SINHA, J. - (1.) THE facts in these appeals are briefly as follows : By an arpannamah (deed of dedication) dated the 17th Baisakh, 1303 B. S. (the 28th April, 1896), Srimati Kadambini Dassi and Sri Purno Chandra Daw, respectively, the widow and the son of late Shibkrishna Daw, for selves and as executrix and executor to the estate of late Haridas Daw, created a debutter endowment in respect of their family dwelling should at 12, Shibkristo Daw Lane, Jorasanko, Calcutta, in which the ancestral family deity Sri Sri Sridhar Jiew was installed and other immovable properties including debalaya (temple) on the banks of the Ganges at village Barrackpur, now known as Barrackpore, in which the deities, Radharaman Jiew and Sridhar Jiew Salgram, and six images of Shiva had been enshrined. The said debutter is collectively described as "Shib Krishna Debutter" and the estate is known as the Shib Krishna Debutter Estate. The present shebait of the said deities, in terms of the said arpannamah, is Pulin Chandra Daw. For the asst. yrs. 1952-53 to 1956-57, the ITO, District II(I), Calcutta, assessed the income arising out of the said debutter properties, in the hands of the said Pulin Chandra Daw, as shebait. The said assessments were challenged before the appellate authorities and ultimately, before the Tribunal, Calcutta. By the decisions of the said Tribunal dt. 23rd Sept., 1960, the appeals were partially successful, inasmuch as it was held that, so far as income under the head "property" was concerned, it could not be assessed in the hands of the shebait under s. 9 of the IT Act, 1922 (hereinafter referred to as the "said Act"), inasmuch as the shebaits were not the owners of the debutter properties. On or about the 15th March, 1961, five joint notices were issued on the two deities, Sri Sri Sridhar Jiew and Radharaman Jiew, represented by their shebait Sri Pulin Chandra Daw, under s. 34 of the said Act, stating that the ITO, District II(I), Calcutta, had reason to believe that the income of the said deities assessable to Income-tax had escaped assessment and they were, therefore, required to file a return for the said years under s. 34 of the said Act. To these notices the deities, through their shebait, Sri Pulin Chandra Daw, took objection.
(2.) ONE of the points taken in the letter of objection was that the said Act did not contemplate assessment of the income of a deity and, during the relevant years, the deities were excluded from the operation of the said Act and, therefore, the notices were without jurisdiction and void. As the Revenue did not desist, applications were made by the said two deities represented by their shebait, Sri Pulin Chandra Daw, under Art. 226 of the Constitution, paying for a writ in the nature of mandamus restraining the respondent from giving effect to the said notices and that the said notices be quashed by a writ in the nature of certiorari and for such other order or orders as to the Court may seem fit and proper. Rules were issued in these applications and the five applications were heard by Banerjee J. who, by his judgment and order dt. 13th Sept., 1962 (Sri Sri Sridhar Jiew vs. ITO (1963) 50 ITR 480), dismissed the said applications and discharged the rules, but made no order as to costs. 3. These appeals are directed against the said orders. Dr. Pal has formulated has case as follows : The charging section in the said Act is s. 3 and it runs as follows : "Where any Central Act enacts that income-tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, HUF, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually." 2. It will be observed that this section does not speak of a Hindu deity or, indeed, of any juristic person. A Hindu deity can only come within the heading "individual". The question is whether, prior to the amendment in the said Act in 1961, it could be said that a deity might be included within that expression. It is conceded by Dr. Pal that in the Act of 1961, every artificial juridical person, including a Hindu deity, has been expressly made assessable to income-tax. This has been effected by altering the definition of the word "person" in s. 2(31) of the IT Act, and also by changing the language of s. 4(1). He however, argues that prior to 1961, Hindu deities were not at all assessable to income-tax. In order to consider this point, Dr. Pal has invited us to consider the history of the IT Acts commencing from Act XXXII of 1860 and to observe how they dealt with the question of private religious trusts. He has drawn our attention to the following enactments : Act XXXII of 1860 Sec. 133 granted power to the local government to exempt any property movable or immovable solely employed or dedicated to religious or charitable public purposes from being chargeable under the Act. Act XII of 1871 Sec. 4 provided that nothing in the Act applied to any movable or immovable property solely employed for religious or charitable public purposes. Act II of 1886. Sec. 5(1) provided that nothing in s. 4 shall render liable to the tax, any income derived from property solely employed for religious or public charitable purposes. Act VII of 1918 Sec. 3(2) provided that the Act shall not apply to the following classes of income : "(i) Any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes