MOOSA S. MADHA & AZAM S. MADHA versus COMMISSIONER OF INCOME-TAX, WEST BENGAL, CALCUTTA

Citation: [1973] 3 S.C.R. 497 · Decided: 06-02-1973 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed

Judgment (excerpt)

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497 
MOOSA S. MADHA & AZAM S. MADHA 
v. 
COMMISSIONER OF INCOME-TAX, WEST BENGAL, 
CALCUTTA 
Febuary 6, 1973 
[K. S. HEGOE, P. ]AGANMOHAN REOOY AND H. R. KHANNA, JJ.J 
Income-tax A.ct, 1922, •· 4A(a)(iil)-A.ssessee held to be 'resident' 
but 'not ordinarily resident'-Burd,en of proving that his visit to India in 
relevant period war occasional and cG:Sual war on assessee-Burden not 
discha1·gecl by mere assertion that he had no business in India-Question 
whethe~ ren1lttance of Jnco1ne 
was from 
accrued profits/Burden 
Of 
provJ'ng that it was not from accrued profits-was on assessee-Quertion 
tlint TrihuMl did not consider photos/at copies of aceounts produced before 
rt not raised in application under s. 66(1 )-High Court rightly refused to 
take such copies into account. 
In respect of the assessment year I948-49 the 
Income-tax Officer'• 
finding that the assessee was 'resident but not ordinarily resident' in that 
year in India was confirmed by the Appellate A'!Sistant Commissioner 
and the Tribunal. It was also held that a sum of Rs. 2 lakhs remitted 
by the assessee to India from Burma during the relevant period fornied 
part of the assessee's accrued profits. The High Court answered both the 
questions in favour of the Revenue. The assessee appealed with certiR 
ficate. 
HELD : ( i) For the finding that the assessee was 'r~ident' but •, .Jt 
ordinarily resident' in the year in question the authorities under the Act 
as well as the High Court had relied on the fact that the assessec had 
failed to prove his visit to India in 1947 was casual or occasional. This 
was essentially a finding of fact. 
[501B-CJ 
The burden of proving that the assessee's visit to India in 1947 wa'> 
occasional or casual was on the assessee. 
In the affidavit filed by him 
before the Department he merely stated that he visited India for a period 
elf two months in 1947 but did not state the reason for visiting India nor 
c!4d he state his visit was occasional or casual. 
In the faee of this 
affidavit it was idle for the assessee to contend that the Tribunal came to 
an erroneous conclusion in holding that he did not discharge the burden 
of proving that his visit to India in 1947 was occasional or casual. The 
fact that the assessce had no business in India during the period of stay 
of two months did not discharge the onus. 
[500 F-G; SOIC-E] 
Con11nissioner of lnconu.i-tax, West Bengal v. B. K. Dhote, 66 J_T.R. 
457, referred to. 
(ii) The assessee had also failed to prove that the sum of Rs .. 2 Iakhs 
remitted by him to India did not represent his business income. 
Even 
though the Income-tax Officer gav.e him several opportunities to produce 
his account books to establish his case he failed to produce the account 
books .. [SOIH] 
The complaint that the Tribunal ignored the photostat copie.• of the 
account books without good reasons did not appear to have been made 
in the application filed by the asscssee under s. 66( 1), The statement of 
ca"' submitted by the Tribunal does not refer to that fact. Admittedly the 
/assess":" did not take up any question regarding these documents. Hence 
the High Court was fully justified in not considering those documents. 
[502A-DJ 
CIVIL APPELLATE JURISOICTION ; Civil Appeal No. 491 of 
1970. 
~98 
SUPREME COURT REPORTS 
[1973] 3 S.C.R. 
Appeal ;by certificate from tho judgment and order dated 
June 3, 1961) of the Calcutta High Court in Income-tax Reference 
No. 72 of 1966. 
N. N. Goswami and S. N. Mukherjee, for the appell.ant H. C . 
.Bhandare, S. P. Nayar, J. Ramamurthy and R. N. Sachthey, for 
XCipondeDt. 
The Judgment of the Court was delivered by 
HEGDE, J. This is an appeal by certificate. It arises from the 
decision of the High Court of Calcutta in a reference under section 
66 ( 1 ) of the Income Tux Act 1922 (to be hereinafter referred to 
as the Act). It relates to the assessee's income tax assessment fOr 
the assessment year 1948-49, the relevant accounting year being 
the calendar year 194 7. 
The material facts as could be gathered from the statement of 
case submitted by the Tribunal are as follows : 
The assessee, one S. C. Madha (since deceased) appears to 
have migrated with his father to Burma in about the year 1901. 
They were originally the residents of the village Variav in the 
erstwhile State of Baroda. 
In Burma the assessee carried on 
business in soap and umbrella. It is seen that he was a successful 
businessman. 
The assessee's father.

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