- (1.) This is a Reference under Section 63(7) of the Bengal Agricultural Income-Tax Act by which the Agricultural Income-tax Appellate Tribunal of West Bengal has asked for the opinion of this Court on the following question of law: Whether, on the facts and in the circumstances of the case and upon a true construction of the wakf deed, the income of the properties held by the Assessees under the said wakf deed as wdkf-al-al-aulad is wholly exempt from tax under Section 4(6) of the Bengal Agricultural Income-tax Act, 1944.
(2.) The facts and circumstances of the case are perfectly simple and the true construction of the wakf deed presents no particular problem. In fact, the real and the only point for determination is the true meaning of Section 4(6) of the Bengal Agricultural Income-tax Act in so far as it deals with wakf-al-al-aulads.
(3.) The income in question is that of an wakf estate in the management of two persons, namely, Murtaza Reza Choudhury and Humayun Eeza Choudhury, who are brothers and are the Assessees in the present case. They hold the estate as joint mutwallis under a deed of wakf, dated December 28, 1922, and each of them has been made responsible for a half share of the tax assessed on the entire agricultural income of the wakf estate for the assessment year 1944-45. The Assessees do not contend that the income so assessed, is not agricultural income. Nor does the department contend that the wakf is not a valid one or that it is not an wakf-al-al-aulad. Under the terms of the wakf deed, rent, revenue and other similar charges are first to be paid out of the income of the wakf estate and of the balance left, 15 per cent, is to be appropriated by the mutwallis as commission which is to serve both for their remuneration and. for the allowance granted to them for the maintenance of the necessary establishment. Of the balance next left, a 2 as. share is to be applied to certain pious and benevolent purposes mentioned in the deed and an 11 as. share is to be paid to two of the three settlors and after them, to their descendants and a further 2 as. share is to be paid to the fatherless female descendants of all the three settlors. The remaining 1 anna is to be invested by way of creating a reserve fund as a provision against emergencies. Except that a 2 as. share of the income is to be applied to religious or charitable purposes, the terms and conditions of the deed do not bear upon the question as presented before the authorities below or before us. Even as regards that 2 at. share, it was not proved that anything had been actually spent for religious or charitable purposes.;