1. In this appeal, preferred by the revenue, the action of the AAC taking the income of the assessee at nil and holding that, if at all any income arises the same belongs to the deity Jawalamukhi, is contested 2. The assessee in this case, which is Mandir Parbandhkarni Committee, Jawalamukhi Temple, had not been subjected to tax by the ITO for the first time during the assessment year 1964-65, which is under consideration, but earlier in respect of the assessment year 1972-73 assessment of this very assessee had been before the ITO, who held that the assessee-committee's job was only to manage the affairs of the temple and it does not earn any income of its own. However, the revenue resorted to Section 148 of the Income-tax Act, 1961 ('the Act') proceedings for the year under consideration and, firstly, the assessment was framed ex parte under Section 144 of the Act, but subsequently as it was set aside under section 146 of the Act, fresh assessment came to be made by the ITO on the assessee in the status of AOP, who estimated the cash receipts at Rs. 65,000 and receipt of gold ornaments at Rs. 10,000, i.e., he estimated the gross receipts at Rs. 75,000, out of which the expenses claimed by the assessee in a figure of Rs. 49,352 duly reduced by the shares of the members of the assessee-AOP, and charity in a figure of Rs. 20,231, net sum of Rs. 29,121 was deducted out of said estimated gross receipts of Rs. 75,000 and the income was computed in a sum of Rs. 45,880.
3. When this assessment of the assessee came to be disputed before the AAC, she held that the assessee-AOP had nothing to do with the income of the temple as the said income, if at all any, belonged to the deity and she, therefore, computed the same at nil in the hands of the assessee.
4. It is this action of the AAC which is disputed by the revenue before us. The learned senior departmental representative, Mr. R.K. Bali, while disputing this action of the AAC on two main groundstaking the assessee's income at nil and holding that income, if any, belonged to the deity, mainly relied on the order of the ITO and vehemently argued that Jawalamukhi temple is of great national importance and huge offerings in cash and gold are made in the said temple. He submitted that because of restrictions of the Gold Control Order, gold ornaments are not divided but cash offerings are partly distributed amongst its members and partly retained by the committee. He submitted that looking to the character of the committee, all the members were entitled to conduct puja in the temple and, in turn, receive their due share of income of the profession. It was in order to regularise and do the puja well that the committee was formed which, according to him, in a way is a concise body. The said committee being in enjoyment of the full earnings from the profession, was, therefore, liable to tax as AOP and the AAC was not justified in taking the income of the assessee-committee at nil and holding that income, if at all any, belonged to the deity.
5. The assessee was not represented by any one at the time of hearing, but the Bench finding that the order of the AAC is detailed in every respect, hearing continued and, in the end, Mr. Shashi Bhushan and Mr.
Umesh Sharma on behalf of the assessee-committee, had put in their presence, who could not do anything better than to rely on the order of the AAC.6. After perusing the facts carefully and considering the history of the temple and the way it is being managed and worshipped since centuries past, we are of the view that the order of the AAC deserves to be confirmed and the revenue has no case in respect of any contentions raised in its appeal. The order of the AAC is very detailed and gives very sound reasons with a historical background on which the AAC based her finding and including the same in our order would only be repetition. But we are of the view that it is necessary because the appeal before us is of great importance in which the finding will not only govern the assessee but many more assessees of the type which are similarly constituted to look after the management of other temples situated in Himachal Pradesh.
7. The Himalayas, which heads our country, as a whole is considered a religious and sacred place because mythologically Himalayas have been considered the playground of Goddess Parbati, daughter of Shail, who had done terrific penance (Tapasaya) in order to get Lord Shiva and she appeared in different forms only in certain ranges of Himalayas, central ranges of which are known as 'Avastamshgiri'. One of the ranges out of it is known as 'Pir Panjal' of which one of the branches is 'Shivalik'. On this range are situated temples such as of 'Naina Devi', 'Chintapurni' and on the adjacent range known as 'Dhaulidhar' are situated 'Jawalamukhi', 'Vajreshwari' at Kangra and 'Chamunda Devi'.
