Jyotirindra Narayan Sinha Choudhury And Others v. The State Of Assam .

Ram Labhaya, J.:— This judgment shall dispose of income-tax Refs. Nos. 1-9 of 1949. These are references by which certain questions of law have been referred to this Court under Section 28(2) of the Assam Agricultural Income-tax Act, 1939 hereafter called the Assam Act, by the Member, Assam Board of Agricultural Income-tax, Shillong.

2. The references in all these nine cases were made as a result of petitions filed by different assessees when they felt aggrieved by the orders of the Appellate Assistant Commissioner of Agricultural Income-tax Assam. The following four questions are common in Refs Nos. 2-9:

(i) Whether the amount realised by the petitioners from sale of Sal tress are capital receipts or revenue receipts?

(ii) Whether, in the event of the amount realised by the petitioners from the Sal trees in question being held as revenue receipts, such receipts can be regarded as agricultural income within the meaning of Section 2(a) of the Assam Agricultural Income tax Act, 1939?

(iii) Whether the amount received by the assesses as Salami for settlement of Agricultural holding is agricultural income within the meaning of Section 2(1)(a) of the Assam Agricultural Income-tax Act?

(iv) Whether the petitioner is entitled to a deduction of 15 percent, on the amount of Salami as collection charges?

3. In Ref. No. 8 of 1949, besides the four questions mentioned above, there is another question (No. 5). which is as follows:

“Whether the amount paid to the ladies mentioned in para. 11 above under the will of the late Raja P.C Barua, and charged on Lakheraj Srijangram (Tonzi No. 34 of Goalpara Collectorate) should be deducted from the agricultural income.”

4. In Ref. no. 1 of 1949, only three out of the first four questions have been referred. The third question was not included in the reference. But we have before us a petition praying that the Member, Assam Board of Agricultural Income-tax, be directed to refer this question to this Court under S. 28(3) of the Act. This order shall dispose of this petition also. The orders of reference in all the cases are identical so far as common questions are concerned. These common questions were raised in all the cases before the Appellate Assistant Commissioner. The assessees in all these cases contended that the receipts from the sale of sal trees in their forests were only capital receipts and in any case not agricultural income and therefore not subject to agricultural income-tax; that the receipts from Salami were also capital receipts and not agricultural income and that if these receipts (from Salami) were regarded as agricultural income, the ??? would be entitled to a deduction of 15 percent, there from 53 collection charges. The Appellate Assistant Commissioner found against the assessees on all the points. Petitions were made under S. 28(2) requesting the Member, Assam Board of Agricultural Income-tax, to refer to the High Court. The Board, after recasting the questions required to be referred, formulated the questions reproduced above. No objection has been raised to the statement of the questions of law by the Member, Assam Board of Agricultural Income-tax.

5. The assessees in all the references are from Goalpara district. The following statement would show the income of each assessee under Page: 4the disputed heads in regard to each year of assessment in which the questions referred to us were raised.

