferredWallace Brothers and Co. Ltd. v. Commissioner of Income
Excerpt:
(i) direct taxation - assessment - sections 2 (11), 4a and 17 (1) of income tax act, 1922 - whether word 'year' in section 4a mean previous year as defined in section 2 (11) or financial year preceding assessment year irrespective of choice of determination of one or more previous years from different sources - word 'year' in section 4a (a) refers to previous year as defined in section 2 (11). (ii) residence - whether section 17 properly invoked and tax properly levied when assessee was non-resident within that provision to one source - section 17 (1) does not apply when assessee is resident in respect of some sources of income and is non-resident in respect of other sources of income. - - no part of a statute should be construed in isolation, for the intention of the law-maker is to.....bhagwati, j.1. two questions of law arise on this reference. one, which is relatively simple, raises the question as to whether an assessee can have two or more different statuses for the same assessment year. there are two decisions, one a decision of the privy council and the other a decision of the madras high court, which throw considerable light on this question and render it easy of solution. but the second question is one of some difficulty and no guidance to its solution is to be derived from any decided authority. that question turns on the true interpretation to be put upon the provisions of section 17(1) of the income-tax act, 1922. these questions which have been submitted to this court by the tribunal arise out of an assessment made on one girdharlal ghelabhai as an.....
Judgment:

Bhagwati, J.

1. Two questions of law arise on this reference. One, which is relatively simple, raises the question as to whether an assessee can have two or more different statuses for the same assessment year. There are two decisions, one a decision of the Privy Council and the other a decision of the Madras High Court, which throw considerable light on this question and render it easy of solution. But the second question is one of some difficulty and no guidance to its solution is to be derived from any decided authority. That question turns on the true interpretation to be put upon the provisions of section 17(1) of the Income-tax Act, 1922. These questions which have been submitted to this court by the tribunal arise out of an assessment made on one Girdharlal Ghelabhai as an individual for the assessment year 1956-57. The assessee had at the material time two sources of income namely, (1) property, and (2) business. The previous year in respect of the first source, namely, property, was the financial year ending 31st March, 1956, while in respect of the second source, namely, business, having regard to the accounting year adopted by the assessee for the maintenance of his accounts, the previous year was Samvat year 2011. The assessee left India on 12th August, 1954, and returned on 14th February, 1956, with the result that he was not in India at any time during the period covered by Samvat year 2011, namely 27th October, 1954, to 14th November, 1955, though during the period covered by the financial year ending 31st March, 1956, he was in India for a part of the period, namely 14th February, 1956, to 31st March, 1956. The assessee had maintained a dwelling house in India throughout the period of his absence but since he was not in India at any time during Samvat year 2011 he was treated as non-resident in Samvat year 2011 under section 4A(a)(ii) which was the relevant provision applicable to the case. In the financial year ending 31st March, 1956, however he was treated as resident under section 4A(a)(ii) since he was in India during a part of that year. The income from property for the financial year ending 31st March, 1956, which was the previous year in respect of the source, property, was computed at Rs. 490 while the income from business for Samvat year 2011, which was the previous year in respect of the source, business, was computed at Rs. 5,545. The total income assessable to tax was thus determined at Rs. 6,035. Since the assessee was not resident in Samvat year 2011 which was one of the previous years for the assessment year in question, the revenue authorities applied section 17(1) to the income from business in respect of which the assessee was treated as not resident and taxed it at the maximum rate. The result of the application of section 17(1) was that the tax charged on the assessee amounted to Rs. 2,567.80nP. where as if section 17(1) had not been applied, the tax charged would have come to only Rs. 253-13-3. To escape the application of section 17(1) the assessee urged two contentions before the revenue authorities. The first contention was that on a true construction of section 4A(a) the word 'year' in the section referred to a financial year and the tests of residence laid down in the section were, therefore to be applied with reference to a financial year and not with reference to a previous year, so that even though there might be for the same assessment year different previous years of an assessee in respect of his separate sources of income, an assessee could not have different statuses according to the different previous years but could have only one status according to the financial year and the financial year, according to the assessee, was the financial year immediately preceding the assessment year. This contention was advanced obviously because if it were correct, the assessee in the present case would be a resident and in that event section 17(1) admittedly would not apply. The second contention which was urged in the alternative was that even if the tests laid down in section 17(1) admittedly would not apply. The tests laid down in section 4A(a) were to be applied with reference to each different previous years which an assessee may have in respect of his seperate sources of income and an assesse cou ld, therefore, have different statuses for the same assessment year according to the application of the tests with reference to different previous years, section 17(1) could not be attracted unless an assessee was non-resident in all the different previous years corresponding to the assessment year, that is, in respect of all sources of income. It was contended on behalf of the assessee that since in the present case he was nom-resident in both the previous years but was resident in one of the two previous years, namely the financial year ending 31st March, 1956, section 17(1) did not apply and he was not liable to be taxed on his business income at the rates specified in that section. Both these contentions were rejected by the revenue authorities and on the matter being carried in appeal to the Tribunal, the Tribunal also negatived these contention. The assessee thereupon asked the Tribunal to state a case and to refer to this court the question of law arising out of its order under section 66(1) and the question of law namely :

