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PETITIONER: C.I.T., MADRAS

       Vs.

RESPONDENT: K. S. RATHNASWAMY

DATE OF JUDGMENT18/12/1979

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. VENKATARAMIAH, E.S. (J)

CITATION:  1980 AIR  525            1980 SCR  (2) 519  1980 SCC  (2) 548

ACT:      Indian Income  Tax Act,  1922, Section 4A(a)(ii) status of an  assessee "as  resident in  the taxable territories in India" or  non-resident-Scope of  the section-Meaning of the words "maintains" ’has maintained for him a dwelling place’.

HEADNOTE:      The assessee one of the sons of Subramania was born and brought up in Ceylon and had his own business and properties in Ceylon.  After the  death of  his father and his paternal uncle Arumugha,  the assessee’s two other brothers Ganapathi and Velayadham  and his cousin Ganesa son of Arumugha formed a Hindu  Undivided Family.  That family  owned an  ancestral house at  Orthanad in  Tanjore district,  which was  used as dwelling by  the step-mother  of assessee, his full brothers and his  cousin Ganesa.  The family  also  owned  shops  and agricultural lands.  The family  properties were  managed by Ganesa and  were maintained  by him  out of the agricultural and rental income. The assessee never enjoyed any portion of the family income. In July 1958 the assessee on the one hand and other  members of  the family  on the  other executed  a mutual deed  of release relinquishing each party’s rights in favour of  the other;  inter alia  the assessee released all his rights,  title and  interest in the family properties in favour of  his brothers,  reciting therein  that the  family properties were  never enjoyed  by him  but only  by others. This deed or release was found to be an instrument bona fide entered into by the parties.      It appears  that he  started constructing  a theatre in Orthanad in  1953 which was completed in 1957 and during the said construction  he  paid  occasional  visits  and  stayed sometime in  the family  house, sometimes  in a  chatram  in Tanjore and at times in a hotel. Thus from 1-4-52 to 31-3-53 he stayed for 8 days in India, from 1-4-53 to 31-3-54 he did not come  to India  at all; from 1-4-54 to 31-3-55 he stayed for 28  days in  India; from 1-4-55 to 31-3-56 he stayed for 47 days in India and from 1-4-56 to 31-3-57 he stayed for 23 days in India.      In the  above circumstances  for the  assessment  years 1952-53, 1953-54,  1956-57 and  1957-58, the  assessee filed returns, but  for the first two years after proceedings were initiated under  section 34(i)(a)  of the  Act and  for  the

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latter two  years on  his own  offering his income in Ceylon for assessment.  The status  declared in all the returns was "he was  a resident  and ordinarily  resident  person".  The Income Tax  Officer completed the assessment on the basis of the returns  filed. He  also initiated  penalty  proceedings against the  assessee under  section 28(1)(a) for not filing the returns in time and levied penalties against him. In the appeals preferred  by the  assessee which  were  principally directed against  the rejection  of the claim made by him in respect of  the double taxation relief, an additional ground was taken  that the  assessee should  have been treated as a ’non-resident’ in  all the  years. The  Appellate  Assistant Commissioner upheld  this additional  ground taking the view that since during his sojourn in India. 520 the assessee  was staying  in the  family house  more  as  a guest, he  neither maintained  nor had maintained a dwelling place in  the taxable  territories and,  therefore,  section 4A(a)(ii) of  the Act  was inapplicable.  Having lost  their appeals before  the Tribunal  and on  references to the High Court, the Revenue came up in appeal by certificates to this Court.      Dismissing the appeals, the Court, ^      HELD: 1.  Section 4A(a)(ii) of the Income Tax Act, 1922 raises a  statutory fiction  since it  is  prefaced  by  the phrase "for  the purposes of this Act". Further the language of the  provision  makes  it  clear  that  it  lays  down  a technical  test   of  territorial  connection  amounting  to residence applicable  to all individuals -foreigners as well as Indians,  including Hindus,  Christians, Muslims,  Parsis and others  irrespective of the personal law governing them. [524 D-E]      2. Section  4A(a)(ii) makes  it clear  that before  any individual can  be said  to be  a resident  in  the  taxable territories in any previous year two conditions are required to  be  fulfilled;  (a)  there  must  be  a  dwelling  place maintained in the taxable territories either by the assessee himself or by some one else for him for the requisite period and (b)  the assessee  must live  in the taxable territories (though  not  necessarily  therein)  for  sometime,  however short, in  the previous  years. In  the  instant  case,  the second condition  was satisfied  in regard  to the assessee. [524E-G]      3. Section 4(A)(a) uses the expression ’dwelling place’ a flexible expression which should be construed according to the object and intent of the particular legislation in which it  has   been  used.   Primarily   the   expression   means ’residence’, "abode",  or  "home"  where  an  individual  is supposed usually  to live and sleep and since the expression has been  used in  a taxing  statute, in  the context  of  a provision which  lays down  a technical  test of territorial connection amounting  to residence,  the concept of an abode or home  would be implicit in it. In other words, it must be a house  or a  portion thereof which could be regarded as an abode or  home of  the assessee  in taxable  territories. In other words,  when you  go to  a house  you should be really going home,  then you  are going to a dwelling house whether maintained by  you or  by some  one else  and a house may be your home  whether it  belongs to you or belongs to some one else. In other words, with regard to the house where he goes and lives,  he must  be able  to say that it is his abode or home. Therefore,  there  is  no  error  in  introducing  the concept of  home or abode into the section. [526 C-E, 527 E- F]

