Ground nos. In ground No. Briefly facts relating to issue are, in course of assessment proceeding AO noticed that assessee had claimed amount of Rs. AO required assessee to explain why expenditure claimed should not be disallowed as it is not revenue expenditure. AO, however, did not accept contention of assessee. AO held that as assessee had shifted plant and machinery to another unit, expenditure incurred towards installation of plant and machinery in another unit including loading and unloading charges, transport charges etc.
Accordingly, he disallowed amount of Rs. It was submitted that expenditure incurred was completely for relocation of plant and machinery, shifting of records, equipments etc. Neither any new plant or machinery was installed nor there was increase in capacity or capital structure. CIT A after considering submissions of assessee and report of AO observed that no new asset has come into existence nor has any value been added to old asset.
He therefore held that shifting of existing asset from one location to another is revenue expenditure and has to be allowed. Accordingly, CIT A deleted addition.
We have heard rival contentions and perused materials on record. On perusal of material on record undisputed fact that emerges is expenditure incurred was towards shifting of plant, machinery, equipments files and records etc. No new plant or machinery has been set up by assessee.
It is also not case of AO that any new equipment was installed or there is any increase in capacity or capital structure. AO, in assessment order has not given any reason as to why he considers expenditure as capital in nature.
In fact, during remand proceeding though assessee has produced all evidences with regard to expenditure incurred towards shifting AO has not offered any comment why he considers expenditure as capital in nature. From facts on record, it is clear that expenditure incurred was towards shifting existing plant, machinery equipments, records etc. Therefore, we fully subscribe to view of CIT A that expenditure incurred is revenue expenditure and as such is allowable. Thus, ground raised by revenue is dismissed.
Ground Nos. Briefly, facts are, during assessment proceeding AO noted that assessee did not declare income under section JB of Act. When AO raised query in this regard assessee submitted that in view of clause vii of Explanation 1 of sec. AO did not accept contention of assessee by holding that clause vii of Explanation 1 to sub-section 2 of section JB is not applicable to assessee as net worth of company for asst.
Year is more than accumulated losses. During appeal proceeding before CIT A , assessee contended that it has become sick company within meaning of sec. These were the facts which have given rise to the present appeal. The first contention of the plaintiffs was that the suit temple is a public temple, that the defendants had no power to shift the said temple to a new premises, that the pathway leading to the temple is the property belonging to the temple, that the tripartite agreement Ex.
Y in the plaint plan was not the property of the temple. Sambusiva 1 and of the Supreme Court in Narayan V. Gopal 2 held, that under Hindu law, there is no bar for removing the idos in a temple from one place to another.
The learned Judge also held that there was no foundation laid in the plaint for the contention that there were two sects in the Karma community, that the agreement was entered into only with the Pratti Kankanam sect, and therefore the agreement would not bind the entire Kurma community, and that there being no plea or evidence in that regard, such a plea could not be permitted to be raised at the appellate stage.
In this view, the learned Judge, confirmed the judgment and decree of the trial court and dismissed the appeal. Kanyakaprasad, the learned counsel for the appellants raised the same contentions before me as were urged in the lower appellate court.
I shall first deal with the broad contention raised by the learned Counsel that under Hindu law, there is no power at all in the community to shift idols of a temple from one place to another. In support of this contention, the learned counsel relies upon a decision of Division Bench of the Bombay court in Hari Raghunath Patvardhan V. Antaji Bhikaji Pathvardhan and others 3 , In the said case, certain villagers after obtaining leave under Order 1 Rule 8 C.
The trial court, found that the temple was a public temple, that the defendant was the Manager of the temple, that as the old building was in a dilapidated condition, the defendant was justified in putting up a new building and as the defendant expressed his willingness during the course of the proceedings in Court to dedicate the land with the building to the temple, the trial court incorporated the undertaking given by the defendant, and refused the injunction prayed lor by the plaintiffs.
On appeal, the learned District Judge, took the view that the defendant had no right as Manager to remove the image from the old temple to the building, On further appeal to the High Court, the learned Judges Shah and Crump JJ confirmed the decree of the appellate Court. The learned Judges observed at page 68 as follows:"taking the most liberal view of the powers of the Manager i do not think that as the manager of a Public temple he can do what he claims the power to do viz , to remove the image from its present position and to install it in the new building.
