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Monday, November 5, 2018

Thirupunithura Temple elephant and curious case of Income Tax assessment 1961


Thrippunithura is a prominent historical and residential region in the city of Kochi in Kerala. Located about 8 km (5 mi) from the city centre, Tripunithura was the capital of the erstwhile Kingdom of Cochin. The descendants of the Cochin royal family still live here.  There are many stories that describe the origin of the word Thripunithura.  One of them is  "Poorna Veda Puri" - the town of Vedas in its entirety. Another possible origin to name comes from the meaning "the land on the shores of Poorna river".  Sree Poornathrayesa temple is situated in Tripunithura, Kochi.  The temple is considered among the greatest temples in Kerala and was first among 8 royal temples of erstwhile Kochi Kingdom. The deity was also considered as National deity of Cochin and protector guardian of Tripunithura.   As  with many Kerala  Temples, this temple too owns elephants and here are couple of photos of a majestic tusker  of the temple.. ..




Alongside, Kolkata, Delhi, Mumbai, Chennai, Bangalore, Kochi too has Metro rail.  At the time of launching,   Kochi Metro officials took to its Facebook page to ask people to come up with names for the mascot. And guess what many Facebook users thought would be the apt name?  While you are busy guessing, here’s a little trivia: The mascot of Kochi metro rail is an illustration of an adorable blue baby elephant with wings and a nettipattam (a golden head covering that elephants are adorned with during festivals). 

In Kerala strange things often occur ~ there are so many elephants, some owned by the Temples, some by commoners and some by Churches too .. ,.. elephants have become subject matter of court cases, one was arrested by Court order and here is an interesting case before the Kerala High Court, decided way back in Mar 1962.  The Q to be decided by the Court was - "Whether the assessee is entitled to the deduction of Rs. 9,020-12-6 from the computation of its income in the relevant accounting year under any of the provisions of the Income-tax Act ?"

The assessee was a limited concern called "The Anamalai Timber Trust Ltd." For the year of assessment 1956-57, the assessee claimed a sum of Rs. 9,020-12-6 as an allowable deduction in computing its income. This amount represented part of the compensation by way of damages and costs decreed by the High Court in appeal from a suit filed by the State against the assessee.  The Tripunithura Devaswom owned an elephant named "Narayanankutty", Before the Devaswom Board, Cochin, was formed, the said Devaswom was under the control of the Government of Cochin. An agreement dated 15-5-1917 M. E. (December 30, 1941, A. D.), was entered into by the assessee with the Government of Cochin by which the said elephant was hired by the assessee and the services of its two mahouts taken over. Two of the terms of that agreement are that the elephant should be used only for haunting timber which did not exceed a specified volume and that the two mahouts attached to the elephant must be engaged by the assessee. The State of Cochin instituted the suit against the assessee for compensation for the death of elephant, which, it was alleged in the plaint, resulted from the injuries that were inflicted by its mahouts on the animal when it refused to drag the over-sized logs of timber. One of the defences that was raised by the assessee to the suit was that the mahouts concerned were not its servants but were the servants of the Government and therefore no liability could be imposed on the assessee for the tortious acts, if any, committed by the mahouts.

On an analysis of the evidence, the High Court of Travancore Cochin came to the conclusion that "the mahouts were the servants of the defendant company (the assessee company) at the relevant time and that they caused the injuries to the elephant in the course of their employment as servants of the company". So the assessee was held liable for the acts of the mahouts. The High Court had also come to the conclusion that "so far as the elephant was concerned, it has been proved beyond doubt that the relationship between the plaintiff and the defendant (assessee) was that of bailor and bailee". And in paragraph 38 of its judgment the High Court said :

"The bailee must return the goods without demand, on the due date. Failure to return renders him liable for, the loss or damage to goods from the date of default. The law presumes negligence to be the cause and casts upon the bailee the burden to show that loss is due to causes consistent with due care on his part..... Nothing of the kind was done in this case. The defendant is, therefore, liable to account for the elephant to the plaintiff." "The conclusion, therefore, is that the mahouts were the servants of the defendant company at the relevant time and that they caused the injuries to the elephant in the course of their employment as servants of the company. So, for the acts of the mahouts the dependent company is certainly liable."

The assessee has been carrying on business in timber. This necessitated the hauling of timber los for which the services of an elephant were essential. The assessee hired one along with its two mahouts. It is not suggested that the mahouts were either incompetent or irresponsible. In fact, the assessee had no choice in selecting the mahouts for the assessee was obliged by the terms to the agreement; that the elephant was used for the purpose of carrying on the assessees business and the injuries were inflicted on the elephant while it was being so used by the mahouts acting in the course of their employment have been found by the High Court in the civil suit.  It was contended that  the compensation that the a assessee had to pay arose from the carrying on of its business and is incidental thereto though, according to the finding of the High Court, the assessee has been negligent in that its servants had not taken due and proper care. The question referred to Court was answered in  affirmative and in favour of the assessee.

Interesting !!

With regards – S. Sampathkumar
5th Nov 2018


PS : In case you remember the Q at the start ! ~  And when Kochi Metro put up a poster looking for names for the mascot, KMRL had asked to avoid clichéd names like Appu', 'Kuttan', Thoppi and the like  .. the response was overwhelming ‘ Kummanam : ~ the name of BJP State Chief Kummanam Rajasekharan, and Kochi Metro decided not to name its mascot.  There were other interesting entries such as Bablu, Kochaana, Jimbru Aanapainkili, and Kochuttan.

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