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Can a muslim (bohars) applying for creating huf

prince (Udaipur) (25 Points)

19 February 2014

can a muslim (bohras) applying for creating HUF

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4 Replies

Zulfikar Surti (Student) (431 Points)
Replied 19 February 2014

Huf not allowed under Muslim personal law. But wait for other members' replies

CA NITUL MEHTA (KPMG-Senior Consultant-International Tax ) (236 Points)
Replied 20 February 2014

No its not permissible, an entity can be treated as HUF only if Hindu laws of our constitution apply to that entity since in case of muslims that cannot practically happen, they are not permmited to have a HUF's.

Zulfikar is correct!

Z ( ) (2960 Points)
Replied 20 February 2014

Under income tax act the preconditions of forming HUF are

1) existence of Joint family (The word ‘family’ always signifies a group. Plurality of persons is an essential attribute of a family. A single person, male or female, does not constitute a family. He or she would remain, what is inherent in the very nature of things an individual, a lonely wayfarer till perchance he or she finds a mate. [C Krishna Prasad-CIT 97 ITR 343 SC)

2) existence of coparcenership

Under income tax act even Jain and Sikh and Buddhist families can form HUF

THERE IS A REASON FOR THAT

Champa Kumari Singhi 83 ITR 720 SC

"The real question for determination is whether the word ‘Hindu’ preceding the words ‘undivided family’ signifies that the undivided family should be of those: (i) who profess Hindu religion ; or (ii) to whom Hindu law applies; or (iii) who though not professing Hindu religion have come to be regarded as HUF by judicial decisions and legislative practice. It may be mentioned that for a long time the courts and particularly the Privy Council seem to have taken the view that Jains are of Hindu origin; they are Hindu dissenters and although generally adhering to the ordinary Hindu law they do not recognise any divine authority of the Vedas nor do they practice a number of ceremonies observed by the Hindus"

Article 25 of the constitution of india wherein Explanation II provides as under:

In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

Hindu Succession Act 1956 This Act applies-

(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya Samaj.

(b) to any person who is Buddhist, Jaina or Sikh by religion

In the case of Dr. Ramesh Yeshwant Prabhoo the Supreme Court The court came to the conclusion that the words "Hinduism" or "Hindutva" are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the People of India depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith" (Emphasis supplied). This clearly means that, by itself, the word "Hinduism" or "Hindutva" indicates the culture of the people of India as a whole, irrespective of whether they are Hindus, Muslims, Christians, Jews etc. The Supreme Court Bench has further observed that "the mere fact that these words (Hindutva or Hinduism)

IF THIS JUDGEMENT IS TO BE FOLLOWED THEN EVEN MUSLIMS CHRISTIANS and rest should be able to form HUF

Sastri Yagnapurushadji case, Supreme Court held that the word 'Hindu' arose from the river Indus and the residents around the river were called Hindus. That observation has hardly any relevance to what Hinduism or Hindutva means today.

Other SUPREME COURT udgements are Dr. R. Prabhoo vs K. Kunte

Manohar Joshi vs Patil

CONTRA

in Surjit lal Chhabra 101 ITR 776 SC it was held that "The expression " Hindu undivided family " must be construed in the sense, in which it is understood under the Hindu law"

Hindu law ,inter alia , includes

Hindu Succession Act 1956 This Act applies-

(a) ```.

(b) ```

(c) to any of other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such persons would not have been governed by the Hindu law or by custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed

There should be no biaseness in tax on basis of religion, I am in favour of other judgement which I cited

Just yesterday SC allowed muslims to adopt child against their personal law helding that the laws of land has to get primacy over personal law till the country achieves uniform civil code as provided in the Constitution. Where is the expressed restriction on forming HUF?

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Vivek Bhasin (GM (Accts and Admin)) (78 Points)
Replied 20 February 2014

The formation of a Hindu Undivided Family is not a voluntary act it is governed through ancestors and as such cannot be "formed" in the ordinary sense of the word. A Muslim family cannot form an HUF.