9911796707
TMI Blog1983 (8) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... aining 480 bighas, in which there is a masjid and imambara, is the land in dispute. The assessment year in question is 1970-71. The assessee claimed before the WTO that wakf was made orally in respect of land in dispute long back though the writing was made and registered on 22-5-1970 (should be 20-6-1970). However, the WTO did not accept the assessee's submissions and vide the assessment order, dated 31-3-1972, he added Rs. 7,01,000 as the value of the total area of 601 bighas to his net wealth. 3. The assessee went up in appeal before the AAC and submitted that a wakf by user existed in respect of the disputed land. Reliance was placed on the certificate of registration granted to the wakf by the Shia Central Board of Wakfs, U.P. and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wakf Act, 1923, was furnished by the assessee ; (v) that no registration of the wakf was obtained under Chapter 4 of the Wakf Act, 1954 ; (vi) that no registration of the wakf was obtained under the U.P. Muslim Wakfs Act, 1960 ; and (vii) that the assessee did not establish that the income from the disputed land was spent exclusively for religious and charitable purposes. Accordingly, the WTO maintained the earlier order vide his order dated 23-2-1979. 5. Being aggrieved, the assessee again filed an appeal before the AAC. The assessee explained before the learned AAC that the earlier wakf, being oral, was not registered. It was reiterated that the wakf was registered with the Shia Central Board of Wakfs, U.P. It was said that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out that it included wakf by user. He also submitted that in cases of oral wakf a mere declaration was enough. In this connection, reliance was placed by him on the decision of the Supreme Court in Garib Das v. Munshi Abdul Hamid AIR 1970 SC 1035. He also pointed out that the only consequence of non-registration of a wakf under section 29 of the U.P. Muslim Wakfs Act, 1960, was the penalty of fine under section 54. 8. We have considered the rival submissions as also the decision referred to above. The case of the assessee has been that there was an oral wakf long before the assessment year in question and that there was in existence a wakf by user. His further case is that even though such a wakf has been in existence and has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, that writing has to be got registered. In view of the above, the WTO was not justified in expecting the oral wakf or wakf by user also to be registered in pursuance of the Transfer of Property Act, 1882 or Registration Act, 1908. 9. Next comes the necessity for the registration of such a wakf under the Mussalman Wakf Act, 1923, the Wakf Act, 1954 and the U.P. Muslim Wakfs Act, 1960. Even under the Wakf Act, 1954, wakf included a wakf by user. That Act had repealed the Mussalman Wakf Act, 1923. As pointed out by the learned counsel for the assessee, the definition of ' wakf ' under section 3(11) of the U.P. Muslim Wakfs Act, 1960, includes a wakf by user. Wakfs are required to be registered in U.P. under section 29 of that Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Mohammad Ali recorded before the Board coupled with the enquiry report dated 6-12-1971 of Shri Gohar Mirza, the auditor of the Board, show that the wakf was declared by Khadim Hussain, the great-grandfather of the assessee, who constituted himself the first nazim and whereafter the assessee's grandfather and after him the assessee's father and then his brother Iqbal Hussain became mutawallis ; that the imambara and masjid were constructed by Khadim Hussian (year 1223 Hijri and his name being on one of the gates of the imambara and the year 1224 Hijri on the masjid) and that the income from the groves was all spent always thereon and the wakf continued to be acted upon. The report dated 9-12-1971 of Shri A.Z. Kazmi, Assistant Secretary, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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