Law: Income Tax Act, 1961

Section: 6(1)(b),256(2)

Income-tax--Non-resident---Test of residence---Maintenance of dwelling house in India for 182 days in relevant previous year ---Assessee, member of HUF, which owned a house in India---Though assessee might have a share in house, no evidence to indicate that Karta of family maintained house for benefit or at behest of assessee as dwelling place in India for 182 days in relevant previous year ---Assessee not resident in India and could not be subjected to assessment---Indian Income Tax Act, 1961, S.6(1)(b). Section 6(1)(b) of the Income Tax Act, 1961, states that an individual can be said to be resident in India in any previous year, if he maintains or causes to be maintained for him a dwelling place in India for a period or periods amounting in all to one hundred and eighty-two days or more in that year. Therefore, to contend that the assessee was resident in India in the previous year, relevant to the assessment year 1980-81, the Revenue must establish two things concomitantly: (1) that the assessee maintained or caused to be maintained for him a dwelling place in India for 182 days or more in that year; and (2) that the assessee has been in India for 30 days or more in the relevant previous year. Both the conditions are to be established concomitantly and not alternatively. The assessee was a member of a Hindu undivided family which owned a house in India. In that house the family of the assessee also stayed. The question arose whether in the house belonging to the coparcenary of the assessee and the same being maintained by the corparcenary, a portion of that house, if notionally partitioned, could be said to have been maintained or caused to be maintained by the assessee or for him as a dwelling place in India for 182 days in the relevant previous year: Held, that there was nothing on record to indicate that the Karta of the family maintained the house for the benefit or at the instance of the assessee. The house belonged to the Hindu undivided family. The assessee might have a share in the said house, but the fact was that neither the house was maintained by the assessee nor was the house maintained by the Karta at the behest of the assessee, and therefore,…

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