BANERJEE, J. - (1.) THIS reference, under s. 66(2) of the Indian IT Act, 1922, has been made in circumstances hereinafter stated. The assessment years with which we are concerned are years 1957- 58 and 1958-59.
(2.) ONE Banku Bahari Saha executed a will on November 24, 1925, and thereby intended to found a debutter estate. He dedicated several properties to two deities installed by him, namely, Sri Sri Iswar Benode Behari Jew and Sri Sri Iswar Benodeswar Mahadev. In this reference we are concerned with two of the dedicated properties, namely, No. 12, Benode Behari Saha Lane, and No. 122A, Manicktola Street, both in the town of Calcutta. It is necessary for us to consider the following clauses of the will, in order to understand the question referred to this Court. The dedication opens with the following paragraph : "According to the wishes of my revered father I have built the edifice of a temple, a Thakurabari a premisses No. 12, Benode Behari Saha Lane, in close proximity to our said family dwelling house and have installed therein the deity of Sri Sri Iswar Benode Behari (an image of Sri Sri Iswar Radha Krishna) and Sri Sri Iswar Bendeswari Sina (possibly a misprint for Sri Sri Iswar Benodeswar Mahadev) and have been performing the Puja worship and seva, etc., of the same. The list of all the immovable properties included in this will is given in the schedules Ka, Kha and Ga written below. This property is my estate lon enjoyed and possessed. "Clause (11). By this instrument of Will I dedicate to the deity Sri Sri Iswar Benode Behari and Sri Sri Iswar Benodeswar Mahadev established by me the properties as included in the schedule (Ga) of this will and all such properties that will be included in the schedule (Ga) in future according to the provisions of this Will from and out of the schedule 'Ka' and 'Kha'. From the time of my death the aforesaid properties shall be used in the aforesaid Dev Seva and for pious acts mentioned below and shall not at any time be transferred in any manner such as gift, sale, etc., save and except for reasons stated here below.... Clause (17). Nobody save and except the Brahmin performing the Worship) of the deity and servants shall ever be competent to reside in the Thakurbati at No. 12, Benode Behari Saha Lane and the said Thakurbati shall never be used as a place of agitation and meeting for the sake of interiors (sic-invitation) or for any public functions.
(3.) IN schedule "Ga" premises No. 122, Manicktola Street is not described either as a temple or a Thakurbati but the area of the land only, included in the premises, is given. Premises No. 12, Benode Behari Saha Lane, however, is described in the schedule as "Thakurbati and temple". There is no dispute that 122, Manicktola Street, late on was subdivided or renumbered as premises No. 122A, Manicktola Street and a temple was actually constructed on the site. For the assessment years with which we are concerned, the ITO computed the bona fide annual value of the premises No. 12, Benode Behari Saha Lane and 122A, Manicktola Street, at the amounts which they were likely to fetch if let out in the open market. The assessee objected to the assessment of an annual value on the two premises and appealed before the AAC. The reason which appealed to the AAC were : "As regards the second ground, No. 122A, Manicktola Street, Calcutta, and No. 12, Benode Behari Saha Lane, Calcutta are the temples of the two deities mentioned above. These premises have not been let out and no income accrues therefrom. The ITO therefore was not justified in adding any income on account of these premises. In the earlier assessment no such addition has been made. The addition of Rs. 3,334 (Rs. 4,000 less Rs. 666 for repairs) would be therefore deleted in each of the two assessment under appeal." ;