STATEMENT

Ref No. Name of owner. Estate. fear of assessment. Receipts from the sale of Sal trees (Bankar). Receipt from Salami. 1 2 3 4 5 6 1 Jotirindra Narayan Sinha Choudhury. Co-sharer in Parbatjoar Estate. 1947–1948 1948–1949 Rs. 78,149 3,25,568 Rs. 18,737 16,847 2 Kumar Jitendra Narayan Deb. Do. 1946–1947 1947–1948 1943–1949 9,773 4,223 16,785 701 879 859 3 Sourindra Narayan Choudhury. Cosharer in Parbatjoar and Mechpara Estates. 1946–1947 1947–1948 1948–1949 46,131 Parbatjoar 12,036 Mechpara 21,678 Parbatjoar 17,043 Mechpara 93,123 Parbatjoar 11,853 Mechpara 5,338 Parbatjoar 1,295 Mechpara 554 Parbatjoar 6,267 Mechpara 6,604 Parbatjoar 1,832 Mechpara 4 Jyotsna Nath Choudhury. Co-sharer in Mechpara Estate. 1946–1947 1947–1948 1948–1949 40,507 55,809 37,156 4,234 20,509 5,997 5 Jagadindra Narayan Choudhury. Co-sharer in Parbatjoar and Mechpara. Estates. 1846–1947 1947–1948 1948–1949 54,483 Parbatjoar 36,015 Mechpara 22,956 Parbatjoar 51,159 Mechpara 93,254 Parbatjoar 34,059 Mecbpara 3,971 Parbatjour 3,882 Mechpara 4,838 Parbatjoar 18,800 Mechpara 4,723 Parbatjoar 5,497 Mechpara 6 Ranjit Narayan Choudhury. Co-sharer in Parbatjoar and Mechpara Estates. 1946–1947 1947–1948 1948–1949 39,105 Parbatjoar 36,015 Mechpara 16,886 Parbatjoar 51,159 Mechpara 67,138 Parbatjoar 34,059 Mechpara 2,801 Parbatjoar 3,882 Mecbpara 3,517 Parbatjoar 18,800 Mechpara 3,436 Parbatjoar 5,497 Mechpara 7 Raja Bhairabendra Narayan Bhup Bahadur. Proprietor of the Bijai Raj Estates. 1946–1947 1947–1948 24,08,980 4,01,219 45,230 34,052 8 Kumar Pramathesh Chandra Barua, Executor to the Estate of late Raja Prabhat Chandra Barua. Zamindary Estate at Gauripur. 1945–1946 1946–1947 1947–1948 1948–1949 56,056-5-6 60,140 50,311 39,910 98,987 72,092 70,298 13,616 9 Sreejukta Bedabala Dabi. Trustee of Chapor Trust Estate. Chapor Trust Estate. 1945–1946 1946–1947 1947–1948 1948–1949 8,772 6,463 20,421 46,778 46,204 28,27 66,531 37,422

6. The above statement shows that each assesses had receipts described as Banker (Receipts from the sale of Sal trees) and salami in each year of the assessment covered by the reference in his case.

7. The first question is whether the amounts realised by the a assesses from the sale of Sal trees at capital receipts or revenue receipts. From the statement given above, it will appear that receipts from sale of Sal trees were a recurring item in the case of each assessee for the years of assessments with which we are concerned. The years of assessments are not less than two and not more than four in any case the Member, Assam Board of Agricultural Income-tax in his reference stated that the receipts in questions were derived from ‘periodical sale of Sal trees grown, on the land.’ This statement of fact hag not been disputed. In spite of this, it is claimed on behalf of the asessaes that the receipts from the sales of Sal trees represent capital receipts and they could not be regarded as income or revenue receipts for purposes of the Assam Agricultural Income-tax Act.

8. It is pointed out that when trees from a forest are sold the transaction is substantially a sale of a part of the forest which is the capital. It results in some dimunition of the capital, however small. The receipts in these circumstances ought to be treated as capital receipts.

9. The Assam Agricultural Income-tax Act defines agricultural income as follows:

“(1) ‘Agricultural income’ means any cent of revenue derived from land which is used for agricultural purposes, and is either assessed to land revenue in Assam or subject to a local rata assessed and collected by officer of the Crown as such.

(2) Any income derived from such land by — (i) Agricultural, or (ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to under the produce raised or received by him fit to be taken to market, or (iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in sub-cl. (ii);

Explanation — Agricultural income derived from such land by the cultivation of tea means that portion of the income derived from the calnvation, manufacture and sale of tea as is defined to be agricultural income for the purposes of the enactments relating to Indian Income-tax”

10. Agricultural income tax, according to the Act, means tax payable under this Act. Under S. 3 of the Act, agricultural income-tax is chargeable at the rate or rates specified in the annual Assam Finance Acts subject to the provisions of S. 6 for each financial year in accordance with and subject to, the provisions of the Act on the total agricultural income of the previous year. Agricultural income is exempt from taxation under the Income-tax Act. It is not included in the total income which is assessable under that Act by virtue of provisions contained in Ss. 3 and 4 of the Act. The total income for purpose of S. 4 includes all income, profits and gains except income, profits and gains falling within any of the sub-clauses of cl. (3) of S. 4. Sub-clause (3) exempts agricultural income from the scope of total income assessable. Agricultural income for the purposes of the Indian Income-tax Act is defined in S. 2(1) of the Act.