(1) Whether the word 'year' in section 4A is to be understood as meaning (a) the previous year as defined in section 2(11) or (b) the financial year preceding the assessment year irrespective of the choice of determination of one or more previous years for different sources and

(2) Whether, if the 'year' is to be understood as 'previous year' defined in section 2(11), section 17 was properly invoked and the tax properly levied in this case in accordance with that provision when the assessee was 'non-resident' within that provision to one source ?'

2. were accordingly referred to this court by the Tribunal for decision.

3. The answer to the first question turns primarily on the interpretation to be put upon the provisions of section 4A(a) but it is a trite saying that no section can be read in isolation. When construing the terms of any provisions found in a statue, the court is bound to consider other parts of the statue which throw light on the intention of the legislature and serve to show that the particular provision ought not to be considered as it would be alone and apart from the rest of the statute. Every clause of a statute should be considered with reference to the context and other clauses in the statute so as, as for as possible to make a consistent enactment of the whole statute. No part of a statute should be construed in isolation, for the intention of the law-maker is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by statute but in connection with its whole context. It is, therefore, necessary to refer to some other sections of the Act for the purpose of determining what is the meaning which must be put upon the word 'year' occurring in section 4A(a).

4. Section 3 is the charging section and it imposes tax for each assessment year at the rate or rates prescribed in the Finance Act for the time being in force and such tax is charged on 'the total income of the previous year'. 'Previous year' as defined in section 2(11) may be either the financial year immediately preceding the assessment year or, at the option of the assessee, any other period of twelve months ending with such year for which he has made up his accounts. It was at one time held by the High Court of Bombay in Commissioner of Income-tax v. Abubaker Abdul Rehman on a construction of section 2(11) as it stood prior to its amendment in 1939, that an assessee could not have two different previous years for the same assessment year but that view was altered by the amendment effected by the Income-tax (Amendment) Act, 1939, and it is now possible for an assessee to have different previous year for each separate source of income. The language of the opening part of section 2(11) clearly shows that 'previous year' is defined in reference to each separate source of income and consequently there can be different previous years for separate source of income and consequently there can be different previous years for separate sources of income. This position is very clear and in fact it was not disputed on behalf of the assessee. 'Total income' is defined in section 2(15) to mean total amount of income, profits and gains referred to in section 4(1) computed in the manner laid down in the Act. Section 4(1) prescribes the ambit of taxation and lays down what is the total income of the previous year of any person which, subject to the other provisions of the Act, is chargeable to tax under section 3. It defines the extent of the total income with reference to the residence of the assessee. All assessees are divided into three categories : (a) resident and ordinarily resident; (b) resident but not ordinarily resident; and (c) not resident and the computation of the total income chargeable to tax is made dependent on a basis which differs according as the assessee belongs to one or the other of these three categories during the previous year for which the income falls to be assessed. If the assessee is resident and ordinarily resident during the previous year, all income accruing, arising or received or deemed to accrue, arise or be received in the taxable territories is liable to be taken into account in the computation of his total income. If the assessee is resident but not ordinarily resident during the previous year, his total income is liable to be computed in the same manner as in the case of an assessee resident and ordinarily resident with this difference that income accruing or arising without the taxable territories is not to be taken into account unless it is derived from a business controlled in or a profession or vocation set up in India or unless it is brought into or received in the taxable territories by the assessee. If the assessee is not resident during the previous year, his total income will comprise only income which accrues or arises or is deemeed to accrue or arise in the taxable territories or is received or deemed to be received in the taxable territories by or on his behalf. Since the computation of the total income of the previous year of an assessee depends on the factor of residence, the first inquiry that requires to be made in every case is as to the residential qualification of the assessee in the previous year of which the total income is to be computed. The tests of residence are to be found in section 4A. We are concerned in this reference only with the provisions of section 4A.

