Wasiuddin, J.:— This is a reference under Section 27(3)(b) of the Wealth Tax of 1957 (Act 27 of 1957).

2. The relevant facts which have given rise to this present reference may be briefly stated as follows: The assessee was assessed under the Wealth Tax Act for the year 1962–1963 for which the relevant date of valuation is 31-3-1962. The assessee filed a return disclosing his net wealth of Rs. 1,07,699. The Wealth Tax Officer determined the total wealth at Rs. 5,91,999. He included in this assessment a sum of Rs. 1,50,000 (One Lac fifty thousand) representing the value of a plot of land owned by the assessee bearing survey plot No. 794 and situated at Bhattacharjee Road, Patna. The assessee contended that this was agricultural land and, therefore, was not liable to assessment under the Wealth Tax Act. The Wealth Tax Officer overruled this objection and as stated above included the value of this land also. The assessee then preferred an appeal before the Appellate Assistant Commissioner for the Wealth Tax and he dismissed the appeal and confirmed the order of the Wealth Tax Officer. The assessee, therefore, preferred an appeal before the Appellate Tribunal, and there also it was contended that the land in question was agricultural and used for agricultural purposes and as such not liable to assessment. The Appellate Tribunal also dismissed the appeal and thereafter an application was filed before the Appellate Tribunal for referring the case to the High Court and this was also refected the assessee then moved the High Court and a Division Bench of this Court on 30-8-1966 directed the Tribunal to state the case for the opinion of the Court under sub-section (3) of Section 27 of the Wealth Tax Act. The question which was formulated by the Court is as follows:—

“Whether on the facts and circumstances of the case the Tribunal was justified in holding that the disputed land was not agricultural land on the relevant date for the purpose of Wealth Tax Act.”

3. Before I take up the discussion of the facts and the questions of law which are involved in answering this question, I may first of all refer to the relevant provisions of the Wealth Tax Act (hereinafter called as ‘the Act’). The charging section is Section 3 of the Act which lays down as follows:

“Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth-tax) In respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule.”

4. The tax, is, therefore, payable on the net wealth and so it is necessary to see as to what is the definition of ‘net wealth’ and ‘assets’ in the Act. ‘Net wealth’ is defined in Section 2(m) of the Act which is as follows:—

“‘net wealth’ means the amount by which the aggregate value computed in accordance with the provision of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than …………”

5. There are certain exceptions which do not constitute the net wealth and are given in this section, but it is not necessary to reproduce those here. The word ‘assets’ has been defined in Section 2(e) of the Act which runs as follows:—

“‘assets’ include property of every description, movable or immovable, but does not include—

(i) agricultural land and growing crops, grass or standing trees on such land;

(ii) any building owned or occupied by a cultivator or receiver of rent or revenue out of agricultural land.

Provided that the building is on or in the immediate vicinity of the land and is a building which the cultivator or the receiver of rent or revenue by reason of his connection with the land requires as a dwelling-house or a store-house or an outhouse:

……………………”

6. This clearly shows that agricultural land will not be liable to assessment under this Act, but no definition of ‘agricultural land’ has been given in the Act. Item No. 86 of list I of the Seventh Schedule of the Constitution of India permits the levy of taxes by the Central Government on the capital value of the assets exclusive of agricultural land, of individuals and companies: but there is no definition of the words “agricultural land” in the Constitution also in this present case, admittedly a piece of land measuring 1 bigha 9 kathas 17 dhurs belonged to the assessee and this lend was recorded as mango orchard in the survey khatian of the Patna City Municipality which was finally published in 1933. According to the assessee it was recorded as mango orchard in the municipal survey and that such an entry has got a presumption of correctness and that thereafter rent was also fixed for this land under the Land Reforms Act for which receipts were granted by the Government, This position was also not disputed that this land is situated at Bhattacharjee Road which is in the heart of the town of Patna and the situation of this land is such that it is within a residential area and has got buildings on all sides. It was also admitted that this land was sold in July, 1862 for a consideration of Rs. 1,50,000. It also appears that in the previous assessments no tax was levied in respect of this land and for the first time tax was being levied for this land also in the year 1962–1963, and it was also urged on behalf of the petitioner that for the previous years since no assessment was made in respect of this land, so it can be taken that the department accepted the petition that it was an agriculural land. According to Section 3 of the Act which I have quoted above, the important date is what has been described there as the valuation date. The words “valuation date” have been defined in Section 2(q) of the Act and according to that definition as also conceded in this case by both the parties, the valuation date in this case is 31-3-1962. It has, therefore, to be seen in the light of the facts and the circumstances, stated above, whether this land on the date of the valuation was or not agricultural land.

