Mohamed H.S. Dewji v. The Commissioner of Income Tax, Civ. App. 4-A-68, 22/7/69. Platt J.

Mohamed H.S. Dewji v. The Commissioner of Income Tax, Civ. App. 4-A-68, 22/7/69. Platt J.

Appellant, who was director of a company with braches in Arusha, Moshi and Zanzibar, had spent his whole life in Zanzibar. In 1964, he wound up his affairs there are arrived in Moshi with his whole family. On 1 January 1965 he went to Pakistan to find another home for himself and his family – leaving his family to live with his brother Yusuf in Arusha. After acquiring property in Pakistan, he came back in April, for three weeks to arrange for his family to travel to Pakistan. In 1967, he came back again for a brief visit. Upon being assessed for income for 1965 as a “resident”, appellant appealed to the Local Committee; but being dissatisfied with the decision of the Committee, appellant to the High Court on the grounds that he was not a “resident” and therefore not chargeable for income tax as a resident in the year in question. He claimed to have taken up permanent residence in Pakistan and to have divested himself of residence in Tanzania. However, the appellant, in his application for tax clearance in April 1965, had stated that the purpose of his visit was ‘business’ and he intended to come back in July. He had not declared that he was going to settle in Pakistan. Moreover, a company of which he was a director owned considerable property in Arusha, including the house of his brother Yusuf, which was rented from the company.

            Held: (1) A preliminary point must first to be decided. The Commissioner-General’s argument before the Committee was based on the contention that the appellant was a “resident” under s.2 (1) (a) of the East African Income Tax (Management) Act, 1958 (as amended). On appeal, however, he stated that if the court did not accept that contention, he would further argue that the appellant was a “resident” under s. 2(1) itself, without relying on the deeming portion of the definition. Appellant argued that the Commissioner – General was stopped from advancing new grounds to support his assessment. First, one has to remember that this court is obliged, regardless of any findings of the Committee, to approach every issue of fact as res integra, and to make its own findings thereon; the burden of proof always being on the taxpayer to show that the original assessment was excessive. Having then found the facts, this court must apply the law to them, and it would appear to follow that where new facts are found, the law must be applied whether it was raised before the committee or not. It would be unsatisfactory, of course, if a party were to be taken by surprise, but that matter can be remedied by an adjournment. Although it is somewhat hazardous to rely on the position in England, as the procedures there are very different to those in this country, the Commissioners there are not precluded from allowing an appellant to take up a new ground or from taking it into consideration themselves. (See Halsbury’s

Laws of England Vol. 20, rd Ed. at page 684 Para 1351); and on appeal to the High Court where sufficiently facts are stated in a case, the court will give effect to any point of law arising on those facts (ibid p. 695 Para 1373). Further, facts may e agreed or admitted for the purposes of an appeal, but the question what is the law applicable to the circumstances is for the tribunal, and cannot be concluded by an admission made by the Inspector before Commissioners. (ibid p. 736 Para 1481). It appears to me that I should apply similar principles and this whether or not the Commissioner-General has put forward his opinion on a matter of law to the Committee. It is still open to this court to apply the law in what appears to the court to be proper to the matter. It follows then that the Commissioner – General may raise new points and indeed, the court itself so long as the parties have a fair chance of representing their views. I think further support for this proposition may be obtained from T.M. BELL v. COMMISSIONER OF INCOME TAX (1960) E.A. 224 …… (2) “Considering first the deeming section in paragraph 1(a), it was conceded that the enactment’s requirement of the appellant’s presence in the Territories was complied with. Whether he had also complied with the other requirement, was the subject of considerable debate……. Despite the appellant’s interest in the property in Arusha, it was the company’s property and that although he might have had the benefit of any family member to occupy a part of the main building if available; he could not do so because it was occupied. His wife was obliged to be a guest in Yusuf’s rented house. I am also satisfied that the appellant was trying to secure a new opening in another country. It seems clear to me that he never intended to make Yusuf’s house his home. It was a temporary measure. I am inclined therefore to agree with Mr. Nazareth that the appellant had no home in this country. Mr. Ferro put forward a far – reaching definition of the term “home” ….. that a home is anywhere where a man’s wife and children reside, whether that place is owned, leased or provided by the husband, as in a hotel, or in which they live gratuitously with relatives or friends, whether the establishment is temporary or not, or for however long they stay there – all this, it is said, despite the fact that the husband has made his home elsewhere. I must confess that I cannot imagine what not a home is. It seems to me that too much stress is laid on the position of the group consisting of the wife and children. I have considered this matter elsewhere (See Commissioner General for Income Tax v. Nuruddin Hassanali Noorani, Misc. Civil Appeal Nos. 1,2,3,&4 of 1968), and I do not propose to analyses in detail cases such as HERBERT v. BYRNE (1964) 1 All E.R. 887; BECH v. SHOLZ 1953) K.B. 575 which were cited there. When a family is in a state of moving from one place to another, it may well have two homes. But in deciding whether a family does have two homes, I would apply the tests expressed in Noorani’s case. In my opinion a mere makeshift arrangement of a temporary nature such as appears in this case, would seem to me sufficient evidence that he did not have a home Arusha but had acquired one in Pakistan. I would rely on the Shorter Oxford dictionary definition which is: “A dwelling place house, abode; the fixed residence of a family or household, one’s own house; the dwelling in which one habitually lives or which one regards as one’s proper abode.” That definition in my view puts forward the useful idea that there must be some link such as title or long occupation by which a place can be called a home. There is no such feature in the present case which could give any colour to the occupation of Yusuf’s house by the appellant’s wife and children so as to call it the appellant’s home. If follows

therefore that I would agree with the appellant that he did not come within the ambit of Para 1 (a) of the definition.” (3) “I turn then to consider whether the appellant was a resident. He had been resident in 1964 both at Moshi and Arusha. He was and still is the director of a company which owns property, trades here and provides him with an income. Although he left on 1st January 1965, he revisited Arusha for three weeks In April, 1965. True he contemplated settling in Pakistan, but he did not take any clearly irrevocable step until 1966. He left in April 1965 having stated that he was going abroad for business and would return in July 1965. In these circumstances, it seems to me that it cannot be said that he had finally divested himself of residence in this country until 1966. it is agreed, I think, that a person may be resident though he has no establishment in the country of his residence when as a  part of a regular habit of life he stays in hotels or with friends for various periods in a year spending the rest of the time abroad. He may also have two residences. But when a person who has been a resident and still has a place of abode available to him whom he actually visits, residence will generally be continued. (cf Halsbury p. 393, Para 718 and the cases collected there, many of which Mr. Ferro cited). It seems to me that although the appellant was not resident for very long on the mainland of Tanzania, nevertheless, his business and family interests had been established here for a considerable period. The facts of this case are not dissimilar to those in the COMMISIONER OF INCOME TAX v. P. & CO. LTD. et al No. 16 E.A.T.C. Vol. 1, page 131 where Sinclair, J. (as he then was) observed that residence was still residence although It was only occasional (p.150).” (4) Appeal dismissed.