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Commissioner of Income-tax, Gujarat-v Vs. Girdharram Hariram Bhagat - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtGujarat High Court
Decided On
Case NumberIncome-tax References Nos. 214 of 1978 and 68 of 1977
Judge
Reported in(1984)43CTR(Guj)255; [1985]154ITR10(Guj)
ActsIncome Tax Act, 1961 - Sections 28
AppellantCommissioner of Income-tax, Gujarat-v
RespondentGirdharram Hariram Bhagat
Appellant Advocate B.R. Shah, Adv.
Respondent Advocate J.M. Thakore, Adv.
Cases ReferredIn Radhakant Dev v. Commr. of Hindu Religious Endowments
Excerpt:
direct taxation - income - section 28 of income tax act, 1961 - whether offerings made at feet of 'jalarambapa' either personally or by post not receipts by assessee and same do not partake of character of income - assessee neither carrying on any activity in nature of vocation or holding any office - offerings not made to assessee but to deceased saint - said offerings not for any services rendered by assessee - offerings not of recurrent nature and of expected regularity - offerings do not import character of income - revenue failed to establish that offerings had any nexus with activities of assessee - said was not private religious endowment - assessee being manager not in position of shebait having beneficial interest in income of institution - offerings not to be regarded as income.....mehta, j. 1. since the questions referred to us at the instance of the commissioner of income-tax, gujarat, and the rival contentions urged in connection therewith are common and identical in both these references, we propose to answer the questions referred to us by this common judgment. 2. in income-tax reference no. 214 of 1978, we are concerned with the assessment years 1967-68, 1968-69 and 1969-70, while in income-tax reference no. 68 of 1977, we are concerned with the assessment years 1970-71 and 1971-72. 3. the necessary and relevant facts leading to these two references may be briefly stated as under : the assessee is an individual and is a direct descendant of one well-known and renowned saint in saurashtra area in particular and gujarat in general, known and fondly called as.....
Judgment:

Mehta, J.

1. Since the questions referred to us at the instance of the Commissioner of Income-tax, Gujarat, and the rival contentions urged in connection therewith are common and identical in both these references, we propose to answer the questions referred to us by this common judgment.

2. In Income-tax Reference No. 214 of 1978, we are concerned with the assessment years 1967-68, 1968-69 and 1969-70, while in Income-tax Reference No. 68 of 1977, we are concerned with the assessment years 1970-71 and 1971-72.

3. The necessary and relevant facts leading to these two references may be briefly stated as under : The assessee is an individual and is a direct descendant of one well-known and renowned saint in Saurashtra area in particular and Gujarat in general, known and fondly called as Jalarambapa. The assessee is the son of Hariram, who was the daughter's son's son of the said Jalarambapa and was adopted by him. It is claimed that Jalarambapa was a person of saintly disposition right from his young age, and he engaged himself in the recitation of Ram Nam. In his temporal life, he devoted himself to the service of the saints and sadhus. He was an agriculturist, but the service of feeding sadhus, pilgrims and the poor became a dominant passion of his life.

4. In S.Y. 1876, he had opened in his lifetime a centre for free distribution of food daily to mendicants, beggars and sadhus at his small village, Virpur, in Saurashtra. This centre was known as Annakshetra and it attracted a large number of sadhus and saints. In course of time, people recognised Jalarambapa as a man of considerable and religious distinction and he came to be recognised as a respected and revered saint. Some miraculous powers were attributed to him by the people. The contributions in cash and kind started flowing from people to the Annakshetra and a substantial number of people began to believe that their worldly desires would be fulfilled in case they made offerings to the Annakshetra. Jalarambapa died somewhere in S.Y. 1937, and even after his demise, his place continued to be treated by a large number his admirers and devotees as a sacred place.

5. In the residential premises of Jalarambapa, his portrait together some of his personal belongings are housed. The assessee, along with other members of his family, resides in another part of the said premises. The portrait of Jalarambapa and his personal relics are housed in a separate block slightly away from the residential quarters of the assessee but both are roofed under the same building. Alongside the portrait of Jalarambapa, the idols of Ram, Lakshman and Seeta are placed. The visitors allowed to have darshan of the relics and portrait of Jalarambapa and of the idols stationed there. The visitors make offerings in front of the relics of Jalarambapa. Besides the offerings made in person on the spot, large sums are received by post from different places in India as well as from abroad in the form of money orders, postal orders, cheques, drafts, etc.

6. The activity of feeding the poor, pilgrims and sadhus which was the passion of Jalarambapa, in his lifetime, was continued after his death and the assessee continues to feed all those who come to the premises of Jalarambapa. Out of the local offerings as well as the offerings received by post, a part thereof is utilised for purposes of feeding and the surplus is deposited in the bank and also kept as cash on hand.

7. The question regarding the taxability of the the assessee on these sums was investigated in the course of assessment years 1951-52 and 1952-53, the proceedings for which were initiated somewhere in 1958. The assessee, by his letter of February 10, 1959, in reply to the letter of the ITO dated January 19, 1959, inter alia, stated that the estate of Jalarambapa was not a public charitable temple but was owned by the assessee as his private property and that there was no trust in respect of the said property, and the expenses incurred in respect of the said estate were by voluntary donations made by the people at the sacred feet of Saint Jalarambapa as evidenced in the portrait of the deceased Jalarambapa, and which offerings were made out of purely personal regard and esteem for the blessed memory of the deceased saint and as a tribute to his pious and dedicated life. The assessee further stated in the said letter that he never held himself out or acted or behaved as a religious leader, or teacher of any section of the people, nor did he give lessons or sermons or blessings to any one. He spent his time in meditation, prayers and reading. The affairs of the estate were managed by him with the help of his son. The assessee gave further details by his letter of March 5, 1959, wherein it was, inter alia, stated that the guiding principle of the life of Shri Jalarambapa was 'Pray to Almighty and feed the poor'. It was also disclosed that the than Thakor Saheb Shri Mulji of Virpur had assigned two 'Santis' of land to Shri Jalarambapa in S.Y. 1881, in appreciation of his devotion to God and humanity at large. The assessee asserted in the said letter that the offerings made by the devotees of Jalarambapa were neither given to the assessee, nor to any deity or temple or idol, but were offered at the feet of Shri Jalarambapa.

8. By his another letter of September 9, 1959, addressed to the ITO, the assessee stated that he had created two trusts - one in a sum of Rs. 6,05,550 by the deed of trust of June 7, 1957, and another in a sum of Rs. 3,00,000 for public charitable purposes by the deed of trust of December 1, 1958 - where besides himself, his sons and one Shri Saubhagyachand Mangalji Rajedeo were the trustees. By his further letter of October 10, 1960, he informed the ITO that the assessee took possession of the moneys offered at the feet of Shri Jalarambapa merely because he was an heir of Shri Jalarambapa and resided in the premises where the offerings were made.

9. The ITO examined the assessee on October 9, 1959. In the course of the said statement, he has stated that he was managing the affairs of Shri Jalarambapa's place since S.Y. 1968 and was serving the saints and helping the poor people. Various gifts and dedications were received at the feet of Shri Jalarambapa and the amount was spent from these offerings for serving sadhus and helping the poor. The offerings were received in cash as well as by cheques. According to the assessee, there was no temple in the name of the Shri Jalarambapa as such and there was only one photograph of Shri Jalarambapa and there were his charan paduka. The idol of Shri Ramchandra was placed in a room for worship by his family. No accounts were maintained for the offerings made at the feet of Shri Jalarambapa. The monies so collected were used for the purpose of purchasing grains, vegetables and other sundry things like clothing feeding and serving sadhus. The assessee produced 32 letters from different persons from various parts of the world under the cover of which the remittances were offered for offering them at the feet of Shri Jalarambapa. It is not necessary to recapitulate the details of these letters. Some 16 affidavits of the devotees of Shri Jalarambapa were also filed. The substance of these affidavits was that the devotees visited the place of Jalarambapa to pay homage to his blessed memory and they made voluntary donations at his scared feet evidenced in his portrait out of purely personal regard and esteem for his blessed memory and by way of recognition of his saintly and dedicated life.

10. In the aforesaid trust deed of June 7, 1957, it has been, inter alia, stated that according to the custom prevailing in the family of the assessee, the right to manage the estate devolved on the eldest son of the deceased eldest member of the family and that he has been managing the place, and that he was authorised to use, enjoy and manage the amounts of the offerings, gifts and dedications placed at the feet of Shri Jalarambapa as he liked. He had purchased the land surrounding the estate constructed guest-house, kitchen and other buildings thereon and provided the things of the necessity for the comforts of worshippers who came for darshan. The occupation of the assessee was described as Seva Puja or religious meditation in the different trust deeds.

11. The ITO as well as the AAC had held that the assessee was liable on the surplus of the income remaining in his hands after disbursement on account of the expenses and other activities of the estate. However, the Income-tax Appellate Tribunal was of the opinion that these amounts of offerings were paid to the blessed memory and as a tribute to the saintly and dedicated life of Shri Jalarambapa and they were not on account of any vocation carried by the assessee or office held by him. The Tribunal, therefore, by its order of December 28, 1964, held that there was no income as such received by the assessee, and that the exercise of control and use of the funds available from such offerings could not be a real criterion for determining the purpose of the taxability of such receipts.

12. The matter rested there with the above order of the Tribunal for some years. It, however, appears that the ITO, C-Ward, Rajkot, gains took up the question of taxability of this income. We are told that the question was taken up for the assessment years 1965-66 and 1966-67, where the ITO held that the assessee was liable to pay tax on the surplus of income from the offerings following the decision of this court in Vahiwatdars of Ambaji Temple v. CIT : [1965]58ITR675(Guj) , which order of the ITO was set aside by the AAC, who remanded the matter for fresh assessment, the and our attention has been drawn in this behalf to these facts stated in the order of the AAC, in the appeal preferred against the assessment made for the assessment year 1967-68.

