HARRIES, C.J. - This is a reference made under section 66(1) of the Indian Income-tax Act in which Appellate Income-tax Tribunal formulated the following question for the opinion of this court :-
'Whether on a construction of the deed dated 30th August, 1940, the Tribunal was right in holding that the shares of the deities were indeterminate and that the maximum rate should be applied under Section 41 ?'
The question was involved in five appeals to the Income-tax Tribunal.
The Income which was sought to be assessed in this case was income of certain deities and the income had been provided as the result of an arpannama dated 30th August, 1940, executed by Sri Nut Behari Das by which he dedicated certain properties to three deities Sri Sri Durga Mata, Sri Sri Lakshmi Mate and God Sri Sri Krishna Param Pravu. In the recitals to this deed the settlor or dedicator observed :-
'It is my desire to make such provision that every year at the time of the festivals, the worship of the said deities (God and Goddesses) should be continued in my name permanently for the benefit of my soul.'
He then states that under the influence of that desire he dedicated certain sum of money to these deities. He then provided that from the annual income arising from these sums the worship of the deities and the festivals should be continued by installation of the images at the time of the festivals.
Provision is then made as to the amounts which should be spent on the various festivals. The settlor or dedicator contemplated an income of Rs. 2,000 from the moneys which he had given to the deities, and she provided that out of the income at least Rs. 1,200 should be spend on the Durga Puja, Rs. 200 on the Lakshmi Puja and Rs. 600 on the Dolo Lila festival which was the only festival in connection with Sri Sri Krishna Param Pravu performed by the dedicator.
Provision was then made for what was to be spent on these festivals if the income exceeded Rs. 2,000 or was less than that sum. If the income exceeded Rs. 2,000 then the amounts spent on the festival should be proportionately increased, and if the income was less than Rs. 2,000 the amount should be proportionately deceased.
Mr. Sukumar Mitra who has appeared on behalf of the assessee has urged that the provisions as to the precise amount which had to be spent on the various festivals showed that each of the deities was given a determinate share in the income. If the income was Rs. 2,000 then the shares were Rs. 1,200, Rs. 200 and Rs. 600 and as I have said if the income was greater or less than Rs. 2,000 these shares were to be increase or decreased proportionately.
Had the matter rested there, I think it would be clear that the shares were determinate but there is a provision in the deed permitting the shebait to alter these amounts at his discretion. This provision is found in paragraph 8 of the deed and it is in these terms :-
'The shebait for the time being shall be able to make modifications and alterations of the specified amounts set forth above if necessary, according to his discretion and according to the times, but he shall have to maintain my main purpose.'
Mr. Pal on behalf of the Income-tax authorities has contended, and I think rightly that having regard to this provision the shares of the deities must be regarded as indeterminate. The shebait at his discretion could alter the shares and therefore there was no finality about the shares.
Mr. Sukumar Mitra has however contended that the power given to the shebait was not a power to alter the actual total amounts which had to be spent on the Pujas and all that the dedicator intended was that the shebait could alter the amounts spent on various items of the three Pujas. Mr. Mitras argument is that though amounts on various items of a Puja could be altered this clause gave the shebait no right to alter the total amounts of Rs. 1,200, Rs. 200 and Rs. 600 which had to be spent on the three Pujas respectively. Mr. Mitra points out that in paragraph 5 of the deed which deals with the Durga Puja the shebait is directed to spend Rs. 500 out of the Rs. 1,200 for one purpose and the balance of Rs. 700 for another purpose or purposes. He contends that the shebait had a right to vary these amounts and not to vary the total. He has urged that as the dedicator had stated that the shebait was bound to maintain the main purpose of the deed the shebait was bound to maintain the total expenditure in respect of each festival and therefore could only vary the expenditure on various items of a festival.
That argument might have carried some weight if the dedicator had provided for amounts to be spent on items of the Lakshmi Puja and the Dolo Lila Festival. But the only provision for those two Pujas is the provision that a certain sum has to be spent for each of the Pujas. There is not direction as to what is to be spent on any particular item or items of those Pujas. The only specified amounts therefore with respect to these two Pujas are the total amounts to be spent, namely Rs. 200 and Rs. 600. The shebait, as I have already stated, is given power to vary or modify the amounts specified. Therefore it is clear that the shebait could spent at his discretion more or less than Rs. 200 on the Lakshmi Puja or more or less than Rs. 600 on the Dolo Lila Festival. Further it appears to me that the amount specified with respect to the Durga Puja was Rs. 1,200. It is true that the dedicator directs that 5/12ths should be spent for one purpose and 7/12ths for another. But it seems to me that the specified amount is Rs. 1,200 which the shebait at his discretion could alter.
Having regard to the above it appears to me that specified amounts must mean the total amounts which had to be spent on each of the Pujas and as the shebait was entitled to vary these amounts the shares of the deities cannot possibly be regarded as determinate.
The provision giving the shebait a right to vary these shares was a wise and a very reasonable one. The importance of festivals changes as circumstances change and as time goes on; obviously, this was recognized by the dedicator who made provision accordingly.
For these reasons the taxing authorities were right in holding that the shares of the deities were indeterminate and that being so I would answer the question submitted in the affirmative.
The taxing authorities are entitled to their costs.
Certified for one Counsel.
BANERJEE, J. - I agree.
Reference answered accordingly.