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3. As assessments for some of the years were completed, there were reopened under section 34 of the Act.

4. The Income-tax Officer took the view that even assuming that the amounts received were voluntary payments from the various persons, from the standpoint of the assessee they were taxable receipts being received by virtue of his procession whether as a philosopher, writer, musician, or a spiritualist and they are his receipts from procession. On an appeal by the assessee before the Appellate Assistant Commissioner, the finding of the Income-tax Officer was reversed. He took the view that the receipts were not receipts arising from business or exercise of profession or vocation. In his opinion, they were testimonials and personal gifts given to the assessee as a token of esteem and regard for his personal qualities. In view of this finding according to the Appellate Assistant Commission, these amounts for the years 1954-55 to 1959-60 were not subject to tax in the assessment of the assessee for the relevant years. On an appeal by the revenue before the Tribunal the original order passed by the Income-tax Officer was restored. The Tribunal took the view that the amounts deposited in the bank account were liable to tax in the hands of the assessee. It found that all the disciples of the assessee intended to give moneys primarily to him and since the amounts were given to him in the first instance the income from the property constructed out of those amounts could be rightly taxed fulled in the hands of the assessee.

7. On behalf of the assessee three contentions are urged before us by Mr. Palkhivala. Firstly, he contended that the activities carried on by the assessee did not constitute a vocation within the meaning of section 10 of the Act. Secondly, he contended that the amounts from time to time paid to him by the particular individuals were not receipts arising out of a profession or vocation, but the same were given as personal gifts to the assessee out of personal esteem and veneration for him and that the same were not income and were not liable to tax and, lastly, he contended that in any event the amounts were not received by the assessee as his personal income, but they were impressed with the character of a trust.

17. As the Judicial Member of the Tribunal has discarded the facts stated in the affidavits notwithstanding the fact that the veracity of those facts was challenged neither before the Income-tax Officer nor before the Appellate Assistant Commissioner and as the Assistant Member has based his finding without referring to this evidence, it will be useful to refer to the evidence that was produced before the taxing authorities. It is not disputed that the major gifts flowed from two American gentlemen by name Richard Miller and Don Taxsy. In this affidavit declared on September 25, 1959, Richard Miller has stated that in about the end of June, 1954, he, inter alia, found that the assessee had no money to build a temple for the installation of the image of Lord Krishna. He though of himself building a temple for him in a convenient locality in Poona and presenting the temple house thereafter as a gift to his guru, the assessee, who could also stay in a portion of the temple house, along with his disciples. The desire and urge on his part for himself building to temple house for his guru was actuated on account of his guru's spiritual reputation, his valuable contributions to literature, music, religion and various fields of cultural activities. It was from and after the month of November, 1954, that either every week, or every fortnight, or every month from his savings he started sending the amounts. At no time prior to July 26, 1956, he had even net the assessee. This affidavit was filed before the Income-tax Officer and its truthfulness was not challenged by cross-examination of Richard Miller. When the appeal was pending before the Appellate Assistant Commissioner a letter of Richard Miller dated September 28, 1962, was also produced. In this letter also he has stated that he sent all the moneys to Indira Devi to build the temple for the assessee. He hardly knew the assessee except through his books and records. The amounts were sent for the express purpose of building the temple house. At no time in his life he had received any instructions from the assessee. According to him the assessee was not giving any instruction to anyone and he was only singing at different places. Another American gentleman by name Don Taxsy who was living with Richard Miller also contributed several amounts from time to time. In his affidavit declared on September 25, 1959, he has stated that at no time prior to July 26, 1959, he met the assessee at any time. He saw him for the first time when he arrived at Poona on that day. He further states in his affidavit that he was impressed on reading the assessee's books, that the assessee had no money with him to build a temple for his Lord and he thought of sending him mite towards building temple house for the assessee. He joined his friend Richard Miller in sending along with him his weekly savings from out of his weekly earnings to Indira Devi, Poona. The veracity of these statements in these affidavits was not even questioned by the Income-tax Officer at any time. While the matter was in appeal before the Appellate Assistant Commissioner a letter dated September 28, 1962, written by Don Taxsy was filed. In this letter he has also stated that he was charmed by the voice and books of the assessee. At no time he had received any instructions from the assessee as he did not even meet him prior to July 26, 1959. The affidavits disclose facts of which veracity cannot be challenged if regard be had to a letter dated January 1, 1956, written by Richard Miller which is made a part of the statement of case as annexure "H". In this letter, at a time before the major contributions were made by these persons, Richard Miller has stated that the assessee agreed to him suggestion that a temple must be built and he was over-joyed to learn that some other devotees were also contributing to the fund. Richard Miller and Don Taxsy amongst them contributed a sum of Rs. 96,642.70. As neither of these persons had received any instructions from the assessee or ever heard him or even seen him, prior to July, 1959, any amounts paid by them to the assessee can never be regarded as a receipt by the assessee in exercise of his vocation. It was purely out of personal regard, esteem and veneration for him that they from their savings contributed from time to time the various amounts. They are purely personal gifts out of personal esteem and veneration and cannot be regarded as receipts received by the assessee in exercise of his vocation.

18. Amongst the affidavits filed before the Income-tax Officer one of the affidavits was of Kanta Manda, a sister of Shrimati Indira Devi. She has clearly stated in his affidavit that she made a gift of various amounts in all aggregating to Rs. 15,600 to her sister for the cost of two rooms to be built in the temple house. It is even difficult to understand in the face of this affidavit how any amount paid by Kanta Manda can be regarded as even a receipt by the assessee himself. The other persons who had paid the amounts have made similar affidavits. The affidavits are made by all the persons who have contributed practically the entire amount which is sought to be assessed in the hands of the assessee during the relevant assessment years. Merely because we have assumed that the assessee was carrying on a vocation there is no presumption in law that any amount received by a person carrying on a vocation is automatically income subject to tax. Every affidavit made in this case far from showing that the amount paid was by way of recompense for the teaching alleged to be received from the assessee, shows that it was a payment made as purely personal gift out of regard, personal esteem and veneration and expressly for the purpose of building a temple at Poona. Ordinarily, the burden lies upon the revenue to show that any amount which it seeks to tax in the hands of an assessee is income. In fact, no evidence whatsoever has been produced on behalf of the revenue to show that these receipts are income and in the face of these affidavits, it is affirmatively established that the amounts which were paid by these persons were mere personal gifts out of personal regard, esteem and veneration for the assessee. Such gifts cannot be taxed as income arising out of business, profession or vocation within the meaning 10 of the Act.