11. The Central Government has no power to tax agricultural income. Under the Government of India Act, 1935, it was excluded from the ambit of the jurisdiction of the Central Legislature. Agricultural income was one of items included in the list of matters about which the Provincial Legislatures could alone legislate. The result was that the Indian Income-tax Act excluded agricultural income from being assessed to income-tax and the Provincial income-tax Acts made the same liable to taxation. The position is the same under the Constitution of India which came into force on 26-1-1950 List no. 1, Union List of sch. 7 enumerates matter with respect to which Parliament has exclusive power to make laws. Item 82 of this list deals with tax on income. This item in limited to income other than agricultural income. List 2 of the same Schedule enumerates matters in respect to which the State Legislatures have exclusive powers to make law. Item 16 of List 2 permits the State Legislatures to impose tax on agricultural income.

12. The word ‘income’ has not been defined by the Statute. It must be taken to have been used in the Constitution of India as also in the other Acts Central and Provincial, in its general same, Again its meaning and connotation in alt the enactments ought to be the same as the context in any of the enactments does not indicate anything to the contrary. The authorities bearing on the interpretation of the word as used in the Indian Income-tax Act will, therefore, govern the interpretation of the word as used in the Assam Act also. This position is not disputed and the learned counsel for the assessees has himself drawn our attention to all the authorities bearing on the meaning of the word as used in the Indian Income-tax Act treating them as relevant to the question before us.

13. Income, according to its dictionary meaning means proceeds from labour, business, property or capital. The dictionary meaning however does not solve the difficulty. The question remains whether the proceeds from the sale of trees in a forest is conversion of capital into case or it merely represents the proceeds of capital. The question as to what is conveyed by the expression ‘income’ as used in the Indian Income-tax Act arose in Commr. of Income-tax v. Shaw Wallace & Co., 59 I.A 206 : (A.I.R (19) 1932 P.C 138).

14. Sir George Lowndes when delivering the judgment of their Lordships of the Privy Council observed as follows:

“Income, their Lordships think, in this Act, connotes a periodical monetary return ‘coming in’ with some sort of regularity, or expected regularity, from definite sources. The source in not necessarily one which is expected to be continuously productive, but it must be one whose object is the production of a definite return, excluding any thing in the nature of a mere windfall. Thus income has been likened pictorially to the fruit of a tree, or the crop of a field. It is essentially the produce of something which is often loosely spoken of as ‘capital’. But capital though possibly the source in the case income from securities, is in most cases hardly more than an element in the process of production.”

15. This definition was followed in Gopal Saran Narain Singh v. Commr. of I.T, B. & O., A.I.R (22) 1935 P.C 143 : (14 Pat 552). In that case the assessee had transferred an estate in consideration of a lump sum and of the discharge of certain debts and of the payment to himself for life of an annuity of Rs. 2,40,000, This annuity was held to be the yearly income of the assessee. It was held in this case that the word ‘income’ was not limited by the words ‘profits’ and ‘gains’ occurring in the Indian Income-tax’ Act and that anything which could properly be described as income was taxable under the Act unless expressly exempted.

16. In Kamakshya Narain Singh v. Commr. of I.T, B. &O., A.I.R (30) 1943 P.C 153 : (ILR 1944 KAR PC 98), the question before their Lordships of the Judicial Committee was Page: 6whether royalty on mines being capital revenue should not have been excluded in computing the total income determined for income-tax. The payments, which under the mining leases were exigible by the lessor fell under three categories: (1) The Salami or premium; (2) the minimum royalty; (3) the royalties per ton. The contention raised before their Lordships was that on a true construction of the Indian Income-tax Act, mineral royalties depending on the tonnage of minerals raised and dispatched are not properly chargeable to tax because they are in their nature and quality capital and are not income or income derived from other sources within the meaning of Ss. 6 and 12 of the Act. Their Lordships held that there was no real justification for treating the royalties as capital payments. They regarded the royalty as rent in substance, or as compensation which the occupier paid to the landlord for that species of occupation which the contract allowed. The fact that the mines were a wasting asset was considered irrelevant. Lord Wright in delivering the judgment of their Lordships observed as follows:

“Income is not necessarily the recurrent return from a definite source, though it is generally of that character, Income again may consist of a series of separate receipts as it generally does in the case of professional earnings. The multiplicity of forms which ‘income’ may assume is beyond enumeration.”

