COMMISSIONER OF INCOME TAX Vs. FULABHAI KHODABHAI

JUDGEMENT

(1.) ON a very few and short facts a very interesting question arises for our decision on this reference. The assessee went to East Africa in 1931. He had his lather and brothers living in Bombay in the Kaira District. The father was possessed of immoveable properties and in 1942 he made a gift of four of his houses to each one of his four sons including, the assessee; and the evidence on the record shows that, as the lather had no house left to stay in and as there was no likelihood of the assessee coming to India as he had his business in Africa to look after, he permitted the father to continue to stay in the house which, had been gifted to him. The assessee's wife-came to India with her four children on 17th of April 1946 and she lived in this house which was gifted to her husband and in which her father-in-law was staying. She lived in India, up to 14th of February 1947 and in the mean-while one of her sons got married on 23rd of May 1946. The assessee himself came to India on 3rd of September 1946 and stayed in this house up to 31st of December 1946. On these facts the Taxing Department contended that for the assessment year 1947-48 the assessee was a resident; and the question that falls for our determination is whether the case of the assessee falls under Section 4-A (a) (ii ).

(2.) NOW, Section 4-A deals with residence in the taxable territories and it lays down various tests of residence; and the test with which we are concerned is the test set out in Sub-clause (a) (ii), namely,

(3.) 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. The connotation of a dwelling place is undoubtedly different from a mere residence or a mere house in which one finds oneself for a temporary or short period. A dwelling place connotes a sense of permanency, a sense of attachment, a sense of surroundings, which would permit a person to say that this house is his home. Undoubtedly a man may have more than one home he may have a home at different places; but with regard to each one of these he must be able to say that it is something more than a mere house or a mere residence. Now it will be noticed that the Legislature also requires that it is the assessee himself who must maintain a dwelling place in the taxable territories, or if he does not maintain it, someone must maintain it for him. Therefore, it is clear that it is not sufficient in order to satisfy this test that there is a dwelling place in the taxable territories in which the assessee goes and lives. What is necessary and what is essential is that the dwelling place must be maintained for him. In other words, there must be a house or a building or a part of the building which must be set apart and made available for him, in which he could live if he so desired as a home. There must also be in him a right to live in such a dwelling place maintained for him, because without that right it could not be said that he has either maintained a dwelling place or a dwelling place has been maintained for him. The Tight need not be a proprietary right; it need not be a right in any particular property; but the right may be the right of a licensee to live in a place so long as the licence is not revoked. Now it will be noticed that from this point of view the ownership of the house is immaterial. Just look at it from different points of view. The owner of a house may not maintain it as his dwelling place : he may let it out; he may give it to a licensee; he may lock it up; he may keep it in a state of disrepair so that it would not be possible for him to reside there. On the other hand, he may maintain a house as a dwelling place of which he is not the owner : he may rent it; he may take a room in a friend's house, furnish it, spend money on it and keep it as his dwelling place. On the other hand, even though he may be the owner of a house, someone else may maintain it for him as a dwelling place; and also a dwelling place may be maintained for him by someone else of which he is not the owner. Therefore, the vital fact to determine, in order to decide whether a case falls under Section 4-A (a) (ii) or not, is not the ownership of the property, but the right of the assessee to reside in a building which is ready and fit for his occupation and which is intended to be used by him as his home. The building or a portion of the building must be available to him and must be at his disposal and he must be in a position to go and occupy it without the permission or leave of any one. If that be the true view of the section in question, can it be said that the assessee mantained this house in Kaira or that his father maintained it for him as a dwelling place? As soon as the house was gifted to him, the son allowed the father to remain in that house. There is no suggestion that he made any preparation for setting aside any part of that house to be used as his dwelling place in the event of his ever going to India. As far as the father is concerned, he used the house as his own dwelling house. But again there is nothing on the record to show that he maintained that dwelling house, not only for himself, but for his son. There is no suggestion that consciously the father set apart and made available for the son any part of this dwelling house.