9911796707
TMI Blog1965 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ling house at No. 12, Sib Krishna Daw Lane, Calcutta, in which the ancestral family deity Sri Sri Sridhar Jiew was installed as well as other immovable properties including a temple on the banks of the Ganges at Barrackpore in which the deities Sri Sri Radharaman Jiew and Sridhar Jiew Salgram and six images of Shiva had been enshrined. The deed was executed by the said two persons for selves and as executrix and executor to the estate of the late Haridas Daw. For the assessment years 1952-53, 1953-54 and 1954-55, the assessment was made in respect of the properties covered by the deed on Pulin Chandra Daw, shebait to the Estate Shib Kristo Debutter Estate and for the next two assessment years, namely, 1955-56 and 1956-57, the same assessee was described as trustee to the debutter estate. The income from the debutter estate was assessed under two heads : (1) house property under section 9, and (2) other sources under section 12 of the Act. The assessments were confirmed by the Appellate Assistant Commissioner in appeal. In further appeal to the Tribunal, however, a different view was taken. The Tribunal found that no trust in the technical sense of the term had been created by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons the puja of Sri Sri Ishwari Gandeswari, etc., are daily and regularly performed. 2. Besides this there are one Nababattan and six temples and one Rangamancha, etc., situate on the banks of Iswar Bhagirathi in the Monza Barrackpur and there is also a ghat at Iswar Bhagirathi and a temple was caused to be constructed wherein the deity Sri Sri Ishwar Radharaman Jiu in pair and the salagram Sri Sri Ishwar Sridhar Jiu and six idols of Lord Siva were installed and were duly consecrated on the 21st of Jaistha, 1297 B. S. 3. There is no other separate debutter property sufficient for the purpose of carrying on the daily seva and other rites of the aforesaid deities and hence whatever properties we have out of the same a pucca three storied building together with the rent free land containing the same being premises No. 56, Clive Street, which has been partitioned--this marked half share and 10 pucca double-storied buildings on Baranashi Ghose Street, etc., we have decided to dedicate these properties for Ishwar Dev seva. 4. Besides the properties already made debutter a market known as Hargunj Bazar together with rent free land thereunder as well as other lands are in our possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f all the various deities mentioned in the document as also for the performance of periodical and other pujas enumerated. The properties were put in the custody of Purna Chandra Daw who was to act as the first trustee and the descendants of the settlors according to seniority in age were to become trustees of the debutter property and to perform the daily and periodical rites, functions, etc., in accordance with the scheme laid down. One thing is clear that the trustees as managers were to have no interest in the income of the property excepting a limited right of residence. The entire income was to be spent for daily Deb seva, work of repairing, etc., as might be necessary and the surplus income was to be utilised in purchasing other properties to be made debuttor. The question then arises as to whether the person who is in charge of the debutter estate can be assessed to income-tax under section 9 of the Act in respect of the immovable properties of the estate which fetch considerable income. There is no dispute before us with regard to the income from the "hat", etc., which were assessed in the hands of Pulin Chandra Daw under section 12 of the Act. Under section 9(1) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued by the learned advocate for the Commissioner of Income-tax that on the deed itself it was possible to treat the assessee as a shebait, as a trustee in the ordinary sense and as manager of Shib Kristo Debutter Estate. Our attention was drawn to various passages in Mukherjee's Treatise on The Hindu Law of Religious and Charitable Trusts in this connection. There can be no dispute that in the case of a gift to a deity no acceptance is necessary to complete the gift as in the case of secular gifts. According to the learned author " renunciation or utsarga by the donor is sufficient to complete the gift when the property is given to a deity or for religious purposes, and in such cases no acceptance by a sentient being is necessary. But the question starts up again, in whom does the property vest after dedication......It may be argued that even though the owner loses his proprietary right after dedication he may still retain custody and control of the thing dedicated...Under the Roman law an individual by dedicating property for a charitable purpose could bring into existence a foundation or institution which in law would be regarded as the owner of the dedicated property.....The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Hindu Sastras. The person founding a deity becomes morally responsible for the worship of the deity even if no property is dedicated to it....The mere fact that an idol has been established does not by itself create a debutter. A religious trust by way of debutter can come into existence only when property is dedicated for worship or service of the idol. When there is no endowment in favour of an established idol, no trust in the legal sense of the term can possibly come into being ; it is only the moral duty of the person who founds the deity or his heirs to