17. Referring to the definition of the word ‘income’ as given by Sic George Lowndes in Commr. of Income-tax v. Shaw Wallace & Co., 59 I.A 206 : (A.I.R (19) 1932 P.C 138), Lord Wright observed as follows:

“Sir George Lowndes speaks of ‘income’ being likened pictorially to the fruit of a tree or the crop of a field. But it is clear that such picturesque similies cannot the used to limit the true character of income in general, and particularly when it is constituted by mining rent or royalties.”

18. In Maharaja of Kapurthala v. Commr. of I.T, A.I.R (32) 1945 Oudh. 35 : (20 Luck. 212), one question referred to the Court was whether the assessee's not receipts from the sale of forest trees were assessee's income liable to income-tax or merely capital converted into cash and not liable to income-tax. The annual profit over a period of 13 years was found to be Rs. 2132 from grass and Rs. 4425 from trees-covered land. The position appeared to have remained much the same until 1928 when whole-sale cutting commenced with a view to clearing the forest in order to make the land arable. During the next ten years the whole forest was cut down and as it was cut, the land was let out to tenants. It was not until 1938–1939 that the sale proceeds were assessed to income-tax. It was argued on behalf of the assessee that the trees were not sold in the course of a business but as a matter of capita realisation. It was also argued alternately that at any rate, the last sale should be regarded in this light. This contention was repelled. In the course of the judgment, their Lordships observed as follows:

“One general principle governing such cases is now well settled, being found in English and Indian authorities. It is that receipts from capital which is exhausted in the process of realisation may be none the less income.”

19. Apart from the above observation of their Lordships of the Oudh Chief Court, it must be conceded that the facts of the Oudh case were somewhat different from the cases now before us. On the question whether receipts from the sale of trees constituted income and not capital, the learned Judges agreed with the Tribunal in holding that the receipts were income and not capital. In coming to this conclusion they relied on Kamakshya Narain Singh v. Commr. of Income-tax, B. & O., A.I.R (30) 1943 P.C 153 : (ILR 1944 KAR PC 98).

20. A Division Bench of the Nagpur High Court also relying on Kamakshya Narain Singh v. Commr. of Income-tax, B. & O., A.I.R (30) 1943 P.C 153 : (ILR 1944 KAR PC 98) held in Beohar Singh v. Commr. of I.T, A.I.R (35) 1948 Nag. 228 : (I.L.R (1947) Nag. 425) that whether a given receipt is capital receipt or income depends on circumstances so that what is income in the hands of one man may he capital in those of another. But where the assessees hold timber annually from the forest and there was no reduction or loss of any capital asset, viz., forest land, it was held that the receipts derived by sale of timber were income and not receipts of a capital nature.

21. In Kamakshya Narain Singh v. Commr. of I.T, B. & O., A.I.R (34) 1937 Pat. 115 : (230 I.C 285), a Division Bench of the Patna High Court treated not receipts from the sale of forest as income liable to income-tax and not merely capital receipts.

22. In Commr. of I.T v. Manavedan, 54 Mad. 21 : (A.I.R (17) 1930 Mad. 764), a Special Bench of the Madras High Court had to deal with the question whether the amounts received by sale of timber trees are income liable as such to income-tax. The contention raised was that the assessee had purchased the forest with trees growing therein but as the trees were cut down and carried away, the capital was thereby decreased. The learned Judges did not make any distinction between the income derived from the sale of paddy which is grown on land and the income derived from the sale of timber cut in a forest and were of the view that income derived from the sale of paddy would be assessable but for the special exemption given to it under the Indian Income-tax Page: 7Act. The amount received by the owner of unassessed forest lands by sale of timber trees thereon was held to be income and assessable as such.