13. The ITO, after remand, took up the question of assessment for the assessment years 1966-67 to 1969-70 together since the assessments were getting time barred and on consideration of all the materials which were elicited and placed before him, held that the assessee had been carrying on activities of the nature or essentially similar to those described in the case of Ambaji Temple : [1965]58ITR675(Guj) . He also noted that a large amount out of the offerings were appropriated by the assessee for his private and personal ends though part of it had been used by the assessee for feeding the poor and sadhus. The construction of dharamshala at Virpur and a big hall known as Shri Jalaram Smruti Khand in the said dharamshala by the assessee out of the trusts created by him indicated that the assessee wantrd to provide facilities to pilgrims and visitors to the place of Jalarambapa at Virpur. The ITO also found that the assessee had made efforts to improve the place and to make it more attractive providing various facilities which would induce the devotees from India and abroad to visit the place of Shri Jalarambapa and make offerings. In the opinion of the ITO, the assessee was, therefore, carrying on certain activities in relation to the temple of Shri Jalarambapa at Virpur which would amount to exploitation of the assets, namely, the place and the relics of Shri Jalarambapa with a view of to earn income. The ITO also found that the assessee was connected with the activities of the aforesaid Shri Sobhanand Mangalji Rajdeo in publication of the books containing the descriptions of miracles of Shri Jalarambapa and the sole intention in so association was to give publicity to the place and also imbibe faith for Shri Jalarambapa in the followers in India and abroad so as to attract more pilgrims resulting in greater offerings to earn income. The ITO, therefore, treated the net accretion in the bank balance of the assessee during the previous years after making adjustments for savings out of agricultural income as income of the assessee from the place of Shri Jalarambapa. The ITO, therefore, assessed the income of the assessee for the said assessment years at Rs. 3,04,635, Rs. 8,07,377 and Rs. 7,50,605, respectively, being the surplus out of the amounts received at the sacred feet of Shri Jalarambapa at Virpur.

14. The assessee, therefore, carried the matter in appeal before the AAC, who, however, confirmed the said order.

15. On further appeal, the Tribunal addressed itself in the first place to the question whether the offerings at the place of the Shri Jalarambapa made personally by the visitors or sent by post by the devotees were income of the assessee. The Tribunal reappraised the evidence oral as well as documentary adduced before the ITO, and on appreciation of the facts so found concluded as under :

1. There was a no material to hold that in publishing his books on Shri Jalarambapa, the said Shri S. M. Rajdeo was acting at the behest or at the instance of the assessee with a view to popularise the place of the Shri Jalarambapa to enable the assessee to earn income.

2. That the greater part of the offerings came from the people outside and were not made as offerings at the time of the Arti or Puja performed by the assessee and/or maintenance of the place.

3. The offerings did not flow as a consequence of the exploitation of the place of Shri Jalarambapa by the assessee with a view to producing income.

4. The offerings made at the feet of Shri Jalarambapa were purely voluntary and would not be attributed to any activity on the part of the assessee.

5. The assessee did not carry on any profession or vocation as a religious teacher or Pujari.

6. The offerings were considered as not arising not of any business, profession or vocation exercised by the assessee and were not received by him as such but they were voluntary offerings or gifts to Shri Jalarambapa.

7. The place of Shri Jalarambapa is not a temple in the accepted sense of the term and at best it can be described as a shrine for the sacred memory of Bhakta Shri Jalaram.

8. Shri Jalarambapa was not considered by anybody as a God or his representative and was recognised only as a saintly person and a realised soul.

16. The Tribunal distinguished the decision of this court in Ambaji Temple's case : [1965]58ITR675(Guj) as, in its opinion, the only question with which this court was concerned in that case was whether the assessees there should be assessed as individuals or association of persons, and the question of the nature of the receipt or its taxability was never in issue before the court. In that view of the matter, the Tribunal held that the surplus resulting from the offerings made at the feet of Shri Jalarambapa was not the income of the assessee and, therefore, set aside the assessments accordingly.

17. The Commissioner, therefore, has sought reference of the following two questions in Income-tax Reference No. 214 of 1978 for our opinion :

'(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the offerings made at the feet of Jalarambapa either personally or by post, are not receipts by the assessee and the same do not partake of the character of income

2. Whether the Tribunal was justified in deleting the amount of Rs. 3,04,635, Rs. 8,07,377 and Rs. 7,50,635 being the surplus out of the amounts received at the sacred feet of Shri Jalarambapa at Virpur

18. In Income-tax Reference No. 68 of 1977, one one question has been referred to us at the instance of the Commissioner. The question is :

'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the offerings made at the feet of Jalarambapa either personally or by post are not receipts by the assessee and the same do not partake of the character of income

19. At the time of hearing of these two references, the learned counsel appearing for the Revenue urged the following five contentions :

1. The Tribunal committed grave error of law in finding that the offerings at the feet of Jalarambapa cannot be treated as income of the assessee earned by him through his activities of founding, maintaining and improving the institution known as 'Jalaram Guddee'.

2. Alternatively, it was contended that the Tribunal committee a serious error of law in finding that the institution of Jalaram Guddee is not a temple. The Tribunal ought to have held on the facts and in the circumstances of the case that it was a temple founded in the sacred memory of saint Jalaram. As such it is a public/private religious endowment and the assessee being admittedly the manager is in a position of shebait having beneficial interest in the income of the institution, and the surplus which he appropriates is the income of the assessee.

3. On the basis that it is a shrine dedicated to the sacred memory of the saint, the property vests in the shrine and the assessee being admittedly a manager, is in the position of a shebait having beneficial interest in the income of the institution and the surplus which he appropriates is the income of the assessee.

4. On the basis that it is in a shrine dedicated to the sacred memory of the saint which is a private religious endowment and its property vests of the assessee being a descedent of the founder, its income from the source of shrine subject to the purpose of endowment must be held to be that of the assessee.

5. Lastly, it was contended that on the admission of the assessee, that the institution of Jalaram Guddee is a private property of the assessee, its income must be held to be the income of the assessee.

20. We will deal with these contentions in the same seriatim order in which they have been raised.

21. Re : Contention No. 1 :

22. Before we deal with this contention, we must remind ourselves of the limitations on the advisory jurisdiction of the court under s. 256(1) or (2) of the I.T. Act, 1961. It is trite position in law that primary facts found and factual inference drawn therefrom are not open to review by the court in exercise of its advisory jurisdiction, unless they are challenged on legal grounds by seeking reference on specific questions in that behalf.

23. In Aluminium Corporation of India Ltd. v. CIT : [1972]86ITR11(SC) , in the context of the finding of facts of the Tribunal that the commission was allowable as business expenditure to the assessee, the High Court, on a reference, answered the question in the negative and against the assessee. On appeal to the Supreme Court, the opinion of the High Court was reversed, since the Supreme Court found that the Tribunal, after taking into consideration the various terms of the agreement as well as the significance of the deduction given in the earlier assessment years, had come to the conclusion that the commission paid was expended wholly and exclusively for the purpose of the assessee's business, and the Tribunal had given good reasons in support of its conclusion. The court, therefore, ruled that the primary facts found by the Tribunal and the factual inferences therefrom were not open to review by the High Court, and if any party wants to challenge the correctness of the findings given by the Tribunal either on the grounds that the same is not supported by any evidence on record or is based on irrelevant or inadmissible evidence or is unreasonable or perverse, a referrnce raising any one of these grounds must be sought for and obtained.

24. In Karnani Properties Ltd. v. CIT : [1971]82ITR547(SC) , the assessee-company owned the Karnani Mansion consisting of numerous residential flats and over a dozen shops. All these were let out to tenants who made monthly payments for meeting service charges. For providing these various amenities and services, the assessee-company maintained a large number of permanent staff. The company claimed that the entire receipts from the tenants should be treated as income from the business as it had been formed for carrying on the business of letting out flats and shops. The ITO rejected its claim but split the receipts into two parts - one being treated as rent and the other as 'income from other sources' taxable under s. 12 of the Indian I.T. Act, 1922. The Appellate Tribunal, however, on reappraisal of the evidence assessed the entire income as from business under s. 10. Neither the Department nor the assessee contended that that part was assessable under s. 9. On a reference, the High Court held that the latter part of the receipts was also assessable as income from property under s. 9. On appeal to the Supreme Court, the decision of the High Court was reversed since the Supreme Court found that the Tribunal found on appreciation of the evidence that the services rendered by the assessee to its tenants were the result of continuous and organised activity with a set purpose of earning profits and, therefore, amounted to business activity and the income arising therefrom was assessable under s. 10. The Supreme Court ruled that when the question referred to the High Court speaks of 'on the facts and in the circumstances of the case', it means of the facts and circumstances found by the Tribunal and not facts and circumstances that may be found by the High Court on a reappraisal of the evidence, and in the absence of a question whether the findings were vitiated for any reason being before the High Court, the High Court has no jurisdiction to go behind the findings of fact. A findings of fact may be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse. But it is not open to party intending to challenge such finding of fact to do so unless he has applied for a reference of the specific question under the relevant section of the I.T. Act (see CIT v. Greaves Cotton & Co. Ltd. : [1968]68ITR200(SC) ).

25. It is a settled proposition of law that in a reference, the High Court must accept the finding of fact made by the Appellate Tribunal and it is for the person who has applied for a reference to challenge this finding first by making an application under s. 256(1) (corresponding to s. 66(1) of the 1922 Act) and if he has failed to file an application expressly raising the question about then validity of the finding of fact, he is not entitled to urge before the High Court that the findings are vitiated for one reason or the other (see Indian Cements Ltd. v. CIT : [1966]60ITR52(SC) ).

