V.G. Oak, C.J.
1. This is a reference under Section 66 of the Indian Income-tax Act, 1922. Swami Narsingh Giri is the assessee. He was assessed to income-tax for the assessment year 1944-45. He submitted a return indicating an income of Rs. 1,152 as income from property. The Income-tax Officer found that there was afdeposit of Rs. 10,200 in the bank account standing in the assessee's name. Another item of Rs. 396 was credited in the bank account on account of interest. The Income-tax Officer treated these amounts of Rs. 10,200 and Rs. 396 as income of the assessee. The Income-tax Officer rejected the assessee's claim that these two items are exempted under Section 4 of the Act. Upon an appeal by the assessee, the Appellate Assistant Commissioner accepted the assessee's claim that those amounts were exempted under Section 4 of the Act. Upon further appeal by the department, the Appellate Tribunal reversed the decision of the Appellate Assistant Commissioner and restored the decision of the Income-tax Officer. The Tribunal rejected the assessee's claim for exemption. The Tribunal declined to state a case as requested by the assessee. But, on April 6, 1962, this court directed the Appellate Tribunal to state a case. Accordingly, the Appellate Tribunal, Allahabad, has drawn up a statement of the case, and referred to this court the following question of law :
' Whether, on the facts and in the circumstances of the case, and in view of the use to which the assessee used to put the income of the math, the income therefrom was exempt under the provisions of Section 4(3)(i) of the Act?'
2. One Swami Atma Nand Giri, who claimed to be a disciple of the assessee, was examined on behalf of the assessee. Swami Atma Nand Giri gave a number of statements. The witness said that Swamiji goes to places for imparting religious teachings and his disciples gave offerings to him. This is the assessee's source of income. In another statement the witness at first said that money, goods, gold and silver received by the assessee as offerings are meant for the association (sanstha). The witness however went on to state that Swamjji had complete control over this money. He may spend it as he likes. He can give it away to whomsoever he wishes to give.
3. The-assessee claims exemption under Sub-section (3) of Section 4 of the Act. Sub-section (3) of the Act was amended in 1952, by Amending Act No. 25 of 1953. We have to consider the Act as it stood at the time of the assessment year. We have, therefore, to consider the provisions of the Act before 1952.
4. At the material time Sub-section (3) of Section 4 stood thus:
' Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them :
(i) Any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, and in the case of property so held in part only for such purposes, the income applied, or finally set apart for application, thereto. .....
(ii) Any income of a religious or charitable institution derived from voluntary contributions and applicable solely to religious or charitable purposes.'
5. The question referred to the Tribunal expressly mentions Clause (i) of Sub-section (3) of Section 4 of the Act. The assessee's claim for exemption under Clause (i) has to be rejected for two reasons. Firstly, Swami Atma Nand Giri admitted that the assessee has complete control over the money in question. He can spend it as he likes. Under these circumstances, it cannot be said that the money received from offerings had necessarily to he set aside for religious or charitable purposes. Secondly, Clause (i) requires that the income in dispute should have been derived from property held under trust or other legal obligation wholly for religious or charitable purposes. When a visitor makes offerings to the assessee, it cannot be said that such money is derived from property held under trust or other legal obligation. Consequently, such income is not covered by Clause (i).
6. Although the question referred to the court does not refer to Clause (ii), we find a reference to Clause (ii) in the court's order dated April 6, 1962. We, therefore, considered the applicability of Clause (ii) also. In order to bring a case under Clause (ii) of Sub-section (3) of, Section 4, it is necessary to establish that the income must be of a religious or charitable institution. In the present case the offerings appear to have been made to the assessee personally. Secondly, according to the version of Swami Atma Nand Giri, such offerings were not solely for religious or charitable purposes. The assessee was at liberty to spend the money as he liked.
7. The result is'that the present case is not covered either by Clause (i) or Clause (ii) of Sub-section (3) of.section 4 of the Act.
8. We answer the question referred to this court in the negative, and against the assessee. The assessee shall pay the Commissioner of Income-tax, U.P., Rs. 200 as costs of this reference.
Question answered in the negative.