23. The authorities referred to above yield the result that the forms which income may assume would battle attempts at enumeration. A precise definition covering all cases is not possible and the Legislature has not attempted to define it. It is generally though not necessarily a recurrent return from a definite source. Receipts from capital which is exhausted in the process of realisation may none the less be income. The fact that the receipts are from a source which is a wasting asset like that of a mine is an irrelevant consideration and anything which could properly be described as income;would be taxable unless expressly exempted from taxation.

24. Judged in the light of the above test, receipts from the sale of forest trees cannot be excluded from the scope of the word ‘income.’ The only contention raised on behalf of the assesses is that these ??? represent capital inasmuch as the felling of trees causes a gradual exhaustion of capital. From the admitted facts of this case. It appears that the forests are not being worked in a way that the gradual sale of trees from portions of the forest would result in their extinction. In the references before us, the Member, Board of Agricultural Income-tax, observed that the assessees admitted that the Sal forests in question have to be nursed, reserved and developed at considerable expenses. The Assessments show that sales are periodical. Exploitation is carried on in conformity with schemes which guard against the fort dig. appearing altogether as a result of such sales. It was found as a fact by the Appellate Assistant Commissioner that the forest trees as they exist now were the result of operations in forestry that were undertaken for their growth ind regeneration. The Member, Assam Board of Agricultural Income-tax, agreed with the finding and it is not now disputed. These forests, therefore, cannot even be regarded as wasting assets. But even if they are treated as wasting assets, the consideration is not relevant as held by their Lordships of the Privy Council in Kamakshya Narain Singh v. Commr. of Income-tax. B. & O., A.I.R (30) 1943 P.C 153 : (ILR 1941 KAR PC 98). The capital in the case of the forests is land as held in Beohar Singh v. Commr. of Income-tax, A.I.R (35) 1943 Nag 223 : (I.L.R (1947) Nag. 425). The sale of trees from the forest does not bring out or result in any diminution of the capital. So long as the capital remains, receipts from the sale of trees cannot be regarded as capital receipts. On the facts of the cases before us, I have no hesitation in holding that the receipts from the safe of forest trees being revenue receipts constitute income. They cannot be Classed as capital receipts.

25. Again so far as receipts from the sale of forest trees are concerned the point is concluded by authority and if an annuity obtained as part of the consideration from the sale of property and royalties on a mining lease which results in the gradual exhaustion of the mine are classed as income, there is much greater reason for holding that recurring receipts from the sale of trees from forests which are worked in such a way that their continued existence is assured are revenue receipts and as such taxable under the Assam Act if they can be ragarded as agricultural in character.

26. Our answer to the first question, there, fore, is that the amount realised by the assesaees from the sale of Sal trees are revenue receipts.

27. The second question is whether receipts from the sale of trees, which we regard as revenue receipts, constitute agricultural income for the purposes of the Assam Act.

28. In order that income should be described as agricultural under S. 2 of the Act, it is necessary that it should be rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in Assam or subject to a local rate assessed and collected by of the Crown as such or it should be income derived from such land by agriculture or by the performance by a cultivator or receiver of rent in kind or any process ordinarily employed by a cultivator or receiver of rent in kind to render the produce raised or received by him fit to be taken to market. It would appear from the definition of agricultural income given in the Act that the two ingredients, which can make income agricultural are, (1) that, the land from which income is durived should be used for agricultural purpose; and (2) that the land should either be assessed to land revenue in Assam or be subject to a local rate assessed and collected by officers of the Crown as such.

29. There in no dispute about the existence of the second ingredient. The references before us assume it. The controversy centres round the question whether on the facts of these cases the revenue in question was derived from land used for agricultural purposes. The decision of the question would depend on the meaning that the words agricultural purposes used in S. 2 of the Act should carry. This leads us on to an enquiry as to what the term ‘agriculture’ connotes. The definition of the term ‘agriculture’ given in the dictionaries varies in scope. The Page: 8meaning assigned to it in Webster's Dictionary is “farming, horticulture, forestry, butter and cheese making, etc.” In Bouvier's Law Dictionary ‘agriculture’ is defined as:

“the cultivation of soil foe food products or other useful or valuable growth of the field or garden, tillage, husbandry; also by extension, farming including any Industry practised by a cultivator of the soil in connection with such cultivation, a breeding and rearing of stock, dairying, etc., the science that treats of the cultivation of the soil.”