and in the case of property so held in part only for such purposes, the income applied, or finally set apart for application thereto. (ii) Any income of a religious or charitable institution derived from voluntary contributions and applicable solely to religious or charitable purposes. In this sub-section 'charitable purpose' includes relief of the poor, education, medical relief and the advancement of any other object of general public utility." Act XI of 1922 Sec. 4(3)(i) and (ii) provided exactly the same as s. 3(2)(i) and (ii) of Act VII of 1918. Amending Act VII of 1939 This important Amending Act introduced relevant amendments in the said Act. After amendment, s. 4(3) stood thus : "Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them." Then followed cls. (i), (ia) and (ii). Clauses (i) and (ii) were the same as in the original Act of 1922. Clause (ia) provided for income derived from business carried on on behalf of a religious or charitable institution. At the end of the sub-section it was laid down as follows : "In this sub-section 'charitable purpose' includes relief of the poor, education, medical relief and the advancement of the any other object of general public utility, but nothing contained in cl. (i), cl. (ia) or cl. (ii) shall operate to exempt from the provisions of this Act that part of the income of a private religious trust which does not enure for the benefit of the public." In May, 1950, a Bench decision of this Court in Sree Sree Iswar Gopal Jew vs. CIT (1950) 18 ITR 743 held that the withdrawal of exemption applied only when the dedication was through a trust in the English form. It was further held that s. 40 had no application to the case of a shebait. In other words, it was held that income arising from property held by the trustees in trust for a deity, e.g. in a trust in the English form, is exempt from tax even if the dedication is to a private family deity which does not enure for the benefit of the public. This decision was superseded by the IT (Amendment) Act, 1953, w.e.f. 1st April, 1952, which amended the last paragraph of the sub- section and excluded from exemption not only income from property held under trust but also income from property held under "other legal obligation" for private religious purposes thus including private religious trusts like debutters. The relevant part of sub-s. (3) of s. 4, after the amendment, stood as follows : "4. (3) Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them : (i) Subject to the provisions of cl. (c) of sub-s. (1) of s. 16, any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, in so far as such income is applied or accumulated for application to such religious or charitable purposes as relate to anything done with in the taxable territories, and in the case of property so held in part only for such purposes, the income applied or finally set apart for application thereto.
(3.) IN this sub-section, 'charitable purpose' includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but nothing contained in cl. (i) or cl. (ii) shall operate to exempt from the provisions of this Act that part of the income from property held under a trust or other legal obligation for private religious purposes which does not enure for the benefit of the public." Chapter V of the said Act deals with liability in such cases. Sec. 41 of the said Act deals, inter alia, with the liabilities of trustees. The relevant part of sub-s. (1) runs as follows : 'Rs.41. (1) In the case of income, profits or gains chargeable under this Act which the Courts of wards, the Administrator-General, the official trustees or any receiver or manager (including any person whatever his designation who in fact manages property on behalf of another) appointed by or under any order of a Court, or any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise (including the trustee or trustees under any wakf deed which is valid under the Mussalman Wakf Validating Act, 1913) are entitled to receive on behalf of any person, the tax shall be levied upon and recoverable from such Court of wards, Administrator-General, official trustees, receiver or manager or trustee or trustees, in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such income, profit, or gains are receivable, and all the provisions of this Act, shall apply accordingly : Provided that where any such income, profits or gains or any part thereof are not specifically receivable on behalf of any one person, or where the individual shares of the persons on whose behalf they are receivable are indeterminate or unknown, the tax shall be levied and recoverable at the maximum rate, but, where such persons have no other personal income chargeable under this Act and none of them is an artificial juridical person, as if such income, profits or gains or such part thereof were the total income of an association of persons : Provided further that when part only of the income profits and gains of a trust is chargeable under this Act, that proportion only of the income, profits and gains receivable by a beneficiary from the trust which the part so chargeable bears to the whole income, profits and gains of the trust shall be deemed to have been derived from that part." ;