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Commissioner of Income-tax, Central, Madras Vs. K.T.M.S. Mohamed - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case No. 682 of 1976 (Reference No. 550 of 1976)
Judge
Reported in[1981]128ITR580(Mad)
ActsIncome Tax Act, 1961
AppellantCommissioner of Income-tax, Central, Madras
RespondentK.T.M.S. Mohamed
Appellant AdvocateA.N. Rangaswamy, Adv.
Respondent AdvocateN.C. Ananthachari, Adv.
Cases ReferredKulathi Mammu v. State of Kerala
Excerpt:
.....them to stay in that country and carry on trade or business or make remittances of india through authorised channels on account of the various restriction imposed in ceylon. the tenor of the board's circular clearly suggests that it has to be applied in a sympathetic manner......august, 1971, issued by the central board of direct taxes (hereinafter to be referred to as the board's circular). the board's circular was applicable to those persons who had migrated to india from ceylon on or after november 1, 1964. according to the board's circular any claim by the assessee that funds have been brought from ceylon will be accepted if the assessee produces adequate evidence to reasonably satisfy the ito that he has sufficient resources in that country to cover the remittance, provided the assessee had migrated from that country to india on or after the date specified in para. 1(1) and given the necessary intimation to the concerned ito within the time specified in para. 1(iv) of the board's circular. in the case of the assessee, the date specified in para. 1(1) was.....
Judgment:

Venugopal, J.

1. The assessee is an individual assessed in the status of 'Resident'. He was receiving income as a partner in a firm in Ceylon. In his capital account there was a credit of Rs. 55,000 on October 27, 1971. When asked to explain the source of the credit, the assessee contended that he explanation should be considered in the light of instruction given in the Circular No. 222/7/70-ITA-II, dated 5th August, 1971, issued by the Central Board of Direct Taxes (hereinafter to be referred to as the Board's circular). The Board's circular was applicable to those persons who had migrated to India from Ceylon on or after November 1, 1964. According to the Board's circular any claim by the assessee that funds have been brought from Ceylon will be accepted if the assessee produces adequate evidence to reasonably satisfy the ITO that he has sufficient resources in that country to cover the remittance, provided the assessee had migrated from that country to India on or after the date specified in para. 1(1) and given the necessary intimation to the concerned ITO within the time specified in para. 1(iv) of the Board's circular. In the case of the assessee, the date specified in para. 1(1) was November 1, 1964, and the time specified in para. 1(iv) was October 31, 1971. The ITO came to the conclusion that the Board's circular is not applicable to the assessee's case as he was not a citizen of Ceylon and could not be considered to have migrated from Ceylon to India. According to the ITO, the assessee was assessed in India as a 'resident and ordinarily resident' and that he was a citizen of India and he cannot, therefore, be considered to have migrated from Ceylon to India so as to fall within the ambit of the Board's circular. On appeal, the AAC agreed with the conclusion of the ITO. On a further appeal, the Tribunal held that the assessee was away from India for substantial periods and had business interests in Ceylon and the Board's circular does not rule out Indian citizens as it contemplates assessment as 'residents' in India and the assessee must, therefore, be considered as a person having migrated to India from Ceylon after the stipulated date, viz., November 1, 1964, and the ITO was directed to examine the case whether the other requirements of the circular are satisfied and then to decide the plea of the assessee that the amount in question was not includible in the assessment for the year 1972-73. At the instance of the revenue, the following question of law has been referred to this court for opinion under s. 256(1) of the I.T. Act, 1961 :

(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was a person who is to be considered as having migrated to India from Ceylon after the stipulated date, i.e., November 1, 1964, for the purpose of application of the Board's Circular F. No. 222/7/70-ITA. II dated August 5, 1971 ?'

2. The learned counsel for the revenue contended that the word 'migrated' used in the Board's circular connotes that the assessee must be a citizen or resident of Ceylon and not an Indian citizen frequently going between India and Ceylon and staying in Ceylon for short periods and the assessee who was assessed in India and visiting Ceylon frequently and staying there for short periods cannot be considered to be a 'migrant' from Ceylon and thus falling within the ambit of the Board's circular.

3. In the decision in Kulathi Mammu v. State of Kerala, : 1966CriLJ1217 , the word 'migrated' used in arts. 6 and 7 of the Constitution came to be considered and it was pointed out that the word is capable both of a narrower meaning as well as of a wider meaning and in its narrower connotation, it means going from one place to another with the intention or residing permanently in the latter place and in its wider connotation it simply means going from one place to another whether or not with any intention of permanent residence in the latter place. It was ultimately pointed out that the word 'migrated' used in art. 7 of the Constitution must be given wider connotation. Thus, it will be seen that if a narrower meaning is given to the word 'migrated', it means an intention to settle in the place to which person moves on migration. On the other hand, if a wider meaning is given, all that is necessary is that there should be movement from one place to another, whether or not there is any intention of settlement in the place to which one moves. The question for consideration is which of the two meanings is intended in the Board's circular. To answer this question, one has to see the background and the circumstances under which the Board's circular came to be be issued. It is a well-known fact of which we can take judicial notice that persons of Indian origin working as employees, traders or carrying on small business and making periodical visits and remittances to India, it becomes difficult for them to stay in that country and carry on trade or business or make remittances of India through authorised channels on account of the various restriction imposed in Ceylon. On account of these restrictions many had to leave Ceylon and return to this country with whatever they could repatriate from their assets and saving. Those persons were subjected to considerable inconvenience because of prolonged enquiries by the I.T. Department with regard to the origin of money or other assets which they were able to repatriate from Ceylon and bring to India with them. It is to obviate these difficulties faced by persons returning from Ceylon and the difficulty in adducing evidence that the particular sum or asset was brought over by them to India while returning from Ceylon the Board's circular has been issued. The tenor of the Board's circular clearly suggests that it has to be applied in a sympathetic manner. It is, therefore obvious that the circular has to be interpreted in a broad and liberal manner and not in a narrower sense to deprive any benefit that may be intended to be conferred under the said circular. Viewed against this background, the word 'migrated' used in the circular must be understood as to mean physical movement from Ceylon to India accompanied by some sort of intention. So long as the movement from Ceylon to India was voluntary and not for a short or limited period or for any specific purpose the assessee can be said to have migrated from Ceylon to India and thus fall within the ambit of the Board's circular. In the instance case, the assessee was formerly partner in the firm, K.T.M.S. Ahamed & Co., Colombo, and he has subsequently becomes the proprietor of that firm. It is further seen from the assessment orders that the assessee was in Ceylon for about 5 months in 1960, 8 months in 1961, 8 months in 1962, 3 months in 1963, 5 months in 1964 and 2 months in 1965. So the assessee was away from India for at least over six years and he was having substantial business interest in Ceylon. The assessee has now left Ceylon for goods and has come to India. Viewed in this light, the assessee can certainly be considered as one who was migrated from Ceylon for the purpose of getting the concessional treatment under the Board's circular. The argument that the assessee was an Indian citizen and cannot, therefore, get the benefit under the Board's circular is bereft of merit since the Board's circular itself contemplates that the assessee must be assessed as a resident in India either for the assessment year preceding the year in which he migrated or for earlier years and such assessments are generally possible only in the case of Indian citizens. The Tribunal was, therefore, justified in coming to the conclusion that the assessee's case falls within the ambit of the Board's circular and the ITO should satisfy himself whether the other requirements of the circular are complied with. We, therefore, answer the reference in the affirmative and in favour of the assessee. The assessee is entitled to his costs. Counsel's fee Rs. 500.


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