30. According to the Oxford Dictionary ‘agriculture’ means:

“the science or act of cultivating soil including the allied pursuits of gathering the crop and rearing livestock, tillage, husbandry, farming in the widest sense.”

31. It may be observed that in spite of the diversity as to the scope and purpose of agriculture as revealed by the different definitions, there is one feature which is essentially common to all of these. This is the application of human skill and labour without which there can be no agriculture. Thus trees or even forests of spontaneous growth cannot be regarded as the result of any agricultural process. Income derived from such trees cannot be regarded as agricultural income. This aspect of the matter was brought out clearly by their Lordships of the Nagpur High Court in Beohar Singh v. Commr. of Income-tax, A.I.R (35) 1948 Nag. 228 : (I.L.R (1947) Nag. 425) in the following passage:

“The dictionaries tell us that ‘agriculture’ cornea from agar, field, cultura, cultivation. This implies the use of unman skill and labour; and that is exactly how the dictionaries define it. Webster says that agriculture is the ‘science or act of cultivating the ground’, and includes in it the rearing and management of live-stock, animal husbandry, farming and so forth. Other dictionaries including the Oxford English Dictionary imply the same basic conception. Some include ‘forestry’ in the term. It is to be observed, however, that the word used when forestry is Included, forestry and not forests. The distinction is important because when one turns to the definition of forestry in the dictionaries, one finds that it is also an act or science. Thus, Webster says it is ‘the act of farming or cultivating forests; the management of growing timber’, and the Oxford English Dictionary says much the same thing. Therefore, throughout we find that the essence of agriculture even when it is extended to include ‘forestry’ is the application of human skill and labour. Without that it can be neither an art or a science and that we feel must be the determining factor it this class of cases.”

32. It is noteworthy that ‘agriculture’ described by Webster as ‘an art or science of cultivating the ground’ includes in it the rearing and management of livestock, animal husbandry, farming and so forth. ‘Forestry’ which again is an art or science is included within the scope of agriculture by some dictionaries including Webster. Now, whether agriculture is an art or science, employment of human skill and labour must be its distinguishing feature.

33. The word ‘agriculture’ examined stymologically means agar, a field and cultura, cultivation. If a restricted meaning is given to the word ‘agriculture’ it would require cultivation of the land. The question then arises whether actual cultivation or tilling of the soil is an-essential process in agriculture. Their Lordships of the Privy Council did not consider tilling of the soil as an indispensible requirement of agriculture in Mustafa Ali Khan v. Commr. of I.T, 53 C.W.N 590 : (A.I.R (36) 1949 P.C 13). The assesses in that case was assessed to income-tax under the Indian Income-tax Act on-his receipts from the sale of trees in a forest. His contention was that the income being agricultural was exempted from taxation under S. 4, cl. (3). sub-cl. (s). The question referred to the Chief Court of Oudh in that case was

“whether income from the sale of forest trees growing on land naturally and without intervention of human agency, even if the land is assessed to land revenue, is-agricultural income within the meaning of Section 2(1)(a) of the Income-tax Act, and as such exempt from income-tax under S. 4(3)(viii) of the Act.”

34. It is clear from the question that income-in that case was derived from the sale of trees growing on land naturally. Id this connection Lord Simonds, who delivered the judgment of their Lordships of the Privy Council observed that:

“As appears from the form of the question, the income under the first head was derived from the sale of trees described as ‘forest trees growing on land naturally.’ and the case was throughout proceeded upon the? footing that there was nothing to show that the assessee was carrying on any regular operations in forestry and that the jungle from which trees had been cut and cold was a spontaneous growth.”

35. On these admitted facts, their Lordships held that income derived from the sale of trees was not agricultural. It was necessary, in the view of their Lordships that whether exemption-was claimed under S. 2(i)(a) or S. 2(i)(b) of the definition of agricultural income given in the Indian Income, tax Act, the primary condition must be satisfied that the land in question was used for agricultural purposes. It was observed by Lord Simonds as follows:

“It is sufficient for the purposes of the present appeal to say (1) that in their opinion no assistance is to-be go; from the meaning ascribed to the word ‘agriculture’ in other statutes and (2) that, though it must always be difficult to draw the line, yet 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.”