These very branches of Pir Panjal crossing river Ravi reach Jammu and Kashmir, wherein a cave is situated 'Vaishno Devi' and all these temples are famous since centuries. In most of the temples, mode of puja is alike. We are here concerned only with Jawalamukhi Temple and the assessment of its management committee. This is a temple which can be termed unique in whole of the universe and nationally it is one of the most important religious places of entire humanity irrespective of caste, creed or communities. In this temple, at number of places, sacred fire 'Jawala' is coming out at different places. Again, as per Puranic mentions, 'Jawala' or 'Jyoti' as it is more popularly known with reverence, is available at 14 places at different times and the number of places wherever the sacred fire is coming never falls less than eight in number. This temple, is, therefore, known as 'Chnturdesh Durga'. The main jyoti which is available in the central silver abode is known as 'Mahakali' and the two below are known as 'Annapurna', on the other side, one coming is known as 'Chandi'. The fourth is known as 'Inglaj' and fifth is known as 'Vindhyawasni'. In the sacred kund, there are four more sacred flames which are known as 'Maha-laxmi', 'Saraswati', 'Ambika' and 'Anjana'. For ages it is only one class of pandits who are authorised to do the puja of this temple, who are known as 'Bhojikis'. Ail the Bhojikis families, who are entitled to perform puja are based in the village Jawalamukhi, The number of those who are entitled to do puja has been fluctuating year after year with procreation in Bhojikis families and partitions and also sometimes it is affected by exodus of people. Indian history speaks that this temple was visited by King Akbar, who having his own doubts about supernatural power of Jawalaji, ordered sealing off the holes out of which sacred fire was coming in flames and when thick iron sheet was pierced through by Jyoti, Akbar came barefooted and offered equal amount of gold canopy (Chhattar). Even recently, only a few years back, Indian scientists thought that there must be gas and oil in the hills of Jawalaji. The Government of India spent crores of rupees but all in vain and ultimately the Oil and Natural Gas Commission dropped its plan. Besides faith of people, it is the truth, Jawalaji Temple is unique in the universe. Even during British rule, Lord Edward also had the luck of visiting it. The affairs of the temple are being managed through a management committee and, as observed by the AAC in her order, records are available with the temple committee since over a century. In the said record, there is an order of Lord Edward passed in 1845 as per which it is unequivocally clear that the management committee was legally appointed through Court order. These orders again find mention in report made by Tehsildar to Deputy Commissioner, Kangra, as long as in 1909. Further, there are documents which relate to the year 1933 in which Raja Han Krishan had referred to the management committee. As per customs and uncodified code, the deity is to be worshipped only by Bhojikis and they are to share the cash offerings of the temple in equal shares, which also further get bifurcated and diluted with new births in their families. During the assessment year under consideration, there were only as many as 47 families. The gold ornaments were never to be distributed even amongst those who are doing puja, i.e., Bhojikis families, and the same were to be retained for the deity. The right of puja has been inherited and so is the right of inheriting the net cash offerings by birth by the Bhojikis families.
This practice has been going on for hundreds of years. In order to see that affairs of temple are properly managed, there has been a committee and the assessee, which is known as a 'Mandir Prabandhkarni Committee, Jawalamukhi Temple', is constituted of 11 persons who are elected year after year annually, not out of the Bhojikis Brahmans only but out of the village as a whole, whose job is only to look after the management part. They are honorary except to the extent that some of the members of the committee, by virtue of their being Bhojikis and belonging to the families authorised to do puja, would only be getting their share not as members of the management committee but as Bhojikis Brahmans in their right to do puja, who inherited the right of puja by birth. The said committee consists of a President, Vice-President, Secretary and a Cashier besides seven other members.
8. Besides the above background and historical rights and obligations of the pandits doing puja and the committee, it is also a well-known fact that the offerings are only made on the sacred fire, i.e., to the deity and not even to the pandits who are Bhojikis who are authorised to do the puja, what to talk of management committee. The management committee, as a matter of fact, vouchsafes the right and interest of the deity, on the one hand, management of the temple affairs, on the other hand, and proper allocation of shares amongst the Bhojikis, who are entitled to do puja besides convenience and control of yatrees.
