Hardayal Hardy, J.
(1) This order will dispose of two references viz. I.T.R. No. 30 of 1965 and I.T.R. No. 60 of 1969. I.T.R. No. 30 of 1965 relates to the assessment year 1957-58 while I.T.R. No. 60 of 1969 relates to the assessment years 1953-54, 1958-59 and 1959- 60. The applicant in all these references is the Commissioner of Income-tax, New Delhi while the respondent is Shri Baba Avtar Singhji of Delhi, who will hereafter be referred to as the assessed.
(2) With regard to the assessment year 1957-?8 of which the relevant previous year was the financial year ending 31-3-1957, a separate order of assessment was made. This order was followed by an order of the Appellate Assistant Commissioner of Income-tax and the Income-tax Appellate Tribunal. The order of the Income-tax Appellate Tribunal which reversed the decision of the authorities below, was treated as the basic order and was followed in the three assessment years viz. 1953-54, 1958-59 and 1959-60.
(3) Eventually two separate applications for reference were filed by the Commissioner of Income-tax Delhi raising a common question of law. This order will dispose of the said common question and will operate in respect of all the four assessment years viz., 1953-54, 1958-59, 1959-60 and 1957-58. The question reads as follows :-
'WHETHER on the facts and in the circumstances of the case, the offerings made at the feet of 'Satguru' was his personal income liable to Income-tax or was the income of Sant Nirankari Mandal exempt under Section 4(3) of the Income-tax Act.'
(4) The facts are brief and are as follows :- Shri Baba Avtar Singh Nirankari, the assessed herein, is the religious head of a spiritual sect called 'Nirankari.' There is also a registered body known as Sant Nirankari Mandal and funds are collected from the followers of this faith for propogating the Nirankari cult and for some other charitable objects. The assessed is known to his followers as 'Satguru'. Apart from the donations which are received by the Mandal as such, the followers of the cult offer monetary gifts at the feet of the Satguru. Separate accounts are maintained in respect of such offerings and now and then funds from the same are transferred to the Mandal which will hereafter be described as the 'institution'. The offerings to the institution have been held to be exempt from Income-tax but the question is with regard to the offerings made at the feet of the Satguru,
(5) THE. Income-tax Officer was of the opinion that income in the form of offerings made at the feet of the Satguru was liable to be taxed in the hands of the assessed and since that income had escaped assessment he issued notices under Section 34(l)(a) of the Income- tax Act, 1922 in respect of the assessment years 1953-54 and 1958- 59. For the assessment year 1959-60 a notice under Section 139(2) of the Income-tax Act, 1961 was issued as in the meantime the said Act had come into force with effect from 1-4-1962.
(6) The assessment for the year 1957-58 was the first assessment. In that year the Income-tax Officer held that though the offerings made to the institution as such were exemot the offerings made at the feet of the Satguru were liable to be taxed in his hands under the Income- tax Act of 1922. The Income-tax Officer accordingly, included such amounts as income in the hands of the assessed. The assessce's appeal before the Appellate Assistant Commissioner having failed, he came in second appeal before the Income-tax Appellate Tribunal and contended that he had no interest whatsoever in the offerings that were given at his feet and that the funds belonged to the institution of which he was the head. The Appellate tribunal 'Bench C' at Delhi accepted the assessed's contention in respect of that year and held by its order dated 22-1-1964 that even the offerings made at the feet of the satguru were meant for the charitable institution and were, thereforee, exempt under Section 4(3)(ii) of the Act.
(7) In connection with the assessments for 1953-54, 1958-59 and 1959-60, the attention of the Income-tax Officer was drawn to the Tribunal's order for the assessment year 1957-58 and it was contended that the said income should not be included in these three assessment years also in the hands of the assessed. The contention was rejected by the Income-tax Officer on the ground that the Tribunal's decision on that point for the assessment year 1957-58 had not been accepted by the Department and the matter was being pursued by a reference to the High Court. The Income-tax Officer thereforee taxed the net receipts out of the offerings made at the feet of the Satguru in respect of those three years.
