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S.K. Mal Lodha J.

1. 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 ?"
"(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:

8. 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 Sub-clause (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 :

10. The word "income" is an expression of elastic ambit and the definition given in Section 2 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. Maharaj Rana Hemant Singhji v. CIT [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 orvocation. 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 Vijaykuverba Saheb of Morvi v. CIT [1963] 49 ITR 594 (Bom), Princess Ruby Rajiber Kaur v. CIT [1967] 64 ITR 624 (Punj) and CWT v. Mrs. Arundhati Balkrishna [1968] 70 ITR 203 (Guj).