There is no dispute about the fact that the management committee or any of its members as such does not get a cent out of the offerings made in the temple. To this effect, the office bearers of the committee did produce certain affidavits before the ITO, who conveniently ignored to consider the same. There is also no dispute about the fact that the pandits doing puja get their share out of net savings after expenditures are incurred by the management committee on the maintenance of the temple and regular puja from 'Mangala' to 'Shain' and Bhojikis doing puja, had offered the said receipts for taxation in their respective hands and this fact was also reiterated before the AAC by the assessee. There is also no dispute about the fact that Jawalamukhi Temple is being worshipped by people from all over the worldbelonging to any caste or creed, and also runs 'Langar', Sanskrit Pathshala and Dispensary, etc. There is also no dispute about the fact that the lands which are under the temple have been in the name of deity. The gold ornaments or jewellery, as above said, is exclusively utilised for the deity and no one else has any right on the same. It is b ecause of the custom and not because of the gold control restrictions, as observed by the ITO that silver, gold and ornaments are not distributed amongst the Bhojikis. The very fact that the management committee is constituted not only out of pandits doing puja but also from others and it is honorary, shows that its job is only to manage the affairs of the temple and nothing more. This is also a fact that in any temple, offerings are always made due to devotion and faith in God and not to the pandits who do the puja. There is also no dispute that the affairs are managed like this since centuries past. The old documents, referred to above, were rightly relied upon by the AAC while holding that the management committee had nil income and, if any income at all, the same belonged to the deity. It will be wrong to say that the management committee is a body of professionals. Once it can contain a man from the street who has nothing to do with puja and who by virtue of its member gets nothing, the rinding of the ITO was incorrect and that of the AAC is right. This is also a fact that an identical issue, though for the subsequent assessment year, i.e., 1972-73 had been laid at rest in favour of the assessee by the ITO himself and the said assessment had been holding the field, as rightly observed by the AAC, as the same was neither cancelled under Section 263 of the Act or disturbed in any other way. This is also trite law that the revenue should be consistent in its views as far as possible.
Reliance of the assessee on certain judgments, as observed in the AAC's order, is also correctly placed.
9. As per our understanding of the facts, there is a village temple. As per an ancient custom, certain families in the village have a right to perform worship of the deity in rotation. With the exodus of people to cities and towns, the number of the families exercising the right can be reduced and the same can increase by creation of new families by births and family partitions resulting in reduction of shares pro rata.
The number of days in a year for which each family has the right to worship depends upon the number of families exercising the customary right and with the decline in the number of families in the village exercising the right, the remaining families may get their turn to worship more frequently during a year than previously or otherwise where families increase. As per the custom, the family whose turn it is to worship the deity for the day, keeps the offerings made to the deity on that day, after meeting the day's expenses, the surplus belongs to the family. This accounting may be done twice or thrice a year.
10. The question which we have to consider is whether the different families can be assessed to tax as an AOP in respect of the surplus so realised during a year in the form of a management committee, which is not only out of their families but from outsiders. To put it differently, if there are any 73 families each of whom gets the right of worship on five days during the year, is each of them assessable separately in respect of the earnings for the said five days during the year, or are the 73 families assessable as one unit for the totality of the surplus realised by all of them during a year, and specially including even those outsiders who have nothing to do with puja but are only in the committee as public representatives for management of affairs. Income-tax is charged under Section 4 of the Act in respect of the total income of the previous year of every person. Section 2(31) of the Act defines a person as including an individual, an AOP or persons or a body of individuals whether incorporated or not. The different families cannot, certainly be regarded as individual. The question which will arise is whether they may be treated as an AOP or body of individuals. The term 'AOP' is not defined as such in the Act. It is now well accepted that in order to constitute an AOP, the members must join in common purpose or common action and the object of the AOP must be to produce incomeCIT v. Indira Balkrishna  39 ITR 546 (SC) and Mohamed Noorullahv. CIT  42 ITR 115 (SC) as well as the commentary in Kanga and Palkhivala's Law and Practice of Income-tax, Vol. 1, Seventh edn., pages 66-70. Merely holding a joint position with some one, does not make the group an AOP unless there is first of all a joining together for a common purpose or action of earning profit. In the present case, each of the families would be performing the puja individually on the allotted day. There is really no joint action or coming together for a common purpose or performance specially when some members of the committee are outsiders who don't get even a pie as they are not entitled to do puja as they are not entitled to do so by birth.
The next thing to be considered is whether, if not as an AOP, the families can be assessed as body of individuals. This category of the assessees has been added by the Act. However, the Act does not provide for any clear cut difference between an AOP and a body of individuals.
The question of status of body of individuals has been considered in some decisions. In the case of Deccan Wine & General Stores v.CIT[I977] 106 ITR 111, the Andhra Pradesh High Court had to consider whether a widow and two minor children of the erstwhile sole proprietor of a business, who succeeded him, were assessable as one unit as a body of individuals or whether they were assessable separately and individually in respect of their income from the business. The Court observed at page 117 that to be an AOP, the persons must associate themselves in an income producing activity. They must engage in such an activity pursuant to the combined will of the persons constituting the association. There must be common design to produce income. Without a common design, there could not be an association. Common interest or production of income without a common design was not enough. According to the Court, what distinguished a body of individuals from an AOP, was the absence of a common design. According to the Court, the mere joint receipt of income by a combination of individuals such as by co-heirs would not constitute a body of individuals. The term was, however, wide enough to include a combination of individuals who have a unity of interest but who are not actuated by a common design and one or more of whose members produce or help to produce income for the benefit of all.
