TaxTMI 
TaxTMI 
1983 (8) TMI 21
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....come of the wakf was assessable in the hands of the mutawalli in the status of association of an persons ? " The relevant facts are set out in the statement of the case submitted by the Tribunal to this court. The assessee is a mutawalli of a wakf known as Astana Hazrat Pir Dumarin Baba of Bhagalpur. The wakf was created under a deed of trust executed on 26-2-72 (sic). The year in question is 1965-66. The mutawalli derives income from property and certain annuities from agricultural properties. According to the assessee, the income of the wakf could not be assessed as an association of persons as the shares of the beneficiaries were known and determinate and in view of this, the case of the assessee was that the assessment was to be made....
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.... The assessee pursued the matter in second appeal before the Tribunal. There it was submitted that the wakf had been created by the executor who belonged to the Hanafi School of law and according to the assessee if a wakf was created by a person belonging to this school, it has to be presumed that the beneficiaries have to share the income equally under the Mohammadan law. The assessee further pointed out that in assessment year 1947-48 when the Department had tried to assess the income of this wakf, the AAC at that time held that under the Hanafi School of Mohammadan law the shares of the beneficiaries were to be treated as equal and, therefore, it was known and determinate. It had also been held by the AAC in that order that it was possi....
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....l considered the cases of CIT v. Puthiya Ponmanichintakam Wakf [1962] 44 ITR 172 (SC), Trustees of Sahebzadas of Sarf-e-khas Trust v. CIT [1962] 44 ITR 332 (AP), Shamsuddin Khan v. CIT [1958] 33 ITR 733 (Orissa) and Khan Bahadur .U. Habibur Rahman v. CIT [1945] 13 ITR 189 (Pat). The assessee had also relied on the decision of the. Supreme Court in the case of CIT v. Managing Trustees, Nagore Durgha [1965] 57 ITR 321 and after considering the facts of that case, it was held by the Tribunal that there the question of shares being determinate or otherwise had not arisen and had not been decided. The Tribunal held that at a particular time the number of beneficiaries could be ascertainable and hence on this point the Tribunal did not agree w....
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....e Tribunal. He accepted the factual position that in the wakf deed in question, it was not mentioned that the distribution of shares would be governed in accordance with the Hanafi School of Mohammadan Law. He advanced an argument that even though the wakf deed is silent both with regard to the Hanafi School of Mohammadan Law which would govern the case and with regard to the distribution of income in equal proportion (shares) to the beneficiaries, yet the presumption of law and a sentence in the wakf deed both supported the assessee's case. Learned counsel submitted that even though the wakf deed was silent as to under which school of Mohammadan law the settlor was governed or how the shares were to be distributed among the different benef....
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....portion. The Tribunal has rightly held that at any particular time the number of beneficiaries may be ascertainable but one fact which stares straight at the assessee is that in the return filed before the ITO, 34 beneficiaries are mentioned and it also appears that out of the 34 beneficiaries , the list of which had been filed by the mutawalli, the amount paid by way of maintenance to the different beneficiaries was not shown as equal. On the contrary, the mutawalli himself showed that 16 of the beneficiaries were paid maintenance at the rate of Rs. 301, one beneficiary at the rate of Rs. 216 and the rest of the 17 beneficiaries at the rate of Rs. 144 each. On the assessee's own case, therefore, in spite of the number of beneficiaries bein....