Hegde, J. - (1.) 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 Tax 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 1947.
(2.) The material facts as could be gathered from the statement of case submitted by the Tribunal are as follows:
(3.) 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 soar, and umbrella. It is seen that he was a successful businessman. The assessee's father died in 1936 and thereafter the business was carried on by a partnership consisting of the assessee and his sons. The assessee had ancestral property in Variav. He purchased a plot of land in Bombay in 1942. After the bombing of Burma in 1942 the assessee came over to India and remained in India till 1946. He returned to Burma in February 1946. Under instructions from the partnership firm, the firm's bankers, the National Bank of India Limited, Rangoon, remitted to Calcutta in the year 1946 a sum of Rupees 5 lakhs, and the same was credited to assessee's account. Again on October 26, 1947 a further sum of Rs. 2 laths was transferred by the bankers of the partnership to the National Bank of India Ltd., Calcutta and credited in the name of the assessee. Out of the total amount of Rs. 7 lakhs remitted from Rangoon, Rs. 5 lakhs was utilised by the assessee for the purchase of two properties in Calcutta; one in the year 1948 and the other in the year 1949. On April 8, 1953, the assessee filed a voluntary disclosure petition before the Income Tax Department at Calcutta and followed up the same with nine voluntary returns for the assessment years 1944-45 to 1952-53, disclosing certain incomes from the properties in India as well as from his business in Burma during those assessment years. As those returns were not filed within time the Income Tax Officer took proceedings under Section 34 (i) (a) of the Act for the assessment years 1947-48 and 1948-49. The Income Tax Officer assessed the assessee in the status of a 'resident' but 'not ordinarily resident' on a total income of Rs. 6,24,478 for the assessment year 1947-48 and Rs. 3,55,214 for the assessment year 1948-49. In determining the assessee's residential status in these two assessment years the Income Tax Officer relied on the facts stated by the assessee in his voluntary disclosure statements as well as on the affidavit filed by him. He also took into consideration the fact that the assessee had purchased a property in Bombay in the year 1942 and the further fact that in the years 1948 and 1949 he had purchased two premises in Calcutta.;