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A.M.M. Sayed Abdul Cader Vs. Commr. of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai
Decided On
Case NumberCase Referred No. 11 of 1946
Judge
Reported inAIR1950Mad715; [1950]18ITR310(Mad)
ActsIncome Tax Act, 1922 - Sections 4A
AppellantA.M.M. Sayed Abdul Cader
RespondentCommr. of Income-tax
Appellant AdvocateS. Krishnamachariar, Adv.
Respondent AdvocateC.S. Rama Rao Sahib, Adv.
Cases ReferredLevene v. The Commissioners of Inland Revenue
Excerpt:
.....(a) (iii) on ground that he was in british india in previous year otherwise than on occasional or casual visit - during his stay assessee took up house in order to establish his residence at tuticorin - visit of assessee was not of casual or occasional nature - as such he was resident of british india. - - so far as the first requirement of the section is concerned it is undoubtedly satisfied in the present case as he lived in british india for more than 365 days within the period of 4 years preceding the year of account. the appellate tribunal as well as the income-tax officer and the appellate assistant commissioner have found that in the circumstances of the case the visit was not an occasional or a casual one and that, therefore, the second requirement was also satisfied and..........on the ground that he was in british india in the previous year otherwise than on an occasional or casual visit.' the relevant clause of the section referred to in the question is as follows:'section 4a (a) (iii) for the purpose of this act any individual is resident in british india in any year if he having within 4 years preceding that year been in british india for a period of or for periods amounting in all to 365 days or more, is in british india for any time in that year otherwise than on occasional or casual visit.'the facts found or admitted are: the assessee, who was once a resident of authoor, a village in the tirunelveli district, left the place several years ago and went to ceylon where be married a ceylonese lady. he thereafter carried on business in ceylon. at authoor the.....
Judgment:

Satyanarayana Rao, J.

1. The Appellate Tribunal referred to us the following question under Section 66 (l), Income-tax Act:

'Whether in the circumstances of the case the applicant can be held to be a 'resident' in British India in the 'previous year' under Section 4-A (a) (iii) on the ground that he was in British India in the previous year otherwise than on an occasional or casual visit.' The relevant clause of the section referred to in the question is as follows:

'Section 4A (a) (iii) For the purpose of this Act any individual is resident in British India in any year if he having within 4 years preceding that year been in British India for a period of or for periods amounting in all to 365 days or more, is in British India for any time in that year otherwise than on occasional or casual visit.'

The facts found or admitted are: the assessee, who was once a resident of Authoor, a village in the Tirunelveli district, left the place several years ago and went to Ceylon where be married a Ceylonese lady. He thereafter carried on business in Ceylon. At Authoor the father of the assessee is still living. It is a place which is about 35 miles away from Tuticorin. The assessee came to British India on 17th February 1936 and stayed till 4th July 1936, i.e., for a period of 137 days. Then from 18th October 1937 till 10th December 1938, he stayed in British India for a period of 13 months. In the accounting year 1941-42 which is the subject matter of the present dispute he came and lived in British India from 1st January 1942 till 1st July 1942 and during this period it would be seen that the so days are within the accounting year. He came to India as there was the fear of invasion by Japan and stayed for some time at Tuticorin and later at Authoor in a rented house. He subsequently re-turned to Ceylon after the fear was removed. It is also found by the Income-tax Officer that in this year of accounting remittances to the tune of Rs. 56,800/- were received from Ceylon and that the amount was sent to his father.

2. The section quoted above requires in order to constitute residence in British India two things; firstly the assessee should have lived for a period amounting in all to 365 days or more, in British India, within the four years preceding the year of account; secondly, that he should be in British India for any time during that period otherwise than on an occasional or casual visit. So far as the first requirement of the section is concerned it is undoubtedly satisfied in the present case as he lived in British India for more than 365 days within the period of 4 years preceding the year of account. The controversy relates to the second requirement namely whether his visit to British India in 1942 was occasional or casual? The Appellate Tribunal as well as the Income-tax Officer and the Appellate Assistant Commissioner have found that in the circumstances of the case the visit was not an occasional or a casual one and that, therefore, the second requirement was also satisfied and that the assessee was a resident in British India within the meaning of Section 4-A (a) (iii) of the Act.