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    C.I.T. Bombay  North etc.  v. Foolabhai Khodabhai Patel 31 I.T.R. 771 (Bombay); approved.      Pickles v.  Foulsham, (1925)  9 Tax  Cases 261;  quoted with approval.      Section 4(A)(a)  uses two  expressions: "he maintains a dwelling place"  and "he  has maintained  for him a dwelling place". The  latter expression, obviously means he causes to be maintained  for him  a dwelling place. In either of these expressions the  volition on the part of the assessee in the maintenance of  the dwelling  place  emerges  very  clearly: whether he  maintains it  or he  causes it to be maintained; the maintenance  of  the  dwelling  place  must  be  at  his instance behest  or request  and when  it is  maintained  by someone else  other than  the assessee,  it must  be for the assessee or for his benefit. [527 G-H, 528 A] 521      Mere ownership of a fractional share or interest in the family house  with the consequent right to occupy it without anything  more  would  not  be  sufficient  to  satisfy  the requirements of  section  4A(a)(ii),  for  the  requirements thereof are:  not only  there must  be a  dwelling place  in which the  assessee has a right to live but he must maintain it as  his home or he must have it maintained for him as his home. [530 A-B; 528 H]      In the instant case, (i) on the material on record, the family house  in which  the assessee  stayed was neither his abode or  home nor  was  it  maintained  by  Ganesa  at  the instance of  the assessee or for his benefit, even though it was true  that the  assessee as a coparcener had a share and interest in  the family house and also a consequent right to occupy it  without any  let or hindrance. [528 A, 529 A, 530 F]      (ii) his  stay in the family house was found to be as a guest enjoying  the hospitality  of his kith and kin, rather than as  an inhabitant  of his  abode  or  home;  and  (iii) therefore, he  was rightly regarded as non-resident. [530 F- G]      C.I.T., Madras  v. Janab  A. P. Mohamed Noohu and Ors., 43 I.T.R. 88 (Mad.); approved.      S. M.  Zackariah Sahib  v. C.I.T., Madras 22 I.T.R. 359 Mad., Ramjibhai  Hansibhai  Patel  v.  Income  Tax  Officer, Special   Circle,   Ahmedabad,   53   I.T.R.   547   (Guj.); distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 2007- 2014 of 1972.      From the  Judgment and  Order dated  24-4-1970  of  the Madras High Court in Tax Case No. 156/67 (Ref. No. 54/67).      S. T. Desai, S. P. Nayar and Miss A. Subhashini for the Appellant.      T. A. Ramachandran (Amicus Curiae) for the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR, J.-These  appeals by certificates under s. 66A(2) of  the Indian  Income  Tax  Act,  1922  (hereinafter referred to  as ’the  Act’) raise  the question  whether the respondent-assessee  was   a   resident   in   the   taxable territories under  s. 4A(a)(ii) of the Act for the concerned assessment years?      The facts  giving rise  to the  aforesaid question  are these: Subramania  and Arumuga were two brothers; the former had  three  sons  Ratnaswamy,  the  assessee,  Ganpathi  and Velayudham while  the latter  had only one son Ganesa. After

