HARRIES,C.J. - (1.) THIS is a reference made by the Tribunal stating a case upon the following question : "Whether, on the facts and circumstances of this case, the Tribunal were right in holding that although the shares of the two deities are not defined in the deed of endowment, their shares are defined in law, that is, they are equal, and, therefore, the first proviso to S. 41 is inapplicable ?"
(2.) TO appreciate the points involved in this case it will be necessary shortly to set out the facts. On 23rd March, 1893, one Madan Gopal Dey executed a deed of trust and by that deed he transferred certain properties to trustees for the maintenance and the worship of two deities, Thakur Harihar Prabhu and Thakurani Sachimata. It appears that Thakur Harihar Prabhu was a family idol which had been installed by the settlor's predecessors, but the Thakurani had been installed by the settlor himself. This appears clear from the will made by the settlor's wife shortly afterwards to which reference will be made later. The value of the premises transferred to trustees was said to be Rs. 33,500. The trustees were directed to permit the said Thakur and Thakurani to be resident in certain premises and they were to spend the income from the property transferred on the worship of the Thakur and the Thakurani and for the performance of Dolejatra, Jhoolanjatra and Jagadhatri Pooja. The Thakur was only worshipped by the settlor during his pala whereas the Thakurani was worshipped daily and specially at certain periods. The testator's wife Smt. Shudhan Subadani Dassi made a will on 20th April, 1893, and in that will she dedicated all her immovable property to and for the worship of Thakur Harihar Prabhu belonging to and established by her husband's family and to Thakurani Sachimata established by her husband and for certain other charitable purposes. In the will the charitable purposes are set out and after the payment the executors and trustees of the will are to expend the remainder of the rents and profits on the worship of these two idols. It is to be observed that in the will the executors were given an absolute discretion in applying the property for certain objects, but they are given no discretion as to how the remainder of the income is to be applied : that is to be applied to the maintenance and the worship of the two deities. It is quite clear that the respective shares of these two deities are not stated in either the deed of settlement made by Madan Gopal Dey or the will made by his wife and the question arose whether these deities took an equal share in the income or not.
(3.) FOR the asst. yr. 1942-43 the ITO held that the maximum rate should be applied to the income of the two deities as in his opinion the individual shares of the deities were indeterminate and unknown and, therefore, they were not entitled to claim the benefit given by sub-s. (1) of S. 41 of the Indian IT Act. This decision, however, was reversed by the AAC and his view was upheld by the Tribunal-both the latter holding that in law the deities were given this income in equal shares.;