The Chief Justice. -This reference is made by the Income-tax Appellate Tribunal, at the instance of the Commissioner of Income-tax, Madras. The question raised is:

“Whether in the circumstances of the case the assessee (a Hindu undivided family) is ‘resident in British India under section 4-A(b) of the Income-tax Act.

The assessment was made upon the karta of a joint Hindu family in respect of its income as such. Since 1923 the karta has lived in Ceylon with his wife, son and three daughters; it is stated they are domiciled in that country where at one time, the karta carried on business in partnership with a stranger to the family; in 1930 the partnership was dissolved and since that year a joint family business has been conducted in Colombo. The joint family owns immoveable property at Kanadukathan, Madras, including the ancestral family house; that house is not let on lease but is occupied, in part at least, by the assessee’s mother and where the karta stays when he visits British India. Other properties are leased at rentals which are collected by a clerk who is employed for the purpose of looking after the family properties. The karta of the family is assessed in British India in respect of its British Indian income. During the assessment years 1940-41 and 1941-42, in addition to income derived from the family properties and the annual value of the ancestral house, the profits of the Ceylon business were included in the assessments on the ground that the joint family was resident in British India. The karta was successful in an appeal to the Income-tax Appellate Tribunal against the family being deemed to be resident. Nevertheless, in the assessment for the following year, 1942-43, in respect of the year of account 1941-42 the Income-tax Officer treated the family as resident in British India; the karta was again successful in an appeal to the Tribunal, which held the family was not resident. This reference arises out of that finding.

At the hearing before the Tribunal some extracts from the karta’s diary, dealing with his visits in British India during the relevant period, were admitted in evidence The Tribunal accepted those extracts as correctly recording the date of each visit, the length of time spent in British India and what was done by him on those occasions. But the Tribunal came to the conclusion that the diary entries, as well as other factors and matters upon which the Commissioner of Income-tax relied, did not establish that the family was resident in British India during year of account. The Commissioner challenges the correctness of the Tribunal’s decision and contends that, accepting the entries in this diary as proved facts, the inferences drawn from them by the Tribunal were wrong and that they establish that the family was resident within the meaning of section 4-A(b) of the Indian Income-tax Act. In this reference the Commissioner relies solely upon the entries in the diary, coupled with the ownership of their immoveable properties and matters connected therewith; he does not rely upon the other matters which were urged before the Tribunal to which reference was not made in argument and which can be ignored.

Section 4-A(b) was included in the Act by the Amending Act of 1939; it provides that:

“For the purposes of this Act-

a Hindu undivided family, firm or other association of persons is resident in British India unless the control and management of its affairs is situated wholly without British India.”

“Firm” and “other association of individuals” are included with “Hindu undivided family” in the section; may be this was because each is comprised of individuals but it would seem that a firm is more analogous to a company of which residence in British India is governed by clause (c) of section 4-A. Whilst a firm and a joint family have several common attributes when the latter owns a family business, but many, if not the greater number of Hindu joint families possess only property, moveable or immo