V. VR. N. M. Subbayya Chettiar Vs Commissioner of Income-tax, Madras[SC 1950 DECEMBER]

AIR 1951 SC 101 : (1950) SCR 961

(SUPREME COURT OF INDIA)

(Before : Saiyid Fazl Ali, B. K. Mukherjea And N. Chandrasekhara Aiyar, JJ.)

Civil Appeal No. 38 of 1949 Decided on : 21-12-1950.

Hindu Law—Hindu Undivided Family—Residence of—Considerations for determination of

Counsel for the Parties:

Shri K. Rajah Aiyar, Senior Advocate (Shri K. Srinivasan, Advocate, with him), instructed by Shri M. S. K. Sastri, Agent for Appellant

Shri M. C. Setalvad Attorney-General for India (Shri G. N. Joshi, Advocate, with him) instructed by Shri P. A. Mehta, Advocate for Respondent.

JUDGMENT

Fazl Ali, J—This is an appeal from a judgment of the High Court of Madras on a reference made to it under S. 66 (1), Income-tax Act, by the Income-tax Appellate Tribunal in connection with the assessment of the appellant to income-tax for the year 1942-43. The question of law referred to the High Court was as follows:

“Whether in the circumstances of the case, the assessee (a Hindu undivided family) is ‘resident’ in British India under S. 4A (b), Income-tax Act.”

2. The circumstances of the case may be briefly stated as follows. The appellant is the karta of a joint Hindu family and has been living in Ceylon with his wife, son and three daughters, and they are stated to be domiciled in that country. He carries on business in Colombo under the name and style of the General Trading Corporation, and he owns a house, some immovable property and investments in British India. He has also shares in two firms situated at Vijayapuram and Nagapatnam in British India. In the year of account, 1941-42, which is the basis of the present assessment, the appellant is said to have visited British India on seven occasions and the total period of his stay in British India was 101 days. What he did during this period is summarized in the judgment of one of the learned Judges of the High Court in these words:

“During such stays, he personally attended to a litigation relating to the family lands both in the trial Court and in the Court of appeal. He was also attending the income-tax proceedings relating to the assessment of the family income, appearing before the Income-tax authorities at Karaikudi and Madras. On one of these occasions, he obtained an extension of time for payment of the tax after interviewing the authority concerned… . .”

3. The other facts relied upon by the income-tax authorities were that he did not produce the file of correspondence with the business in Colombo so as to help them in determining whether the management and control of the business was situated in Colombo and he had started two partnership businesses in India on 25-2-1942 and remained in India for some time after the commencement of those businesses.

4. Upon the facts so stated, the Income-tax Officer and the Assistant Commissioner of Income-tax held that the appellant was a resident within the meaning of S. 4A (b), Income-tax Act. and was therefore liable to be assessed in respect of his foreign income. The Income-tax Appellate Tribunal, however, came to a different conclusion and held that in the circumstances of the case it could not be held that any act of management or control was exercised by the appellant during his stay in British India and, therefore, he was not liable to assessment in respect of his income outside British India. This view was not accepted by a Bench of the Madras High Court consisting of the learned Chief Justice and Patanjali Sastri J. They held that the Tribunal had misdirected itself in determining the question of the “residence” of the appellant’s family and that on the facts proved the control and management of the affairs of the family cannot be held to have been wholly situated outside British India, with the result that the family must be deemed to be resident in British India within the meaning of S. 4A (b), Income-tax Act. In this appeal, the appellant was questioned the correctness of the High Court’s decision.

5. Section 4A (b) runs thus:

“For the purposes of this Act –

A Hindu undivided family, firm or other association of persons is resident in British India unless the control and management of its affairs is situated wholly without British India.”

6. It will be noticed that S. 4A deals with “residence” in the taxable territories, of (a) individuals, (b) a Hindu undivided family, firm or other association of persons, and (c) a company. In each of these cases, certain tests have been laid down, and the test with which we are concerned is that laid down in S. 4A (b). This provision appears to be based very largely on the rule which has been applied in England to cases of corporations, in regard to which the law was stated thus by Lord Loreburn in De Beers consolidated Mines v. Howes, (1905)5 Tax. Cas. 198, (1906 A. C. 455:5 T. C. 198):

“A company cannot eat or sleep, but it can keep house and do business. We ought, therefore, to see where it really keeps house and does business . . . . . . The decision of Chief Baron Kelly and Baron Huddleston in Calcutta Jute Mills v. Nicholson ; Cesena Sulphur Co. v. Nicholson (1876) 1 Ex. D. 428, (45 L. J. Ex. 821) now thirty years ago, involved the principle that a company resides for purposes of income-tax where its real business is carried on. Those decisions have been acted upon ever since. I regard that as the true rule, and the real business is carried on where the central management and control actually abides.”

7. It is clear that what is said in S. 4A (b), Income-tax Act, is what Lord Loreburn intended to convey by the words “where the central management and control actually abides.”