26. In Guru Estate v. CIT : [1963]48ITR53(SC) , the Appellate Tribunal found on facts that there was no evidence to show that any trust was intended or created by the pilgrims who were signing the annadan patras authorising the assessee-HUF acting as priests attached to the temple of Lord Jagannath of Puri to offer Bhog to Lord Jagannathji and to enjoy the prasad amongst the members of their family and the other pilgrims from the districts of donors. The Tribunal further found that having regard to the way in which the pilgrims were attracted and treated by the assessees, the receipts under the annadan patras were of the nature of the income from the business of pilgrims traffic carried on by the assessees who were not an institution and, therefore, they were not entitled to exemption from tax under s. 4(3)(i) or (ii) of the 1922 Act. On a reference, the High Court proceeded on the assumption that a trust was created. The High Court proceeded to consider whether such a trust was a private religious trust or a public religious trust, and held, on appreciation of the evidence, that the trust so created was a private religious trust and the income of the assessee derived from that source was not exempted from the liability under the relevant section. On appeal to the Supreme Court, Shah J., speaking for the court, observed that the attempt of the High Court in the proceeding on an assumption was an was an attempt to exercise not the advisory jurisdiction in respect of the decision of the Tribunal which alone is conferred by s. 66(2) of the Indian I.T. Act, but it was in substance and effect the exercise of the appellate power. The Supreme Court found that the Tribunal had recorded a finding that there was in fact no trust intended or created by the pilgrims, and on that finding no question as to the applicability s. 4(3)(i) in any event could arise. The Supreme Court recognised that it was open to the assessees to demand that a question that the finding was based on no evidence or that it could not reasonable be arrived at any person acting judicially and properly instructed as to the relevant law. The High Court also did not ask the Tribunal to submit a statement on the question that the finding that there was no trust was based on no evidence and, therefore, on the question referred the High Court, it was bound to accept the findings of the Tribunal and to decide the question of law, if any, arising therefrom, and, in so far as the High Court ignored the finding of fact and proceeded on assumption and answered the question, it acted beyond its jurisdiction.

27. It is in the light of the above-settled position as to the limitations on the advisory jurisdiction of the High Court that we shall have to decide about not only the first contention but all the contentions which have been urged before us.

28. On behalf of the assessee, it was contended by the learned Advocate-General that it would not be open to the Revenue to advance particular this first contention since the Tribunal has found the facts and drawn factual conclusions therefrom that the assessee did not carry on any vocation which finding is a pure finding of fact and till that finding is challenged on permissible legal grounds by seeking a reference of a specific question in that behalf, it is not open to the High Court to examine this contention. In support of this submission that the finding of the Tribunal that the assessee did not carry on any vocation is a finding of fact, the learned Advocate-General relied on two decisions - one of the Supreme Court in Karnani Properties Ltd.'s case : [1971]82ITR547(SC) and another of the Bombay High Court in K. H. Mody, In re : [1940]8ITR179(Bom) .

29. In Mody's case : [1940]8ITR179(Bom) , the assessee spent some amounts for surveying a property and laying out a scheme of development as well as for construction of a well in connection with the development of the property. For the assessment year 1936-37, the income-tax authorities included in the assessee's total income a sum of Rs. 47,533 estimated by them as profit earned by him by sale of 208 plots. The question required by the assessee to be referred to the High Court was whether there was any evidence to support the finding of the Assistant Commissioner that the said amount of Rs. 47,533 was profit earned by the assessee in the business of purchasing, developing and selling of land carried on by him. The High Court, inter alia, held that the question whether the assessee was carrying on business or not was a question of fact on which the Commissioner finding could not be interfered with and in this case, there was evidence to support the finding that the assessee was carrying on a business of purchasing and selling lend.

20. In Karnani Properties Ltd.'s case : [1971]82ITR547(SC) , the Supreme Court held that since the Tribunal found that the income was a business income, it was a pure finding of fact and in the absence of any specific question sough by the assessee challenging this finding of fact on permissible grounds, the High Court was not entitled to go behind the finding of fact. The learned Advocate-General, therefore, submitted that in the present reference, the Tribunal has found as a matter of fact the the assessee did not carry on any activities which would constitute a vocation to which these receipts by any stretch of imagination can be attributed. If therefore, the Revenue has not sought any specific question in that behalf challenging this finding of fact, it would not be open to the High Court to go behind this finding and try to find out that the assessee was in fact carrying on vocation. The learned Advocate-General further urged that in any view of the matter, the Revenue cannot contend that the offerings made at the feet of Shri Jalarambapa were the income of the assessee unless the Revenue is able to establish that these offerings had any nexus with the so-called activities of the assessee.

21. On the other hand, on behalf of the Revenue, it has been sought to be contended that the Tribunal committed a grave error of law in finding that the offerings at the feet of Shri Jalarambapa cannot be attributed as income of the assessee, though they arose out of and in course of the activities of founding, maintaining and improving the institution of Shri Jalarambapa which a is also described as 'Jalaram Guddee'.

22. It is axiomatic to say that all receipts would not necessarily be deemed to be income and the question whether any particular receipt is income or not depends on the nature of the receipt and the true scope and effect of the relevant taxing provision (see Mehboob Productions Private LTD. v. CIT : [1977]106ITR658(Guj) ).

23. We must admit that there is great force in the objection which has been raised by the learned Advocate-General against going into re-examination or reappraisal of the conclusion reached by the Tribunal on appreciation of evidence and findings of fact that the assessee did not carry on any vocation. The learned counsel for the Revenue, having realised this difficulty, attempted to persuade us that the receipts from the offerings are from the source of Jalaram Guddee and, therefore, the Revenue is entitled to urge in support of its case that the Tribunal has committed a clear error of law in holding that the offerings made at the feet of Shri Jalarambapa were not receipts of the assessee and did not partake of the charged of his income. The learned Advocate-General pointed out that this would also not be open to the Revenue since the entire case of the Revenue before the subordinate income-tax authorities as well as the Tribunal was that this was an income earned by the assessee from his various activities of maintaining and improving this institution which virtually amounted to his vocation in life and, therefore, the Revenue cannot be a permitted at this stage to change the entire case and take a new stand altogether. In support of this contention, our attention was invited to the decision of the Supreme Court in Karnani Properties Ltd.'s case : [1971]82ITR547(SC) , where the Supreme Court held, reversing the decision of the High Court, that it should not allow the Revenue to change its case, since the Department had all along proceeded on a particular basisa, namely, that the income of the assessee was from two different sources. Here also we find considerable force in the objection of the learned Advocate-General. But it should be noted that the entire approach of the ITO and the Commissioner was oriented by the decision of this court in Ambaji Temple's case : [1965]58ITR675(Guj) . It was a decision of this court that prompted the ITO to re-examine the question of taxability of these receipts and the ITO as well as the AAC proceeded on the basis that the assessee was earning income through the source of Jalaram Guddee. No doubt, the ITO has also rested the case that various activities attended to and carried on by the assessee amounted to a vocation and that he was holding the office through which he was earning this income. It is that part of the Revenue's decision which has not been approved by the Tribunal. We have, therefore, permitted the learned counsel for the Revenue to urge this point as to whether the Tribunal was, in any way, in error in holding that the offerings made at the feet of Shri Jalarambapa had no nexus with the so-called office of the assessee and that he was earning any income through this source of Jalaram Guddee.

24. What is the precise connotation of income which can be subjected to tax is a subject-matter of many judicial decisions and a few relevant decisions have been cited on behalf of both the sides before us to persuade us to accept the rival contention. The word 'income' is of widest and indefinite import and there cannot be any strait-jacket formula by which on can determine the nature of the receipt as to whether it is an income which is liable to be taxed or not. 'Income' generally means, as said by the Judicial Committee of the Privy Council in CIT v. Shaw Wallace & Co., , periodical monetary return with expected regularity and though the source may not be productive, it must be one whose object is the production of a definite return. The Privy Council has also tersely put it in another case, viz., Maharajkumar Gopal Saran Narain Sings v. CIT [1935] 3 ITR 237, that the word 'income' is not limited by the words 'profits and gains' and anything which can properly be described as income is taxable under the Act unless expressly exempted.

25. In Raja Bahadur Kamakshya Narain Singh of Ramgarh v. CIT [1943] 11 ITR 513, the Privy Council again tried to indicate as to what would constitute an income. It said that income is not necessarily the recurrent return from a definite source, though it is generally of the character.