carry on the worship in such a way as they think proper.....Now property can be given to an idol either at the time when it is consecrated or at any subsequent period and not only such property may be given by the founder or a shebait, it might also consist of offerings or gifts made by the worshippers who are unconnected with the founder or the shebait. When property is given absolutely by a pious Hindu for worship of an idol, the property vests in the idol itself as a juristic person. This view is quite in accordance with the Hindu ideas and has been uniformly accepted in a long series of decisions of the different High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : " Shebait is the person entitled to speak on behalf of the deity on earth and holds authority to deal with all its temporal affairs. As regards the temple property the manager is in the position of a trustee, but as regards the service of the temple and the duties that appertain to it he is rather in the position of the holder of an office or dignity." It is pointed out again at page 199 : " In a Hindu religious endowment the entire ownership of the dedicated property is transferrred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager." It would not be correct to describe shebaitship as a mere office. " Even when no emoluments are attached to the office of a shebait, he enjoys some sort of right or interest in the endowed property which has partially at least the characteristics of a proprietary right....The shebait's power to alienate the debutter property is very much limited and can be exercised only when there is a justifying legal necessity or benefit to the deity ; yet he can create derivative tenures in respect of the endowed property, which, even if not supported by legal necessity, cannot be impeached so long as he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to manage the same, the right to let out portions thereof and sue and be sued in respect of the property, he was not the owner. He may have the limited right of ownership in the property in that he can do all acts of management and can even alienate portions of the debutter property in case of legal necessity but the property never vested in him so as to make him the full owner and, whether or not he could be assessed under section 41 of the Act, no assessment can be made on him as regards the income from the property under section 9. Further, the deities, so far as the ownership of the property is concerned, are not to be treated as an association of persons under sub-section (3) of section 9. Our attention was drawn by the learned advocate for the revenue to certain observations made in the case of Executors of the Estate of J. K. Dubash v. Commissioner of Income-tax reading " The Income-tax Act directs its attention primarily to the person who receives the income, profits or gains rather than to the ownership or enjoyment thereof. The assessee is defined in section 2(2) as the person by whom income-tax is payable and by section 10 the tax is payable by an assessee who carries o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate did not become immune from assessment because of the special nature of income-tax proceedings. We were also referred to various passages occurring in the judgment of a Division Bench of this court in Income-tax Reference No. 50 of 1961 (Commissioner of Income-tax v. Jogendra Nath Naskar and Hem Chandra Naskar, Shebaits of Sri Sri Kubereswar Mahadev Thakur). The question there was whether the assessments on the deities through the shebaits under the provisions of section 41 of the Indian Income-tax Act were in accordance with law. The question was answered in the affirmative and the Division Bench examined the status of the shebait as compared to that of a trustee in great detail, and held that the shebait fell within the meaning of the word "trustee" as used in section 41 of the Act. It had been argued there that a Hindu diety was not assessable or chargeable at all as a unit of assessment under the Income-tax Act. The learned judges held that a Hindu deity could be treated as an individual or as a "person" both under sections 3 and 4 as also under section 41 of the Act. I do not see how this judgment helps the Commissioner of Income-tax at all. If anything, it cuts at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses of the seva and Puja of the deity out of the income of the dedicated properties and then went on to provide that during her lifetime in her capacity as shebait the settlor would remain in possession of the debutter properties and would also pay the rates and taxes and the costs of repairs of the house, etc., and all other necessary expenses and apply the surplus income to the seva or service of the Thakur. Provision was also made for devolution of shebaitship. The question arose as to whether the income from the properties of the deity was exempt from assessment to income-tax under section 4(3)(i) of the Act. The revenue authorities held that there was a private religious trust which did not merit exemption. It was held that "Hindu endowments which are not created through the medium of a trust are included in the words 'other legal obligation' (used in section 4(3)(i)). If they are charitable endowments, they have to satisfy the definition of the word 'charitable'. " It was also pointed out that the deity is not a minor and the shebait is not its guardian so as to attract the provisions of section 40 of the Act. The shebait was only the manager of the deity, the human age ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
