The Judgment of the Court was delivered by

S.K Mal Lodha, J.:— At the instance of the Commissioner of Income-tax, the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur (“the Tribunal” herein), has referred the following questions for the opinion of this court:

“(1) Whether, on the facts and in the circumstances of the case, there is any income from any source assessable in the hands of the assessee known as Shri Ramdeora Samadhi, Ramdeora, for the assessment year 1973–74?

(2) Whether, on the facts and in the circumstances of the case, there exists a body of individuals representing Shri Ramdeora Samadhi on whom the impugned assessment could be made?”

2. These questions are said to arise out of the order dated June 28, 1979, passed in I.T.A No. 418.JP/1977–78 by the Tribunal. The assessment year involved is 1973–74. Shri Ramdeoji was the local Ruler of the area which is part of Jodhpur and Jaisalmer Districts of Western desert area of Rajasthan. He was a very pious person. The events during his life considerably influenced him. Having led a very eventful life, he (Shri Ramdeoji) announced that he would go into meditation and never come back out of it. It is said that on the 11th day of Preduman of Bhadrapad, 1515, he went into meditation and never came back out of it. Before going into meditation, Shri Ramdeoji gave the following directions to his sons and descendants:

“(i) the place of meditation should be maintained;

(ii) at the place of meditation a white flag should be hoisted and a flame should be lit continuously;

(iii) that the clan of Tanwar Rajputs to share the presents of food offered at the Samadhi or the place of burial and share the offerings equally amongst themselves; and

(iv) on the day of meditation and one day earlier, mela or a congregation of the devotees should be held.”

3. Since then, that place where Shri Ramdeoji went into meditation and never came back is maintained by the clan of Tanwar Rajputs. He was considered by the local people as an incarnation of God. Large quantities of articles of food were also received which were distributed amongst the descendants according to the formula devised by them. Offerings are made at the place where the Samadhi of Ramdeoji is situate. The amount collected is known as “Jhari” account. During the relevant previous year, it is said that at the time of the first distribution, there were 367 members in the clan and at the end of the year, the number became 400. This was on account of the fact that births and deaths had taken place which resulted in change in the number of beneficiaries of the recipients. The Income-tax Officer by his order dated September 13, 1976, assessed the income of Ramdeo Samadhi (say) at Rs. 2,09,893. The assessment was made by the Income-tax Officer on the following grounds:

“That offerings in question were received jointly by several persons represented by five heads of Dharas and then distributed amongst various members and so the income is assessable in the hands of the joint entity represented by five heads of clans (Dharas) in the status of a body of individuals.”

4. The assessee went in appeal. The Appellate Assistant Commissioner in his order dated July 31, 1977, recorded the following findings:

“(1) that there is no income from any source;

(2) that there is no body of individuals on whom an assessment could be made; and

(3) that the five persons (five heads of Dharas) on whom the assessment has been made do not constitute a body of individuals known as ‘Shri Ramdeo Samadhi or descendants of Shri Ramdeoji’.”

5. In view of the aforesaid findings, the Appellate Assistant Commissioner annulled the assessment by his order dated March 31, 1977. The Department went in further appeal before the Tribunal. The Tribunal by its order dated June 28, 1979, affirmed the findings of the Appellate Assistant Commissioner and concurred with the conclusion arrived at by the Appellate Assistant Commissioner that the receipt in question was not an income liable to be taxed under the Act. It also, in agreement with the Appellate Assistant Commissioner, found as under:

“(1) that there was no body of individuals on whom an assessment could be made; and

(2) that the five persons on whom the assessment has been made do not constitute a body of individuals known as Shri Ramdeoji or descendants of Shri Ramdeoji.”

6. It, therefore, dismissed the appeal of the Revenue. An application under section 256(1) of the Act was filed by the Commissioner of Income-tax and the aforesaid questions have been referred to us for our opinion. We have heard Mr. B.R Arora, learned counsel for the Revenue, and Mr. Rajesh Balia assisted N.L Bissa and carefully considered the order dated September 13, 1976, of the Income-tax Officer, order dated March 31, 1977, of the Appellate Assistant Commissioner and the order dated June 28, 1979, of the Tribunal.