26. It is a settled position in law that in order to become a vocation, an activity need not be organised and a single act may amount to carrying on a business, profession or vocation. The real question, as pointed out by the Supreme Court in Krishna Menon v. CIT : [1959]35ITR48(SC) , is whether the activity has actually produced an income and it matters not whether the activity is called by the name of business, profession or vocation, or by any other name, or with what intention it was carried on. The Supreme Court in Krishna Menon's case : [1959]35ITR48(SC) , recognised as settled principle that in case of voluntary payment, no tax can be levied on it, if it had been made for reasons purely personal to the donee and unconnected with his office or vocation, while it will be taxable it was made because of the office or vocation of the donee. The Supreme Court indicated a broad test as to whether an activity attributed to the assessee is a causa causans to the making of the offerings or it was merely causa causans sine qua non. In order that a receipt may be treated as income liable to tax, it is not necessary that the recipient has an immediate right of action against the payer discontinuing the payment. In other words, the necessity of the obligation on the part of the payer is not a sine qua non of a receipt to become an income (see Rani Amrit Kunwar v. CIT : [1946]14ITR561(All) ). The Allahabad High Court in Rani Amrit Kunwar's case : [1946]14ITR561(All) ) indicated a broad and rough test to decide when a question arises whether a particular receipt is income or not, and the test is to ask oneself whether having regard to all the circumstances surrounding payment and receipt of income, what is received is of the character of income according to the ordinary meaning of that word in the English language or whether it is merely a casual receipt or a mere windfall. The test for determining whether casual and non-recurring receipts were mere gifts or windfalls which are not income of income or income from the profession or vocation of the assessee is, whether the payment is connected a with the exercise of the assessee's profession or vocation and, secondly, whether if is so connected it was made merely in appreciation of the personal qualities of the assessee displayed in the course of his engagement or was intended to confer a special benefit on him with respect to the services rendered so as to increase his earnings in exercise of his profession (see David Mitchell v. CIT : [1956]30ITR701(Cal) . It is also recognised that in order that the payments may constitute 'income', it is not necessary that they must proceed from a legal source. In other words, if the payments are not made, whether the enforcement of the payments could be sought by the payee in a court of law (see H. H. Maharani Shri Vijaykuverba Saheb of Morvi v. CIT : [1963]49ITR594(Bom) ). This would not be tantamount to saying that every voluntary payment will constitute income. The Bombay High Court in Maharani Shri Vijaykuverba's case : [1963]49ITR594(Bom) , clarified the position about the voluntary and gratuitous payment by observing that such payments could constitute 'income' if they are referable to a definite source which may be office, profession, vocation or occupation. If the voluntary payment has the origin in either of these activities, it would constitute a source of income. In Shri Vijaykuverba's case : [1963]49ITR594(Bom) , the Bombay High Court has ruled that a voluntary payment, haveing an origin, which a practical man can regard as a real source of income, will fall in the category of 'income', taxable under the Act. As pointed out by the Court of Appeal in Moorhonse (Inspector of Taxes) v. Dooland : [1955]28ITR86(Cal) , the circumstance of voluntary payments can obviously be of diverse nature and may vary from case to case. Each case has to be judged by reference to its own facts. What would be the principles which a court has to bear in mind in determining whether the circumstances of a particular case are such as to bring within the line of tax liability a particular receipt, Jenkins L.J., in his opinion, indicated one test, namely, whether from the standpoint of the person who receives it, it accrues to him by virtue of his office or employment, or in other words byway of remuneration for his services. If it has accrued by virtue of his office, it does not matter whether it was voluntary or compulsory on the part of the persons who paid it, and the liability cannot be negatived by reason of the fact that there was no legal obligation on the part of the persons who made the voluntary payments, Jenkins L.J. referred to the leading decisions on the point, namely, cooper v. Balkiston [1908] 5 TC 347) and Seymour v. Reed [1926] 11 TC 625 and deduced a few principles. The test of liability, as indicated above, is whether the receipt accrues to there recipient by virtue of his office or employment. In other words, whether it was a remuneration for his services. If, however, the circumstances indicate that the payment was made by way of gift for the personal qualities of the receipt or on account of esteem and regard which the payer has for him, the receipt would not amount to 'income'. A voluntary payment-periodic or having a recurrent character-affords a ground for the conclusion that the receipt is in the nature of income. The problem in a such cases is, as raised by Atkinson J. in Calvert (Inspector of Taxes) v. Wainright [1948] 16 ITR 54, whether it is a personal gift or a remuneration. What is meant by personal gift is succinctly stated by him in Calvert v. Wainright [1948] 16 ITR 54 in following terms (p. 55) :

'..... what is meant by 'personal gifts' is a condensation of the full sentence, personal gifts given on personal grounds other than for services rendered.....'

27. It is not capable of much debate that in all cases in which a receipt is sought to be taxed as income, the burden is no the Department to prove that it is within the taxing provision, and merely because an assessee carries on a vocation, there is no presumption that any amount received by him is income subject to tax. In Dilip Kumar Roy v. CIT : [1974]94ITR1(Bom) , the Bombay High Court indicated that the test in such cases is to find out if the sum is paid to the assessee in respect of his services and accrues to him by virtue of his office. Where an amount is paid to a person as a personal gift for his personal qualities and as a token of personal esteem and veneration, it cannot be subjected to tax as income arising out of business, profession or vocation (see Mahesh Anantrai Pattani v. CIT : [1961]41ITR481(SC) ).

28. In view of the above legal position, that first question which will arise is whether the payment is made to the assessee at all And, if yes, whether it was made for his office or vocation, or was it a gift for reverence or respect for him on the grounds other than services rendered It is difficult for us to adhere to the submission of the learned counsel for the Revenue that the offering made at the feet of Shri Jalarambapa were payments to the assessee since he was collecting these offerings and managing them or for that matter using them particularly for his personal purposes. It would be too specious to urge that merely because the assessee had some domain or control over these collections in his capacity as a descendant of Shri Jalarambapa, the offerings must be deemed to be receipts by him. Assuming without deciding that these offerings are receipts of the assessee, even then, it would be difficult to successfully urge that these were paid to him by way of remuneration for the services rendered or towards his office. As a matter of fact, the assessee does not hold any office and, therefore, it would amount to violence of language to say that the offerings at the feet of Shri Jalarambapa had any nexus, direct or indirect, with the office or the activities of the assessee. It would be much more difficult to successfully contend that these were for services rendered by the assessee to the visitors at the place of Guddee. We are, therefore, of the opinion that the first contention of the learned counsel for the Revenue is not well founded and, in our opinion, with respect to him, is misconceived for reasons which are obvious. In the first place, there is a clear finding of fact by the Tribunal that the assessee was not carrying on any activities in the nature of a vocation or that he was holding any office. Secondly, the offerings were not made to the assessee but were in fact made at the feet of Shri Jalarambapa and that too for the respect, regard and reverence for the saintly qualities of the deceased saint. Thirdly, by no stretch of imagination, can it be said that these offerings are for any services rendered by the assessee and the Tribunal was perfectly justified in holding that the offerings came from devotees stationed far and wide and in different nooks and corners of the world who have no occasion to visit the place of Guddee and enjoy and incidental facilities provided at the place of Guddee. The offerings in the very nature of things depend on the goodwill of the offerers and it is difficult to view these offering and for that matter, the receipts arising out of these offerings in the hands of the assessee as of recurrent nature and of expected regularity. These offerings in the very nature of things did not come with the same regularity or in a repeated manner from the offerings so as to import the character of income to these receipts. In that view of the matter, therefore, the first contention of the learned counsel for the Revenue must be and is rejected.

29. Re : Contention No. 2 :

30. The learned counsel for the Revenue, therefore, alternatively urged that the Tribunal fell into an error of law in finding that the institution of Shri Jalarambapa was not a temple. In the submission of the learned counsel for the Revenue, the Tribunal ought to have held that it was a temple or in any case a sansthan founded in the sacred memory of saint Jalarambapa, and having regard to the uninterrupted visits and use by the members of the public without any discrimination, it was a public religions endowment, and the assessee being admittedly the manager is in a position of a shebait who has a beneficial interest in the income of the institution and the admitted fact that the assessee was retaining and using the surplus income for his personal purposes, the ITO was perfectly justified in treating this surplus as income of the assessee, he being the beneficial owner thereof. The learned counsel for the Revenue cited a number of decisions of the Supreme Court as well as of other courts in support of this contention. We will refer to these citations at the appropriate time in the course of our discussion. On behalf of the assessee, this contention is sought to be repelled by the learned Advocate-General by urging that the entire contention of the Revenue proceeds on certain assumptions which are not warranted on the facts and in the circumstances of the case. In the first place, he submitted that no material has been placed on the record to establish that there was any consecration of the saint's portrait to justify this submission that the institution of Jalaram Guddee was in the nature of temple. Secondly, he urged that there is no evidence whatsoever on the record of the case to show that there was any dedication of the property to the so-called temple or the a sansthan as claimed by the Revenue. It is also not established, according to the learned Advocate-General, as to what was the extent of the interest of the assessee, assuming without admitting that he was occupying a position akin to that of a shebait. Merely because the assessee had a domain or control over the collection of the offerings or for that matter, he was using the surplus for his personal purposes would not be sufficient to establish the extent of the beneficial interest which depends up on the custom of the institution. It is in the backdrop of these revial contentions that we have to determine as to whether the learned counsel for the Revenue was right in urging the contention as he did.

31. We must remind ourselves at the outset that the Tribunal has held that the institution of Shri Jalaram Guddee is not a temple and at the most it can be held to be in the nature of a shrine. We do not think that the Tribunal was wrong on principle and authority in holding that the institution question was not a temple. The attempt of the Revenue in advancing this alternative contention appears to be that this institution is a temple or in any case it is a sansthan and, therefore, a religious endowment which can be placed on par with a temple. The underlying reason for advancing this larger contention appears to be that since the assessee is admittedly managing the institution, the Revenue wants to treat him as in a position akin to that of shebait and, therefore, having beneficial interest in the income of the institution.

32. In determining whether this contention as advanced by the Revenue is well-founded, a couple of sub-questions arise. The first and foremost question is as to whether this can be said to be a public religious endowment for the object recognised as religious under the Hindu law. The next sub-question which may arise consequently is whether there is any dedication of the property for these religious objects. If both these sub-questions are answered in the affirmative, the third sub-question is she there this institution can be described to be in the nature of a temple as contended by the learned counsel for the Revenue or, in the alternative, as a sansthan. A Hindu who is of sound mind, and not a minor, may dispose of his property by gift or by will for religious and charitable purposes such as the establishment and worship of an idol, feeding Brahmins and the poor, performance of religious ceremonies like Shraddha, Durga Puja and Lakshmi Puja and the endowments of a university or an hospital. The purposes which are recognised as conducive to religious merit in Hindu law cannot be exhaustively listed (see Mulla Hindu Law, fifteenth edition, page 516). What are purely religious purposes and what religious purpose will be charitable must be entirely decided according to Hindu law and Hindu notions. The courts in India have adopted the technical meaning of charitable trusts and charitable purposes which are recognised as charity by the courts in England. But over and above these objects, there are other charitable objects in Hindu law which though cannot be claimed to be charitable according to English law would still be treated as valid under the head of advancement of religion (see Nagu Reddiar v. Banu Reddiar AIR 1978 SC 1174). The very word 'endowment' postulates that there is a dedication of property for religious or charitable use. A religious endowment is one which has for its object the establishment, maintenance or worship of an idol or deity or any object or purpose sub-servient to religion and a charitable endowment is one which has as its object the benefit of public or manking (see Hindu Code by Gaur, section 213 and 214). A religious endowment may be either public or private. A public religious endowment necessarily implies that is a dedication of property for the use or benefit of the public while on the other hand a private religious endowment is a dediction of property for worship of the family God in which the public is not interested. Under the Indian I.T Act, The test of general public utility is applicable not only to trusts in the English sense but is to be applied to property held under trust or 'other legal obligation', a phrase which would include Muslim wakfs and Hindu endowments. The expression 'charitable purposes' must be construed strictly and can only be applied to a public charity and there is no such thing as a private charitable trust. There may be a private trust for religious purposes (see CIT v. Jamal Mohamed Sahib : [1941]9ITR375(Mad) ). For creating endowment, it is no doubt true that no writing is necessary except where it is by a will and no formal document is needed even where the property dedicated is immovable property of the value exceeding Rs. 100. All that is necessary for a Hindu to make a valid endowment is that the religious or charitable purposes should be clearly specified and the property intended for the endowment should be precisely set apart and dedicated to those purposes (see Mulla's Hindu Law, fifteenth edition, article 407 at page 519). No religious ceremony such as Sankalp, Samarpan, Prana Pratishta or Kumbhabishekam, etc., is necessary and a clear and unequivocal manifestation of intention to create a trust and vesting of the same in the donor or another as a trustee is enough to constitute deducation (see Ramchandra v. Shree Mahadeoji, AIR 1970 SC 458. Though mutts and temples are the most common forms of Hindu religious institutions, dedication for religious or charitable purposes need not necessarily take one of these forms and that the maintenance of sadabartas, tanks, seats of learning and homes for the disabled or the destitutes and similar institutions are recognised by and well known to Hindu law and when maintained as public institutions, they are incorporated with a legal personality as a mate or the deity in a temple has, and the persons in charge of the management would occupy a position of trust (see Kamaraju Venkata Krishna Rao v. Sub-Collector, Ongole : [1969]1SCR624 , where the passage from Tagore Law Lectures has been cited). The distinction between a private and a public trust is well recognised in the sense that in the case of the former, the beneficiaries are specific individuals while in the case of the latter they are the general public or a class thereof. Though an idol is a juristic person capable of holding property and properties endowed for the institution vest in it, it does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment. (see Deoki Nandan v. Murlidhar : [1956]1SCR756 ). It is also settled position in law that a valid endowment can be created in favor of an idol or temple without performance of any particular ceremony provided the settlor's intention has been unequivocally and clearly expressed.