(8) Against the decision of the Income-tax Officer the assessed went up in appeal before the Appellate Assistant Commissioner. The latter followed the decision of the Tribunal in respect of 1957-58 assessment year and allowed the appeals by the assessed.
(9) Being dissatisfied with the Appellate Assistant Commissioner's order, the Income-tax Officer came up in appeal before the Income- tax Appellate Tribunal and challenged the decision. The Delhi 'Bench B' of the Tribunal who heard the appeals for these three years, agreed with the Appellate Assistant Commissioner and also with the Delhi 'Bench C' which had heard the appeal for the assessment year 1957-58 and dismissed the Department's appeals by its order dated 12-2-1968.
(10) Under Section 66(1) of the Income-tax Act, 1922 the Tribunal having stated the case in respect of 1957-58 assessment year the same question was referred by the Tribunal in respect of these three years also. That is how both the references are now before us and have been heard together. The question being common in both the references, a consolidated order is being made by us.
(11) At the very outset, the counsel for the assessed stated that in both the orders dated 22-1-1964 in respect of the assessment year 1957-58 and in the one dated 12-2-1968 in respect of the assessment years 1953-54, 1958-59 and 1959-60, the Tribunal had recorded the following findings of fact :-
(1) That the assessed had stated that he had no interest whatsoever in the offerings that were made at his feet and that all the funds belonged to the institution of which he was the head; (2) that the assessed had produced the receipt that was issued for the offerings made at his feet. That receipt clearly mentioned that the offerings were received for Sant Nirankari Mandal, Delhi; (3) that the above facts clearly indicated that even the offerings that were made at the feet of Satguru were 'meant for Sant Nirankari Mandal' and not for personal use of the assessed; (4) that separate accounts were kept for the various offerings and donations that were received but these accounts did not throw any light as to the person to whom the property in the said amount belonged; (5) that the ultimate destination clearly indicated that even the offerings made at the feet of the assessed were meant for Sant Nirankari Mandal.
(12) On these findings the Tribunal came to the conclusion that there was no reason to hold that one kind of receipt was different from the other and since exemption had been granted in respect of the donations that were made to the institution under Section 4(3)(ii) of the Income-tax Act, 1922, the same considerations apply in the case of these offerings.
(13) Mr. Bajaj, learned counsel for the assessce, submitted that on these findings of fact no other conclusion was possible and since the jurisdiction exercised by this Court was one of advisory nature this Court was bound by the findings of fact. In this connection he' invited our attention to a decision of the Supreme Court in Commissioner of Income-tax, West Bengal Iii v. Imperial Chemical Industries, (lndia) (P.) Ltd. : 74ITR17(SC) where it was said that in a reference the High Court must accept the findings of fact reached by the Tribunal and it is for the party who has applied for a reference to challenge those findings of fact first, by an application under Section 66(1). If the party concerned had failed to file an application under Section 66(1) expressly raising the question about the validity of the finding of fact, he was not entitled to urge before the High Court that the finding was vitiated for any reasons.
(14) In that case the Supreme Court referred to three earlier decisions of that Court (1) India Cement v. Commissioner of income-fax : 60ITR52(SC) , Commissioner of Income-tax v. Shri Meenakshi Mills Ltd. : 63ITR609(SC) and (3) Commissioner of Income-tax v. Greaves Cotton and Co. Ltd. : 68ITR200(SC) where the same view had been taken.
(15) Mr. Bajaj, thereforee, contended that on these findings of fact the Tribunal's decision was wholly unassailable and the question had to be answered in favor of the assessed and the income was exempt under Section 4(3) of the Income-tax Act, 1922.