The image is consecrated in its present position for a number of years and there is the existing temple. To remove the image from that temple and to install it in another building would be practically putting up a new temple in place of the existing temple. Whatever may be the occasions on which the installation of a new image as a substitute for the old may be allowable according to the Hindu law, it is not shown on behalf of the defendant that the ruinous condition of the existing building is a ground for practically removing the image from its present place to a new place permanently.
We are not concerned in this suit with the question of the temporary removal which may be necessary when the existing building is repaired. The defendant claims the right to install it in the new building permanently, and I do not think that as a manager he could do so, particularly when he is not supported by all the worshippers of the temple in taking that step".
Ramagopal, the learned counsel for the respondents in support of his contention that there is no absolute prohibition in Hindu law against the removal of the idol of a Hindu deity from the old temple to a new building or premises if the circumstances necessitated it.
In the said case, the suit was filed for a permanent injunction restraining the defendants and other Villagers from pulling down an old temple in the place and removing the image from the old temple. Both the lower courts dismissed the plaintiffs suit on the ground that almost all the whole village was for the removal of the temple and the image to a site which was "more sanitary and more acceptable to the inhabitants". The plaintiff then preferred a Second appeal to the High Court. As it was found that alt the worshippers of the temple, who were in management of it, bad decided to build a new temple as the old one was in ruins and as the site on which it stood became in sanitary and inconvenient for worshippers, the learned Judge Devadoss, J held that :"where the whole body of worshippers want to improve the temple unless there is clear prohibition against their demolishing the old temple and building a new temple, I do not think anyone is entitled to prevent the whole body from doing what it thinks proper in the circumstances".
Some of the passages go to the length of saying that where an idol is desecrated the divine element which resides in it leaves it and the compartment or to the room in which it is, has no sanctity apart from the sanctity of the idol. Therefore, it is not necessary that a new idol should be installed in the compartment in which an old idol was". Antaji 3 and observed that:"that case was not an authority for the position that the whole body of villagers could not build a new temple and instal the image which was in a dilapidated temple, in the new one".
Sheo Proshad Pandah 5 where it was held that :-"the villagers as a whole body who were in possession of the old temple and the idol were entitled to iastal it in any proper place and that, the plaintiff therein who was not entitled to be in possession of the idol could not resist the action of the villagers which ostensibly was for the benefit of the whole body of them.
Ayyathurai 6 where it was held that. Finally the learned Judge observed that :-"it is but reasonable that in communal matters the majority should have the final say. In this case, it is not a respectable minority that objects to what the majority is doing ; but only one person, who agreed to the resolution that a new temple should be built as the old temple had become dilapidated, as out of spie chosen to challenge the action of the villagers.
I hold that, where in the interests of the general body of worshippers a very large majority is for the removal of the old temple to a new site, the Court should not interfere with their discretion as what they do is according to their notions beneficial to the whole community.
In Narayan V. Gopal 2 Their Lordships of the Supreme court were dealing with the question whether Sri Venkatesh Balaji temple at Nasik, was a public temple or a private temple. One of the grounds on which it was claimed that the Deity was a family deity and the temple a private temple was, that the Deity is capable of being moved from one place to another and that it is also actually moved. On the evidence it was found that in the early history of the temple the Pujadhikaris took the Deity on visits to the various ruling chiefs, that when the Deity is invited on festive occasions to private residences, a substitute idol is also left at the main temple for the public to worship, that these removals are temporary and the deity is brought back and installed in its abode afterwards.
Their lordships also referred to the fact that the Deity Jagannath Temple at Puri is also shifted for periodic processions, and is brought back to its place. It was also observed that Dr. Kurkote stated that the installation of an idol can be either in a movable form Cha a or stationary form Sthira , and that it is so mentioned in the Prathista mayukha and that no authority was cited before their Lordships as to whether an idol cannot at all be moved from the place where it is installed, even though it may be installed in a movable form Chala ".
In that context, their Lordships referred to the decisions of the Bombay high Court and the Madras High Court referred at above. Antaji 3 Their Lord ships observed at page as follows :"the case is an authority for the proposition that the idol cannot be removed permanently to another place, because that would be tantamount to establishing a new temple. Venkatesh Hemachandra Babu Director. Bipin Bihari Singh Director.
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