CHAGLA C.J. : - The assessment year we are .concerned with in this reference is the year 1945-46 and the accounting year is the calendar year 1944, and the question that arises for our determination is whether the assessee was "not ordinarily resident" within the taxable territories during these years. It has been found by the taxing authorities that the assessee was a resident in the .taxable territories during the calendar year 1944, and the reason why this question has got to be considered is because the assessee has claimed a certain exemption under the second proviso to S.4, and that proviso lays down that in the case of a person not ordinarily resident in the taxable territories, income, profits and gains which accrue or arise to him without the taxable territories shall not be so included unless they are derived from a business controlled in or a profession or vocation set up in India or unless they are brought into or received in the taxable territories by him during such year. The contention of the assessee was that certain profits and gains which accrued to him in Africa did not form part of his total income for the purposes of taxation under S.4 of the Act. Sect