33. The question whether the ceremonies of institution and consecration of idols are essential requisites according to Hindu Sastra for a temple was considered in the context of the definition 'temple' under s. 6(20) of the Madras Hindu Religious Endowments Act, 1959, in Pichai v. Commissioner for Hindu Religious and Charitable Endowments : AIR1971Mad405 . The Division Bench of the Madras High Court observed that according to Hindu authorities and Agama Sastras, elaborate rites and ceremonies were introduced in regard to the building of temples and consecration and purification of idols, and that man-made images in contrast to Swayambu images or self-revealed ones are installed and consecrated in a temple after due performance of long and elaborate ceremonies of which prana pratishta or vivification ceremony is an essential one by which the eternal spirit is supposed to be infused to the idol. In a paragraph 14, the Division Bench posed the question in the following terms :

'14. We have already observed that when idol of Hindu Gods are installed according to Hindu Sastras, Prana pratishta is an essential ceremony. They question is, if the idols are installed in a place without due ceremonies being performed, will that cease to be a place of public religious worship within the meaning of 'temple' under the Act ?'

34. In other words, all artificial or man-made images require consecration Elaborate cereamoines have been prescribed by Brahmanical writers in regard to building of temples and consecration and purification of idols. (see Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures, fourth edition by B. K. Mukherjee, paragraphs 4.4, 4.5 and 4.6 at pages 153, 154 and 155). It is equally well settled that the factum of dedication is not to be readily inferred from the mere fact that the members of the public are freely admitted to the temple or to a place of religious worship. What should be pleaded and proved is that that admission or use of a place of religious worship is as a matter of right (see State of Bihar v. Biseshwar Das : [1971]3SCR680 ).

35. In the light of the above settled legal position, we have, therefore, to examine whether the contention advanced on behalf of the Revenue is borne out on the facts and in the circumstances of this case so far as the income of the institution is concerned. We have not been pointed out any satisfactory, cogent and reliable evidence to warrant the finding that the institution in question is a public religious endowment in the nature of a temple. There is no satisfactory evidence on the record of the present case to warrant an inference that there was dedication of the property for the use and worship of idol. There is also no evidence to suggest that there was any consecration of the idols. The only circumstance which the Tribunal has noted is that the idols have been placed in a separate room. Besides this circumstance there is no material on the record from which it can be successfully urged, as was attempted by the Revenue, that there was a consecration of the idols. There is also no evidence to establish that the devotees in particular and the member of the public in general have as matter of right admission to and use of this place and, therefore, it should be considered to be a public religious endowment in the nature of a temple. The learned counsel for the Revenue attempted to persuade us that all the devotees and the members of the public have a free access and have a right to attend this place at the time of puja and arit of the idols and the portrait of Shri Jalarambapa and those devotees and the member of the public who come to attend these ceremonies and make the offerings at the feet of Shri Jalarambapa are provided with food without any charge and are given hospitality irrespective of any discrimination. The learned counsel for the Revenue was at great pains to emphasis that annakshetra is a part and parcel of this place and is connected with important activity since the philosophical mission of saint Jalarambapa was to feed the poor and pray to the almighty which tradition has been continued by the assessee in this institution. We are afraid this is too specious a contention since feeding of visitors and giving hospitality to wayfarers cannot by themselves be indicative much less conclusive on the question that the institution is a public institution. In Mahant Sri Biseshwar Das's case : [1971]3SCR680 , the Supreme Court pointed out that provision for the service of the sadhus, occasional guest and wayfarers does not render a trust for an idol into a trust for public purposes. Equally, it was established by that ruling that the evidence that the members of the public used to attend to temple and give offerings and that the public were admitted to the temple for darshan and worship could also not be indicative of the temple being one for the benefit of the public. Justice Shelat, speaking for the court, observed as under in that behalf (p. 2061) :

'14. The fact that members of the public used to come to the temple without any hindrance also does not necessarily mean that the temple is a public temple, for, members of the public do attend private temples. It is against Hindu sentiments to turn away persons who come to do worship and darshan. The mere fact, therefore, that no instance had occurred when persons from the public were asked to go away or the absence of proof that they were allowed on permission or invitation only cannot be conclusive of the temple being one in which the public have by user acquired interest.'

36. In the state of evidence, we are not impressed with the first part of this contention that the institution in question is a public religious endowment in the nature of a temple. The reasons, as we have state, are obvious. In the first place, there is no cogent, reliable and inspiring evidence that there was any dedication of the property for the purpose of worship of idols or for that matter for the worship of Saint Jalarambapa. There is no evidence whatsoever to suggest, must less satisfactorily establish, that there was consecration of the idols or for that matter of the portrait of Shri Jalarambapa. Except the evidence of attendance and user of the place by the devotees and the members of the public, there is no evidence to suggest, must less to conclude, that this user or attendance was as a matter of right.

37. The latter part of the contention is also, in our opinion, ill-conceived. The latter part of the contention, as a matter of fact, flows from the earlier part of the contention. The contention is that the assessee being admittedly in a position of a manager is occupying a position akin to that of a shebait and, therefore, he has a beneficial interest in the income derived from the collections of the offerings made at the feet of Shri Jalarambapa. What is the position of a shebait, and whether he has any beneficial interest in the offerings or the receipts of a Hindu religious endowment, has been elaborately discussed by the Privy Council in the leading decision of Vidya Varuthi Thirtha v. Balusami Ayyar, 48 IA 302; AIR 1922 PC 123. It is not necessary to refer in detail to this decision. Suffice it to quote the passage which has very succinctly summed up the position of Hindu religious institutions and their managers. Justice Ameer Ali, speaking for the Judicial Committee, summed up the position at page 331 as under (p. 126 of AIR 1922 PC) :

'..... Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to brahmins, goswamis, sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligation. Under the Hindu law, the image of a deity of the Hindu patheon is, as has been aptly called, a 'juristic entity', vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same 'juristic' capacity, and gifts are made to them eo nominee. In many cases in Southern India, especially where the diffusion of Aryan Brahaminism was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monasteries under the names of maths were founded under spiritual teachers of recognised sanctity. There men had and have ample discretion in the application of the funds of the institution, but always subject to certain obligations and duties, equally governed by custom and usage. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case is the property conveyed to or vested in him, nor is he a 'trustee' in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-administration.'

38. As observed above, the latter part of the contention follows from the earlier contention and if, therefore, we are not inclined to agree with the learned counsel for the Revenue that the institution in question is a public religious endowment in the nature of a temple, the contention about the position of the assessee being akin to that of a shebait and, therefore, having beneficial interest in the receipt of the institution would also not arise. Even then, we have examined the question : Is there any evidence to show the extent of the beneficial interest of the assessee The manager and the custodian of the idols or the institution by whatever name called is in almost every case given a right to a part of the usufruct but the mode of enjoyment and the amount of the usufruct depends again on the usage and custom. In Geerdharee Doss v. Nundokissore Doss, [1867] 11 MIA 405, it is recognised that the only law as to these Mohunts and their offices, functions and duties, is to be found in custom and practice, which is to proved by testimony. This observation has been quoted with approval by the Privy Council in Vidya Varuthi's case, 48 IA 302 : AIR 1922 PC 123. Unless, therefore, what was the usages or custom as regards the extent of the beneficial interest of the assessee is proved by sufficient evidence and testimony, it would be difficult to reach the conclusion as sought to be contended on behalf of the Revenue that the assessee had a beneficial interest to the extent of the net surplus remaining from the receipts of the offerings after disbursement of the necessary amounts on account of the duties and obligations prescribed for the Guddee. The learned counsel for the Revenue made a faint attempt to press upon us that inasmuch as the assessee claimed his right to the use of the surplus, it must be presumed that he has a beneficial interest to that extent. We are afraid that this inference is not open to us in the absence of evidence in view of the settled legal position which we have set out form the decision of the Privy Council in Vidya Varuthi's case, 48 IA 302 : AIR 1922 PC 123.