3. There is no decision which has considered the expression 'occasional' or 'casual' visit; and though the expressions are capable of easy application to given set of facts, it is difficult to lay down in precise terms the meaning of those expressions. The word 'casual' according to Oxford Dictionary is capable of several meanings and it includes the idea of a thing being accidental or coming at uncertain times; not to be calculated upon; unsettled; occurring without design or liable to happen. The word 'visit' conveys also the meaning of short or temporary stay at a place. By occasional visit must be meant that a person visits a place on a particular occasion such as, the marriage of a relation or a friend; or giving evidence in a suit and allied matters; while casual visit implies that the object or the intention of the person making the visit was to stay for a short period and return back to his residence; for example, a man may pay a visit to a friend or a relation or go to a place for sight-seeing. The common feature of such visits is that the person making the visit or visits intends to go to the place for a short period with the object of returning immediately. He does not intend to stay there for long. The test, therefore, to determine whether a visit is casual or not is to find out whether it was of an accidental or uncertain nature and whether the intention of the person visiting the place was for a temporary stay with the intention of reverting back to the place of his abode. As I said before, it is easy to give instances of casual visits rather than to define in precise terms the essence and the nature of a casual visit.

4. In the course of the arguments before us reference was made to some decisions of English Courts which had occasion to consider the difference between 'residence' and 'ordinary residence.' I am, however, of opinion that those decisions are not of assistance in resolving the question before us. In one of the cases reported in Levene v. The Commissioners of Inland Revenue, (1928) 18 Tax Cas 486 : 1929 A. C. 234, Lord Hanworth M. R. refers to certain factors for consideration with reference to the meaning of the word 'residence;' and as pointed out by the learned Lord, it is not possible to frame a definition of residence and the same would apply to definition of casual visit, it must depend upon questions of degree and of fact. The learned Lord referred to certain factors which should be considered in arriving at a decision whether in a given set of circumstances a person could be deemed to be resident in a particular locality or not. For example, he points out that if a man goes to a place to obtain rest or refreshment or recreation suitable to his choice or if he returns to and seeks his own fatherland in order to enjoy a sojourn in proximity to his relations and friends, such factors constitute an important element in the decision of the question of what constitutes residence. If they are present, they do not make the person a resident of the place. These factors in my opinion can also be considered in deciding whether the visit of a person to a place does or does not partake of the character of a casual visit.

5. On the facts of the present case, however, no difficulty arises in coming to the conclusion that the visit of the assessee in the year 1942 for a period of six months does not constitute an occasional or casual visit. No doubt the reason which compelled him to leave Ceylon was some-thing which was beyond his control, namely, the fear of invasion by Japan; but that does not make the visit a casual visit for that reason. What was his intention when he left Ceylon? He certainly decided the choice of his place by taking into consideration the fact that his father lived at Authoor in the Tinnevelly district and his intention was then to live at Authoor for an indefinite period and not to pay a flying visit for a short time to his father's place of residence. Not only that there is this additional circumstance, that he rented a house when he was at Tuticorin and also when he was at Authoor for his residence. A casual visitor would not be compelled to take a house on rent and that is certainly an indication of his intention to live there for some time as a resident and not merely as a casual visitor. There is also the fact that he received remittances through his father from Ceylon of substantial amount even during the accounting period.

6. Some light is thrown by the other clauses of Section 4-A. The duration of the period of stay is of some significance in deciding the question whether the person is or is not a resident in British India. Under Section 4-A (l) if a man lived for a period of 182 days in a year in British India he is deemed to be a resident in British India. Again, under Clause (ii), even though he might not have lived for a long period in British India, if for a period of 182 days, he had engaged a house for his dwelling and visited even at least for a day in that period, British India, he is deemed to be a resident. Under Clause (iii) first part, if a person lived in British India for a period of or periods aggregating to 365 days or more within the four years preceding the accounting year, it would be an element which goes to show that he is a resident in British India; of course, the second part of the section should also be complied with. Here again the period is one year in four years; and the length of the period is taken as an indication of an intention to reside in British India. From these, it may not be irrelevant to conclude that when a person lives for a period of nearly six months in a year, his visit which was responsible for the stay cannot be treated as a casual visit or occasional visit within the meaning of the clause. It is not a short period and further the man has clearly intended by the fact that he took a house for rent to live there and not to stay there for a time and return back to Ceylon.

