Commissioner Of Income Tax, Kerala vs Ramzan

M.S. Menon, C.J.—This is a reference at the instance of the Commissioner of Income Tax, Kerala, by the Income Tax Appellate Tribunal, Madras Bench, u/s 66(1) of the Indian Income Tax Act, 1922. The assessment year with which we are concerned is 1956-57; and the accounting period April 1, 1956, to March 31, 1957. The question referred is :

Whether the provisions of section 24A of the Income Tax Act of 1922 were applicable ?

It is agreed that the assessee had applied for a tax clearance certificate u/s 46A of the Indian Income Tax Act, 1922. Under that section, the assessee, though admittedly domiciled in India, could not leave the territory of India by land, sea or air unless he first obtained the certificate contemplated there in, if he had in the opinion of the Income Tax authority con concerned no intention of returning to this country.

Section 24A provides that when it appears to the Income Tax Officer that any person may leave the taxable territories during the current financial year, or shortly after its expiry, and that he has no present intention of returning, the Income Tax Officer may proceed to assess him on his total income of the period from the expiry of the last previous year of which the income has been assessed in his hands to the probable date of his departure from the taxable territories. The wording of sections 46A and 24A makes it clear that the lack of an intention of returning to India is the foundation both for the need for the certificate u/s 46A for a person of Indian domicile, and of an assessment u/s 24A of the Act.

In the circumstances of the case, we cannot but presume that the Income Tax Officer was satisfied that the assessee had no intention of returning to India, both for the purpose of section 46A and section 24A of the Act. We must also add that the controversy before us was not raised by the assessee either before the Income Tax Officer or before the Appellate Assistant Commissioner. It was raised for the first time in the memorandum of appeal to the Appellate Tribunal as the tenth and the last of the grounds embodied therein.

We entertain no doubt that the Appellate Tribunal was wrong when it said that section 24A had no application to the case and set aside the order of assessment. The assessees application for a tax clearance certificate u/s 46A was proof enough of his lack of an intention to return to this country and that lack of intention was sufficient to attract section 24A and sustain the assessment made under that section.

In the light of what is stated above, we must answer the question referred in the affirmative and in favour of the department. We do so, but without any order as to costs.

A copy of this judgment under the seal of the High Court and the signature of the Registrar will be sent to the Appellate Tribunal as required by sub-section (5) of section 66 of the Indian Income Tax Act, 1922.

Question answered in the affirmative.