RAJAGOPALAN OFFG. C.J. - Since, in opinion, the Tribunal was right in the conclusion it reached, that requirements of section 4A(a)(ii) were not satisfied and that the assessee did not in either of the two years in question maintain a dwelling house within the taxable territories and that he did not have a dwelling house maintained for him either, we see justification to direct the reference that the Department seeks under section 66(2) of the Income-tax Act.
The assessee was a resident of Ceylon. He was one of the heirs of his father and was thus in the position of a co-tenant of the house that devolved on all the heirs. But it was his brother and one of his sisters with their families that actually occupied the house. It was their dwelling house, and they did not maintain it as a dwelling house for the assessee. The assessees wife and children lived with her father, and he obviously maintained his house only for himself and not for the assessee. The assessee had nothing to do with the maintenance of either house as a dwelling house. Neither was his dwelling house. That during his temporary visits to India he stayed in either house, obviously as a guest, did not make either of them his dwelling house within the meaning of section 4A(a)(ii). All that was established in this case was that the title to the house that had belonged to his father vested in the assessee along with the other co-heirs. The assessee had of course a right to a fractional share in the house. He had a right to ask for partition; he had also a right to ask for joint possession without seeking partition. He did not exercise either right. Two of the other tenants-in-common, his brother and sister, were in actual possession. As we have recorded earlier, it was their dwelling house.
We are in respectful agreement with the test laid down in Commissioner of Income-tax v. Fulabhai Khodabhai Patel. Chagla C.J. observed :
'When we look at the language used by the Legislature, it is clear that what is sought to be emphasized is that there must be not only a residence or a house for the assessee in the taxable territories, but there must be a home.'
Was the house, a share in which the assessee inherited, but no portion of which he or his family occupied, his home in India, which he could use in his own right The Tribunal was right in following the principle laid down in Commissioner of Income-tax v. Fulabhai Khodabhai Patel and in answering that question in the negative.
The passage in Zackariah Sahib v. Commissioner of Income-tax 2, on which learned counsel for the Department relied, was referred to and explained in Commissioner of Income-tax v. Fulabhai Khodabhai Patel. At page 362 in that case, Viswanathan Sastri J. observed :
'The expression maintains a dwelling place connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house, which he can legally and as of right occupy, if he is so minded, during his visit to British India.'
What was decided in that case was that the house that belonged to the mother of the assessee in that case and which was maintained for his parents was not his dwelling house. The assessee there had no right to the use of the house either as owner or otherwise. We do not understand the passage in Zackariahs case 1, taken in its content, as it should be, to lay down as a proposition of law that mere ownership of a fractional share in a house with nothing more is enough to constitute it a dwelling house of such an owner within the meaning of section 4A(a)(ii), and it must be remembered that there is a further statutory requirement : not only must it be a dwelling house, but it must also be maintained, either by the assessee himself or by some one else for his benefit. Neither of the requirements was satisfied in this case.
The petitions fail and are dismissed with costs in one. Counsels fee Rs. 150