COMMISSIONER OF INCOME TAX Vs. ABDUL GANI GURDEJI

JUDGEMENT

(1.) THE Tribunal has referred the following question of law arising out of its order dt. 31st Jan., 1984 in respect of the asst. year 1979 -80 under S. 256(1) of the IT Act :

(2.) THE brief facts of the case are that the assessee is Khadim at the Dargah of Khwaja Moinuddin Chisti Ajmer and derives income by exercise of such profession. He received a sum of Rs. 1,05,000 on 19th June, 1978 from a non -resident pilgrim Abu Sufian, who was coming to Dargah since last number of years. The assessment for the year 1979 -80 was completed by the ITO on 16th June, 1982 and the amount of Rs. 1,05,000 was considered as gift out of natural love and affection for which a gift deed dt. 22nd June, 1978 was executed. The CIT exercised the power under S. 263 of the IT Act and cancelled the assessment order and was of the opinion that the payment has been camougflaged as a gift out of natural love and affection. The real nature of the offerings or present to the Khadim is receipt by the assessee on account of his Khadim profession. It was also found that Abu Sufian was visiting Dargah since 1966 to pay obeisance at the Dargah and the Jiyarat through Khadim assessee. The services which were rendered by the assessee to Abu Sufian from time to time were considered to be the cause on account of which the payment is made. According to the assessee Abu Sufian has given an interview to the Hindu Islamic Magazine 'Phurkaru' where he stated that a bad debt due to the grace of Allah was recovered and he decided to serve Khadim Abdul Gani Maullim (assessee) by presenting this amount of Rs. 1,05,000. The CIT was also of the view that there was nothing existing so far as natural love and affection between the assessee and Abu Sufian is concerned and the only relationship was of profession which the assessee has exercised. The order of the CIT was challenged before the Tribunal where it was stated that the assessee rendered petty services to the pilgrims in that he looks after the pilgrims who come to Ajmer to pay obeisance and lead them to Dargah where they pay obeisance and for these services no one could have paid the amount of Rs. 1,05,000 which is nothing but a gift considering the personal qualities of the assessee. The payment was voluntary. The Tribunal came to the conclusion that it is a case of voluntary payment made for the assessee for his personal qualities and mark of high esteem and regard which the assessee was held by the donor. It was further observed that there is no iota of evidence to link the impugned payment with the routine and ordinary services rendered by the assessee as Khadim to the donor.

(3.) THE submission of Mr. Bafna, learned standing counsel on behalf of the Revenue is that the donations were linked only with the service rendered by the assessee as Khadim of Dargah and in view of the decision of Apex Court in George Thomas vs. CIT (1985) 49 CTR (SC) 204 : (1985) 156 ITR 412 (SC) the receipt cannot be considered to be casual and non recurring. It is the taxable receipt arising from the carrying on of the profession. In that case, the assessee was carrying on a vocation of practising against atheism and in the course of such vocation and for the purpose of the same, received the amount in question as donation for the furtherance of the objects of his vocation. In these circumstances, it was held by the Apex Court that there was a link between the activities of the appellant and the payments received by him and link was close enough. The receipts arose to the assessee from the carrying on of his vocation and they were not casual and non -recurring receipts and were taxable.