7. The appellate tribunal was also of opinion that when the assessee left Ceylon he could not have in mind that his stay would be temporary one or for a short time; and this may be inferred from the fact that ha took up a house in order to establish his residence at Tuticorin. In my opinion, the test applied by the appellate tribunal to conclude that the visit was not a casual one is correct and the inference also was justified.

8. There is the further contention raised on behalf of the assesses that the judgment of the appellate tribunal was influenced by the conclusion which was reached by the Income-tax authorities in the prior year of assessment and this evidence was referred to for the first time in the order of the Appellate Tribunal and that he had no opportunity to meet that evidence. It was argued that the prior order ought not to have been referred to at all by the Appellate Tribunal in order to arrive at the conclusion which they did. We think that there is no force in this contention. In order to determine whether the assesses was a resident in British India or not the Appellate Tribunal was entitled to take into consideration the conduct of the asses-see prior to the period which is now under consideration and therefore the reference to the prior assessment order WAS justified in the circumstances of this case. Even apart from the evidence afforded by the prior assessment order, on the other facts which we have adverted to already, it is clear that the visit of the assesses was not of a casual or occasional nature and that he is a resident in British India.

9. We think, therefore, that the answer to the question referred to us by the Appellate Tribunal should be in the affirmative. The respondent is entitled to his costs payable by the applicant which we fix at Rs. 250/-.

Yiswanatha Sastri, J.

10. I agree with my learned brother. The question whether a visit is a casual or an occasional visit within the meaning of Section 4-A (a) (iii), Income-tax Act depends not on mere presence in British India but on the quality of the presence in relation to the objects and intentions of the person sought to be charged to tax in a particular year. His object and intention can be gathered from the circumstances in which he paid the visit as well as his declarations and conduct. I agree with my learned brother that his conduct and periods of stay, prior to the year of charge and subsequent, could be considered in relation to the question whether a visit was of a casual or occasional nature or otherwise. It is true that the taxpayer's chargeability in a particular year is a separate issue but then his antecedent and subsequent conduct would be relevant in order to arrive at a decision on the question whether his visit in a particular year was a casual or occasional or otherwise. It is difficult as my learned brother has observed to formulate a precise test which would provide a solution in every case. There are, however, certain outstanding features in the present case which place the matter beyond all reasonable doubt. The reason for the visit of the assesses to British India in 1941-42 is stated to be the apprehension of a Japanese occupation of Ceylon where the assessee was residing. If that was the reason for his leaving Ceylon and coming over to British India, then though the reason for his coming over to British India was a casual or an accidental or fortuitous reasons, still his coming over to British India was with a set purpose and the result of a design to return to his own native place where his parents were also living. At the time when he left Ceylon it could not be predicated when conditions in Ceylon would be favourable for his return to that country and therefore his stay in India was of an indefinite duration and was actuated by a desire to remain in his native place during the hostile occupation of the country where he wag doing his business. The duration of his stay in British India is also an important factor to be taken into account. In this particular case during the year of account, he stayed for three months and in the succeeding year he continued his stay by another three months. A casual or occasional visit postulates a short or temporary stay at a place and judged by the duration of the stay it cannot be said that the visit here was casual or occasional. Indeed whenhe came over to India he could not have had any idea of the time when he was going to return to Ceylon or whether he was going to return at all to resume his former avocation. His parents were residing in British India in the village of Authoor and his return to his fatherland to stay in proximity with his parents was natural and in the usual course of things. It cannot be said to be a casual or occasional visit. His taking a house for rent is also indicative of his intention to stay in British India for an indefinite period. His getting his Ceylon investments remitted to India is further proof of his intention to settle down at least for the time being in his native village. In these circumstances it seems to me that the order of the Appellate Tribunal declaring that the assesses is liable to be charged as a resident in British India is correct. I agree with the conclusion of my learned brother and his order as to costs.


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