36. Their Lordships have not laid down that some measure of cultivation is absolutely necessary before it can be said that land is used for agricultural purpose. In fact “some measure of cultivation” is placed on a par with some expenditure of skill and labonr. If either of the two conditions exists, the land could be said as Page: 9being used for agricultural purposes. Tillage or actual cultivation would not in their view be an essential pre-requisite of ‘agriculture’ in its wider implication.

37. In Hedayet Ali v. Kamalanand Singh, 17 C.L.J 411 : (20 I.C 332), it was held that the term ‘agriculture’ was of wider import than the term ‘cultivation,’ which according to Murray's Oxford Dictionary means ‘tilling of and tillage and husbandry.’ It sames fairly clear that land may be used for agricultural purposes without cultivation or tillage of any kind.

38. In Commr. of Agri. I.T v. Jagadish Chandra, 53 C.W.N 596, the receipts of the assessee from the forest by sale of Sal trees amounted to over Rs. 90,000. He was assessed to agricultural income tax on this sum. The Appellate Assistant Commissioner upheld the assessment but on appeal before the Appellate Tribunal it was held that income from the forest was not agricultural income and therefore not assessable. On the application of the Commissioner the following question was referred to the Calcutta High Court:

“Whether on the facts and circumstances of the case, the sum of Rs. 90,220-1-0 derived from the sale of Sal trees in the forest of the assessee can be treated as agricultural income within the meaning of Section 2 of the Bengal Agricultural Income-tax Act, 1944,”

39. It may be noted that the relevant portion of the definition of ‘agricultural income’ as given in Section 2(1) of the Bengal Agricultural Income-tax Act, is in the same terms in which it is in the Assam Act Their Lordships of the Calcutta High Court adopted the test laid dawn by their Lordships of the Privy Council in Commr. of Agri. I.T v. Jagadisk Chandra, 53 C.W.N 596 and observed as follows:

“The Judicial Committee makes it clear that (1) no assistance is to be sought from the meaning of the word ‘agriculture’ as given in other statutes and (2) unless there is ‘some measure of cultivation of the [and, some expenditure of skill and labour upon it’, it cannot be said to be used for agricultural purposes.

It is, therefore, incontrovertible that income from a virgin forest or forests of spontaneous growth is not agricultural income. The view that ??? of the soil was the sine qua non for bringing within the term agriculture has also been exploded. If there is actual tilling of the soil for producing the product, it is the unquestionable result of the agricultural pursuit.”

40. The test brought out above was applied to the proved facts of the case which were as follows: (1) The total area, of the forest was 1400 acres. It was parcelled out in blocks of 1000 acres each. Trees in each block were sold when the trees were about 15 years old. (2) To prevent damage of the new shoots in the early stages of their growth and to give new vigour to the new shoots and saplings, the ground is kept free from undergrowth of jungle and by removal of leaves. (3) During the early stages of the growth in each block, the areas cut down are closely guarded by forest guards at least for one year from the time when the block in question is cut don thus keeping out both men and cattle off from the lands so that they may not damage the growing shoots by trampling and/or browsing as the case may be. (4) Cutting the trees in each particular block after 15 years in a particular season.

41. There was admittedly no cultivation of the soil. The test laid down by their Lordships of the Privy Council was interpreted. The meaning assigned to it was that it was not necessary, in the view of their Lordships, that there must always be some measure of cultivation of the land and some expenditure of skill and labour upon it, but that the proof of either would be sufficient to bring the case within cl. (a) or cl. (b) of Section 2(1) of the Bengal Agricultural Income-tax Act. In this view they found that the regular operations of forestry to which the forest in question was found to be subject, involved some expenditure of skill and labour and the income was therefore agricultural and as such assessable.

