Madras H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the status of the assessee was resident, but not ordinarily resident ?

Counsel Appeared

O. Anandaram, for the Revenue : None appeared, for the Assessee

JUDGMENT

K. GNANAPRAKASAM, J.:

The assessee is an HUF. In computing the income for the asst. yrs. 1978-79 and 1979-80, the WTO adopted the residential status of the assessee as a resident but not ordinarily resident as taken in the Income-tax assessment and consequently denied the claim for exemption of foreign wealth from wealth-tax. On appeal, the CWT(A) held that in the Income-tax assessment claimed by the assessee that he was a resident but not ordinarily resident, had been accepted and, therefore, the following question has been referred to us at the instance of the Revenue : “Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the status of the assessee was resident, but not ordinarily resident ?”

2. The advocate for the Revenue has submitted that a similar question came for consideration in the case of V.E. Periannan vs. CWT (2001) 167 CTR (Mad) 163 : (1999) 240 ITR 723 (Mad), wherein this Court, after discussing the relevant provision, came to the conclusion that a person shall be deemed to be of Indian origin if he, or either of his parents or grandparents, was born in undivided India. “The reference to the place of birth cannot apply to an HUF and it is not possible to extend to the word ‘person’ as meaning of every member of an HUF. The HUF being outside the scope of the Explanation in the context in which the word ‘person’ is used in this provision, an HUF cannot be regarded as a person for the purposes of s. 5(1)(xxxiii) and cannot claim exemption under that provision.”

The facts on hand are similar to the case that has been decided by this Court, in the aforesaid case and, therefore, we answer the question refer-red to us, against the assessee and in favour of the Revenue.

[Citation : 252 ITR 541]