B.K. Mehta, J.
1. The assessment years with which we are concerned in this reference are 1970-71 and 1972-73. The assessee, an individual, initially filed the return of his net wealth for the respective years showing the status as resident but not ordinarily resident. He also disclosed in his return that he was not a citizen of India. The WTO, however in advertently, adopted the status of the assessee as non-resident/not a citizen of India. As a consequence, he granted a rebate of wealth-tax at 50% of the total wealth-tax payable by the assessee in accordance with the provision contained in rule 3 of Part II of the Schedule appended to the W.T. Act. On realising his mistake, the WTO proceeded to rectify his orders by adopting the status of the assessee as a resident but not ordinarily resident. Before making the rectification orders for the respective years, the WTO issued a show-cause notice to the assessee who in his reply accepted the fact pertaining to his status that he was a resident but not ordinarily resident/not a citizen of India, and that he had no objection against the rectification in respect of his status by the WTO. He, however, resisted the attempt of the WTO to withdraw the rebate initially granted in respect of the wealth-tax payable by him for the respective years. This objection did not prevail with the WTO who ultimately by his order decided to withdraw the rebate granted.
2. In appeal, the AAC in his ex parte order upheld the decision of the WTO. The assessee, therefore, carried the matter in appeal before the Tribunal. Two contentions were urged before the Tribunal. Firstly, the admitted status of the assessee, namely, resident but not ordinarily resident was at par with that of non-resident and, therefore, the rebate which was granted by the WTO initially was justified. Secondly, it was contended that, in any case, it was a debatable question as to whether the WTO could withdraw the rebate once granted in spite of the assessee disclosing his status correctly. The Tribunal was not impressed with these contentions and, therefore, dismissed the appeal of the assessee and upheld the rectification orders. On the facts and in the circumstances, therefore, the assessee claimed for a reference of the following three questions of law to us for our opinion. It was granted by the Tribunal. The questions are as follows :
1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee who is not an ordinarily resident individual could not be treated equal to a non-resident
2. Whether, on the facts and in the circumstances of the case, the Tribunal correctly interpreted the provisions of rule 3 of the Part II of the Schedule appended to the Wealth-tax Act
3. Whether, on the facts and in the circumstances of the case, the question as regards status being a debatable one, the Tribunal was justified in upholding the orders of the lower authorities passed under section 35 of the Wealth-tax Act
3. The same contentions were urged before us by the learned advocate for the applicant. Firstly, he submitted that so far as rule 3 is concerned, there is no legislative dictionary as we find in s. 6 of the I.T. Act and, therefore, the wealth-tax authorities, and for that matter the Tribunal, could not have imported the legislative dictionary of the terms 'resident', 'non-resident' and 'resident but not ordinarily resident' as given in the I.T. Act for the purposes of the wealth-tax in cases other than those where such dictionaries are provided in the W.T. Act. In the alternative, the learned advocate submitted that in the absence of any legislative dictionary so far as rule 3 is concerned, the words, 'non-resident in India' which qualify him for rebate, if he is not a citizen of India, should be literally construed and, therefore, also the assessee who was not ordinarily resident in India should be treated as not resident in India and, admittedly, when he was not a citizen of India, he was satisfying both the conditions prescribed under rule 3 and, therefore, the WTO rightly granted the rebate which he could not have withdrawn. In any case, he urged, this question as to what is the correct status of the assessee for purposes of rule 3 is a debatable one and, therefore, the wealth-tax authorities could not have exercised the rectification jurisdiction under s. 35 of the W.T. Act.
4. For the reasons stated hereunder, we are unable to accept this reference. We are of the opinion that on the own showing of the assessee, the assessee is not entitled to assail this order of rectification. We have examined the question from both the aspects, namely, on assumption that there is a legislative dictionary for the words, 'resident', 'resident but not ordinarily resident' and 'non-resident', and also on the basis that there is no legislative dictionary. The reason for examining the question on the assumption that there is a legislative dictionary is that we have got to give some meaning to the word 'non-resident' in rule 3 and also because the assessee has claimed status as described in the I.T. Act. It is no doubt true that the Legislature has, in its infinite wisdom, provided a legislative dictionary for the deemed purposes under s. 5 as well as s. 6 of the I.T. Act. It is equally true that there is no definition of these terms in the W.T. Act, nor have we got any general clause in the definition section so as to indicate that the words and expression which are used in the W.T. Act, in the absence of their definitions, are to be construed and given the same meaning as given in the corresponding Act, namely, the I.T. Act. In spite of these infirmities, we are of the opinion that some meaning has got to be given to the word 'non-resident'. It is with that view to give some recognised meaning to the word 'non-resident', that we have proceeded on the assumption that there is legislative dictionary, namely, the same as we find in the I.T. Act, and also which have been appropriately adopted for purpose of ss. 5 and 6 of the W.T. Act. if the word, 'non-resident' has the same meaning as ascribed to it in the I.T. Act, the learned advocate for the assessee fairly conceded that the assessee is out of court. The term 'non-resident' has been defined as a person not resident in India, and includes resident but not ordinarily resident for the limited purpose of ss. 92, 93 and 168 of the I.T. Act, 1961. The learned advocate for the applicant was, therefore, right that if the dictionary meaning as given in the I.T. Act is adopted and applied so far as to clarify the import of the word 'non-resident' used in s. 3 of the Schedule appended to the W.T. Act, the assessee is not entitled to succeed. In the alternative, if there is no legislative dictionary so far as rule 3 is concerned, we have to continue the word 'non-resident' in rule 3 in its ordinary sense. Admittedly the applicant claims the status of resident but not ordinarily resident. If, therefore, the applicant claims the status of a resident, he cannot then be not resident in India provided the words, 'resident' and 'non-resident' are to be construed in the way in which they are understood in the popular sense. Either way, the applicant is not entitled to successfully claim the benefit of the rebate of 50% of the tax under rule 3. The learned advocate for the applicant, therefore, urged that in any case these are debatable questions and the wealth-tax authorities could not have invoked the rectification jurisdiction when the questions are highly debatable. We are afraid that this contention, though it appears to be attractive, is on close scrutiny not well-founded. The obvious reason is that the withdrawal of the rebate already granted is a consequence flowing from the admission about the status and it is common case that not only in the return filed by the assessee but in reply to the show cause notice issued by the WTO for purposes of the exercise of his rectification jurisdiction, the assessee clearly admitted and conceded that his status may be taken as resident but not ordinarily resident. If that is so, then this is merely a consequence and, therefore, we cannot agree with the learned advocate that the questions are debatable. For these reasons, we are of the opinion that the reference cannot be accepted and the questions referred to us should be answered in the affirmative, that is, in favour of the Revenue and against the assessee. However, having regard to the facts and circumstances of this case, there should be no order as to costs.