Abdul Hamid J:

This is a case stated pursuant to para. 34 of Sch 5 of the Income Tax Act, 1967 for the opinion of the High Court whether on the facts found by the Special Commissioners of Income Tax, there is evidence to support their finding that the appellant was not resident in the States of Malaya for the years of assessment 1966 and 1967 within the meaning of the word "resident" as defined in s. 2 of the Income Tax Ordinance, 1947.

The facts found by the Special Commissioners are not in dispute and are as follows -

The appellant was born in India on 20 June 1937. His father, MO, was one of the founder partners of MS and Company which was established in 1900 carrying on business in Singapore, Kuala Lumpur, Penang and Ipoh. MO died in 1950. On his death, the appellant's mother AB, took over his shares and became a partner. The appellant first came to this country on 19 September 1952. His mother sent him here to study as well as to carry on the business. He went to school in the morning and stayed in the shop studying the business in the afternoon. Under an agreement dated 29 January 1954, the business in Singapore, Kuala Lumpur, Penang and Ipoh became separate partnerships. On 2 August 1954, the Kuala Lumpur firm was incorporated into a limited company called MS & Co. Ltd. The appellant's mother was a shareholder in this company. In 1956 the appellant became an assistant in the company and attended to full-time business. In 1957 he married in India.

The appellant became a shareholder of MS & Co, Ltd on 9 May 1958. Since April 1959, he has been holding 67,231 shares in the company. As at 10 August 1970 the paid-up capital of the company was $400,000 divided into 400,000 shares of $1 each. The appellant has been a director of the company since 27 April 1959. He has also been a manager of the company. He is paid travelling allowance, directors allowance, managers remuneration and dividends by the company. The managers remuneration is paid for the periods he actually works as manager in this country. When he is in this country for a short period only, he is not paid managers remuneration but receives directors allowance for that period. While in this country, he stays in the companys premises and eats there and is provided with free board and lodging by the company. A place of stay for the appellant is always reserved for him by the company at the companys shop premises to be used by him at any time.

All the directors of MS & Co., Ltd. who manage its business live in the shop premises. The directors are not required to hold directors meetings at regular intervals and although they meet about once in three months, directors meetings could be held in the absence of the appellant.

The appellant is a citizen of India. He has three children, all of whom were born in India and live in India. His wife and mother also live in India. The appellant has 15 acres of land and one house in India where his wife and children live. There are three other houses in India which he rents out.

The Special Commissioners also found that the appellant had not lived in this country continuously from 1952 to 1970 but very often returned to India and then came back to this country again. From 1952 until 24 April 1970 (the date of the hearing) a period of 17 years and 17 months, the appellant spent in the aggregate of approximately 10'bc years in this country.

In arriving at their decision the Special Commissioners took into consideration that in 1968, the appellants mother was seriously ill with diabetes and the appellant was asked to return to India. Since the appellant was her only son, she refused to undergo surgery unless he was by her side. In 1966 one of her toes was operated on and in 1967, her leg was amputated. She died in November 1967. The Special Commissioners also took into account that the appellant brought his wife and children to this country only once and that was in 1968 and that they stayed in this country for six month