5. Turning to section 4A, we find that four alternative tests are provided for individuals, two for companies and one for Hindu undivided families firms and other associations of persons. As the very opening part of the section shows, these tests are provided for determining the residence of assessee for the purpose of the Act. The assessee before us is an individual and we need, therefore, concern ourselves only with section 4A(a) which lays down the tests for determining the residence of an individual. According to section 4A(a), for the purpose of the Act, an individual is resident in the taxable territories in any year if he satisfies any of the four tests specified in the section with the reference to that year. The plain and natural meaning of these words is that whenever it is necessary to determine for the purpose of the Act whether an assessee is resident within the taxable territories in any year, the tests set out in section 4A(a) must be applied with reference to the year in respect of which the question arises and if any one of those tests is satisfied, the assessee would be resident in the taxable territories in such year. Now, as we have pointed out above, the concept of residence in any particular year becomes relevant when we consider the provisions of section 4(1) since the computation of total income of any previous year of an assessee under section 4(1) depends on the question whether the assessee was resident or not resident in the taxable territories during such previous year. It is in reference to the previous year the total income of which is to be computed, that it is required to be determined for the purpose of the application of section 4(1) whether an assessee is resident or not resident and it is therefore, obvious that the tests laid down in section 4A(a) for the purpose of determining the residence of an assessee must be applied with reference to the previous year. The total income of the previous year of an assessee chargeable to tax is to be computed under section 4(1) and this computation is dependent on the question whether the assessee is resident or not resident in the previous year and when this question is to be determined, namely, whether the assessee is resident or not resident in the previous year for the purpose of section 4(1) the tests laid down in section 4A(a) must be applied and the application of these tests must obviously be with reference to the previous year. It was contended by Mr. Raya on behalf of the assessee that if we place this construction upon section 4A(a) the expression 'year' occruing in that section would be equated with the expression 'previous year' and that would not be a proper construction to make since if the legislature wanted to refer to the previous year, the legislature could have very well used the expression 'previous year' but instead the legislature had used the expression 'year'. The expression 'year' in a fiscal statute, argued Mr. Raya, could according to its plain and natural meaning, mean only a fiscal year and a fiscal year was nothing else but a financial year. This was the line of reasoning by which Mr. Raya sought to bring in the financial year in the interpretation of section 4A(a). We are afraid we cannot accept this contention. The expressions 'year' in section 4A(a)does not appear to us to have been used to de note any particular period of twelve months computed in any particular manner. All that is intended to be conveyed by using this expression in section 4A(a) is that whenever a question arises for the purpose of the Act whether an assessee is resident in the taxable territories in any period of twelve months, the tests laid down in the section must be applied with reference to such period and the question must bed determined on the application of such tests. The previous year comes in not by reason of any interpretation which we put upon the expressions 'year' in section 4A(a) but by reason of the scheme of taxation embodied in the Act and particularly section 4(1) which deal with the computation of total income of the previous year. In the this view which we take, we are supported by the high authority of the decision of the of the decision of the Privy Council in Wallace Brothers and Co. Ltd. v. Commissioner of Income-tax. It is true that in that case the assessee was a company and the Privy Council was, therefore, concerned with section 4A(c) which defines residence of a company but the scheme underlying the definition of residence is the same in section 4A(c) as in section 4A(a) (merely the tests being different by reason of the assessee in one case being a company and in the other case an individual) and the construction put by the Privy Council on the expression 'year ' in section 4A(a) must also govern the interpretation of the depression 'year' in section 4A(a). The expression 'year' in section 4A(c) was understood by the Privy Council to refer the previous year of the assessee company. This is what Lord Uthwatt, delivering the judgment of the Privy Council, observed in that connection :

'Second, the rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by variety of the charging section alone and it arises not later than the close of the previous year though quantification of the amount payable is postponed. The fact of residence or a non-residence of a company as gathered from the application of the statutory test has become established, though not formally ascertained, at the close of the previous year. The legislation, therefore, purports to tax a company, which when the liability arose, satisfied one or other of the conditions set forth in the definition of residence...