7. Since there is no definition of the words “agricultural land” either in the Act or in the Constitution, so the learned counsel for both the parties have relied on several decisions in support of their respective contentions as to what kind of lands should be deemed to be “agricultural land”. It may also be mentioned here that the department relied on the inspection report of the Wealth Tax Officer which was in November, 1962. The Wealth Tax Officer in his order (vide page 2 of the paper book) stated as follows:—

“……………… I have inspected the land, personally in November, 1962 and made enquiries from the people of the neighbouring area. It was apparent on inspection that the plot was not used for agricultural purposes. There are, of course, a few palm tress on the fringes but there was no evidence or trace of extensive cultivation on the main plot.”

8. It was contended by the learned counsel for the assessee that this report should not be accepted firstly because such an inspection was field in the absence of the assessee and secondly that his inspection was in November, 1962, that is to say, long time after the valuation date, which as stated above is 31-3-1962. The petitioner had also filed in the case a certificate (vide page 5 of the paper book) granted by Shri B.S Jain, Branch Manager, Road Transport Corporation. The admitted position is that in July, 1962 the land had been sold to the aforesaid Road Transport Corporation by the assessee. The Branch Manager, therefore, was a very competent person to state as to actually what was the condition of the land at the time of his purchase. The certificate given by him is as follows:—

“Road Transport Corporation Road Carriers Exhibition Road, Patna-1.

I, Bhim Sain Jain, Mukhtiar am of Road Transport Corporation Exhibition Road, Patna, hereby certify that we have purchased a piece of land plot No. 794, Holding No. 196, Circle No. 9, Ward No. 2 and Sheet No. 31.

When the negotiation for the bargain was going on the land in question was full of Banana trees, palm trees and other vegetable trees with a pucca well. The sal trees and plant of vegetables have been cut by us for clearing the land for our purpose.

For Road Transport Corporation.

Sd. B.S Jain.

Branch Manager.”

9. One significant feature about this certificate is that there is no date. Shri Jain in his certificate has referred to the time when the negotiation for bargain was going on, and as the sale took place in July, 1962, so the negotiation must have been going on from some time before July, 1962. He Has stated that at the time of the negotiation the land was full of banana trees, palm trees and other vegetable trees. It has been urged on behalf of the opposite party that the existence of the banana trees and palm trees would not show that the land was agricultural land and was being used for agricultural purposes because there was nothing to show that there was any actual cultivation going on and as far as the sal trees are concerned, they must have been on the land without having been planted or the land having been cultivated for the same. It is quite obvious that the Road Transport Corporation purchased the land for putting up structures and buildings and so whatever trees were there must have been cut down and, therefore, the inspection by the Wealth Tax Officer in November, 1962 will show only the state of the land after such clearance had started.

10. The learned counsel for the petitioner has relied on a decision of this Court in the case of Deen Mohammad Mian v. Hulas Narain Singh*, AIR 1942 Pat 296. In that case the question for consideration was as to what would be the meaning of the words “agricultural land” as has been mentioned in Section 5(2) of the Bihar Tenancy Act, and whether a mango orchard planted by an occupancy raiyat was an agricultural land or not. It was held in that case that the primary meaning of agriculture is the cultivation of the ground, and that expression of “agricultural land” in Section 5(2) is not limited to land by which seasonal ploughing and sowing food crops are grown. In view of Section 23-A of the Act it was also held that the occupancy raiyat could also plant trees and that a mango orchard would also be agricultural land. In my opinion, this ruling would not be strictly applicable to the present facts of the case because there the decision was in the light of the provisions of Section 5 and Section 23-A of the Bihar Tenancy Act. And, even if, it be taken that a mango orchard would also be an agricultural land, the assessee cannot take advantage of this fact because from the materials available, it appears that there was no evidence that the land was a mango orchard on the valuation date. As a matter of fact, it appears that apart from the certificate of the Branch Manager of the Road Transport Corporation, the case of the assessee was that he had been planting trees and there were trees in existence on the land. The mere existence of some trees on the land would not make the land agricultural.

