(1.) THE assessee is the widow of the late Raja Ramanatha Reddiar, and is the administratirx of his estate. Chidambaram Reddiar, the father of Raja Ramanathan Reddir, founded a business in Rangoon and this was carried on by his ons after his death. THE late Raja died in Rangoon in 1932, possessed of large assets some of which were in Burma and some in the Madras Presidency. THE assets in the Madras Presidency included immpoveable property in the Trichnopoly District. Raja Ramanatha Reddiar lad previously married one Parvathi Ammal, who in 1915 purchased a house in Srirangam. This house has been regarded as during her occasional visitis to the Presidency. She stayed there in 1934, 1936 and agai 1937, each time making a stay of more than three months. For the year of assessment 1939-40 the assessee made a return of the income of the estate to the Income-tax Officer, Salem, and in this she showed an income of Rs. 65,276 from money-lending in British India and Rs. 14,950 as remittance of profits brought into British India from Rangoon. She conternded that she was not resident in British India, but this contrntion the Income-tax Officer overruled. He held that she was resident in British India within the manning of Section 4-A (a) (ii) was held to apply as she had maintained a dewlling house in Srirangam throught the year previous to the year of assessment. It was held that Section 4-A (a) (ii) applied because she had been in Rangoon for a period amounting to more than 365 days in the year preceding the year of account. Burma was pare of British India until the 1st April 1937 when it became separatr by reason of the provisions of the Government of India Act, 1935. THE Income-tax Officer further holed that the assessee was ordinarily resident in British India within the meaning of Section 4-B as she had been in Rangoon in nine our of the ten year preceding the year of account and as she had also been in Rangoon for a period amounting to more than two years in the seven years preceding that year. THE result was that the Income-tax Officer assessed the assessee for the year 1939-40 on a total income of Rs. 1,15,180 of which Rs. 70,458 was regarded as income earned in British India and Rs. 44,722 as income eraned in Burma.
(2.) THE Appellate Assistant Commissioner confirmed the order of the Income-tax Officer, and at the reauest of the assessee the Commissioner had referred to this Court under the provisions of Section 66 (2) the following question :-
(i) Whether for the purpose of Section 4-A (a) of the Indian Income-tax Act being in Burma during any priods prior to 1st April 1937 when Burma was part og British India cmounts to being in Bristish India during those periods.
(ii) If the answer to the frist question be in the affirmative whether on the facts of this case the petitioner can be found to be resident and ordinarily resident in British India for the year of assessment 1939-40?
Under the Indian Income-tax Act is assessed for a particular year on the income received by him in the previous year. Section 4 states what the total income of the year of account shall be deemed to include. If a person is resident in British India during the year of account all income, profits and gains which accrue or are deemed to arise in British India during that period are taxableb and similaryl all income aaccruing or arising outside British India, but there is a proviso to the effect that in the case of a person not ordinarily resident in British India income, profits and gains which accrue or arise to him without British Indai shall not be included, unless they are derived from a businss controlled in or a profession or vocation set up in India or unless they are brought into or revceived in British India by him during the year of account. The assessee here says that she is not ordiniarily resident in British India and is entitled to the benefit of the proviso in respect of the Burma incomr until it is brought into British India.
Residence in British India is defined in Section 4-A. Cluse (a) (ii) states that for the purpose of the Act an individual is resident in British India in any year if he maintatined for him a dwelling place in British India for a period or periods amounting in all to 182 days or more in that year, and is in British India for any time in that year. Clause (a) (ii) says that an individual is resident in British India in any year if he, having within the for preceding year been in British India for 365 dasy or more, is in British India during the year of accont otherwise than on an occasional or casual visit. The lrarned counsel for the assessee had conceded that by reason of the maintenace of the family house in Srirangam he cannot dispute the contention of the Income-tax authorities that the assessee was resident in British India during the year account, but in order to bring her within the Act in respect of the Burma income it must be shown that she was ordinarilt resident, in British India in that year.
Section 4B (a) reads as follows :-
An individual is not ordinarioly resident in British India in any year if he has not been resident in British India in nine out of the ten years preceding that year or if he has not during the seven years preceding that year been in British India for a period of, or amounting in all to, more than two years.
On behalf of the assessee it is said that in defining the terms British India regard can only be had to what was Briths India in the year of account, and that on the frist day of that year Burma ceased to be part of British India. It is admitted that if the term must be read as applying to British India as it stood before the 1st April 1937 when considering residence during the ten or the seven years referred to in Section 4B (a) the assessee is out of Court, but reliance is placed on Section 311 of the Government of India Act, 1935, which defines British India as meaning all territories for the time being composed within the Governors Provinces and the Chief Commissiones Provinces. It this were the definition to be applied the assessee would be on sure ground, but the argument overlooks the words which precede the difinition given in the Section. The section opens thus :-
In this Act, and, unless the context otherwise require, in any other Act the following expressions have the meanings hereby respevtively assingned to them, that is to say-
(3.) THIS statement leaves it open to the Court to examine the Incom-tax Act an find out what it meant by the term British India in Section 4B of the Incom-tax Act, and in these circumstances regard must be had to what is said in Section 3 of the General Clauses Act. Section 3 (7) of that Act says :-
In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context, British India shall mean, as respects the period before the commencement of Part III of the Goverment of India Act, 1935, all territories and place within His Majestys dominions which were for the time being goeverned by His majesty through the Governor-General of India or through any Governor or Officer subordiante to the Governor-General of India, and as respects any period after that date means all territories for the time being comprised within the Governors Provinces and the Chief Commissioners Provinces, except that a regerence to British India law passed or made before the commencement of Part III of the Governemnt of India Act, 1935, sahll not include a referecne to Berar.
This definition was inserted in the Genearl Cluases Act, by the Government of India (Adptation of India Laws) Order, 1937, which was promulgated under the provisions of Section 293 of the Government of India Act, 1935. Can there be any doubt that this definition is the guide to what is meant by British India in Section 4B of the Income-tax Act? In our opinion there can be no doubt.
The learned counsel for the assessee has pointed to Section 293 of the Government of India Act and says that this indicates that the Adaptation Order cannot affect any Act which came into force after the promulation of the Order. Section 293 so far, as is relevant reads as follows :-
His Majesty may by Order in Council to be made at any time after the passing of t his Act provide that, as from much dated us may be specified in the Order, and law in force in British India or in any part of British India shall, until respelled or amended by a competent Legislature or other competent authority, have effect subject to such adaptatins and modifications as appear to His Majesty to be necessary or expedient for bringing the provisions of that law into accord with the proviso of this Act and, in particular, into accord with the provisions thereof which reconstitute under different names government and authorities in India and prescribe the distribution of legislative and executive powers between the Federation and the Provinces.