7. Question No. 1: Under this question, we are called upon to determine whether during the relevant previous year, Shri Ramdeo Samadhi, Ramdeora, had any income from any source which can be taxed in the hands of the assessee (Shri Ramdeo Samadhi, Ramdeora). We have already mentioned that we are concerned with the assessment year 1973–74. Income has been defined in section 2(24) of the Act. It is merely an inclusive definition and various types have been enumerated. It may be stated that subclause (ii)(a) in section 2(24) was inserted by the Finance Act, 1972, with effect from April 1, 1973, and sub-clauses (iva) and (ix) were inserted by the Finance (No. 2) Act, 1980, with effect from April 1, 1980, and by the Finance Act, 1972, with effect from April 1, 1972, respectively. We are concerned with the definition of income as contained in section 2(24) at the relevant time. As income has not been defined as such in the Act, we may notice the judicial pronouncements in which the connotation of the term “income” has been considered. In CIT v. Shaw Wallace & Co., [1932] 2 Comp Cas 276, 280; AIR 1932 PC 138, 140, the word “income” has been examined and considered. It was observed therein as under:

“Income in this Act connotes a periodical monetary return ‘coming in’ with some sort of regularity, or expected regularity, from definite sources. The source is not necessarily one which is expected to be continuously productive, but it must be one whose object is the production of a definite return, excluding anything in the nature of a mere windfall. Thus income has been likened pictorially to the fruit of a tree, or the crop of a field. It is essentially the produce of something, which is often loosely spoken of as ‘capital’. But capital, though possibly the source in the case of income from securities, is in most cases hardly more than an element in the process of production?”

8. The same ingredients have been repeated by the Privy Council in Raja Bejoy Singh v. CIT, [1933] 1 ITR 135 (PC), Maharajkumar Gopal Saran v. CIT, [1935] 3 ITR 237 (PC) and CIT v. Chunilal B. Mehta, [1938] 6 ITR 521 (PC). In Raja Bahadur Kamakshya Narain Singh of Ramgarh v. CIT, [1943] 11 ITR 513 (PC), it is said that income is not necessarily the recurrent return from a definite source, though it is generally of that character. From the aforesaid decisions of the Privy Council, it appears that the ingredients of “income” are: (i) it must be a periodical monetary return, (ii) coming in with regularity or expected regularity, (iii) from definite sources, and (iv) excluding a receipt in the nature of a mere windfall.