11. The leamad counsel has also relied on a decision in the case of T. Saroiini Devi v. T. Sri Krishna, AIR 1944 Mad 401 where it was also held that mango grove is agricultural land. It may be mentioned here that the aforesaid decision was in respect of a case relating to Hindu Women's Right to Property Act, 1937 and the use of the words “agricultural land” in Section 3 of that Act. Reliance has also been placed on behalf of the petitioner on the decision in the case of Paramananda Das v. Sankar Rath, AIR 1951 Orissa 11 where it was held that the expression “agricultural lands” must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. This was a case with reference to the Orissa Tenancy Act. These decisions show that a mango orchard can also be regarded as an agricultural land, but in this present case, as I have pointed above, there was no evidence whatsover to show that there was any mango orchard in the sense that mango trees were actually in existence at the time of the valuation date.

12. I may also refer here in this connection to a decision of the Privy Council in the case of Mustafa Ali Khan v. Commr. of Income-tax, U.P, Ajmer and Ajmer-Merwara, AIR 1949 PC 13. That was a case under the Income-tax Act and the question was whether the income from the forest was agricultural income and as such liable to exemption under the Income-tax Act it was held in that case that though it must always be difficult to draw a line, vet, unless there is some measure of cultivation of the land, some expenditure of skill and labour upon it, it cannot be said to be used for agricultural purposes within the meaning of the Income-tax Act. It was also held that income from the sale of forest trees growing on land naturally or without the Intervention of human agency, even if the land is assessed to land, revenue, is not agricultural income within the meaning of Section 2(1)(a) of the Income-tax Act. According to this decision there should be some evidence of some measure of cultivation of the land.

13. The controversy on the question as to what would be deemed to be agricultural land has been set at rest by a decision of the Supreme Court in the case of Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy, (1957) 32 ITR 466 : (AIR 1957 SC 768). It may be also mentioned here that in this aforesaid decision of the Supreme Court all the previous decisions of the different High Courts as well as the meaning of the word “agricultural” as given in the different dictionaries were also considered. It was held that the word “agriculture” in its primary sense denotes the cultivation of the field and is restricted to cultivation of the land in the strict sense of the term, meaning thereby tilling of the land, sowing of the seeds, planting and similar operations on the land. These are basic operations which required the expenditure of human skill and labour upon the land itself. It was also pointed out in that decision that besides these other operations which are to be carried on the land and these are subsequent operations and it was held that only if this integrated activity which constitutes agriculture is undertaken and performed in regard to any land then that land can be said to be used for agricultural, purpose. The tests therefore, which have been laid down in the aforesaid Supreme Court decisipn have to be applied to see whether any land is agricultural land or not. It is also clear that when the relevant Statutes, such as the Wealth Tax Act and the Constiution do not define agricultural land, then the ordinary meaning of the expression according to English language has to be taken. In the case of Rasiklal Chimanlal Nagri v. Commr. of Wealth-tax, Guirat of the Guirat High Court, 1965 55 ITR 608 : (AIR 1965 Guj 259) which was a case under the Wealth tax Act the question came up for consideration as to what is the meaning of the expression “agricultural land” as contemplated in the Wealth-tax Act. It was also considered in that case as to whether a particular land is agricultural land or not will be dependent on the intention of the owner. It is quite obvious that the owner may use a vacant piece of land either for cultivation or as a building site, but naturally the character of the land cannot be solely dependent on his intention to use the land as such. The question whether the land is agricultural land or not cannot depend on the fluctuating or ambulatory intention of the owner of the land. The criterion must be something more definite and more objective, something related to the nature or character of the land and not varying with the intention of the owner as to the use to which he wants to put the land at a particular point of time. The intention of the owner, however, is not altogether irrelevant, but it is a factor which would bear on the nature or character of the land dependent on other factors.

14. In the Gujarat case referred to above, the plots in dispute about which it was said that these were agricultural lands were situated in a wholly residential area with numerous residential buildings surrounding them and further more these were situated in an area in respect of which a Town Planning Scheme was in force for some years and some of the plots in question were cultivated up to the year 1934–1935, but had ceased to be cultivated since then and no agricultural operations were being carried on in those plots since about 21 to 22 years, and the assessee had no special reasons for stopping cultivation on those plots other than the intention to use them for non-agricultural purposes. It was held in those circumstances the plots in question cannot be said to be agricultural lands.