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the death  of Subramania  and Arumuga  their sons  formed  a Hindu Undivided Family; that family owned an ancestral house at Orthanad  in Tanjore District, which was used as dwelling by the step-mother of the assessee, his full brother and his cousin Ganesa;  the family also owned shops and agricultural lands. The family properties were managed by Ganesa and were maintained by him out of the agricultural and rental income. Admittedly, the 522 assessee never  enjoyed any  portion of  the family  income. Born and  brought up  in Ceylon,  the assessee  had his  own business and properties in Ceylon. He had eight children all born and  educated in  Ceylon. It  appears that  he  started constructing  a  theatre  in  Orthanad  in  1953  which  was completed in  1957 and  during the said construction he paid occasional visits  and stayed sometimes in the family house, sometimes in  a chatram  in Tanjore and at times in a hotel. Thus, from  1-4-1952 to  31-3-1953 he  stayed for  8 days in India, from  1-4-1953 to  31-3-1954 he did not come to India at all,  from 1-4-1954 to 31-3-1955 he stayed for 28 days in India, from  1-4-1955 to  31-3-1956 he stayed for 47 days in India and  from 1-4-1956  to 31-3-1957 he stayed for 23 days in India.  In July  1958 the  assessee on  the one  hand and other members  of the  family on the other executed a mutual deed of release, relinquishing each party’s rights in favour of the  other; inter  alia, the  assessee released  all  his rights, title  and interest  in  the  family  properties  in favour of  his brothers,  reciting therein  that the  family properties were  never enjoyed  by him  but only  by others. There is no dispute and the Tribunal has also found that the deed of  release was  an instrument  bona fide  entered into between the parties.      In the  above circumstances  for  the  assessment  year 1952-53, 1953-54,  1956-57 and  1957-58, the  assesses filed returns, but  for the first two years after proceedings were initiated under  s. 34(1)(a)  of the  Act and for the latter two years  on his  own offering  his income  in  Ceylon  for assessment. The  status declared in all the returns was that he was  ’a resident  and ordinarily  resident  person.’  The Income Tax Officer completed the assessments on the basis of the returns  filed. He  also initiated  penalty  proceedings against the  assessee under  s. 28(1)(a)  for not filing the returns in  time and levied penalties on him. In the appeals preferred by  the assessee,  which were principally directed against the rejection of the claim made by him in respect of the double  taxation relief,  an additional ground was taken that the  assessee should  have  been  treated  as  a  ’non- resident’  in   all  the   years.  The  Appellate  Assistant Commissioner upheld  this additional  ground taking the view that since  during his  sojourn in  India the  assessee  was staying in  the family  house more  as a  guest, he  neither maintained nor  had maintained  for him  a dwelling place in the taxable  territories and,  therefore, s.  4A (a) (ii) of the Act  was inapplicable. The Department carried the matter in further  appeals to  the Tribunal but the Tribunal called for  a   remand  report   from   the   Appellate   Assistant Commissioner after  a fuller  examination as  to the factual position whether  the assessee did maintain a dwelling place in India  or the  same was  maintained  for  him  by  others inasmuch as  the Tribunal  felt that  the Department did not have an effective opportunity to meet the 523 aspect raised  for  the  first  time  before  the  Appellate Assistant  Commissioner.  In  the  remand  proceedings  oral evidence was  recorded by  examining the  assessee  and  two