9. The word “income” is an expression of elastic ambit and the definition given in section 2(24) is not exhaustive. In such circumstances, we may consider, in common parlance, the meaning of the word “income”. In the Oxford English Dictionary, the term “income” has been defined as that which comes in as the periodical produce of one's work, business, land or investment or annual or periodical receipt accruing to a person or corporation. The Concise Oxford Dictionary defines it as a periodical (usually annual) receipts from one's business, land, work, investment, etc. In Webester's Dictionary, Vol. III, it has been defined as a gain or recurrent benefit that is usually measured in money and for a given period of time derived from capital, labour, or combination of both, includes gains from transaction in capital assets but excludes unrealised advances in value; commercial revenue or receipts of any kind except receipts or returns of capital. In Rani Amrit Kanwar v. CIT, [1946] 14 ITR 561 (All), the Allahabad High Court indicated a broad and rough test to decide when a question arises whether a particular receipt is income or not and the test is to ask oneself whether having regard to all the circumstances surrounding payment and receipt of income, what is received is of the character of income according to the ordinary meaning of that word in the English language or whether it is merely a casual receipt or a mere windfall. It was further laid down therein that the necessity of the obligation on the part of the payer is not a sine qua non of a receipt to become an income. In H.H Maharaja Rana Hemant Singhji, Dholpur v. Cit, Rajasthan , [1971] 79 ITR 83 (Raj), a contention was raised that the concept of income is that it must be referable to a source capable of yielding some periodical return. It was observed that the Income-tax Act has adopted a comprehensive basis for taxation inasmuch as all income coming from whatever source is liable to taxation unless such income fell within the exemptions enumerated in the said Act. Economists have defined the term “income” as consumption plus (or minus) the net increase (or decrease) in value of an individual's assets during the taxable period. Keeping these tests in view, we have to see whether the view taken by the Income-tax Officer was correct or not with which the Appellate Assistant Commissioner and the Tribunal have not agreed. The Income-tax Officer was considerably influenced by the fact that the descendants of Ramdeoji are vocationists, priests or pujaris and that the “Samadhi” is a capital asset giving a return to the descendants of Ramdeoji who are its owners. It is well-settled that in order to become a vocation, an activity need not be organised and a single act may amount to carrying on a business, profession or vocation. It was pointed out in Krishna Menon v. CIT, [1959] 35 ITR 48 (SC), that the real question is whether the activity has actually produced an income and it matters not whether the activity is called by the name of business, profession or vocation or by any other name or with what intention it was carried on. It was recognised that in the case of a voluntary payment, no tax can be levied on it, if it had been made for reasons purely personal to the donee and unconnected with his office or vocation, while it will be taxable if it was made because of the office or vocation of the donee. The word “pujari” or “priest” used by the Income-tax Officer was a misnomer. The descendants of Ramdeoji are not pujaris and priests in the sense these words are used. They are merely descendants of Ramdeoji looking after and managing the Samadhi. Apart from that, as found by the Appellate Assistant Commissioner, Ramdeoji was not a deity, though he was considered by the persons of the locality as an incarnation of God because of the qualities possessed by him, and when Ramdeoji was not a deity in that sense of the word, his descendants were rightly not held by the Appellate Assistant Commissioner as pujaris or priests. The amounts that were offered at the Samadhi were merely offerings made by the followers of Ramdeoji as a mark of respect and reverence for him. The fact that the devotees and pilgrims of Ramdeoji come of their own accord and offer amounts there cannot be said to be periodical payments and there is no regularity of payments. The Income-tax Officer seems to have taken Shri Ramdeoji's Samadhi, Ramdeora, as a source of income. There is no basis for that as, in our opinion, it cannot be characterised as a capital asset. Before a particular amount can be characterised as an income, there should be its definite source which should be an identifiable one, may be an individual or an institution, or a body of people or any other source. This has been the consistent view taken in H.H Maharani Shri Vijay-kuverba Saheb of Morvi v. CIT, [1963] 49 ITR 594 (Bom), Princess Ruby Raji-ber Kaur v. CIT, [1967] 64 ITR 624 (Punj) and CWT v. Mrs. Arundhati Balkrishna, [1968] 70 ITR 203 (Guj).

10. The last ingredient of income which we have mentioned above is, namely, “it should not be in the nature of mere windfall The offerings that were made at the Samadhi by the devotees or pilgrims were made by them on the spur of the moment when they go there. There is no prior determination. The offerings are voluntary in the shape of gifts and cannot be attributed to any activity on the part of the assessee. Thus, this ingredient is also not satisfied.

11. The conclusion, therefore, that emerges is that the descendants of Ramdeoji who receive the offerings and among whom the offerings are distributed are not “pujaris” or “priests” in the sense in which these terms are applied and they simply look after or manage the Samadhi as has been found by the Appellate Assistant Commissioner and also by the Tribunal.

