1967 (7) TMI 29

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....his 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 Thakurbari at premises 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 Mahade....

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....here is no dispute that 122, Manicktola Street, later 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 Income-tax Officer 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 Appellate Assistant Commissioner. The reasons which appealed to the Appellate Assistant Commissioner were : "As regards the second ground, No. 122A, Manicktola Street, Calcutta, and No. 12, Benode Beh....

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....of the injunctions contained in the will against the residence of any body in the premises apart from the priest performing the worship of the deity and its servants, it is quite obvious that these premises have no letting value and the Appellate Assistant Commissioner was, therefore, justified in excluding from the assessment the annual value thereof." Thereupon, the Commissioner of Income-tax, at first tried to induce the Appellate Tribunal to refer certain questions of law to this court and therein failing, induced this court to call for a statement of case from the Tribunal on the following point of law : "Whether, on the facts and in the circumstances of the case, the Tribunal misdirected itself in law in holding that premises No. 12....

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....be objectively ascertained on reasonable basis. If there be restrictions on the letting of the premises, that may merely reduce the letting value but it cannot be said, without more, that because of the existence of a restrictive clause there can be no notional annual income deemed to arise from the premises. For this proposition we find ample support from two decisions of the Bombay High Court, namely, D. M. Vakil v. Commissioner of Income-tax and Sir Currimbhoy Ebrahim Baronetcy Trust v. Commissioner of Income-tax. In the first mentioned case Kania, Ag. C. J. (as he then was), observed : "The legislature has therefore expressly provided that the tax shall be payable by the assessee in respect of the bona fide annual value irrespective of....