9911796707
TMI Blog1953 (9) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... Durgah, by present Managing Trustee M. S. Md. Banker Sahib, Nagore. The Nagore Durgah, which is situate in Tanjore District, is of great historical and religious importance. Hazerath Sayed Sahul Hameed Quadir Ali Gangasavoy Andavan, who lived about 400 years ago was a holy saint to whom it was consecrated. Tradition goes that he travelled far and wide and visited several places and he was a celibate and was held in great esteem not only by the Muhammadan public but also by persons belonging to other religions. He had a foster son Saiyed Muhammad Eusoof Sahib and the Durgah contains the tomb not only of the saint but also that of his foster son Eusoof and his wife. Large extents of properties were endowed by the Rajahs of Tanjore to the Durgah. The annual Kandoori festival attracts large crowds, who make offerings. On every Thursday also offerings are made to the saint. From the immovable properties and the shops possessed by the Durgah and also from the offerings in cash and kind made by the devotees, a large income is derived by the Durgah. The Durgah is managed by a body of trustees called Nathamaigars. The income is applied for the purposes of the Durgah and whatever surplus rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis that the trustees were an association of persons. This order was confirmed .on appeal ,by the Appellate Assistant Commissioner who was then a person different from the Appellate Assistant Commissioner who dealt with the matter on the previous occasion and he . agreed with the view of the Income-tax Officer and confirmed the assessment. There was a further appeal to the Appellate Tribunal and it was contended before the Tribunal on behalf of the assessee. that the assessment proceedings for the year 1944-45 were barred by res judicata in view of the decision of the Appellate Assistant Commissioner for the earlier assessment that the surplus income of the trust was exempt form taxation under Section 4(3)(i) or ( ii) of the Act and that such income even if assessable, should have been assessed in the hands of each beneficiary, i.e., the kasu-pangudars individually and not on the trustees as an association of persons. These contentions were rejected by the Appellate Tribunal and at the instance of the assessee the above three questions were referred to this Court for opinion. We may answer the second question straightaway as there was no serious argument before us on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the applicability of that section was that in the case of a trust it must have been declared by a duly executed instrument in writing. The contention then pressed however was that as there was no provision in the Act to cover an oral trust, there was no alternative to the department but to apply the principle underlying Section 41 as far as possible. The Tribunal held that the trustees were within the general charging section and as they were an association of persons, the assessment was rightly made on that footing. Under Section 66 the Tribunal could refer only questions of law arising out of the Appellate Tribunal and no other question in view of the expression "arising out of such order". It has been held that a question of law can be said to arise out of an order of the Appellate Tribunal only if such an order discloses that the question was raised before the Tribunal. In other words, a question would arise out of an order, only if it had been raised and dealt with before the Appellate Tribunal. The scope of the jurisdiction was considered recently by the Calcutta High Court in Allahabad Bank Ltd. v. Commissioner of Income-tax [1952] 21 ITR 169 and by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the benefit of others. Vide Currimbhoy Ibrahim Trust v. Commissioner of Income-tax, Bombay [1934] 2 ITR. 148, Question No 3. therefore, must be answered against the assessee and the trustees were rightly assessed in the status of an association of persons. There remains question No. 1, which' relates to the applicability of the principle of res judicta. We have no difficulty in answering this question either. The object assessment made in each year is to ascertain the income of the assessee from various sources and estimate it in accordance with the-provisions of the Act. The amount arrived at in each year may vary. The determination of the amount by the department involves no lis inter partes and it is not a court matter, in our opinion, is really concluded by the decision of the Court of Appeal in Commissioners of Inland Revenue v. Sneath [1932] 17 Tax Cas. 149 and by the Full Bench decision of our Court in Sankaralinga Nadar v. Commissioner of Income-tax, Madras [1930] ILR. 53 Mad. 420. In. Sneath's case ( supra) Lord Hanwroth, M.R., quotes the observations of Lord Herschell in Boulter v. Kent Justices [1897] AC 569 where the learned Lord observed:- "There is, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at particular year, though it might in later years prove to be worth his while to contest their view. On the other hand, it is equally likely that there may be many cases in which the Grown would be quite prepared to makes a concession in one year; whereas they might rightly conclude in subsequent years that it would not be in the interests of taxpayers generally that they should make such a concession. It is also worth noting that statutory allowances by way of deduction from tax are often varied by the taxing Act of any, particular year." In Sankaralinga Nadar's case (supra) , the Full Bench reviewed the cases bearing upon the question and, held that the decision of the Income-tax department relating to the assessment for one »year would not operate as res judicata in a subsequent year though it was pointed out their though the Income-tax officials may be entitled to reopen their enquiry, they cannot arbitrarily change the assessment. The principles of natural justice require that there is prior determination by the Income-tax department, ordinarily there should be no variation from that decision unless there are fresh circumstances, to warrant a deviation from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