8. The principles which are now well-established in England and which will be found to have been very clearly enunciated in Swedish Central Railway Co. Ltd. v. Thompson, (1925) 9 T.C. 342, (1925 A.C.495) which is one of the leading cases on the subjects, are: (1) that the conception of residence in the case of a fictitious “person”, such as a company, is as artificial as the company itself, and the locality of the residence can only be determined by analogy, by asking where is the head and seat and directing power of the affairs of the company. What these words mean have been explained by Patanjali Sastri J. with very great clarity in the following passage where he deals with the meaning of S. 4A (b), Income-tax Act:

“Control and management” signifies in the present context, the controlling and directive power, “the present and brain” as it is sometimes called, and “situated” implies the functioning at such power at a particular place with some degree of performance, while “wholly” would seem to recognise the possibility of the seat of such power being divided between two distinct and separated places.”

As a general rule, the control and management of a business remains in the hand of a person or a group of persons, and the question to be asked is wherefrom the person or group of persons controls or directs the business. (2) Mere activity by the company in a place does not create residence, with the result that a company may be “residing” ‘ in one place and doing a great deal of business in another. (3) The central management and control of a company may be divided, and it may keep house and do business in more than one place , and, if so, it may have more than one residence. (4) In case of dual residence, it is necessary to show that the company performs some of the vital organic functions incidental to its existence as such in both the places, so that in fact there are two centres of management.

9. It appears to us that these principles have to be kept in view in properly construing S. 4A (b) of the Act. The words used in this provision clearly show firstly, that, normally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will not apply if the case can be brought under the second part of the provision. Secondly, we take it that the word “affair” must mean affairs which are relevant for the purpose of the Income-tax Act and which have some relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and control of the affairs of the family is inside or outside British India. Lastly, the word “wholly” suggests that a Hindu undivided family may have more than one “residence” in the same way as a corporation may have.

10. The question which now arise is what is the result of the application of these principles to this case, and, whether it can be held that the central control and management of the affairs of the assessee’s family has been shown to be divided in this case.

11. It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot constitute that place the seat of control and management of the affairs of the family. Nor are we inclined in the circumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interested in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely coming out to India to take part in them, he cannot be said to have shifted the seat of management and control of the affairs of his family, or to have started a second centre for such control and management. The same remark must apply to the starting of two partnership businesses, as mere “activity” cannot be the test of residence. It seems to us that the learner Judges of the High Court have taken rather a narrow view of the meaning of S. 4A (b), because they seem to have proceeded on the assumption that merely because the assessee attended to some of the affairs of his family during his visit to British India in the particular year, he brought himself within the ambit of the rule. On the other hand, it seems to as that the more correct approach to the case was made by the Appellate Assistant Commissioner of Income-tax in the following passage which occurs in his order dated 24-2-1944:

“During a major portion of the accounting period (year ending 12-4-1942) the appellant was controlling the businesses in Burma and Saigon and there is no evidence that such control was exercised only from Colombo. No correspondence or other evidence was produced which would show that any instructions were issued from Colombo as regards the management of the affairs in British India especially as it was on an unauthorized clerk who was looking after such affairs. The presumption therefore is that whenever he came to British India the appellant was looking after these affairs himself and exercising control by issuing instructions… .. It has been admitted that there are affairs of the family in British India. Has it been definitely established in this case that the control and management of such affairs has been only in Colombo ? I have to hold it has not been established for the reasons already stated by me.”

12. There can be no doubt that the onus of proving facts which would bring his case within the exception which is provided by the latter part of S. 4A (b), was on the assessee. The appellant was called upon to adduce evidence to show that the control and management of the affairs of the family was situated wholly outside the taxable territories, but the correspondence to which the Assistant Commissioner of Income tax refers and other material evidence which might have shown that normally and as a matter of course the affairs in India were also being controlled from Colombo were not produced. The position, therefore, is this. On the one hand, we have the foot that the head and karta of the assessee’s family who controls and manages its affairs permanently lives in Colombo and the family is domiciled in Ceylon. On the other hand, we have certain acts done by the karta himself in British India, which though not conclusive by themselves to establish the existence of more than one centre of control for the affairs of the family, are by no means irrelevant to the matter in issue and, therefore, cannot be completely ruled out of consideration in determining it. In these circumstances, and in the absence of the material evidence to which reference has been made, the finding of the Assistant Commissioner that the onus of proving such facts as would bring his case within the exception had not been discharged by the assessee and the normal presumption must be given effect to, appears to us to be a legitimate conclusion. In this view, the appeal must be dismissed with costs, but we should like to observe that as this case has to be Decided mainly with reference to the question of onus of proof, the decision in this appeal must be confined to the year of assessment to which this case relates, and it would be open to the appellant to show in future years by proper evidence that the seat of control and management of the affairs of the family is wholly outside British India.

13. B. K. Mukherjea, J—I agree with my learned brother, Fazl Ali J. both in his reasoning and in his conclusion.

14. Chandrasekhara Aiyar, J—I concur in the judgment of my learned brother, Fazl Ali J.