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others and  the final  report was forwarded to the Tribunal. On the  basis of the material collected and forwarded to it, the Tribunal  took the  view that the assessee was a natural born Ceylon citizen staying in Ceylon most of the time, that his visits  to India  in the  aggregate were for 137 days in the period  of 11  years (from  1-4-46 to 31-3-67), that the evidence supported  the theory  that he  was more a guest in family house in India than an inhabitant of his own house or home, that  there was  nothing to  show  that  the  assessee enjoyed any of his family income or had any separate portion of the  family house  reserved for him during his sojourn to India and  that there  were no  enough materials to say that there was  a residence  either  run  or  maintained  by  the assessee in  India. In  this view of the matter the Tribunal upheld  the   Appellate   Assistant   Commissioner’s   order cancelling the  assessment orders made against the assessee. As a  consequence, the Tribunal also cancelled the penalties that were levied on the assessee.      At the  instance of the Revenue and on a direction from the High  Court the  Tribunal  referred  the  following  two questions to the High Court for its opinion:           "1.  Whether on the facts and in the circumstances                of  the  case,  the  Tribunal  was  right  in                holding that the assessee was non-resident?           2.   Whether on the facts and in the circumstances                of  the  case,  the  Tribunal  was  right  in                holding  that   there  was  no  liability  to                penalty under section 28(1)(a) ?"      The High Court answered both the questions in favour of the assessee and against the Revenue. While dealing with the first question,  which was  the principal question raised in Reference, the  High Court  took the view that the answer to that question  depended upon  a bundle  of facts  and  their cumulative effect  and in  its view the cumulative effect of the totality  of facts found by the Tribunal did not lead to the inference  that a  dwelling place  or dwelling house was maintained by  the assessee  or the  same was  maintained by others for  him but  on the  other hand  the evidence showed that the  assessee was  enjoying the hospitality of his kith and kin  during his  stay in  the family  house where he was treated as  a guest.  The High  Court further  held that the mere fact  that the assessee had a right in the family house at Orthanad in Tanjore District and that he was occasionally lodging 524 there did  not mean  that he was maintaining the same or had it maintained for him and that what the law required was the maintenance of  a dwelling  place which  should be his domus mansionalis; in  other words,  if the dwelling place was not his second  home or  the real  centre of  his life  then the assessee would  be a  non-resident. It  is this  view of the High Court  that is  being challenged  before  us  in  these appeals by the Revenue.      Since the  question raised  before us  pertains to  the proper construction  of s.  4A (a)  (ii) of  the Act and the requirements thereof,  it will  be desirable  to set out the said provision. It runs thus:           "For the purposes of this Act-           (a)  any individual  is resident  in  the  taxable                territories in any year if he-....           (ii) maintains  or   has  maintained   for  him  a                dwelling place in the taxable territories for                a period  or periods  amounting in all to one                hundred and  eighty-two days  or more in that                year, is  in the  taxable territories for any

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              time in that year."      Since the  section is  prefaced by  the phrase "for the purposes of  this  Act",  it  is  clear  that  it  raises  a statutory fiction;  further the  language of  the  provision makes it  clear that  it  lays  down  a  technical  test  of territorial connection  amounting to residence applicable to all individuals-foreigners  as well  as  Indians,  including Hindus, Christians,  Muslims, Parsis and others irrespective of the  personal law  governing them.  On a  reading of  the provision it becomes clear that before any individual can be said to  be a  resident in  the taxable  territories in  any previous year  two conditions  are required to be fulfilled: (a) there must be a dwelling place maintained in the taxable territories either  by the  assessee himself  or by some one else for  him for  the requisite period and (b) the assessee must live in the taxable territories (though not necessarily therein) for  some time,  howsoever short,  in the  previous year. In the instant case it was not disputed before us that the  second   condition  was  satisfied  in  regard  to  the assessee. The  question that  we have to consider is whether on the facts found by the Tribunal it could be said that the assessee maintained  or had  maintained for  him a  dwelling place in  the taxable  territories for the requisite period. It was  not disputed  that  the  assessee  himself  did  not maintain the family house but it was maintained by Ganesa as the manager  of the  Hindu Undivided  Family. If  the family house, which was maintained by Ganesa as the Karta, in which the assessee  had a  share or  interest and stayed for short periods during the previous years 525 relevant to  the  assessment  years  in  question  could  be considered to  be a  dwelling  house  or  a  dwelling  place maintained for  him or  for his  benefit, then no difficulty would arise  with regard  to the  requisite  period  because undoubtedly that  dwelling place  was there  during all  the previous years  relevant to  the assessment  years  and  the assessee will  have to  be regarded  as a  resident  in  the taxable territories for the concerned years.      Counsel for  the Revenue  contended that the expression "maintains a  dwelling place"  inter alia  connotes the idea that an  assessee owns a dwelling house which he can legally and as  of right occupy if he is so minded during his visits to India  while the  expression "has  maintained for  him  a dwelling place"  would cover a case where the assessee has a right to  occupy or live in a dwelling place during his stay in India  though the  expenses of  maintaining such dwelling place are  not met by him wholly or in part and since in the instant case it was a joint family dwelling house maintained by the  Manager for  the family  wherein the  assessee had a right of  dwelling without  any let or hindrance, it must be held that  the assessee  had maintained  for him  a dwelling house. In  support of  these contentions strong reliance was placed by  him upon  two decisions-one  of the  Madras  High Court in  S. M.  Zackariah Saheb  v. C.I.T.  Madras and  the other of Gujarat High Court in Ramjibhai Hansjibhai Patel v. Income Tax  Officer, Special Circle, Ahmedabad. According to him the  section merely  speaks of  a dwelling  place of  an assessee and does not require his actual residence in it nor does it  require any  establishment maintained by him or for him and  it would  be, therefore erroneous to introduce into the section  the concept  of ’attachment’ or ’permanence’ or ’home’.      On the  other hand,  counsel for the assessee contended that three  aspects emerge  from the phrase "he maintains or has maintained  a dwelling  place for him": (i) the volition