It is sufficient to come to the conclusion that a company satisfying the statutory test is a person within the territory of British India so far as concerns taxes on its income accruing during the period when the test is satisfied.'

6. It is clear form these observations that the Privy Council took the view that the expression 'year' in section 4A(c) referred to the previous year and that the tests of residence were to be applied with reference to the previous year and of that be so, the expression 'year' in section 4A(a) must equally in the context refer to the previous year for which the question of residence of the assessee is required to be determined under the Act and the tests of residence laid down in the section must be applied with reference to the previous year.

7. Once we reach the position that the tests laid down in section 4A(a) have to be applied with reference to the previous year of which the total income is to be computed under section 4(1), the conclusion is almost inescapable that there can be different statuses of an assessee for the same assessment year. We have already pointed out that for the same assessment year there can be different previous year in respect of separate sources of income. If there can be different previous years, that total income of each previous year derived from the sources of which such year is the previous year would have to be computed under section 4(1) and for such computation it would have to be determined by that application of the tests laid down in section 4A(a) would have, therefore, to be applied in respect of each different previous year. It may be that on an application of the tests laid down in section 4A(a) to one previous year, the assessee may be found to be resident while on the application of the tests with reference to another previous year, the assessee may be found to be found to be resident. Such a contingency may well happen and in fact it has happened in the present case. It is, therefore, quite possible that an assessee may have different statuses in different previous years though the assessment year may be the same. We find that this views which we are taking has also been taken by a Division Bench of the Madras High Court in commissioner of Income-tax v. V. E. K. R. Savumiamurthy. Though that case related to the construction of section 4B, the reasoning of that decision applies equally to the construction of section 4A(a) and supports us in our conclusion that there may be different statuses in which an assessee may be liable to be assessed for the same assessment year depending on the previous year adopted by him for his separate sources of income. It may appear a little anomalous that one and the same person should be liable to assessment as resident in respect of some sources of income and as not resident in respect of others according to the previous year he has adopted for the respective sources but once it is accepted that the question of residence has to be determined with reference to the previous year and there can be different previous years in respect of separate sources of income for the same assessment year, the anomaly becomes more apparent than real, and besides, such anomaly would, to use the words of Patanjali Sastri J. (as he then was) in the Madras case, be 'no reason for disregarding a construction to which the language of the provisions in question plainly points.'

8. That takes us to the next question, namely, what is the true interpretation of section 17(1). Section 17(1) in so far as it is material is in the following terms.

'17, Determination of tax payable in certain special cases. - (i) Where a person is not resident in the taxable territories and is not a company, the tax, including super-tax payable be him or on his behalf on his total income shall be an amount equal to...

(a) the income-tax which would be payable on his total income at the maximum rate, plus -

(b) either the super-tax which would be payable on his total income at the rate of nineteen per cent. or the super-tax which would be payable on his total income if it were the total income of a person resident in the taxable territories, whichever is greater :

Provided that any such person may, on the first occasion on which he is assessable for any year subsequent to the year ending on the 31st day of March, 1951, and before the 30th day of June, in that year, or where the first occasion on which he is so assessable falls during the year ending on the 31st day of March, 1952, before such date as the Central Board of Revenue may, by notification in the Officer Gazette, specify in this behalf, by notice in writing to the Income-tax Officer declare (such declaration being final and being applicable to all assessments thereafter) that the tax, including super-tax payable by him or on his behalf on his total income shall be determined with reference to his total world income, and thereupon such tax shall be an amount bearing to the total amount of tax including super-tax which would have been payable on his total world income had it been his total income the same proportion as his total income bears to his total world income.'

