( 1 ) THIS is a reference under sec. 66 (1) of the Indian Income Tax Act 1922 The assessee Ramjibhai Hansijibhai Patel is assessed to income-tax as an individual The assessment year with which we are concerned is the year 1948-49 the accounting year being Samvat Year 2003 i. e the period from 25th October 1946 to 12th November 1947. The assessee had been living in Johannesburg in Africa for a long time. He came to India in April 1946 and left for Africa in September 1948. He was at the material time a co-parcener in a Hindu undivided family which owned and maintained a house at Varad in Surat District. The. expenses for maintaining this house were met by the Hindu undivided family out of its own resources. In connection with this house the Appellate Assistant Commissioner found as under:here was a house in British India where the appellant was by right entitled to stay whenever he liked. He is a full fledged member of the H. U. F. and would not stay at the H. U F. house as anybodys guest but as a part-owner. The expenses at this establishment at Varad are met out of H. U. F. s income and as such the appellant has right to stay there without obligation. He has so as to say a legal right to stay in the ancestral H U. F. house and he actually does stay there whenever he wants.

( 2 ) THIS finding of the Appellate Assistant Commissioner has in fact not been disputed before us. The assessee when he visited India stayed for some time at this ancestral family house at Varad. The assessee submitted a return in response to a notice issued against him under sec 34. In the return he showed his status as that of a non-resident The Income Tax Officer came to the conclusion that the assessee was a resident as in his view the requirements of both clauses (i) and (ii) of sub-sec. (a) of sec. 4a of the Income Tax Act 1922 were satisfied. He held that the assessee though resident was not ordinarily resident The assessee preferred an appeal to the Appellate Assistant Commissioner contending that he was a non-resident. This contention was also rejected by the Appellate Assistant Commissioner. The matter was carried further to the Income Tax Appellate Tribunal. The Tribunal took the view that the requirements of sec. 4a (a) (ii) were satisfied and that the assessee was rightly treated as a resident. The assessee being aggrieved by this decision of the Tribunal required the Tribunal to refer to us three questions of law which according to the assessee arose from the order of the Tribunal. The Tribunal took the view that only one question of law arose from the order of the Tribunal and the Tribunal accordingly referred the same to us for our decision The question referred to us is the following:whether on the facts of this case the assessee was properly assessed as a resident because of (a) maintenance of a dwelling place in the taxable territories by the Hindu Undivided Family of which he is a co-parcener and (b) the assessees stay therein for some time during the previous year ? the answer to the question depends on the application to the facts of the case of sec. 4a (a) (ii) of the Income Tax Act 1922 At the relevant time that section ran as under: residence in British India. For the purposes of this Act- (a) any individual is resident in British India in any year if he- (ii) maintains or has maintained for him a dwelling place-in British India for a period or periods amounting in all to one hundred and eighty-two days or more in that year and is in British India for any time in that year; xxx xxx xxx xxx.

( 3 ) IT is not disputed that during the relevant accounting year the assessee was in British India. It is also not disputed that the ancestral family house situate at Varad was in existence for a period exceeding one hundred and eighty-two days in that year. The only question that has been debated before us is whether by reason of the existence of the ancestral family house it could be said on the facts of the present case that t