15. Here in this present case, also as already pointed above, the plot in question is situated in the residential area and there was no doubt the evidence of the entry in the Municipal Survey Khatian in the year 1938 and also assessment and fixation of the rent of this land under the Land Reforms Act, but it appears that there was no evidence oral or documentary adduced cm behalf of the assessee to show that the land was actually being cultivated even after 1933. The entry in the Municipal Survey Khatian has no doubt statutory presumption of correctness, but that will be of a time when the entry was made and here in this case we have to see as to what was the character of the land and whether it was the agricultural land or not on the relevant date, that is, on 31-3-1932. In my opinion, for the purposes of determining whether a particular piece of land is agricultural land or not, the tests as laid down in the Privy Council decision of AIR 1949 PC 13 and the Supreme Court decision of (1957) 32 ITR 466 : (AIR 1957 SC 768) have to be applied. Applying these tests it appears that except there was some evidence that there were banana trees and other trees on the land, but there was no evidence of the land having been actually being cultivated at the relevant date and that basic operations and subsequent operations as laid down in the Supreme Court decision were being carried on at the relevant point of time. This fact has also to be seen as to were the land is situated and when a land is situated in the heart of a town surrounded by residential buildings, then it cannot be regarded as agricultural land except on application of the tests which have been laid down it appears that actually the land was an agricultural land. It is also obvious that had it been an agricultural land then it would not have fetched such a enormous price on the sale of the land. I may also refer here in this connection to the decision of the Andhra Pradesh High Court in the case of Smt. Manyam Meenakshamma v. Commr. of Weallh-Tax, A.P, (1967) 63 ITR 534 : (AIR 1967 Andh Pra 189) which was also a case under the Wealth-tax Act. It was held that if a land is ordinarily used for agriculture or for purposes subservient to or allied to agriculture, it would be agricultural land and if it is not so used, it would not be agricultural land and the question how a land is ordinarily used which is one of the facts according to the evidence of each case.

16. It may also be mentioned here that the learned counsel for the petitioner has submitted that since the petitioner assessee was not claiming exemption under the provisions of the Wealth-tax Act, but was claiming immunity from the applicability of the Act to this land, so the onus was on the department and for this reliance has been placed in the case of V. Venugopala Varma Rajaa v. Controller Of Estate Duty, Kerala, Kerala, (1969) 72 ITR 226 : (AIR 1969 Ker 304). It was a case under the Estate Duty Act. It was held there that if what the assessee claims is an exemption from tax liability the burden of proving that he is entitled to the exemption is on the assessee and that what the assessee claims is an immunity from the tax liability on the ground that the subject does not fall within the ambit of the taxing statute, the revenue has to establish that the subject is taxable.

17. True it is that the assessee in this present case was claiming that this Act would not apply to the land since it was an agricultural land, but it would not absolve the assessee from proving by cogent and reliable evidence that the land was being actually used as agricultural land at the relevant point of time. There was no satisfactory evidence on this point and so having regard to all the circumstances, the authorities including the Tribunal were quite right in holding that this land was not agricultural land. As pointed above, the learned counsel for the petitioner has also submitted that in the previous returns which were accepted this land was not assessed to tax because the position was accepted that it was agricultural land. This position is not disputed that in the previous assessments this land was not included, but it appears that the authorities perhaps did not realize at that time the significance and the importance of the character and location of the land and also the point whether it was actually being used as agricultural land or not, and subsequently when they realised that it was not agricultural land, then they assessed tax on this land also. Regard being had to the different interpretations which have been put to the meaning of the expression “agricultural land”, and also other circumstances which I have discussed above, the department cannot be held to have erred in malting assessment on this land also when it transpired that this land was also subject to assessment of Wealth-tax.

18. On a consideration of the entire set of circumstances and the legal aspects of the matter, the question which has been referred by the Tribunal is answered in the affirmative to the effect that on the facts and the circumstances of the case, the Tribunal was justified in holding that the disputed land was not agricultural land at the relevant date for the purposes of the Wealth-tax Act. This reference is thus disposed of, but in view of the circumstances of the case, no order for costs is made.

19. Misra, C.J:— I agree.

20. Reference answered.