- (1.) In 1936 the assessee, B. K. Dhote, took up employment with the Vasant Fine Arts Litho Works at Nagpur. In November, 1943, the assessee migrated to the territory of H. E. H. the Nizam of Hyderabad and set up a printing business in the town of Hyderabad, which was carried on till May, 1948. He submitted a voluntary return of income for the assessment year 1945-46 before the Third Income-tax Officer, G-Ward, Bombay, on 30.01.1951. The Income-tax Officer accepted the claim of the assessee that he was a non-resident during the previous year relevant to the assessment year 1945-46 and assessed him accordingly. In November, 1951, the assessee commenced trading in Calcutta in the Province of West Bengal. The assessee was assessed as resident and ordinarily resident in British India by the Income-tax Officer, District 11(2), Calcutta, under section 23(4) read with section 34 for the assessment year 1945-46, and under section 23(3) read with section 34 for the assessment year 1946-47 in respect of his business income for the relevant previous years. The Appellate Assistant Commissioner reversed the orders passed by the Income-tax Officer.
(2.) The Income-tax Officer appealed to the Income-tax Appellate tribunal. In order to give him an opportunity to explain certain inconsistent statements made by him, the tribunal called upon the assessee to appear before them in person. The tribunal recorded the statement of the assessee. The tribunal was of the view that the assessee's statements were " discrepant and highly contradictory " and no reliance could be placed on his version about the reasons for his visits to British India during the two previous years. On a consideration of the evidence in the light of his statement made before them, the tribunal held that the assessee failed to prove that his visits to British India in the previous two years were occasional or casual. The tribunal accordingly reversed the order passed by the Appellate Assistant Commissioner and restored the order of the Income-tax Officer assessing the assessee as resident and ordinarily resident in British India.
(3.) The tribunal drew up a statement of the case and submitted the following questions for the opinion of the High court " (1) Whether the tribunal's order is vitiated in law by the tribunal. casting the onus on the assessee to prove that he did not satisfy the requirements of section 4(a) of the Income-tax Act, instead of casting the onus on the department to prove that every essential ingredient to make the assessee resident was satisfied in the present case (2) Is there any evidence and/or material upon which the tribunal could hold that the assessee was a resident in British India during the relevant previous year (3) Does an occasional or casual visit in connection with the assessee's business the assessee resident within the purview of section 4A(a)(iii) -;