(16) Mr. Sharma, counsel for the Revenue, submitted that on a close examination of the Tribunal's decision it could not be said that any finding of fact had been recorded by the Tribunal. All that the Tribunal had done was to take note of certain facts. One of those facts was that the assessed had himself stated that he had no interest in the offerings which belonged to the institution. The other was that the assessed had produced a receipt which clearly mentioned that the offerings were received for the institution. The third was the Tribunal's own conclusion from the above-mentioned facts that the offerings were meant for the institution and as such that was the final destination of those offerings. The last fact noticed by the Tribunal was that saprate accounts were kept in respect of these offerings. But this fact did not throw any light as to the person to whom the property in these offerings belonged.
(17) According to Mr. Sharma. none of these findings could be regarded as a positive finding of fact. The Tribunal had either re-produced the assessed's statement or had come to a conclusion on the basis of that statement. In the absence of a positive finding, this Court was not precluded from answering the question correctly in the light of the facts and circumstances of the case, as the question itself indicated.
(18) The submission made by Mr. Sharma does not appear to us to be correct. It is well settled that the Court cannot set aside the Tri- bunal's finding of fact if there is some evidence to support that finding even though the Court itself might have come to a different conclusion upon that evidence.
(19) The facts noted by the Tribunal are no other than the facts found by it on the record, (see Commissioner of Income-tax, Madras v. M. Ganapathi Mudaliar : 53ITR623(Bom) and Great Western Railway Co. v. Bater 8 T.C. 231 . In Gouri Prasad Bagariu and others v. Commissioner of Income-tax, West Bengal : 42ITR112(SC) the statement of the assessed was, by itself held that material on which the Tribunal's finding in his favor could be based. Similarly in Shree Meenakshi Mills Limited v. Commissioner of Income-tax, Madras : 31ITR28(SC) it was said that when a conclusion has been reached on an appreciation of a number of facts established by the evidence, whether that conclusion is sound or not, has to be determined not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts.
(20) Judged in this light, the Tribunal had the right to accept the assessed's statement supported as it was by the receipt produced by him and to explain away what appealed to be the contrary fact, namely. the maintenance of a separate account in respect of such offerings. If there were some other facts which the Income-tax Officer and the Appellate Assistant Commissioner had noticed in respect of the assessment year 1957-58 which were excluded or ignored by the Tribunal as admissible or relevant evidence, it was for the Commissioner of Income-tax to ask for an express question under Section 66(1) or 66(2) of the Act so that the Tribunal's decision could be set aside on that ground. This aspect of .the case is now fully settled by the decisions of the Supreme Court in (1) G. Venkataswami Naidu & Co. v. Commissioner of Income-tax 0065/1958 : 35ITR594(SC) ; (2) Udhavdas Kewalram v. Commissioner of Income-tax, Bombay City : 66ITR462(SC) and (3) Commissioner of Income-tax Bombay City v. Greaves Cotton and Co. Ltd. : 68ITR200(SC) .
(21) No such question was asked by the Commissioner. The Tribunal being the fact finding authority, it is not permissible for us to ignore the finding of fact recorded by the Tribunal and to examine the facts as found by the Income-tax Officer and the Appellate Assistant Commissioner with the object of setting aside the Tribunal's decision.
(22) Mr. Sharma next contended that although the Supreme Court had held in the four cases relied upon by Mr. Bajaj that the Court cannot disturb or go behind a finding of fact given by the Tribunal on any ground unless the finding has been first expressly challenged by a question raised in the reference application, yet a finding of fact which had no evidence to support it, could be rejected in order that the Court may correctly answer the question referred to it even when that finding was not expressly challenged by a question specifically directed to that finding. Support for that view was found in the following passage in the Law and Practice of Income-tax by Kanga and Palkhiwala (6th Edition Vol. 1 at page 1011) :-
'THERE are numerous decisions of the Privy Council, the Supreme Court itself and the House of Lords where the Court answered the referred question of law correctly by rejecting a finding of fact which had no evidence to support it, although that finding was not expressly challenged by a question specifically directed to that finding. There are no words in the statute to justify the new view and there is no other good ground for the unsettling of the well-settled judicial practice. In many cases the question of law is bound up with findings of fact. Should the Court give a wrong answer to the question referred because a patently wrong finding of fact, incidental to the question, has not been expressly challenged by a question specifically directed to that finding ?'
