Law:

Section:

JUDGMENT Ramaprasada Rao, J.-At the instance of the Commissioner of Income-tax, Madras, and on a direction by this court, the Income-tax Appellate Tribunal, Madras Bench, has referred to us the following questions of law and stated to us the case therefor: "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 facts are as follows: Subramania Kadavirar and Arumuga Kadavirar were brothers. The assessee and two others, Ganapathi and Velayudam, were the sons of Subramania, and Ganesa is the only son of Arumuga. After the death of Subramania and Arumuga their sons formed a Hindu undivided family. But it is admitted that Subramania himself was born and bred in Ceylon and so is the assessee. The assessee has. his own business in Ceylon and has properties therein. All his eight children were born in Ceylon and educated there. The family had several non-residential buildings and one ancestral house in Orathanad, Thanjavur District. It had also lands. All the joint family properties were managed by Ganesa, son of Arumuga. The house was occupied by the step-mother of the assessee and his brothers. The joint family properties were maintained out of the agricultural and rental income and the assessee never enjoyed any portion of the family income. The assessee's movements, since 1946, were as under: 1-4-1946 to 31-3-1950 Stayed wholly in Ceylon 1-4-1950 to 31-3-1951 Stayed 18 days in India 1-4-1951 to 31-3-1952 Stayed 12 days in India 1-4-1952 to 31-3-1953 Stayed 9 days in India 1-4-1953 to 31-3-1954 NIL 1-4-1954 to 31-3-1955 Stayed 28 days in India 1-4-1955 to 31-3-1956 Stayed 47 days in India 1-4-1956 to 31-3-1957 Stayed 23 days in India. The assessee started constructing a theatre in Orathanad in 1953, which was completed in 1957. During the said construction the assessee made occasional visits and stayed sometimes in the family house, sometimes in a chatram in Thanjavur and sometimes in a hotel. In July, 1958, the assessee on the…

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