P. N. BHAGWATI, J.

( 1 ) TWO questions of law arise on this Reference. One which is relatively simple raises the question as to whether an assessee can have two or more different statuses for the same assessment year. There are two decisions one a decision of the Privy Council and the other a decision of the Madras High Court which throw considerable light on this question and render it easy of solution. But the second question is one of some difficulty and no guidance to its solution is to be derived from any decided authority. That question turns on the true interpretation to be put upon the provisions of sec. 17 (1) of the Incometax Act 1922 These questions which have been submitted to this Court by the Tribunal arise out of an assessment made on one Girdharlal Ghelabhai as an individual for the assessment year 1956-57. The assessee had at the material time two sources of income namely (1) property and (2) business. The previous year in respect of the first source namely property was the financial year ending 31/03/1956 while in respect of the second source namely business having regard to the accounting year adopted by the assessee for maintenance of his accounts the previous year was Samvat Year 2011. The assessee left India on 12/08/1954 and returned on 14/02/1956 with the result that he was not in India at any time during the period covered by Samvat Year 2011 namely 27 October 1954 to 14/11/1955 though during the period covered by the financial year ending 31/03/1956 he was in India for a part of the period namely 14/02/1956 to 31/03/1956. The assessee had maintained a dwelling house in India throughout the period of his absence but since he was not in India at any time during Samvat Year 2011 he was treated as not resident in Samvat Year 2011 under sec. 4a (a) (ii) which was the relevant provision applicable to the case. In the financial year ending 31/03/1956 however he was treated as resident under sec. 4a (a) (ii) since he was in India during a part of that year. The income from property for the financial year ending 31/03/1956 which was the previous year in respect of the source property was computed at Rs. 490/while the income from business for Samvat Year 2011 which was the previous year in respect of the source business was computed at Rs. 5 545 The total income assessable to tax was thus determined at Rs 6 35 since the assessee was not resident in Samvat Year 2011 which was one of the two previous years for the assessment year in question the revenue authorities applied section 17 (1) to the income from business in respect of which the assessee was treated as not resident and taxed it at the maximum rate. The result of the application of sec. 17 (1) was that the tax charge on the assessee amounted to Rs. 2 567 np. whereas if sec. 17 (1) had not been applied the tax charge would have come to only Rs. 253-13-3. To escape the application of sec. 17 (1) the assessee urged two contentions before the revenue authorities. The first contention was that on a true construction of sec. 4a (a) the word year in the section referred to a financial year and the tests of residence laid down in the section were therefore to be applied with reference to a financial year and not with reference to a previous year so that even though there might be for the same assessment year different previous years of an assessee in respect of his separate sources of income an assessee could not have different statuses according to the different previous years but could have only one status according to the financial year and the financial year according to the assessee was the financial year immediately preceding the assessment year. This contention was advanced obviously because if it were correct the assessee in the present case would be a resident and in that event sec. 17 (1) admittedly would not apply The second contention which was urged in the alternative was that even if the tests laid down in sec. 4a (a) were to be applied with refere

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