(23) We are afraid we cannot accept the view of the learned commentator in preference to the decisions of the Supreme Court which are binding on us.
(24) Mr. Sharma contended that the Income-tax Officer had held that the offerings were utilised for the personal expenses of the assessed. The assessed was a married man and had a wife and a son. Before becoming Satguru he was carrying on banking business up to 1943 after which he adopted the vocation of religious preaching. Before the appellate Assistant Commissioner, it was found that when offerings were made to the Satguru the money was kept by the Satguru himself and separate accounts were maintained for the same. Occasionally some money was transferred by him to the institution and such transfers were entered in the accounts of the institution as and when they were received by it. For the year ending 31-3-1957 nothing was transferred to the institution. At that time there was a closing balance of Rs. 22.371.00 in the account after a transfer of Rs. 4,030.00 to the institution. The receipts of money were continuous and varied between Rs. 10,000.00 and Rs. 40,000.00 per year. During the year the receipts amounted to Rs. 11,760.
(25) It was on 30-1-1961 that the assessed sent a letter to the Income- tax Officer saying that he had transferred the surplus cash and the motor car (it was found that there were three such cars) which had been purchased in his name, to the institution. He also said in his letter that he had no dependent, as his wife was residing with his son. Mr. Sharma argued that if the cars were purchased in the name of the assessed and he was also keeping the offerings with himself for meeting his personal expenses and it was occasionally that a part of the money was being transferred to the institution then the Tribunal's finding that the assessed had no interest whatsoever in the offerings and that the funds belonged to the institution of which he was the head, could not be correct.
(26) Mr. Sharma then referred to the receipt which reads as under
'OFFERINGS came at the feet of Sacha Patshah ji (Satguru Ji) from- rupees --- Annas --------Pies.'
(27) The receipt is no doubt issued by some one acting for the institution. It however, does not bear any date and its language shows that it was not issued when the offerings were made. It is an ex post facto document. But if the offerings were being retained by the assessed and were also being utilised by him for his personal expenses and only a portion of the amounts was being passed on to the institution, the mere tact that the receipt was issued by some one on behalf of the institution would not have the effect of transforming the property into the property of the institution. In sucn circumstances, so argued Mr. Sharma, the receipt of money can by no means be called a receipt on behalf of the institution and that the Tribunal does not seem to have considered the matter from that angle at all and had based its finding on the language of the receipt.
(28) Mr. Sharma further contended that if the entire lot of those offerings had been transferred to the institution one might have accepted the position that the offerings were meant for the institution. But the assessed retained a considerable portion of the offerings and passed on only a part to the institution. The offerings could not in such circumstances be meant for the institution. The offerings were made at the feet of the Satguru. He retained them with himself, spent a part on his personal expenses and passed on a part of the balance to the institution. There was no evidence that the donors wanted the assessed to do so. It was his own option that he passed on a part to the institution of which he was the head. The money came to him because he was engaged in the vocation of religious preaching and was, thereforee, his income from that source.
(29) Mr. Bajaj had during the course of his arguments, drawn our attention to a decision of Allahabad High Court in The Secrctary of State for India in Council v. Radha Swami Sat Sang : 13ITR520(All) where Sahebji Maharaj (Sir Anand Swarup) the fifth Sant Guru of the Dayal Bagh party of the Radha Swami faith had made a statement at Benares on October 27, 1926 with regard to the offerings made by the followers at the feet of Sant Guru. He said that the Sant Satguru was always accountable to Satsanrhis and that as soon as an offering was accepted all the Satsanghis became interested in it. The offering was not made personally to a Sant Satguru. He would not accept any such offering and accept it for Radha Swami Doyal (the deity). He also said that no portion of the offerings could be utilised by a Sant Satguru for his personal expenses.