39. The learned counsel for the Revenue, therefore, urged that even if the court is not inclined to agree with the submission that the institution in question is a temple, in any case, it is a sansthan which stands ar per with the temple and the assessee being the manager of such a sansthan is in a position akin to that of a shebait. In support of this contention, the learned counsel for the Revenue relied on the decision of the Nagpur High Court in Gajanan Maharaj Sansthan v. Ramrao Kashinath, AIR 1954 Nag 212, where the Division Bench of the Nagpur High Court held that the sansthan at Sheogaon consists of a temple in which the image of Shri Gajanan Maharaj is installed as a divine entity and is being worshipped as such and, therefore, the sansthan is on par with a Hindu temple in which an idol is installed and has accordingly the same juristic personality which an idol is recognised to pressess and since the said sansthan could act only through its manager, his position is analogous to that of the next friend of a minor. We are unable to appreciate how this decision can be of any assistance to the cause of the Revenue, since the Division Bench of the Nagpur High Court held as noted above in the context of the competency of the suit for possession of the property attached to Mudgaon Sansthan which Sheogaon claimed it is as its branch and whether the manager of Sheogaon Sansthan was entitled to file a suit on behalf of the sansthan. The trial court dismissed the suit holding that Mudgaon Sansthan was not a branch Devasthan of Sheogaon and that the plaintiff was not a juristic person and, as such, was not entitled to maintain the suit though on other points it held in favour of the plaintiff-sansthan that the suit was not barred by limitation; the defendant's case as to his appointment as manager was not established and one R. K. Patil was the manager of Sheogaon Sansthan and was competent to maintain the action on its behalf as if it was a juridical entity. The appeal in the District Court failed on the short ground that Mudgaon Sansthan was not proved to be a branch of the Devasthan of Sheogaon. During the pendency of the second appeal, the aforesaid manager Patil died and an application was made for substitution by one Purushottam Hari Patil in his place. The application was resisted on behalf of the respondent, inter alia, on the ground that it was barred by limitation and, therefore, the appeal abated. On behalf of the appellant-sansthan, it was urged that since the appellant plaintiff was a juridical person, no question of abatement arises. In that backdrop the Division Bench considered the question. It noted that there was no direct authority on the question whether an institution as Gajanan Maharaj Sansthan at Sheogaon is a juridical person. The Division Branch analysed as to what is the reason for treating Maths or Devasthan as juristic persons. The reason which is underlying this concept of juristic entity for a Math or a Devasthan is the intensity of the veneration behind such institutions. The Division Bench thereafter observed as under :

'12. The sansthan at Sheogaon is admittedly a religious institution. In the plaintiff's rejoinder date January 5, 1945, it was noted that the institution consists of a temple in which the image of Shri Gajanan Maharaj is installed. It was also stated that : 'Shri Gajanan Maharaj was a great saint, who had renounced the world and whose devotees regarded him as the incarnation of God and who was worshipped as such.' After the demise of Shri Gajanan Maharaj, his devotees first installed his Padukas and worshipped the same. After a short time, a big temple was erected over the 'Padukas' and an image has also been installed there. All the endowments are made to Shri Gajanan Maharaj whose worship is regularly performed according to rules made by the Punchas....'

Rao Saheb R. K. Patil (P.W. 1) has testified to the installation of the 'padukas' and the image of Shri Gajanan Maharaj in the temple in which there is also an idol of Lord Ram in front of which the 'padukas' are kept. Ratansa (P.W. 2) speaks of the installation of the 'padukas' and the image of Shri Gajanan Maharaj which are worshipped there times a day by the pujari. This evidence has not been controverted but the defendant. It thus appears that the idol of Shri Gajanan Maharaj has been cosencrated as a divine entity and is being worshipped as such. In these circumstances, the sansthan is on par with a Hindu temple in which an idol is installed and has accordingly the same juristic personality which an idol is recognised to possess.

13. As in the case of an idol, the plaintiff sansthan can only act through a person although it has a juristic entity. Rao Saheb R. K. Patil was the manager of this sansthan and had brought the action on behalf of the sansthan. His position was, therefore, analogous to that of the next friend of a minor. Such a suit is not governed by O. 22, r. 3. Civil P.C. ...'

40. We do not think that the learned counsel for the Revenue can successfully press this decision in service obviously for the reason that in the temple of Sheogaon sansthan, the idol of Gajanan Maharaj was consecrated and, therefore, the Division Bench of the Nagpur High Court was persuaded to treat the sansthan as on par with the temple. This essential ingredient of consecration of an idol of God or incarnation of God is absent it he present case before us. In that view of the matter, therefore, we are of the opinion that the second contention has no merit in it and it should be, and is, rejected.

41. Re : Contentions Nos. 3 & 4 :

42. The learned counsel for the Revenue, therefore, advanced another alternative argument that the institution in question is a private religious endowment and the assessee, being the manager thereof, is in the position of a shebait and the beneficial ownership of the institution vests in him and, therefore, the receipts of offerings would be income of the assessee.

43. In State of Bihar v. Smt. Charusila Dasi : AIR1959SC1002 , the Supreme Court was concerned with the question as to whether the trust known as Srimati Charusila Trust and the properties appertaining thereto which were held by the High Court of Patna to be a private trust created for worship of a family idol in which the public had no interest were governed by the Bihar Hindu Religion Trusts Act, 1950. The Patna High Court quashed the proceedings taken in respect of the said trust at the instance of the respondent, Smt. Charusila Dasi, under ss. 59 and 70 of the said Act in exercise of its jurisdiction under art. 226 of the Constitution. The State of Bihar as well as the State Board of Religious Trusts went in appeal before the Supreme Court. The court, speaking through Das. J., held as under (headnote) :

'In order to determine the question whether an endowment is public or private, the cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of the family or a specified individual, then the endowment can only be regarded as public intended to benefit the general body of worshippers.'

44. It further held that if in a trust deed, the settlor had merely stated that the she had installed the deity in her house and she had been regularly worshipping the deity since such installation and if the trust had been created only for the purpose of continuing such family worship, the conclusion would no doubt be that the endowment was wholly of a private character in which the public had no interest. But where the settlor had created a trust for the construction of two temples, in one of which was to be installed the deity and it the other the marble image of her preceptor and also provided for the establishment of a charitable hospital and dispensary for the gratuitous medical, surgical and maternity advice and aid to the Hindu females, and the trustees consisted of five persons, three of whom were strangers to the family, the court must construe the deed of trust in proper perspective cans so construed, there was no doubt that the trusts constituted a public endowments.

45. In Radhakant Dev v. Commr. of Hindu Religious Endowments : [1981]2SCR826 , the Supreme Court was required to consider as to whether the temple of the appellants whose deity was Radhakanta Dev was public a endowment as alleged by the respondent or a family deity as claimed by the appellants. In that context, the court, specking through Fazal Ali J., before indicating the guidelines to determine the nature of endowment, observed as under (headnote) :

'There can be religious trust of a private character of under the Hindu law which is not possible in English law. It is well settled that under the Hindu law, it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to instal a family deity it the temple and worship the same in order to effectuate the spiritual benefit to the family of the founder and his descendants and to perpetuate the memory of the founder. In such cases, the property does not vest in God but in the beneficiaries who have installed the deity. In other words, the beneficiaries in a public trust are the general public or a section of the same and not a determinate body of individuals as a result of which the remedies for enforcement of a charitable trusts are somewhat different from those which can be availed of by the beneficiaries in a private trust. The members of the public may not be debarred from centering the temple and worshipping the deity but their entry into the temple is not as of right. This is one of the cardinal tests of a private endowment. The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application.'

46. The broad tests which have been indicated by the court for purposes of determining the true nature of an endowment are, inter alia, (1) whether the public user is as a matter of right where the origin of the endowment cannot be ascertained; (2) the management and control vesting in the members of the public and the founder not retaining any control over the management; (3) the control and management of temple is retained with the found or his descendants under a document of endowment, if there is one; (4) the dedication of extensive properties for maintenance belonging to the founder himself; and (5) absence of any stipulation in the document of endowment permitting the offerings or contributions to be made by members of the public to the temple, the last two being conclusive circumstances of the private nature of the endowment.

47. The learned counsel for the Revenue, relying on this decision, urged that if this is not a public religious endowment since the place where the idols of Ram, Seeta and Lakshman and the portrait of Shri Jalarambapa are kept is separated from the residence of the assessee, it must be held that there is a dedication of this part of the property for the purpose of worship of the idols and the portrait. The finding of the Tribunal that there was a gift by the then Thakore of Virpur of two 'santis' of agricultural land for the worship of the idols and the portrait and the claim of the assessee that this is their private property sent for the worship by the assessee and the members of his family clearly established that this is a private religious endowment and the property attached to this endowment does not vest in the idols or the portrait of Shri Jalarambapa but in the beneficiaries who have installed them. We must state that the ultimate conclusion of the Tribunal that the offerings made at the feet of Shri Jalarambapa were not the income of the assessee is perfectly justified on this admission made by the learned counsel in support of these two contentions.

48. The problem with which we are presented in whether the said offerings are the income of the assessee. Assuming for the time being that the institution in question is private religious endowment, the beneficial ownership of this property would vest it the beneficiaries who have installed the idols and the portrait of Shri Jalarambapa. It, therefore, cannot be urged that the properties and the income thereof vest in the ownership of the assessee. Who are the beneficiaries who have installed the idols of Ram, Seeta and Lakshman or who had installed the portrait of Shri Jalarambapa is not at all clearly brought out in the evidence. In other words, who are the class of beneficiaries for whose benefit this private religious endowment has been made is also not established by clear and cogent evidence on behalf of the Revenue. According to the decision of the Supreme Court Radhakanta Dev's case : [1981]2SCR826 , if the dominant intention of the founder is to instal a family deity in the temple and worship the same order to effectuate to spiritual benefit to the family of the founder and his descendants and to perpetuate the memory of the founder, the property does not vest in God but in the beneficiaries who have installed the deity.