9. The section obviously prescribes a higher rate of taxation in the case of an assessee other than a company who is not resident in the taxable territories. The section enacts that if an assessee other than a company is not resident in the taxable territories, the tax, including super-tax payable by him of on his behalf on his total income shall be an amount equal to the income-tax which could be payable on his total income at the rate of nineteen per cent. or the super-tax which would be payable on his total income if it were the total income of a person resident in the taxable territories, which ever is greater. The contention urged on behalf of the assessee by Mr. Raya was that the condition precedent to the applicability of the section was that an assessee should be not resident in the taxable territories and if an assessee was resident in the taxable territories even in respect of one source of income, he could not be said to be not resident in the taxable territories within the meaning of the section and in such a case the section could not apply so as to impose upon him tax liability at a higher rate than that ordinarily provided under the Finance Act under which an assessee would get the benefit of the slab system and the initial margin of exemption. The learned Advocate-General appearing on behalf of the revenue however contended that section applied where an assessee was not resident in the taxable territories in respect of any source of income and that it was not necessary to attract the applicability of the section, that the assessee should be not resident in the taxable territories in respect of any source of income. If, argued the learned Advocate-General, an assessee was not resident in the taxable territories in respect of any source of income, as in the present case, it was sufficient to bring the section into play even if the assessee was resident in respect of other sources of income. These were the rival constructions which were urged upon us and we have to decide as to which of these two constructions should be accepted by us as the correct construction.