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of the  assessee in  maintaining the  dwelling place  or its maintenance being  at his  instance, behest or request, (ii) the expenses  of maintenance must be met by the assessee and (iii) the  house or  a portion thereof must be set apart and kept fit  for the dwelling of the assessee. According to him what is  contemplated by section 4A (a) (ii) is the de facto maintenance of  a dwelling  place for  the assessee  and not maintenance for  him as  one of  a body  of individuals;  in other words,  the section  cannot apply  to a  case where  a dwelling place  is in  possession of  other members  of  the Hindu Undivided  Family and  the assessee  has  a  right  of common enjoyment.  Counsel contended that on the facts found in the case the 526 assessee had  stayed in  the family  house as  a  guest  and enjoyed the  hospitality of his kith and kin and, therefore, though as  a co-parcener  he had a right in the family house his occasional  lodging there  could not  mean that  he  was maintaining the  same or had it maintained for him. In other words it was not his home. Strong reliance was placed by him on the  Bombay High  Court decision  in C.I.T. Bombay North, etc. v.  Falabhai Khodabhai Patel where the connotation of a "dwelling place" occurring in s.4A (a) (ii) was equated with a house which could be regarded by the assessee as his hime. He urged  that both  the Tribunal  and the  High Court  were right in  coming to the conclusion that the family house had not been  maintained for  the benefit of the assessee as his abode or  home away  from  Ceylon  and,  therefore,  he  was rightly regarded as a non-resident.      At the  outset it  may be  pointed out that the section uses the expression ’dwelling place’, a flexible expression, but the expression must be construed according to the object and intent  of the  particular legislation  in which  it has been  used.  Primarily  the  expression  means  ’residence’, ’abode’ or ’home’ where an individual is supposed usually to live and  sleep and  since the expression has been used in a taxing statute in the context of a provision which lays dawn a technical  test of  territorial  connection  amounting  to residence, the concept of an abode on home would be implicit in it.  In other  words, it  must be  a house  or a  portion thereof which  could be  regarded as an abode or home of the assessee in  the taxable  territories.  In  our  view,  this aspect of  the matter  has been  rightly emphasized  by  the Bombay High  Court in  Phulabhai Khodabhai’s  case  (supra), where Chief Justice Chagla has observed thus:           "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 527      must be  able to  say that  it is something more than a      mere house or a mere residence."      Similar view  was expressed  by Mr.  Justice Rowlatt in Pickles v. Foulsham, where the question whether the assessee was a  resident in  England for  the purpose  of payment  of

