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TMI Blog1949 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... e of an Imambara which had been built by him at Gorakhpur. Syed Roshan Ali Shah died in 1818. He had, however, executed a tamliknama under which the property came into the hands of his nephew, Ahmad Ali Shah. Ahmad Ali Shah died in 1874, and he, in his turn, left a tamliknama of the year 1871 and the property came under that tamliknama to one Wajid Ali Shah. Wajid Ali Shah died in 1915, and the property then came into the hands of the assessee, Jawad Ali Shah, who was his eldest son. From the statement of facts, mentioned above, it would appear that there was no document executed in favour of the assessee. It was his case that Wajid Ali Shah, before he died, had nominated him as his successor. There was a litigation between Jawad Ali Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e field an appeal before the Income-tax Appellate Tribunal. Before the Tribunal two main questions were raised, which were as follows:- (1) What is the status of the appellant with reference to the waqf and (2) Whether the allowance or such portion of it as is derived from the agricultural properties is liable to income-tax. The assessee had at one stage claimed that he was a sajjadanashin but learned counsel has stated to-day that he does not wish to raise that point. The Tribunal had held that there was no evidence to show that the assessee was a sajjadanashin and that it was not possible under the Mohammedan law that he could be considered as such. The Appellate Tribunal came to the conclusion that the assessee was not a benefic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to accept the same. What the Tribunal then did was to re-frame the question to bring out better the intention of the assessee. There was no occasion, therefore, of sending the supplementary order of reference to the assessee for any further objections. This argument has been advanced mainly on the ground that the assessee is not now satisfied with the document which have been included in the paper book sent to us. When the statement of the case was sent to the assessee for objections, the only paper that he wanted to be included was the judgment of this Court in First Appeal No. 51 of 1918, and the Tribunal has included that judgment as Ex. D of the paper book sent to us. Learned counsel now want that a number of Wajid-ul-arzes and recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may in his own right receive the income either himself or through an agent, e.g., owner, a mortgagee or a lessee or even a beneficiary gets the income in his own right and not for somebody else. If, on the other hand, an agent or a servant realises the income from an agricultural land, he is not really making that realisation in his own right, but he is receiving it on behalf of his principal or his master. Where, therefore, a mutawalli is a beneficiary, the agricultural income received by him is exempt from taxation: see Full Bench decision of this Court in Syed Mohammad Isa and Another v. Commissioner of Income-tax, C.P. and U.P. [1942] 10 I.T.R. 267 If, on the other hand, the assessee is not entitled to receive the income and he receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising it on behalf of his master and being allowed to keep a part of it as his remuneration. It has been held by their Lordships of the Judicial Committee in the case of Honourable Nawab Habibulla v. Commissioner of Income-tax, Bengal [1943] 11 I.T.R. 295, that where mutawalli gets a fixed remuneration for his services, even if the property mostly consists of revenue paying land, the money in the hands of the assessee is taxable income and is not exempt as being agriculture income. It is true that their Lordships did not in that case express any opinion on the question whether the same result would follow if the mutawalli's remuneration had been fixed by way of a fractional part of the income of the waqf estate, or by a percentage co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But if the income received falls within the definition of agricultural income it earns exemption, in whatever character the assessee receives it. We have already said that it having been held by the Tribunal that the entire property was waqf property, the income from the agricultural land, though it may have been realised by the mutawalli, must be deemed to have been received by the principal for whom he was acting, that is, in this case God Almighty. No doubt the mutawalli was entitled to get 10 per cent. as his pay. The mutawalli having realised the entire income on behalf of his principal, it must be held that the principal, in lieu of his services and as remuneration, paid him 10 per cent. out of the money realised by and in the h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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