(30) It was contended by Mr. Bajaj that the position was the same in the case of the assessed and that the assessed's statement was material on which the Tribunal's finding could be based. The contention was wholly without any substance. The position of the assessed who utilises a part of the offerings for his personal use is entirely different.
(31) Mr. Bajaj also cited another decision of Allahabad High Court in Commissioner of Income-tax v. Radhaswami Satsang Babha : 25ITR472(All) . One of the questions in that case was with regard to bhents (offerings) made by the followers of the deity (Radhaswami Daval) in pursuance of the dictates of their faith. It was held. on an analysis of the rules and regulations of the Radhaswami Satsang Sabha that the offerings vested in the Sabha under a legal obligation wholly for religious or chartiable purposes within the meaning of Section 4(3) (i) of the Income-tax Act, 1922, but they could not be said to be income derived from property under Section 4(3)(i). They were income of a religious or charitable institution derived from voluntary contributions and applicable solely to religious or charitable purposes and would properly come under clause (ii) of the sub-section.
(32) In the instant case, the assessed has placed on record the rules and regulations of the Sant Nirankari Mandal which is a registered society under the Societies Registration Act 1860. According to rule 4, the assessed has the sole discretion of nominating an executive committee of seven members from among the members of the Mandal. Under rule 19 all the decisions of the executive committee and/or general committee must have the final approval of the assessed who can reject any decision, notwithstanding that the same had been passed unanimously without assigning any reason whatsoever. Rule 24 makes the assessed the sole arbitrator and his decision is binding on all the members of the committee in respect of any dispute arising amongst the members of the executive committee on any matter whatsoever.
(33) The rules do not provide as to what is to happen to the assets of the Mandal except that there is a provision in rule 9 which lays down that the treasurer shall receive all the cash or other receipts of the Mandal and keep the same in the bank or otherwise as decided by the executive committee and make expenditure and disbursement of the same as per decisions of the executive committee.
(34) Although the Mandal is a registered Society and we do not propose to say in this case how such a Society could have been registered under the Societies Registration Act, 1860, its rules and regulations to which we have already referred, do require a careful examination to ascertain if it is a genuine body and is not a dummy for the assessed. Some of the activities of the Mandal may be religious or charitable; but that will not prevent the department from considering whether any exemption under Section 4(3) should be granted to it. Nevertheless that is a matter for future and has nothing to do with the two references before us which are being decided in the light of the finding of fact recorded by the Tribunal.
(35) Mr. Sharma lastly invited our attention to a decision of Bombay High Court in Maharaj Shri Govindlalji Ranchhodlalji v. Commissioner of Income-tax, Ahmedabad 34 Itr 93. The assessed in that case was a direct descendant of the original founder of a religious faith known as Vallabh Sampradaya. He was not a sanyasi, had married and had children and was to be succeeded by his sons who would inherit and divide his properties. He was residing at Porbandar and was keeping an idol of Lord Krishna in his house. Offerings were made from time to time by his devotees. Those offerings were not made to the idol but to the assessed himself. He was looked upon by his devotees as guru and he gave mantras to his disciples who could only be initiated into the faith by the assessed chanting certain mantras. The offerings were taxed as the assessed's income from vocation. It was held that the source of those receipts was the abiding faith that the disciples had in their guru and the receipts came in with a fair regularity. One of the arguments raised before the High Court was that the gifts were personal to the assessed and had been made out of personal considerations. The argument was repelled and it was said that the gifts were made to the assessed by virtue of the office held by him because he was the head of his sect. Whether the office was hereditary, or it was held by reason of the fact that the holder of the office was descendant of his fore-fathers who held the same office in his time, was held not to make any difference. Mr. Sharma contended that the facts in the instant case arc largely the same those in that case.