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Income-tax had  to be  decided on  general principles in the absence of  any statutory  provision in  the English statute with regard  to residence  as we have in our taxing statute. At page 275 of the report the learned Judge observed thus:           "A man,  I suppose,  may keep a house for his wife      and come there merely as a visitor; he may keep a house      for his  mother, and,  when he  can get away, always go      there to see her; but it may be that it is his mother’s      house, even  if he  is paying  for it,  and he is going      there as a visitor. He keeps the house for his wife and      children; it  may be  that he  is going  there as going      home; it  may be  that that is the centre really of his      life, that  he keeps  many belongings there, and so on,      and his time in Africa is really, in truth, a period of      enforced absence  from what is truly his residence. Now      it may be one, or it may be the other."      In other  words, the  test which the learned Judge laid down was  that when  you go  to a house you should be really going home,  then you  are going to a dwelling house whether maintained by  you or  by someone  else, a  nda house may be your home  whether it  belongs to  you or belongs to someone else. In other words, with regard to the house where he goes and lives,  he must  be able  to say that it is his abode or home.  It   is,  therefore,   not  possible  to  accept  the contention of  learned counsel  for the  Revenue that  it is erroneous to introduce the concept of home or abode into the section.      Secondly,  the   section  uses   two  expressions:  "he maintains a dwelling place" and "he has maintained for him a dwelling place."  The latter expression, obviously, means he causes to  be maintained  for him  a dwelling place. This is clear from  the fact that the relevant provision in the 1961 Act has  now been  altered and  it says  "he  causes  to  be maintained for  him" and  in the  Notes on  Clauses  to  the concerned Bill  it has  been explained  that the  words "has maintained" in s. 4A(a)(ii), have been replaced in the draft by the  words "causes  to be  maintained", which express the intention better.  Now, in  either of  these expressions the volition on  the part  of the assessee in the maintenance of the  dwelling   place  emerges   very  clearly;  whether  he maintains it or he causes 528 it to  be maintained,  the maintenance of the dwelling place must be  at his  instance, behest  or request and when it is maintained by  someone else other than the assessee, it must be for  the assessee  or for  his  benefit.  Therefore,  the question that will have to be considered in the instant case is whether  on the  facts found  by the  Tribunal the family house which  was maintained  by Ganesa as the Karta could be regarded as  an abode  or home of the assessee maintained at the instance  of the assessee and for his benefit? The facts found in  the instant  case are:  (1) the assessee, born and brought up in Ceylon, had his own business and properties in Ceylon, (2)  he had  8 Children  all born  and  educated  in Ceylon,  (3)  the  H.U.F.  (of  which  the  assessee  was  a coparcener at the material time) owned an ancestral house at Orthanad, which had been and was being used as a dwelling by the assessee’s step-mother, his full brothers and his cousin Ganesa, and  the same  was being maintained by Ganesa out of income of  family properties,  (4) during the previous years relevant to  the assessment  years  in  question  while  the construction of  the assessee’s  theatre in  Orthanad was in progress, the  assessee paid  occasional visits  and  stayed sometimes in  the family  house,  sometimes  in  chatram  at Tanjore and  at times  in a  hotel, (5)  there was  positive

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evidence on  record that during his stay in the family house the assessee  was considered  only as  a guest  enjoying the hospitality of the family, (6) the assessee admittedly never enjoyed  any  portion  of  the  family  income  nor  was  he connected with  the management  of  the  family  properties, including the  house and  (7) in  July 1958  by  a  deed  of release the  assessee relinquished  all his  right, title or interest in the family properties in favour of his brothers. On these  facts it  becomes  transparently  clear  that  the assessee whenever  he stayed  in the family house during the relevant previous  years was  more a  guest therein enjoying the hospitality  of his  kith and  kin than an inhabitant of his own  abode or home and further that the family house was maintained by Ganesa not at the instance of the assessee nor for his benefit but it was maintained by him for the rest of the family. It is true that the house at Orthanad was at the material time  a joint family house in which the assessee as a co-parcener had a share and interest; it is also true that as a  coparcener he had a right to occupy that house without any let  or hindrance,  but mere  ownership of  a fractional share or  interest in  the family  house with the consequent right to  occupy it  without  anything  more  would  not  be sufficient to satisfy the requirements of section 4A(a)(ii), for, the  requirements thereof are: not only there must be a dwelling place in which the assessee has a right to live but he must  maintain  it  as  his  home  or  he  must  have  it maintained for him as his home. The material on record shows that the  family house  in which  he stayed  was neither his abode or home nor 529 was it  maintained by Ganesa at the instance of the assessee or for his benefit.      Turning to  the two  decisions-one of  the Madras  High Court and  the other  of the  Gujarat  High  Court-on  which reliance was  placed by  counsel for  the Revenue, we may at once   say    that   both    the   decisions   are   clearly distinguishable. The  decision of  the Madras  High Court in Zackriah Sahib’s  case (supra)  dealt  with  a  case  of  an assessee who  was  a  Muhammadan  merchant.  He  carried  on business in  Ceylon and  resided there. His parents lived in British India,  as it  then was,  in a  house owned  by  his mother. The  assessee’s wife  also lived  in British  India- sometimes with  his parents  and sometimes with her parents. The assessee  was remitting  monies  now  and  then  to  his parents for  their maintenance.  He  visited  British  India during the  year of account and stayed in his mother’s house with his  parents. The  Appellate  Tribunal  held  that  the assessee was resident in British India within the meaning of s 4A(a)(ii).  Reversing this decision, the Madras High Court held that  the assessee did not maintain a dwelling place in British India and that his mother’s house was maintained for the parents  of  the  assessee  and  not  for  the  assessee himself. Obviously,  the house belonged to the mother of the assessee  which  he  had  no  legal  right  to  occupy  and, therefore, it could not be said that the assessee maintained a dwelling  place in British India. Counsel, however, relied upon certain observations made by Vishwanatha Sastri, J., in that Judgment, which run thus:           "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.....In   our   opinion,   the   expression   ’has      maintained for  him’ would certainly cover a case where

