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The Commissioner of Income-tax Vs. V.S.K.S. Somasundaram Chettiar - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai
Decided On
Reported inAIR1932Mad435; (1932)63MLJ22
AppellantThe Commissioner of Income-tax
RespondentV.S.K.S. Somasundaram Chettiar
Cases ReferredCommissioners of Inland Revenue v. Lysaght
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. .....j.1. the facts out of which this reference arises may be shortly stated as follows : a hindu joint family consisting of the father and manager v.s.k.s. soma-sundaram chetty and his son has been assessed under section 3 of the act. the permanent home of the family is lakshmipuram in the pudukottah state where it has a money-lending-business. it also carries on piccegoods businesses at madras and madura in british india and a money-lending business at taiping in the federated malay states. it is also a partner in a money-lending business at klangin the federated malay states and in a piecegoods business at kumbakonam; and apparently it has some money-lending business in colombo. in the year of account 1928-29 it has been found that the assessees received in british india on various.....
Judgment:

Ramesam, J.

1. The facts out of which this reference arises may be shortly stated as follows : A Hindu joint family consisting of the father and manager V.S.K.S. Soma-sundaram Chetty and his son has been assessed under Section 3 of the Act. The permanent home of the family is Lakshmipuram in the Pudukottah State where it has a money-lending-business. It also carries on piccegoods businesses at Madras and Madura in British India and a money-lending business at Taiping in the Federated Malay States. It is also a partner in a money-lending business at Klangin the Federated Malay States and in a piecegoods business at Kumbakonam; and apparently it has some money-lending business in Colombo. In the year of account 1928-29 it has been found that the assessees received in British India on various dates sums of money aggregating to Rs. 40,000 from the foreign businesses at Taiping, Klang and from the customers in Colombo. The Income-tax Officer sought to assess the joint family in respect of the foreign remittances on the ground that it was resident in British India. It was contended for the assessees that the family was not resident in British India; and the Commissioner of Income-tax has referred the following questions to its, viz.:

(1) Whether the decision in Commissioner of Income-tax v. T.S. Firm (1927) I.L.R. 50 M. 847 : 53 M.L.J. 249 (F.B.) as regards residence is applicable only to cases of partnership and not to cases of joint undivided Hindu family business and whether that decision does not apply to the facts of the present case.

(2) Whether there is legal evidence in support of the finding of the Income-tax Officer that the joint family firm has its residence in Madura within British India.

2. Taking the first question, the essential point in this case is that the business carried on by the joint family is a Hindu joint family business. There is no partnership in this case constituted under the law of partnership. Now a Hindu joint family may have no income arising from a family business but only arising out of interest on securities or property or professional earnings or other sources, that is to say, any of the headings mentioned in Section 6 of the Act. The fact that in this case it happens to be a trading family is a mere accident. The question as to what is the residence of a joint family cannot depend upon the nature of income it gets. It cannot be that the test of residence should be one thing if it is a trading family and the test of residence some other tiling if it gets income from securities, property or other sources. Thus, obviously, to liken a Hindu joint family to a firm or a company will lead to anomalous conclusions. In Commissioner of Income-tax v. T.S. Firm (1927) I.L.R. 50 Mad. 847 : 53 M.L.J. 249 (F.B.) it was held that in the case of a company or a firm the residence of the company or the firm is that place or those places from which the central management or control is exercised over the whole business of the firm. Such a test may not be available to a joint Hindu family where the joint family happens not to possess any trade. Therefore, obviously we must apply different tests. It seems to us that, in the case of a Hindu joint family, the family should be said to reside in all those places where members of the family live. Even in the case of a company or a firm it is quite clear that there can be more than one place of residence. That has been laid down not only in the case in The Swedish Central Railway Co. Ltd. v. Thompson (1925) A.C. 495 but also in Commissioners of Inland Revenue v. Lysaght (1928) A.C. 234. Similarly we do not see any reason why a joint Hindu family must not be said to be resident in more than one place. Therefore we are of opinion that the test in Commissioner of Income-tax v. T.S. Firm (1927) I.L.R. 50 Mad. 847 : 53. M.L.J. 249 (F.B.) cannot apply to what are generally described in decisions as Hindu Law partnerships, i.e., partnerships which are the creatures of Hindu Law and not of the law of contracts. If the first question is answered as above, there is no difficulty in answering the second question. In this case it cannot be said that there is no evidence on which the Commissioner can come to a conclusion as to the place of residence. There is some evidence which is set out by the Commissioner as follows:

The Manager visits these places periodically for the purpose of supervising the businesses. During such visits he stay t Madura for varying periods as will be seen from the sworn statement given by the petitioner. Whenever the Manager comes to Madura he resides in the business premises which are provided with a kitchen and other conveniences of a residential house.

3. These circumstances are certainly some evidence and the question as to whether there is enough evidence is not a matter for us but for the Commissioner.

4. Costs Rs. 250 to the Commissioner. No order necessary on the Court motion.


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