10. Before we embark upon a discussion of the interpretation of section 17(1), we may clear the ground by pointing out that in regard to the expression 'total income' occurring in the section, the learned Advocate-General, with the candour which we expect of him and which we always find with him, frankly conceded and in our opinion rightly that this expression, defined as it was in section 2(15), comprehended the total income of all previous years from different sources in respect of the assessment year for which the assessee was being assessed, that is to say, the total income of the assessee chargeable to tax and could not be given a limited meaning so as to refer only to the total income of the particular previous year in which the assessee was not resident. But if that be the true meaning of the expression 'total income' occurring in section 17(1), the construction contended for by the learned Advocate-General would involve this result, namely, that even if an assessee was not resident in the taxable territories only in respect of some source or sources of income and was resident in the taxable territories in respect of other sources of income, he would be liable to be charged to tax at the higher rate provided in section 17(1) not only on his total income as a non-resident but also in his total income as a resident, since the total income liable to bear the higher rate of tax under that section would be the total income of the assessee from all sources whether as a resident or as a non-resident. The consequence which would arise from this interpretation would be that if an assessee had some income as a nonresident, not only his income as a non-resident but also his income as a resident would be liable to be taxed at the higher rate even though his income as a non-resident might be very small compared to his income as a resident. The learned Advocate-General agreed that such would be the consequence, but he pointed out that as a matter of practice in such cases the department was not taxing at the higher rare provided in section 17(1) the total income of the assessee chargeable to tax but only the income of the assessee as a non-resident. The practice followed by the department cannot, however, make the law. We have to determine the true interpretation of section 17(1) irrespective of any practice which may be followed by the department and quite uninfluenced by any such practice. If on a true construction section 17(1) yields one and only one meaning, namely, that contended for by the learned Advocate-General, we must place that meaning upon the section even if or produces hardship on the assessee. If the meaning of legislative provision interpreted according to the recognised canons of construction is reasonably clear, then even if it involves harsh consequences, we have no jurisdiction to mitigate such harshness. The assessee in such a case cannot complain to us; his remedy would lie elsewhere. But the question is, does section 17(1) on a plain grammatical construction involve this result We would certainly be disinclined to put a construction which would lead to this result unless, of course, as already pointed out by us, the language of the section is such that it must necessarily bear that construction and no other. We are of the view that the construction suggested by the learned Advocate-General far from being the only construction which can be placed upon the section is not even a construction which the language of the section can reasonably bear. The section on its plain terms applies where a person is not resident in the taxable territories. Can an assessee who has different previous years in respect of separate sources of income and who is resident in the taxable territories in one of such previous years be said to be not resident in the taxable territories in one of such previous years be said to be not resident in the taxable territories in one of such previous years be said to be not resident in the taxable territories in one of such the meaning of the section for the purpose of his assessment for the particular assessment year The assessment year being one and single, can it be said while making the assessment for the assessment year that an assessee who is in fact resident in the taxable territories in respect of at least a portion of his income is not resident in the taxable territories The section according to its plain and natural meaning applies only to a case where an assessee is not resident in the taxable territories in respect of all sources of income so that it fan be said of him when making the assessment for the assessment year that he is not resident in the taxable territories. So long as an assessee is resident in the taxable territories in respect source of income, it would be inappropriate to describe him as not resident in those taxable territories generally without any limitation as to source of income which is the only sense in which an assessee must be non-resident in the taxable territories in order to attract the applicability of the section. The legislative intent is very clear and it is that where an assessee is not resident in the taxable territories in respect of all sources of income in a particular assessment year so that his total income chargeable to tax for that assessment year is derived wholly as a non-resident, he shall be liable to pay tax on such total income at the higher rate of taxation provided in the section. This construction would render the higher rate of taxation provided in the section applicable only to income derived by an assessee as a non-resident and would not subject the income derived by him as a resident to such higher rate of taxation which the contended for by the learned Advocate-General would have the effect of doing. But apart from this consideration, there is one other consideration which also throws some light on the intention of the legislature and inclines us to this view. The section provides that where a person is not resident in the taxable territories, the super-tax payable by him or on his behalf on his total income shall be an amount equal to the super-tax which would be payable on his total income at the rate of nineteen per cent. or the super-tax which would be payable on his total income if it were the total income of a parson resident in the taxable territories, whichever is greater. This provision contrasts the total income of a person not resident in the taxable territories with the total income of a person resident in the taxable territories. Now if a person is resident in the taxable territories in respect of some sources of income and not resident in the taxable territories in respect of other sources of income for a particular assessment year, how would his total income for that assessment year be described : would his total income be the total income of a resident or the total income of a non-resident We are afraid neither of these statements would be correct. His total income in such a case would be partly that of a resident and partly that of a non-resident. How can the above provision apply to such a case If his total income in such a case can be said to be that of a non-resident, it can equally be said to be that of a resident and if that be so, on which side of the dividing line drawn by this provision would his case fall Does this provision not clearly indicate that the total income chargeable to tax at the higher rate provided in the section is that total income of a non-resident and in such a case the super-tax is to be computed by taking the higher of the two figures, namely, the super-tax which would be payable on such total income at the flat rate of nineteen per cent. or the super-tax which would be payable if such total income were the total income of a resident The learned Advocate-General, however contended that the effect of accepting this construction would be that an assessee who is not resident in the taxable territories in respect of a particular source or sources of income would be at an advantage as against his counterpart, namely, an assessed resident in the taxable territories in respect of all sources of income, for the income accruing or arising to the former without the taxable territories from sources in respect of which he is not resident would not come within the ambit of taxation whereas in the case of the latter, income from all sources would come within the ambit of taxation and yet the rates applicable to both would be the same. This, however, is not such a startling result as would make us pause to considered whether we should refuse to place upon the section a construction which the language according to its natural and ordinary sense reasonably yields. Moreover, this result does not appear to us to be at all anomalous, but even if it were, it would certainly be less anomalous than the result which would arise if the construction contended for by the learned Advocate-General were accepted, for in that case an assessee who is not resident in the taxable territories even in respect of one source of income would be subject to the higher rate of taxation on his total income including his income as a resident. We are, therefore of the view that section 17(1) applies only when an assessee is non-resident in the taxable territories in respect of all sources of income and there is no source of income in respect of which he is resident in the taxable territories. This, in our opinion, is the true construction of section 17(1), but we may point out that even if the other construction were possible, namely, that when an assessee is not resident in the taxable territories in respect of any source or sources of income it can said that he is not resident in the taxable territories despite the fact that he may be resident in the taxable territories in respect of the other sources of income, we should still be inclined to take the view which we are taking since it is a well settle

d rule in construction of taxation statutes that where there is doubt as to construction, such doubt must be resolved in assessee. Even if it is possible to look at the section in two ways, we should prefer that way which is more beneficial to the assessee rather than the way which leads to the imposition of a greater burden on the assessee. In this view of the matter we are of the opinion that section 17(1) only where a person is not resident in the taxable territories in respect of all sources of income and has no application in a case where a person is resident in the taxable territories in respect of some source or sources of income and is not resident in the taxable territories in respect of others.

11. In the circumstances our answer to the first question is that the word 'year' in section 4A(a) in the context refers to the 'previous year ' as defined in section 2(11) and our answer to the second question is that section 17(1) does not apply when the assessee is a resident in respect of some source or sources of income of income and is a non-resident only in respect of other sources of income. The Commissioner will pay 2/3rds of the costs of the reference to the assessee.


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