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    the assessee  has a  right  to  occupy  or  live  in  a      dwelling place  during his stay in British India though      the expenses  of maintaining the dwelling place are not      met by  him in  whole  or  in  part.  A  member  of  an      undivided Hindu  family.....has a  right to live in the      family house  when he  goes there,  though the house is      maintained by  the manager of the family and not by the      assessee from  his own funds....In such cases it can be      said that  the assessee has a dwelling place maintained      for him by the manager of the family for he has a right      to occupy  the  house  during  his  visits  to  British      India." Relying on  the aforesaid passage, counsel urged that in the instant case  the house at Orthanad was maintained by Ganesa as a  Karta of  the family  and  since  the  assessee  as  a coparcener had a right to live in it 530 during his visits to India it must be held that the assessee had maintained  for him a dwelling place in India. It is not possible to  accept this  contention, for,  in our view, the aforesaid passage,  taken in  its content, does not lay down as a  proposition of law that mere ownership of a fractional share in  a family  house with  a consequent right to occupy the same  with nothing  more would  constitute it a dwelling house of such owner within the meaning of s. 4A(a)(ii); for, it must  further be  shown that  it was  maintained  by  the manager at the instance of the assessee and for his benefit. That is  how the aforesaid passage has been partly explained and, in  our view,  rightly, by  the Madras  High Court in a subsequent decision  in C.I.T. Madras v. Janab A. P. Mohamed Noohu &  Ors. The Gujarat decision in Ramjibhai Hansjibhai’s case (supra) was clearly a case where the joint family house was maintained  as a  dwelling place  for the benefit of all members of  the joint  family, including  the assessee.  The main contention urged on behalf of the assessee in that case was that  the dwelling  house was  not  maintained  for  the assessee as an individual but it was maintained not only for him but  for other  members of the joint family as well and, therefore,  the   requirements  of   the  section  were  not satisfied. The  contention was negatived. In other words, it was not  disputed in  the Gujarat case that a dwelling house was maintained  by the manager of the family for the benefit of the  assessee. In  the instant  case on  the facts it has been found  that the  family house  was maintained by Ganesa not for  the assessee, nor for his benefit but for the other family members.      Having regard  to the above discussion it is clear that though the assessee could be said to have had a share in the joint family  house with  a consequent  right to  occupy the same it  could not  be said  that the  said family house was maintained by  Ganesa as  the  Karta  of  the  family  as  a dwelling place  for the  assessee or for his benefit nor was it maintained  by him  at  the  instance  of  the  assessee. Moreover, his  stay in the family house has been found to be as a  guest enjoying  the hospitality  of his  kith and  kin rather than  as an  inhabitant of his abode or home. In this view of  the matter  the assessee,  in our view, was rightly regarded as  a  non-resident.  The  appeals  are  therefore, dismissed. S.R.                                      Appeals dismissed. 531