12. A somewhat similar question arose in CIT v. Girdharram Hariram Bhagat, [1985] 154 ITR 10 (Guj). In that case, the assessee was the descendant of a saint in Saurashtra known as Jalarambapa. The said saint had opened a centre for free distribution of food to the poor in his village. This centre known as annakshetra became famous and contributions in cash and kind started flowing to the centre. The said saint died in Samvat year 1937, but even after his death, his place was continued to be treated as a sacred place by his devotees. In the residential premises of Jalarambapa, his portrait with some of his personal belongings were housed. Alongside the portrait of Jalarambapa, the idols of Ram, Lakshman and Seeta were placed. The assessee along with other members of his family resided in another part of the same premises. Visitors were allowed to have darshan of the relics and portrait of Jalarambapa and the idols placed there. The visitors made offerings in front of the relics of Jalarambapa. Besides that, large sums were received by post from different places in India as well as from abroad in the form of money orders, postal orders, cheques, drafts, etc. The activity of feeding the poor continued after his death. The Income-tax Officer assessed the surplus as income of the assessee for the assessment year in question therein. The Tribunal, after taking into consideration the facts and circumstances of the case, held that the surplus was not assessable as income. A reference was made to the Gujarat High Court. It held that the amounts received could not be regarded as income of the assessee and the offerings, in the very nature of things, depended on the goodwill of the offerers and did not come with any regularity. It further found that the offerings were not made to the assessee but made in the name of Jalarambapa out of respect and reverence to the deceased saint and that the offerings were not made in return for any service rendered by the assessee as the assessee was not carrying on any activity in the nature of profession. The conclusion to which the Gujarat High Court arrived was that the offerings were not made in return for any services rendered by the assessee and thus the amount received at the feet of Jalarambapa was not assessable. In that case Vahiwatdars of Ambaji Temple v. CIT, [1965] 58 ITR 675 (Guj), Acharya D.V Pande v. CIT, [1965] 56 ITR 152 (SC), H.H Maharani Shri Vijaykuverba Saheb of Morvi's case, [1963] 49 ITR 594 (Bom), P. Krishna Menon's case, [1959] 35 ITR 48 (SC), Mahesh Anantrai Pattani v. CIT, [1961] 41 ITR 481 (SC) and Mehboob Productions P. Ltd. v. CIT, [1977] 106 ITR 758 (Bom) were, besides others, referred. We are respectfully in agreement with the view taken in Girdharram's case, [1985] 154 ITR 10 (Guj) and follow it.

13. Mr. B.R Arora, learned counsel for the Revenue, invited our attention to Maharaj Shri Govindlalji Ranchhodlalji v. The Commissioner Of Income-Tax, Ahmedabad*, [1958] 34 ITR 92 (Bom) which, according to him, has a bearing on the case in hand. We have carefully considered it and, in our opinion, it cannot be of any avail. In that case too, the two amounts were offerings made to the assessee who claimed himself to be the direct descendant of Shri Vallabhacharya who had founded a faith known as Vallabh Sampradaya and the question involved was about taxing it. It was found by the Tribunal in that case that the assessee by virtue of the office had to perform some obligations as the head of this faith and that he was considered by the devotees as Guru as he gave “mantras” to his disciples. On these facts, the learned judges constituting the Division Bench of the Bombay High Court held that the source of the receipts was the abiding faith that the disciples have in their Guru and the receipts came in with a fair regularity. In that case, the finding was that it was customary on the part of the followers to make presents to the head of the place as he was holding an office and, therefore, could not be considered to be the gifts made to the assessee in his individual capacity. They were not in his personal capacity and so they were considered as income and thus the two amounts in question were treated as income. The principle laid down in Govindlalji Ranchhodlalji's case, [1958] 34 ITR 92 (Bom), was that if any receipt was an incident to and by virtue of the office and it was customary on the part of the followers of the faith to make presents to the head of the faith and that the offerings were made to the assessee because he was the head of the sect and not in his individual capacity and for consideration to the individual holding the office, the same must be treated as income liable to tax.

14. Here, none of the aforesaid conditions exist and, therefore, the amount of offerings received by the descendants of Shri Ramdeoji at Ramdeoji's Samadhi, Ramdeora, cannot be income assessable in the hands of the assessee, i.e, the trust. The Tribunal was, therefore, right in holding that the amount received by the assessee was not an income liable to tax from any source which is assessable in the hands of the assessee.

15. Question No. 1 is, therefore, answered as indicated above and the answer is in favour of the assessee and against the Revenue.

16. In view of the answer given to question No. (1), it is not necessary to decide question No. (2) and, therefore, no opinion is expressed on it.

17. The result is that the income in respect of the assessment year 1973–74 received by the assessee is not a taxable income under the Act. The amount of Rs. 2,09,893 received by the assessee as offerings was not an income liable to tax. The question referred is answered in favour of the assessee and against the Revenue. In the circumstances of the case, there will no order as to costs.

18. Let a copy of the order be sent to the Tribunal under section 260(1) of the Act.