49. It is necessary to remind ourselves about the essential distinction between a public and private endowment. The distinction is that the beneficial interest in a public endowment vests in an uncertain and a fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description. On the other hand, in a private endowment, the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained (see Mulla's Hindu Law, fifteenth edition, paragraphs 424, pages 544). Unless, therefore, there is reliable an unimpeachable evidence establishing that the beneficiaries aries of this private endowment, namely, Jalaram Guddee, are definite and ascertained individuals or with reference to a particular period of time they could be definitely ascertained, it would be difficult for us to say in whom the property or the income vests. The Tribunal has read the evidence of the assessee whose statement was recorded as a witness of the Department on October 9, 1959. The Tribunal has quoted from the evidence of the assessee that there was one photo of Shri Jalarambapa and there was his Charan Paduka. There was also a Murthi of Shri Ramchandra placed in a room which was meant for the worship of his family. This part of the evidence appears to have been accepted by the Tribunal. In other words, the members of the family of the assessee would in that case be beneficiaries even on the submission of the learned counsel for the Revenue. By necessary implication, it therefore, follows that the assessee alone can not be held to be the beneficiary of the property or its income. The third and fourth contentions, therefore, in out opinion, on close scrutiny of the evidence do not appear to be capable of being sustained obviously for three reasons. In the first place, on the submission of the learned counsel for the Revenue, the income derived from the receipts of the offerings being the income of a private charitable endowment, as contended by the learned counsel for the Revenue, would vest in the beneficiaries and not in the assessee alone as is sought to be canvassed on behalf of the Revenue. In any case, there is no cogent, reliable and inspiring evidence whatsoever which could indicate as to who were definitely the ascertained individuals who constituted the body of beneficiaries. Thirdly, the Tribunal has found on acceptance of the evidence of the assessee who was summoned and examined as a witness for the Department that the idols and the portrait of Shri Jalarambapa were meant for the family worship. If this is the finding of fact by the Tribunal, the Revenue cannot succeed in this reference since that finding of fact has not been challenged by seeking a specific question in that behalf with the result that if at all the property or the income thereof vests, it can vest in the whole family and not in the assessee alone. The third and fourth contentions, therefore, must be rejected.

50. Re : Contention No. 5 :

51. In support of this contention the Revenue has sought to placed reliance on two decision of this court and one decision of the High Court of Bombay. The decision of the Division of Bench of this Court in Ambaji Temple's case : [1965]58ITR675(Guj) , is the mainstay of the Revenue's case. As a matter of fact, the assessment proceedings were initiated again in the relevant assessment years with which we are concerned in Income-tax Reference No. 214 of 1978, namely, 1967-68 to 1969-70, by the ITO on the basis of the decision of this court in Ambaji Temple's case : [1965]58ITR675(Guj) . We would, therefore, examine as to whether the reliance placed by the Revenue on this decision can be of any effective assistance to the cause of the Revenue. The Tribunal has held that the decision in Ambaji Temple's case could not carry the case of the Revenue any further since the only question with which the Division Bench of this court in that case was concerned was as to whether the assessee there should be assessed as an individual or as an ascertain of persons. The Tribunal, therefore, found itself unable to persuade itself that the decision in Ambaji Temple's case : [1965]58ITR675(Guj) , can throw any light on the problem with which the Tribunal was confronted, namely, as to whether the offerings made at the feet of Shri Jalarambapa were the income of the assessee. In the course of this submission in support of this last contention, the learned counsel for the Revenue also heavily relied on this decision since, in his opinion, the decision was not only relevant for purposes of determining the status of the assessees there but was, on the facts and in the circumstances, on all fours with the present reference and it submission of the learned counsel for the Revenue, the Division Bench of this court did hold on the facts and in the circumstances of Ambaji Temple's case : [1965]58ITR675(Guj) , that the offerings made in Ambaji Temple at Surat which was founded by the ancestor of the assessees concerned were income of the assessees since it was a private property of the family of the assessees. In other words, according to the learned counsel for the Revenue, the ratio of the decision is that since it was private temple of Goddess Ambaji belonging to the family of the assessees concerned, the property and its income vest it the beneficiaries and, therefore, it was treated as the income of the assessee. On the other hand, on behalf of the assessee, the view of the Tribunal which was sought and with which the Division Bench was concerned in Ambaji Temple's case : [1965]58ITR675(Guj) , was the status of the assessees, and the question with which we are concerned in these reference did not squarely arise before the Division Bench case since admittedly the assessees there were not disputing that the offerings made at the feet of Goddess. Ambaji at Surat were for all intents and purposes the income of the assessees. We may, therefore, closely look at his judgment in order to decide as to what there this decision can be of any assistance to the cause of the Revenue.

52. One Premji Bhatt originally founded the temple of Ambaji Mata at Surat. He managed it, attended to the adornment of the deity and the performance of the puja in the temple. The members if the public were allowed to visit the temple and to have darshan of the deity. The original founder, the said Premji Bhatt, collected all the offerings made by the people visiting the temple and retained them as his income. With the passage of time, the temple devolved on the descendants by inheritance, and during the account years ending March 31, 1950, to March 31, 1957, five persons who were the assessees concerned in the case claimed to be the owners of the temple having defined shares. The assessees appeared to be representing the different branches of the original founder. The larger share belonged to Shushila Jayashanker and Shantilal Parvatishanker, each having six annas and four annas share respectively, while the three other co-shares, namely, Jamiatram Vishnushanker, Sharda Ochhavlal and Dhanlakshmi Manalal each had two annas share. For the purposes of sharing the offerings, these co-shares acted as pujaris in turns which were determined by casting lots and each co-sharer collected the offerings made to the deity during the period of his/her turn and were retained by him her as his or her income. During the respective turn, each assessee managed and looked after the temple, attended to the adornment of the deity, performed puja and did all necessary things in connection with the temple and collected the offerings made to the deity as his or her income. The ladies did not attend the temple personally but at the time of their turn some male member performed the duties on their behalf and also collected the offerings made to the deity on their behalf. On festival days, the number of devotees visiting the temple being quite substantial and large, the extent and the value of the offerings to the deity would be correspondingly larger but the offerings of these days were pooled together and shared in the respective proportion to which they are entitled. On these facts, the ITO held that the assessees were liable to be assessed as an association of persons in respect of the offerings to the deity collected by them and since there were no books of account, he estimated them and assessed the shares in respect thereof for the assessment years 1950-51 to 1957-58.

53. The assessees, therefore carried the matter before the AAC who was of the opinion that there was no association of persons constituted by the assessees and they were not association and they were not liable to be assessed as such. He directed that the assessment should in the status of an individual in respect of his or her share of the offerings received by him or her and the status of an association set aside the assessment made on the assessees in the status of an association of persons. At the hearing of the appeals, contention was urged on behalf of the assessees that in any view of the matter, the assessment was liable to set of the aside inasmuch as the offerings to the deity constituted the income of a public religious trust and were, therefore, not assessable in the hands of the assesses, either as an individual or as an association of persons. This contention was not raised as a specific ground in the memo of appeal before the Commissioner who, therefore, refused to entertain the same. The explanation of the assessees for the a omission was what it was only after they filed the appeal that the Assistant Charity Commissioner held the temple as a public religious trust on April 14, 1959, while the appeal was filed on April 2, 1959. The AAC found that the assessees were challenging this decision of the Assistant Charity Commissioner and had preferred appeals against it before the Charity Commissioner. He, therefore, refused to entertain the contention.

54. The Department, therefore, carried the matter in appeal before the Tribunal. The Tribunal ruled that the assessees were liable to be assessed as an association of the persons and were rightly assessed as such by the ITO. Though the assessee did contend before the Tribunal that the assessment was rightly set aside by the AAC since the temple was held to be a public religious trust, the Tribunal failed to deal with this contention in its order. The Tribunal, therefore, in that view of the matter, restored the order of the ITO. Since the Tribunal failed to deal with the contention as regards the nature of the trust the assessee made an application to the Tribunal to deal with this contention and dispose of the same on merits. The Tribunal on two grounds rejected this application. Firstly, it was not properly not presented and secondly, the assessees had not come in appeal to the Tribunal against the refusal by the AAC to entertain this ground. The assessees, therefore, sough the reference which was granted and the following two questions were referred to this court for its opinion :

'1. Whether, on the facts and in the circumstances of the case, the assessments upon the applicant as an association of persons are correct in law

2. Whether, on the facts and in the circumstance of the case, the Tribunal was justified in holding that in the income from the said temple on non-festival as well as festival days accrued to the applicants as an association of the persons ?'

55. The third question was ultimately referred to this court as directed under s, 66(2) of the 1922 Act. The third question was to the following effect :

'Whether the Tribunal erred in law in declining to consider the contention of the applicants that the as the income of the Ambaji Temple was the income of a public religious trust, the same was not assessable in the hands of the applicants in their individual capacities at all, either as an association of persons or otherwise, only on the ground that the applicants had not preferred any appeal from the refusal of the Appellate Assistant Commissioner to entertain their contention as an additional ground ?'

56. We do not think that the Tribunal was in any way in error in its view that the Division Bench of this Court was concerned with the status of the assessees only, in Ambaji Temple's case : [1965]58ITR675(Guj) . A mere reading of the first two questions which had been referred to this court, leaves no scope for any debate. The third question which was called for by this court under s. 66(2) of the 1922 Act related to the point as to whether the Tribunal was justified in refusing to entertain the point about the nature of the institution in question as to whether it was a public religious trust. We, therefore, do not think that the Tribunal was in way in error in holding that third decision in Ambaji Temple's case : [1965]58ITR675(Guj) was not relevant of any assistance for the purposes of the question with which the Tribunal was faced in the present case. The learned counsel for the Revenue invited our attention to certain observation made in the judgment which, in his submission, have a bearing and relevance to the question with which we are concerned in these references. The observations which have been pressed into service read as under (p. 681) :

'The offerings to the deity become the income of the assessees only on the basis that the temple was private temple of the assessees and we will, therefore, assume for the purpose of this argument that the temple was a private temple belonging to the assessees. Now the assessees inherited the temple by descent from the original founder, Premji Bhatt, and they were jointly entitled to the temple and other movable and immovable properties appertaining to the temple. The ornaments and jewelry for the adornment of the deity also belong jointly to the assessees and remained in their joint possession. Whenever any new properties were purchased, they were also purchased by the assesseies as joint owners. The assesses managed and looked after the temple, attended to the adornment of the dety and the performance of the pooja in accordance with certain well-defined traditions and standards and allowed the public to visit the temple at regulated hours to have darshan of the deity and to make such offering as they liked. The object of the assessees in doing all this clearly was that devout Hindu may come to the temple and make offerings to the deity so that the assessees may earn income in the shape of such offerings. The assessees thus engaged themselves in a joint enterprise with the object of earning income received by way of the offerings to the deity.'