(36) Another case referred to by Mr. Sharma again relates to the same assessed, but the decision in that case was rendered by Gujarat High Court. The case is Goswami Maharaj Ranchhodraiji Govindlalji v. Commissioner of Income-tax, Gujarat : 54ITR664(Guj) The question in that case was whether the gurubhets (offerings) which the assessed was receiving from his devotees were assessable as income of a Hindu undivided family and not as income of the assessed as an individual. The Tribunal had held that the gurubhets were assessable as income of a Hindu un-divided family. Shelat C. J., sitting with Bhagwati J.. however held that the office was the separate property of the holder of the office for the time being and was not the properly of the family nor could it be said that the assessed held the office as the karta of a Hindu un-divided family. Gurubhets received by the assessed were, thereforee, assessable as the personal income of the assessed and not as the income of the Hindu un-divided family of which he was the karta.
(37) The case of Acharya D. V. Pande v. Commissioner of Income- tax, Gujarat : 56ITR152(Guj) decided by the High Court of Gujarat is another case referred to by Mr. Sharma. The assessed was the Acharya (spiritual preceptor) for the time being of the diocese of a religious institution. The diocese possessed temples and other properties and received income there from. The followers of the Acharya paidha permanent religious tax to the institution and in addition to these, the followers paid the Acharya a voluntary contribution in the form of salutation tax (Nam Vero) and presents (Bhets). The Acharya agreed to treat the Nam Vero and the Bhets as the income of the trust in return for a permanent personal allowance which, according to the scheme framed by the High Court, was Rs. 2,000 per month from the trust income. The other expenses of his house-hold had to be defrayed by the institution. The Income-tax authorities assessed the sum of Rs. 2,000 per month as also the amount representing the afore-said house-hold expenses as the income of the assessed. It was held that the sum of Rs. 2,000 per mensem received by the assessed was received by him as an incident of the office of Acharya, in virtue of the office of Acharya held by him and was, thereforee, taxable as income in his hands.
(38) Mr. Sharma also invited our attention to a recent decision of Calcutta High Court in Amarendra Nath Chakrahorty v. Commissioner of Income-fax, West Bengal Iii : 79ITR342(Cal) . The case relates to a gift of a piece of land valued at Rs. 40,000 made by a disciple to the assessed who was the ritweek of a satsang and for his work as such he received a salary from the institution. But in his capacity as a ritweek he initiated disciples into the Satsang cult and received offerings from them. It was held that the gift was strictly traceable to the assessed's vocation of a preacher of the Satsang cult and was a receipt by the assessed in the carrying of the assessed's vocation as a religious teacher and was as such, taxable in his hands. In this connection the attention of the Court was invited to the following decisions of the Supreme Court :-
(1) Krishna Menon (P.) v. Commissioner of Income-tax : 35ITR48(SC) Mahesh Anantrai Pattani v. Commissioner of Income-tax : 41ITR481(SC) Divecha (P.H.) v. Commissioner of Income-tax : 48ITR222(SC) and (4) Parimisetti Seetharamamma v. Cammissioner of Income- tax : 57ITR532(SC) .
(39) All these decisions, notwithstanding certain distinctions prompt the observation that the offerings received by the assessed may very well be liable to tax as his income from the vocation of religious preaching. We, however, do not wish to give any decided opinion on this point and would leave the matter into the hands of the taxing authorities who should go through the necessary facts in respect of the years to which the present references do not relate and if the facts justify such levy, they may proceed accordingly.
(40) With the above observations the question referred to us has to be decided in favor of the assessed and the offerings have to be treated as the income of the Sant Nirankari Mandal exempt under Section 4(3) of the Income-tax Act, 1922. In the circumstance of the case, however, there will be no order as to costs.