Sabyasachi Mukharji, J. - (1.) In this reference under Section 256(1) of the I.T. Act, 1961, the following two questions have been referred to us : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee, the deity, Sri Sri Saradeswar Siva Linga was entitled to deduct the expenditure incurred for its own pujas as an annual charge under Section 24(1)(iv) of the Income-tax Act, 1961, in computing its income under the head 'Income from house property'?
(2.) Whether, on the facts and in the circumstances of the case, the Tribunal was, right in holding that expenditure incurred for the puja of the deity was an annual charge within the meaning of Section 24(1)(iv) of the Income-tax Act, 1961, and was, therefore, deductible in computing the income under the head 'Income from house property'?" 2. The assessee is an artificial juridical person (hereinafter referred to as "the respondent"). Late Sm. Akshay Kumari Devi, wife of late Arun Kumar Tagore had received several house properties from her husband by way of legacy in the year 1914 when the latter died. Late Sm. Akshay Kumari Devi died issueless on 14th November, 1960. She had not adopted any child and during her lifetime by a registered deed executed in the year 1934, appointed her two brothers and their three sons as shebaits of a private deity Sri Sri Saradeswar Siva Linga. It was declared in the said deed that all her properties would be vested in the said deity on her demise. In view of the questions raised in this case and the contentions urged, it would be necessary to refer to the relevant portion of the said deed. After reciting about the death of her husband, the sole settlor went on to observe as follows : "As a result the responsibility to give effect to the desire of my husband and make suitable arrangement in respect of everything left behind by him is being vested on me only. My respected husband's utmost desire was to establish a temple of Iswar Sarada Sundari Devi at Iswar Kashidham in the name of his grandmother and instal Siva Linga but due to paucity of funds I could not give a shape to the same prior to this. Now getting involved in debt, I have purchased a house for Rs. 5,000 on 26th February, 1933 at No, 38/34, House Katora, Kashidham and have established the temple named Sarada Sundari Devi and installed Iswar Saradeswar Siva Linga on 30th Falgun 1339 B.S. as per terms of the said Will by spending about Rs. 600 and I have also a desire to invest Rs. 4,000 for the daily puja and salary of the priest as per written provisions of the Will. In spite of my utmost efforts for a long time and finding no suitable adopted son according to my choice in all respects and particularly it having been impossible to take any adopted son as per provisions of paragraph 10 of the Will, at present I have no desire at all to take any adopted son, (and) according to the provisions of the aforesaid Will executed by my husband, the entire movable and immovable properties to be left behind by me shall become the debutter property of the said Siva Linga after my death and the said Siva Linga shall become the owner of the entire property."
(3.) There being no other person to perform the act of selecting the shebait for carrying on the seva of the said future debutter excepting herself and upon the voluntary resignation, death or removal of the other executors forever by court, the act of selecting the shebait, etc., solely devolved on her and in these circumstances she appointed her two brothers as shebaits after her death in respect of the entire estate to be left behind by her which subsequently became debutter and then charged the shebaits with the following : "You after defraying contingent expenses, i.e., after defraying collectorate (tax), flat rates and taxes and making payment of taxes, etc., and meeting contingent expenses, i.e., by paying collectorate tax revenues, rates and taxes and making payment of taxes, etc., and after paying salary of the employees of the residential house of the Pathuriaghata and Kachari Bari of Mal and after meeting the expenses for repairs and necessary renovation of Alambazar house and meeting litigation expenses and expenses for Iswar Durga Puja and Iswar Shyama Puja and expenses for annual turn of Kuladevata Iswar Radhikaata Jew and meeting expenses for the seva of the Siva Linga installed long ago in the House Katora and meeting regular and monthly expenses of Iswar Jaganmoyee Debi installed at No. 12, Pathuriaghata and defraying such other necessary expenses or after defraying necessary expenses for the maintenance of the estate, shall, out of the profit of the said estate defray your necessary expenses and household expenses, and out of the balance amount shall perform the deva seva of the debutter of the aforesaid Iswar Saradeswar Siva Linga installed at Iswar Kashidham feed the Brahmins and guests and if funds permit, shall establish Annachatra, etc., and if capable, shall perform such other acts of public charity or any other charitable acts. But, if any sum becomes surplus even after the same, then you shall keep the same in deposit in bank for meeting necessary future expenses of the said debutter, i. e., expenses for payment of land tax, etc., and shall make provisions for payment of debts. To that no plea or objection by the relatives or heirs of my husband shall be tenable as per provisions of the aforesaid Will executed by my husband and according to provisions of this, you shall be competent to borrow money for meeting necessary expenses for maintenance of the estate, viz., for payment of taxes, etc., and for the benefit of the future debutter estate or for any law suits and the said loan shall be considered to be the loan of the estate.";