COMMISSIONER OF INCOME TAX Vs. JANAB A P MOHAMED NOOHU

JUDGEMENT

(1.) SINCE, in our opinion, the Tribunal was right in the conclusion it reached, that the requirements of section 4A(a)(ii) were not satisfied and that the assessee did not in either of the two years in question maintain a dwelling house within the taxable territories and that he did not have a dwelling house maintained for him either, we see no justification to direct the reference that the Department seeks under section 66(2) of the Income Tax Act, 1961The assessee was a resident of Ceylon. He was one of the heirs of his father and was thus in the position of a co-tenant of the house that devolved on all the heirs. But it was his brother and one of his sisters with their families that actually occupied the house. It was their dwelling house, and they did not maintain it as a dwelling house for the assessee. The assessee's wife and children lived with her father, and he obviously maintained his house only for himself and not for the assessee. The assessee had nothing to do with the maintenance of either house as a dwelling house. Neither was his dwelling house. That during his temporary visits to India he stayed in either house, obviously as a guest, did not make either of them his dwelling house within the meaning of section 4A(a)(ii). All that was established in this case was that the title to the house that had belonged to his father vested in the assessee along with the other co-heirs. The assessee had of course a right to a fractional share in the house. He had a right to ask for partition he had also a right to ask for joint possession without seeking partition. He did not exercise either right.

(2.) TWO of the other tenants-in-common, his brother and sister, were in actual possession. As we have recorded earlier, it was their dwelling house We are in respectful agreement with the test laid down in Commissioner of Income-tax v. Fulabhai Khodabhai Patel. Chagla C. J. observed