In the present case, there is no joint receipt of income nor is income produced by one or more of a group for the benefit of the group. Each family takes or enjoys its own income of the day allotted to it for performing worship and some of the members even do not get that. In the case of CIT v. Harivadan Tribhovandas  106 ITR 494, the Gujarat High Court had to consider a case where three brothers had received properties on partition of a HUF. The land which was so received was valued at Rs. 55,200 and the assessee's one-third share therein was Rs. 18,400. Sometime later, the assessee received Rs. 36,630 in lieu of his one-third interest. One of the contentions of the assessee was that he and his brothers constituted a body of individuals and, accordingly, there would be no levy of capital gains tax by virtue of Section 47(ii) of the Act. According to the Court, the term of 'body of individuals' would mean a conglomeration of individuals who have come together and who carried on some activity with a view to earning income or profits and gains. The body of individuals or the group must carry on an activity with a view to earning income because it is only with such a body that the Act is concerned. The Court expressed agreement with the view taken in the case of Deccan Wine & General Stores (supra). In the case of Meera & Co. v. CIT  120 1TR 564, the Punjab and Haryana High Court held that the term 'body of individuals' did not signify a species of the broader category AOP. According to the Court, the term would include a combination of individuals who have a unity of interest but who are not actuated by a common design and one or more of whose members produce or help to produce income for the benefit of all. The body of individuals would not necessarily be the result of an agreement, arrangement or design. In the case before the Court, on the death intestate of an individual who was carrying on a business, his widow continued with the business on her behalf and on behalf of the three children. In these circumstances, by applying the test laid down in the two decisions, referred to above, namely, of the Andhra Pradesh and Gujarat High Courts, the Punjab and Haryana High Court held that the widow and her minor children constituted a body of individuals. In the case of CIT v. Deghamwala Estates  121 ITR 684, the Madras High Court held that a body of individuals had some similarity with an AOP. To constitute a body of individuals, there must be an association or some common purpose or a common cause or there must be a unity in some common tie or occupation. A collection of individuals without a common tie or common aim, cannot be taken to be a body of individuals.
There must be a common purpose and actual or potential capacity to hold properties or disposable income. The purpose must be to produce income or to hold income-producing assets. The Court was concerned with a case where two brothers, who owned a property, sold the same. According to the Court, there was a mere execution of the sale deed by the two brothers. This did not constitute then a body of individuals. There was no material to show that anything more was done than what a plurality of owners would do to convey title. There was also no material to hold that the two brothers had acted in concert.
11. In the light of the aforementioned judicial pronouncements, in our opinion, it cannot be said that the families with a right to worship constituted a body of individuals or AOP including such persons who had no right to worship. They do not earn any common income by the effort of all of them together or the effort of any one of them on behalf of himself and the rest. They do not own any property in common. Each family acts individually and separately. There is no common concerted action and the question of a dissolution of such a body will not arise.
The Madras High Court has pointed out that Section 47(z7) indicates that the body of individuals should be such as would be capable of dissolution. In these circumstances, in our opinion, the revenue is not justified in seeking to assess the various families as one unit by treating them as constituting either a body of individuals or an AOP, inclusive of such public persons who have no right of puja and who get nothing at all out of even cash offerings.
12. Another important issue which would arise is whether each of the families can be regarded as an individual as only then they could be treated as a body of individualsassuming that the other tests for being so regarded are fulfilled. If the families are HUFs, then they cannot be simultaneously regarded as individuals under the Act. It is true that for the purposes of the constitutionality of the charge of wealth-tax on HUFs [see Banarsi Dass v. WTO  56 ITR 224 (SC)], such families were regarded as individuals for the purpose of entry 86 of List 1 of the Seventh Schedule to the Constitution, but in interpreting a legislative entry, a liberal view is always taken. Such would not be the case when interpreting the expression under the Act, as the Act itself draws a distinction between individuals and HUFs. If at all, it will have to be considered whether the families can be regarded as AOPs but not a body of individuals. As mentioned above, to qualify an AOP, a stricter and more rigorous test has to be fulfilled.
The families do not constitute an AOP in any view of the matter. The Mandir Parbandhkarni Committee, Jawalamukhi Temple, therefore, could not be subjected to tax and its income was rightly taken at nil by the AAC. In the light of above discussion and for the reasons given by the AAC in her order, her action is confirmed.
13. Before we part with the matter, we would like to say a word of appreciation for the AAC who came out with a really good judgment in all respects.