57. The second paragraph on which the learned counsel relied reads as under (p. 682) :

'It is no doubt true that when people visit the temple and make offerings to the deity, they do so because of the religious faith and devotion which they have for the deity and not because they want to remunerate the assessees for the management the temple or the adornment of the deity or the performance of the pooja or any other activities an connection with the temple. But the question is what is the motive or reason which prompts people to make offering to the deity, but what is the object of the assessees in doing these activities. Why do the assessees look after the temple, adorn the deity, perform the pooja and allow people to come to the temple to have darshan and to make offerings to the deity Obviously, the assessees know that if devout and religious-minded people come to the temple, they would almost always as a matter of course make offerings to the deity and this would bring income to the assessees. In order to produce this income, the assesses must, therefore, see that people come to the temple and for that they must maintain the temple, perform pooja including arti at certain fixed times, make offerings of what is called that, i.e., plate of food to the deity, and allow people to come to the temple to have darshan of the deity. All this is done by the assessees in order to earn income in the shape of the offering to the deity. The temple is the source which produce income by reason of the faith and devotion which devout and religious-minded people have to the deity in the temple and it is this source which is exploited by the assessees with a view to producing income. It was not contented befor us, and indeed it could not be contended, that the activities of the assessees in regard to the temple were purely for earning spiritual merit and there was no income-making motive behind them.'

58. Relying on the above two passages, the learned counsel for the Revenue urged that the facts and circumstances before us in the present references are almost identical. The assessee and his son went to the place of Jalaram Guddee to attend to the adornment of the idols and the portrait, perform pooja and arti and do all necessary things in connection with this place. They claim this entire property as their personal property and, therefore the offering made at the feet of Shri Jalarambapa and the receipt of these offerings, therefore, constituted income from the property which must be treated as income of the assessee. In the submission of the learned counsel for the Revenue, the assessee is exploiting this place with a view to earn more and more income by inviting the members of the public to attend and to have darshan of the idols and the portrait and thereby inducing them to make offerings at the feet the of Shri Jalarambapa. We are afraid that the learned counsel for the Revenue is reading more than what is possible on the facts and in the circumstances of the case before us. The two passages which we have extracted and set out above from the decision in Ambaji Temple's case : [1965]58ITR675(Guj) , clearly proceeded on the basis that the temple was a private temple of the assessee during the relevant accounting years. The Division Bench, therefore, proceeded to consider as to what could be the purpose of the assessees behind their various activities undertaken by then in connection with the temple. The Division Bench was of the opinion, on the facts and in the circumstances of the case found by the Tribunal, that the real object behind the various activities carried on the assessees in connection with the temple was to attract more and more visitors and worshippers so that there may be consequently a larger and larger earning of income. The Division Bench emphasised one important fact that the collections made out of offering made on the certain festival days were pooled together and shared the proportion of the respective shares which each of the co-shares had in the temple. The Division Bench also emphasised the fact that the original founder, Premji Bhatt, also as well as assessees retained the offerings made by the devotees and worshippers as personal income of the under founder or the respective non shares, as the case may be. The question as to whether the receipt of the offerings was the income of the assessee was never in dispute between the Revenue on the one hand and the assessees on the other. If, on these facts, therefore, the Division Bench held that the income which the assessees have received from the offerings should be assessed in their hands as an association of persons, we do not think that any exception can be taken. But it would be tantamount to saying that the Division Bench was deciding the nature of the receipt. The Division Bench was exercising the advisory jurisdiction under s. 66 of the 1922 Act and could not have gone into the question of the nature of the receipt even if it had been in issue between the Revenue and assessees since no question was referred to the court in that behalf. We, therefore, do not think that the decision of this court in Ambaji Temple's case : [1965]58ITR675(Guj) , can take the case of the Revenue any further.

59. The second decision sought to the be pressed into service was in Acharya D. V. Pande v. CIT : [1965]56ITR152(Guj) . Two questions with which the court, was concerned were, whether the monthly allowance of Rs. 2,000 paid to the Acharya of Shri Narnarayan Temple at Ahmedabad which he was entitled to set aside under the scheme framed foe the maintenance of the temple for his personal use, was liable to be brought to tax as income of the applicant, and whether in view of the scheme, any expenses incurred form the funds of the institution on account of residence, food, clothing and servants are liable to be included in the income of the applicant. The Division Bench held that since the sum of Rs. 2,000 was received by the assessee as an incident of the office of Acharya, and in virtue of the office of Acharya held by him, and came in periodically every month, it was clearly income liable to be taxed as such in the hands of the assessee. The Division Bench further held that the said amount was not a capital receipt inasmuch as it was paid to the Acharya not in substitution of the source of the income, viz., the office of Acharya, which still continued to exist, but in substitution of the income derived from that source. As regards the benefit received by the Acharya by reason of the institution providing residence, food, clothing, servants, carriages etc., for the Acharya and the members of his household, the incurring expenditure for the same cannot be said to represent money's worth, i.e., something which can be turned to pecuniary account and, therefore, cannot be regarded as income assessable to tax in the hands of the assessee. We do not think that this decision can render any any useful service in the solution of the problem with which we are concerned. The monthly remuneration paid to the Acharya was an incident and in virtue of the office of Acharya held by him. We do not think, therefore, that the ratio of this decision can be of any effective assistance to the cause of the Revenue for the simple reason that no offerings are made to the assessee and much less can it be said that the surplus which he retained and put to his personal use can be as an incident and in virtue of the office.

60. The third decision witches been pressed into service on behalf of the Revenue is of the Bombay High Court in Maharaj Sri Govindlaljee Ranchhodlalji v. CIT : [1958]34ITR92(Bom) . The question referred to the Division Bench of the Bombay High Court pretained to the taxability of the receipt to two amounts namely, Rs. 9,228 and Rs. 17,591, which were offerings made to the assessee who claimed himself to be direct descendant Shri Vallabhacharya who had founded a faith known as Vallabh Sampradaya. The Tribunal found as a matter of fact in that case that the assessee, by virtue of the office he held, had to perform some obligations as a the held of this faith and he was looked upon by the devotees as 'Guru' and he gave 'mantras' to his disciples. The Division Bench in they context observed that the source of these receipts it is the abiding faith that the disciple have in their Guru and the receipts come in with a fair that the regularity. The Division Bench considered that the personal gift is exempted from tax on the ground that it is casual and non-recurring, but the essence of such a gift is that is should be personal and voluntary and should have been made for personal considerations of a donee. The Division Bench referred to another finding of fact made by the Tribunal that it was customary on the part of the followers of the faith to make presents to the head of the faith. The Division Bench, therefore, rules that the offerings were made to the assessee because he was the head the of the sect and not in his individual capacity and if he received them because he was holding an office and no a personal gifts, the receipts must be treated as income and subjected to tax. In that view of the matter, the question was answered is favour of the Revenue that the two sums were rightly treated by the Tribunal as income of the assessee. The decision also reiterates the same principle that if any receipt it is an incident to, and by virtue of, the office and it was customary on the part the followers of the faith to make presents to the head of the faith and that the offerings were made to the assessee because he was the head of the sect and not his individual capacity and for considerations personal to the individual holding the office, the same must be treated as income liable to tax.

61. There is an additional hurdle in the way of the Revenue so far as this contention is concerned. The contention is that Jalaram Guddee is a private property of the assessee and, therefore, the income earned from it must be held to be the income of the assessee. Now, it should be recalled that the case of the Revenue all throughout was that the assessee carried on diverse activities in connection with this Guddee and, therefore, he was carrying on a vocation our of which he earned this income. The present contention which is sough to be urged seeks to advance a new was case altogether which also cannot be permitted since to the Department has all along proceeded on the basis that the income of the assessee was from the source of this vocation and the in expanses incurred on different activities of the institution have been allowed to be deducted as laid out for the same and merely the surplus be has been brought to tax. It has not been sought to be brought to tax as an income of the property. In a similar situation, the Supreme Court in Karnani Properties Ltd.'s case : [1971]82ITR547(SC) did not permit the Revenue to advance a new case. The assessee-company there claimed the entire receipt from the tenants as income from the business. The ITO rejected this claim but split the receipts into two parts, one part being treated as rent and the other as 'income from other sources' taxable under s. 12 of the 1922 Act. The Appellate Tribunal held that the second part was assessable as income from business under s. 10. Neither the Department nor the assessee contended that the that part was assessable under s. 9. The High Court, on a reference, held that the latter part of the receipt was also assessable as income from property under s. 9. The Supreme Court, on appeal held, reversing the decision of the High Court, that the Department having all along proceeded on the basis that the income of the assessee was from two different sources, it should not have been allowed by the High Court to change its case. In what view of the matter, therefore, the fifth contention also must fail and is rejected.

62. No other contentions have been urged.

63. The result is that the we answer the questions referred in both these reference as under :

64. I.T.R. No. 214 of 1978 :

65. Question No. 1 : In the affirmative, that is, in favour of the assessee and against the Revenue.

66. Question No. 2 : In the affirmative, that is, in favour of the assessee and against the Revenue.

67. The Commissioner shall pay costs of this reference to the assessee.

68. I.T.R. No. 68 of 1977 :

69. The question is answered in the affirmative, that is, in favour of the assessee and against that Revenue.

70. There should be no order as to costs in this reference.


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