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TMI Blog1971 (11) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... -68 to various sums as mentioned in schedule A of the writ application. The assessments have been made after granting exemption under section 8 of the Act. In this writ application filed under articles 226 and 227 of the Constitution, the petitioner challenges the clause " and actually spent for the said purposes " in sub-section (1) of section 8 as unconstitutional and ultra vires. According to the petitioner, the entire agricultural income of the trust is not liable to tax under the Act. Counter has been filed on behalf of the opposite parties asserting that the assessments till the end of the year 1964-65 have become final and those for the subsequent years are pending at different stages. It is said in the counter-affidavit that section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act grants exemption only to a sum actually spent for public purposes of a charitable or religious nature while section 9 grants complete exemption to agricultural income derived from properties held in trust by a Mussalman Wakf. Thus, sections 8 and 9 while providing for exemption of charitable or religious trusts discriminate between agricultural income derived from lands held under a Hindu public religious trust and a Mussalman wakf without any reasonable nexus although the object sought to be achieved under the statute is to tax the agricultural income derived from land and to exempt the income so derived by public charitable trust. This contention requires a close examination of the ambit of sections 8 and 9. We propose to deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a series of cases by the Judicial Committee (See Abdul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhri, Mohomed Ahsanulla Chowdhry v. Amarchand Kundu and Abdul Gafur v. Nizamudin). In those cases their Lordships while emphasising that Mohamedan law ought to govern purely a Mohamedan disposition declined to hold that that disposition in which the benefit was really intended to go to the wakif and his family could be described as charity even under that law. These Privy Council decisions led to agitation in India and accordingly the Validating Act was passed. This Act declared the rights of Mussalmans to make settlement of property by way of wakf in favour of their families, children and descendants. For the purposes of the Validating Act th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court decision. On the aforesaid legal position, the conclusion is irresistible that section 9 of the Act only deals with the cases of-wakf-alal-aulad and not other wakfs which are purely for public purposes of a charitable or religious nature. These wakfs come clearly within the ambit of section 8 of the Act. But for section 9, the class of wakf-alal-aulad would have come within the ambit of section 8. Wakf-alal-aulad essentially confines the dedication of the property to the wakif and his family members and, therefore, has been classified differently for the purpose of taxation. In such a case the share of a beneficiary shall not be exempted and the tax may be realised from the mutawalli and the basis of taxation shall be the share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing any exemption in case of wakf-alal-aulad and in taxing the share of the beneficiaries, treating each of them as individual though the tax is to be realised from the mutawalli. Mohamedan trusts for wakfs of a truly charitable or religious character come clearly within the ambit of section 8(1) and no discrimination is made between Hindu, Mohamedan, Christian or Sikh trusts. Section 8 is not hit by article 14 of the Constitution. Even assuming that there is any discrimination it is section 9 which will be hit by article 14 and not the impugned clause in section 8 which is of a general nature and is applicable to all categories of trusts. On the aforesaid analysis, we are clearly of opinion that the clause actually spent for the said pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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