TMI Blog1989 (7) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of section 11(4A). The two assessees are two religious Mutts who are closely connected with the day-to-day performance of the religious duties and worship in the Venkateswara Swamy Temple at Tirumala. The Mutts have been in existence for several centuries from the time of Saint Ramanuja Charya who founded these Mutts. The Heads of the Mutts are Sanyasies. The Officer of the head of Pedda Jeeyangar is decided by nomination. The ruling Pedda Jeeyangar nominates as Chinna Jeeyangar who acts as the 'alter ego' of the Pedda Jeeyangar during the latter's lifetime and succeeds him at his death. The vacancy of Chinna Jeeyangar is filled in by another Sanyasi by selection as found suitable by the Pedda Jeeyangar. The successive Pedda and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duties of the Dharmakarta. These have been codified later in the T.T.D. Manual. Shortly, the duties included the keeping in safe custody of the keys of the temple doors, opening the temple for puja etc., supervising the pujas, supervising Hundi collections every night, checking and sealing the Hundies, keeping accounts etc. 5. As already stated the Jeeyangars are entitled to a share from the prasadams and panyarams from the temple. Their share a few decades ago was not large enough to be treated as a source of income. However, over the years the temple had become the number one attraction for all Hindus all over the world so that the prasadams and panyarams have greatly increased. Therefore, substantial amount is received by the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be applicable. This enquiry according to the Commissioner was essential for determining the admissibility of section 11. He, therefore, set aside the assessment with a direction to redo it according to law. 7. The assessees are on appeal against this order. Sri Tiruvengadam, learned counsel for the Mutts, after tracing the history of the two Mutts submitted that the Mutts were merely Dharmakartas who were saddled with certain duties of over seeing the pujas in the temple, These duties were also their rights. The share in the prasadams given to them was to meet the expenditure incurred in carrying out the duties. Unlike other cases where the remuneration for such duties is given in cash, in this case the remuneration or reimbursement is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. This amounted to a failure on the part of the Income-tax Officer to make necessary enquiries. Such failure made the order erroneous and prejudicial to revenue. As regards the merits, he submitted that it was open for the assessee to claim before the Income-tax Officer that section 11(4A) would not be applicable. At this stage all that required is to see prima facie case is made out for enquiry. 9. We have considered the submissions. It is true, as Sri Radhakrishna Murthy stated that the failure of the Income-tax Officer to make enquiries would constitute a ground for the Commissioner to treat the order as erroneous. Please see the decision of the Delhi High Court in the case of Gee Vee Enterprises v. Addl. CIT [1975] 99 ITR 375, Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea that there was difference between the right and duty. According to their Lordships, there was no difference, at all. They have observed :-- " In our opinion this distinction between rights and duties is, in most cases, a distinction without a difference. There is such a thing as a right to perform a duty ; and where a duty is cast upon a man in virtue of his connection with an institution, or an abstract personality (as distinguished from a specific individual who might absolve him from performance), and where it is primarily for the benefit of such an institution or personality, he may reasonably claim the aid of the law to prevent his being abstracted in performance of the same. On the other hand, in conceding such a right, it must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Korean Syndicate Limited :-- If you once get the individual and the company spending exactly on the same basis, then there would be no difference between them at all. But the fact that the limited company comes into existence in a different way is a matter to be considered. An individual comes into existence for many purposes, or perhaps sometimes for none, whereas a limited company comes into existence for some particular purpose, and if it comes into existence for the particular purpose of carrying out a transaction by getting possession of concessions and turning them to account, then that is a matter to be considered when you come to decide whether doing that is carrying on a business or not. " Justice Rowlatt followed the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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