Cit Vs. Trustees of the Trust of Mrs. Manorama L. Apte Trust for their Relatives and Suneetiraje A. Apte Trust for Relatives

- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. judgments.h. kapadia, j.both the above references raise common question of law. the tribunal has referred the following question of law for opinion under section 256(1) :'whether, on the facts and in the circumstances of the case and having regard to the terms of the trust deed dated 9-5-1973, the tribunal was right in law in holding that the assessee-trust is not a discretionary trust and consequently the provisions of section 164(1) are not applicable for the assessment year 1979-80 ?'2. in this case, we are concerned with assessment year 1979-80. assessee is a private trust. the trust was created by an indenture dated 9-5-1973. clause 5(b) of the trust deed reads as follows :'5(b) subject to the provisions of sub-clause (a) of this clause the income of the trust shall be held for and distributed as under :(i) l.v. apte huf1/3rd(ii) m.l. apte huf1/3rd (iii) a.l. apte huf1/3rd (iv) wife of shri m.l. apte and all the children of m.l. apte who are living at the time of execution of this deednil. (v) all the children of a.l. apte who are living at the time of execution of this deednil. (vi) shri m. l. apte & shri a. l. aptenil.'this clause came for interpretation before the division bench of this court in the case of cit v. trustees of the trust for relatives of suneeti raje a. apte trust . this court took the view that beneficiaries under clause 5(b) were persons who were known and whose shares were specified. mr. desai, learned counsel for the department, fairly stated that the above judgment of the bombay high court applies to the facts of this case.3. in the circumstances, the above question is answered in the affirmative, i.e., in favour of the assessee and against the department.4. both the references are accordingly disposed of. no order as to costs.