TMI Blog1967 (7) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ound a debutter estate. He dedicated several properties to two deities installed by him, namely, Sri Sri Iswar Benode Behari Jew and Sri Sri Iswar Benodeswar Mahadev. In this reference we are concerned with two of the dedicated properties, namely, No. 12, Benode Behari Saha Lane and No. 122A, Manicktola Street, both in the town of Calcutta. It is necessary for us to consider the following clauses of the will, in order to understand the question referred to this court. The dedication opens with the following paragraph : "According to the wishes of my revered father I have built the edifice of a temple, a Thakurbari at premises No. 12, Benode Behari Saha Lane, in close proximity to our said family dwelling house and have installed therein t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the area of the land only, included in the premises, is given. Premises No. 12, Benode Behari Saha Lane, however, is described in the schedule as "Thakurbati and temple". There is no dispute that 122, Manicktola Street, later on was subdivided or renumbered as premises No. 122A, Manicktola Street and a temple was actually constructed on the site. For the assessment years with which we are concerned, the Income-tax Officer computed the bona fide annual value of the premises No. 12, Benode Behari Saha Lane and 122A, Manicktola Street, at the amounts which they were likely to fetch if let out in the open market. The assessee objected to the assessment of an annual value on the two premises and appealed before the Appellate Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deity and its servants shall ever be competent to reside in the temple and it shall never be used as a place of agitation or meeting or for the sake of any public function. In view of the injunctions contained in the will against the residence of any body in the premises apart from the priest performing the worship of the deity and its servants, it is quite obvious that these premises have no letting value and the Appellate Assistant Commissioner was, therefore, justified in excluding from the assessment the annual value thereof." Thereupon, the Commissioner of Income-tax, at first tried to induce the Appellate Tribunal to refer certain questions of law to this court and therein failing, induced this court to call for a statement of case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not actually let, even then there ought to be included in the annual income of the owner a notional income from the property. The letting value of a property, whether let or not, can be objectively ascertained on reasonable basis. If there be restrictions on the letting of the premises, that may merely reduce the letting value but it cannot be said, without more, that because of the existence of a restrictive clause there can be no notional annual income deemed to arise from the premises. For this proposition we find ample support from two decisions of the Bombay High Court, namely, D. M. Vakil v. Commissioner of Income-tax and Sir Currimbhoy Ebrahim Baronetcy Trust v. Commissioner of Income-tax. In the first mentioned case Kania, Ag. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome of the assessee from immovable property and provided that he should be taxed on that footing. In my opinion the argument of the Commissioner on this point is correct." In that view of the law, we have to uphold the contention of Mr. Pal, appearing for the revenue, that the Tribunal was not correct in holding that, in view of the injunction contained in the will against the residence of any body in the premises (apart from the priest performing the worship of the deity and its servants), the premises have no letting value. That injunction will be of relevant consideration in finding out the bona fide value and the weight of the injunction may very much reduce the bona fide letting value of the house. But because of the existence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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