Judgment 1. This reference u/s. 256(1) of the I.T. Act, 1961 (hereinafter to be referred to as "the Act"), was made by the Income-tax Appellate Tribunal, Patna Bench (A), Patna. The following question has been referred for our opinion: "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the shares of beneficiaries were not determinate and, consequently, the income 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 in the light of the provisions of Sec.164 of the Act, which provides that the tax has to be levied upon and recovered from the trustee in the like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him. For the assessment year 1965-66, the ITO held that the wakf deed did not lay down the shares of the beneficiaries. He also pointed out that the income from the wakf property was to be utilised for the maintenance of the descendants of the settlor after meeting the necessary expenses for certain religious purposes. He further held that the shares of the beneficiaries were not definite for the purpose of considering the application of Sec.26 of the Act. The ITO, therefore, assessed the assessee as an association of persons. A copy of the order has been marked as annex. A to the statement of the case. 2 The assessee went up in appeal before the AAC who held that neither the number, of beneficiaries was known, as it was always increasing, nor was there any definite share even with regard to the beneficiaries at a particular time. A copy of the order has been marked as annex. A to the statement of the case. 2 The assessee went up in appeal before the AAC who held that neither the number, of beneficiaries was known, as it was always increasing, nor was there any definite share even with regard to the beneficiaries at a particular time. The ACC also rejected the account of allocation placed before him and held that the assessee was making out a contradictory claim before him. He, therefore, upheld the assessment made by the ITO. While doing so, he also considered the provisions of the wakf deed and the relevant provisions of law in this regard. A copy of the first appellate order has been marked annex. B to the statement of the case. 3. 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 possible to know the number of the beneficiaries at a particular time and, therefore, the shares could be made known and determinate at a particular time. The order of the AAC for the assessment year 1947-48 has been marked annex. C. It was further submitted before the Tribunal on behalf of the assessee that a similar matter had arisen before the agricultural I.T. Authorities also and they had also held that the shares of the beneficiaries were known and determinate. The orders of the agricultural I.T. Authorities have been made annex. D at the request of the assessee. 4. C. It was further submitted before the Tribunal on behalf of the assessee that a similar matter had arisen before the agricultural I.T. Authorities also and they had also held that the shares of the beneficiaries were known and determinate. The orders of the agricultural I.T. Authorities have been made annex. D at the request of the assessee. 4. The main argument of the assessee before the Tribunal was that under the Hanafi law, the shares of the beneficiaries had to be treated as equal even if the wakf deed was silent on the matter. The Tribunal referred to the various provisions of the wakf deed and the objects of the wakf. It found that the main object was that after the maintenance and protection of the properties and performance of certain religious duties like repairs to the mosque, the old members of the settlors family and the male members born in future were to be maintained. After considering the various provisions, the Tribunal observed that no shares were mentioned by the settlor and after meeting all the religious expenses, the mutawalli had to maintain the male members of the settlors family. The deed did not provide that after meeting those expenses, the balance was to be distributed among the beneficiaries in any proportion. The Tribunal considered the cases of CIT V/s. Puthiya Ponmanichintakam Wakf [1962] 44 ITR 172 (SC), Trustees of Sahebzadas of Sarf-e-khas Trust V/s. CIT [1962] 44 ITR 332 (AP), Shamsuddin Khan V/s. CIT [1958] 33 ITR 733 (Orissa) and Khan Bahadur M. Habibur Rahman V/s. CIT [1945] 13 ITR 189 (Pat). Tha assessee had also relied on the decision of the Supreme Court in the case of CIT V/s. 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. 5. 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 with the AAC. It, however, observed that in the wakf deed there was no indication about the particular shares of the beneficiaries and there was nothing to indicate that the shares were equal. 5. 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 with the AAC. It, however, observed that in the wakf deed there was no indication about the particular shares of the beneficiaries and there was nothing to indicate that the shares were equal. The deed had provided for the maintenance of the male offsprings of the settlor and there was no indication in what manner the amount was to be spent or distributed by the mutawalli. That had been left to the discretion of the mutawalli. The Tribunal found that in the wakf deed there was no declaration or direction that the income was to be distributed in accordance with divine law. According to the Tribunal, what is held to be ideal for a wakf could not be imported to a case where a wakf deed had been written and was available for the construction of the terms thereof. The Tribunal further found that the AAC who decided the case in the year 1947 had not considered the terms of the wakf deed. The Tribunal, therefore, held that the shares of the beneficiaries were not determinate in this case and the income was assessable in the hands of the mutawalli as an association of persons as provided in Sec.164 of the Act. A copy of the Tribunals order has been marked annexure "E". A translation of the wakf deed dated 26-2-72 (sic) in question has been marked annexure "F" to the statement of the case. 6. Mr. S. S. Asghar Hussain, learned counsel appearing for the assessee, contended before us on more or less the same lines both with regard to the fact and the law which were submitted before the 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 assessees case. 