TMI Blog1983 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 saints and sadhus. He was an agriculturist, but the service of feeding sadhus, pilgrims and the poor became a dominant passion of his life. 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 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 be an 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 then 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guest-house, kitchen and other buildings thereon and provided the things of necessity for the comforts of worshippers who come for darshan. The occupation of the assessee was described as Seva Puja or religious meditation in the different trust deeds. 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 Incometax 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 on by the assessee or the 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. The matter rested there with the above order of the Tribunal for some years. It, however, appears that the ITO, C-Ward, Rajkot, again took up the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract 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. The assessee, therefore, carried the matter in appeal before the AAC, who, however, confirmed the said order. On further appeal, the Tribunal addressed itself in the first place to the question whether the offerings at the place of 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amounts received at the sacred feet of Shri Jalarambapa at Virpur ? " In Income-tax Reference No. 68 of 1977, only 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 ? " 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 committed 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport 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 ground 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 reference raising any one of these grounds must be sought for and obtained. In Karnani Properties Ltd. v. CIT [1971] 82 ITR 547 (SC), the assesseecompany 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 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 income from the business of pilgrim 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 ITR 179 (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's 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 land. In Karnani Properties Ltd.'s case [1971] 82 ITR 547, the Supreme Court held that since the Tribunal found that the income was a business income, it was a pure finding of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erings made at the feet of Shri Jalarambapa were not receipts of the assessee and did not partake of the character 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 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] 82 ITR 547, 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 basis, namely, that the income of the assessee was from two different sources. Here also we find considerable force in the objection of the learned AdvocateGeneral. But it should be noted that the entire approach of the ITO and the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivity 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] 35 ITR 48, 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] 35 ITR 48, recognised as a 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 if it was made because of the office or vocation of the donee. The Supreme Court indicated broad test as to whether an activity attributed to the assessee is 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Appeal in Moorhouse (Inspector of Taxes) v. Dooland [1955] 28 ITR 86, the circumstances 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. Blakiston [1908] 5 TC 347 and Seymour v. Reed [1926] 11 TC 625 and deduced few principles. The test of liability, as indicated above, is whether the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur 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 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 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 upon the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 Nag" 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 subservient to religion and a charitable endowment is one which has as its object the benefit of public or mankind (see Hindu Code by Gaur, sections 213 and 214). A religious endowment may be either public or private. A public religious endowment necessarily implies that it is a dedication of property for the use or benefit of the public while on the other hand private religious endowment is a dedication 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, AIR 1957 SC 133). It is also settled position in law that a valid endowment can be created in favour of an idol or temple without performance of any particular ceremony provided the settlor's intention has been unequivocally and clearly expressed. 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 of " temple " under s. 6(20) of the Madras Hindu Religious Endowments Act, 1959, in Pichai v. Commissioner for Hindu Religious and Charitable Endowments, AIR 1971 Mad 405. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is also no evidence to establish that the devotees in particular and the members of the public in general have as a 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 arti of the idols and the portrait of Shri Jalarambapa and those devotees and the members 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 emphasise 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 wayf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger is occupying a position akin to that of 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, 481A 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 311 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 obligations. Under the Hindu law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd duties, is to be found in custom and practice, which is to be 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 usage 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 impress 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 from the decision of the Privy Council in Vidya Varuthi's case, 48 IA 302; AIR 1922 PC 123. The learned counsel for the Revenue, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Bench analysed as to what is the reason for treating Maths or Devasthans 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 dated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harusila Dasi, AIR 1959 SC 1002, the Supreme Court was concerned with the question as to whether the trust known as Srimati Charusila Trust and tile 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 Religious 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 entering 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." 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also not established by clear and cogent evidence on behalf of the Revenue. According to the decision of the Supreme Court in Radhakanta Dev's case, AIR 1981 SC 798, if the dominant intention of the founder is to instal a family deity in 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, the property does not vest in God but in the beneficiaries who have installed the deity. It is necessary to remind ourselves about the essential distinction between a public and a private endowment. The distinction is that the beneficial interest in a public endowment vests in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description. On the other hand, in 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, page 544). Unless, therefore, there is reliable and unimpeachable evidence establishing that the beneficiaries of this private endowment, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on two decisions of this court and one decision of the High Court of Bombay. The decision of the Division Bench of this court in Ambaji Temple's case [1965] 58 ITR 675 (Guj), is the mainstay of the Revenue's case. As 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] 58 ITR 675 (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 association of persons. The Tribunal, therefore, found itself unable to persuade itself that the decision in Ambaji Temple's case [1965] 58 ITR 675 (Guj), can throw any light on the problem with which the Tribunal was confronted, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-sharers, namely, Jamiatram Vishnushanker, Sharda Ochhavlal and Dhanlakshmi Manalal each had two annas share. For the purposes of sharing the offerings, these co-sharers 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 or key 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, sought 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 applicants as an association of persons are correct in law ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the income from the said temple on non-festival as well as festival days accrued to the applicants as an association of persons ? " The third question was ultimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession. Whenever any new properties were purchased, they were also purchased by the assessees as joint owners. The assessees managed and looked after the temple, attended to the adornment of the deity 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 offerings as they liked. The object of the assessees in doing all this clearly was that devout Hindus 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 offerings to the deity. " 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 of the temple or the adornment of the deity or the performance of the pooja or any other activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake offerings at the feet 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] 58 ITR 675 (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 them 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 by 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 the offerings made on certain festival days were pooled together and shared in the proportion of the respective shares which each of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exist, but in substitution of the income derived from that source. As regards the benefits 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 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. The third decision which has been pressed into service on behalf of the Revenue is of the Bombay High Court in Maharaj Shri Govindlaljee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 out of which he earned this income. The present contention which is sought to be urged seeks to advance a new case altogether which also cannot be permitted since the Department has all along proceeded on the basis that the income of the assessee was from the source of this vocation and in fact the expenses incurred on different activities of the institution have been allowed to be deducted as laid out for the same and merely the surplus 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] 82 ITR 547 did not permit the Revenue to advance a new case. The assessee-company there claimed the entire receipt from the tenants as income from 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. 1-2 of the 1922 Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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