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 assessees 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 beneficiaries under the Mohammadan law, the presumption is that, unless proved to the contrary, a particular Mohammadan family would be governed by the Hanafi School of Mohammadan law. His further contention was that once it is held that the assessee was governed by the Hanafi School of Mohammadan law, then it followed as a necessary corollary that the income must be distributed among the beneficiaries in equal shares. One particular sentence in the wakf deed on which reliance was placed by the learned counsel for the assessee is to the effect that no one shall ever have right or power to transfer or gift or mortgage or either to make any distinction or difference in the distribution of the income among the heirs of the mutawalli. It may be pertinent to mention here that the mutawalli was not the settlor himself. This sentence does not, in our view, support the contention put forth on behalf of the assessee. It does not say that the income has to be distributed in equal shares among the beneficiaries. All that it says is that there should not be any difference in the discharge of income among the heirs of the mutawalli. The Tribunal has rightly held that no share or distribution was mentioned by the settlor and after meeting all the religious expenses and maintenance of properties, the mutawalli is to maintain the male members of the settlors family. The wakf deed does not provide that after meeting these expenses the balance will be distributed among the beneficiaries in any proportion. The Tribunal has rightly held that no share or distribution was mentioned by the settlor and after meeting all the religious expenses and maintenance of properties, the mutawalli is to maintain the male members of the settlors family. The wakf deed does not provide that after meeting these expenses the balance will be distributed among the beneficiaries in any proportion. 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 assessees own case, therefore, in spite of the number of beneficiaries being ascertainable at a given time, the maintenance amount granted to each beneficiary was not in equal share. No justification could be given by the learned counsel for the assessee even before us as to why these different amounts by way of maintenance were paid to the different beneficiaries. Thus, the two points which clinch the issue against the assessee are, (i) that there is no mention in the entire wakf deed (annex. F) that in so far as the income of the wakf property is concerned, after meeting all the religious expenses, each of the beneficiaries shall get equal shares by way of maintenance, and (ii) that the wakf deed nowhere mentions that the mutawalli and the beneficiaries shall be governed by the Hanafi School of Mohammadan law. Such a presumption, even if there be one under the Mohammadan law, shall not apply to taxing statute, namely the Act, as there is no specific provision in this regard in the Act. That, however, is an academic question for the simple reason, although it bears repetition, that the mutawalli himself had shown in the instant assessment year a great difference in the distribution of maintenance among the 34 beneficiaries mentioned in the list furnished by the assessee himself. That, however, is an academic question for the simple reason, although it bears repetition, that the mutawalli himself had shown in the instant assessment year a great difference in the distribution of maintenance among the 34 beneficiaries mentioned in the list furnished by the assessee himself. We see no fault in the reasoning of the Tribunal nor do we find that it has misdirected itself on any question of law. The Tribunal has, on the facts of the case, rightly held that the shares of the beneficiaries were not determinable and has rightly relied on the case-law already mentioned above. In so far as the reliance on behalf of the assessee on the assessment orders of the agricultural income-tax authorities and the order of the AAC for the year 1947-48 is concerned, suffice it to say that the principle of res judicata is not applicable to tax cases in which assessment has to be made from year to year. This proposition of law was not contested by the learned counsel for the assessee. He, however, submitted that the assessment for the instant assessment year 1965-66 should not likewise operate as res judicata for the future assessment years. That, however, is merely of academic importance in so far as the assessment year 1965-66 is concerned. 7. We accordingly, answer the question referred to us in the affirmative and hold that, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the shares of the beneficiaries were not determinate, and, consequently the income of the wakf was assessable in the hands of the mutawalli in the status of an association of persons. The question thus is decided in favour of the Revenue and against the assessee. On the facts and in the circumstances of the case, there will be no order as to costs.