42. The review of the authorities considered above leads to the conclusion that purpose within the meaning of the Assam Act can be agricultural even if its achievement does not involve actual cultivation of the soil. In the words of their Lordships of the Privy Council in the case of receipts from the sale of forest trees, the income would be agricultural if there is some expenditure of skill and labour upou it. Regular operations in forestry necessarily involve expenditure of skill and labour. Where, therefore such operations take place, the income from the sale of trees in the forest would by within the ambit of agricultural income as defined in the Assam Act.

43. It is now to be seen whether the income derived by the assessees in the cases before us can on the proved facts of the cases be held to be agricultural. This question arises in 55 appeals against the order of assessment covering different ace hunting periods commencing from 1945–1946. All these appeals were disposed of by one order. Thirty-eight appeals were from 13 proprietors of Mechpara Ward's Estate. The others were from co-sharers in Porbatjoar Estate and assessees of three other estates. The forests are all in the district of Goalpara. The Appeal late Assistant Commissioner found that the forests in all the cases consisted mainly of Sal trees and though the history of their origin was not available, there was nothing before him to show that these Sal trees were of spontaneous growth. He recognised the possibility of the forests originally having been of spontaneous Page: 10growth. He observed however that it was an admitted fact that forest trees are now protected and fostered in growth by the application of human labour and skill. In his view they were now under agricultural operations in order that they should yield income with some measure of regularity. In this connection he expressed himself as follows:

“In these forests, operations in forestry such as clearing jungles, creepers and climbers, thinning by removal of less healthy trees from thickly grown areas, removal of unsound, crooked and diseased trees, burning of leaves to fertilise the ground, cutting of trees at special heights, reservation of blocks by turns and their operation in cyclic order, preservation of mother trees for the spread of seed, protection of forests from fire, etc., are admittedly regularly carried on and this is further testified to by an Officer of the Mechpara Ward's Estate.”

44. According to him, the trees in these forests were not of spontaneous growth as regular operations were being undertaken foe their growth, preservation and regeneration. The Member, Assam Board of Agricultural Income-tax, agreed with the finding of the Appellate Assistant Commissioner. He stated that it was admitted by the assessees that the Sal forests in question are to be nursed, preserved and developed at considerable expenses; labour and trouble on these forests had to be carefully looked after; the noxious creepers which kill Sal trees have to be cut and destroyed; the under-growths which hinder the proper growth of plants have got to be destroyed every year and that various other steps have to be taken for their conservation. He further found that Silvicultural operations such as ‘burning’ Kukt felling, ‘rains tending’ ‘climber cutting’, ‘affording fair protection’ etc., were being resorted to in order to assist regeneration, whether natural or artificial, and for proper exploitation of the forests. The assessees according to him had further to keep an eye on their conversion period and rotation.

45. The learned counsel for the assessees accepts these findings of fact and has stated that if receipts from the sale of forest trees are treated as income as distinguished from capital receipts they would be covered by the expression ‘agricultural income’. We have no manner of doubt that though no actual tilling of the soil is necessary for the growth and regeneration of Sal trees in these forests, it is obvious that elaborate operations in forestry are necessary for the maintenance of the forests and for the growth and regeneration of new trees in place of those cut every year. The exploitation of these forests clearly conforms to working plans. Blocks of trees are sold in rotation. New trees take root and grow. In the case of all the assessees, there have been receipts from sale of Sal trees in all the years of assesssment. The operations, which are considered necessary by the assessees with a view to being able to cell trees from these forests periodically involve both skill and labour. The expenditure of this skill and labour is of a substantial and impressive character. The different processes described by the Appellate Assistant Commissioner and by the Member, Assam Board of Agricultural Income tax, indicate without any doubt that the extensive operations in forestry are being employed. In these circumstances there Cannot be any manner of doubt that the income derived by the assessees in all these cases by the sale of Sal trees during the years in question was agricultural income and was correctly assessed.

46. The third common question is whether the amount received as Salami for settlement of agricultural holdings is agricultural income within the meaning of Section 2(1)(a) of the Assam Agricultural Income-tax Act.

47. The assessees have been receiving varying sums of money under the heading Salami during the years to which the assessments in question relate. The Salami was assessed to tax under the Act. The assessees appealed from the order of the Agricultural Income-tax Officer. The Appellate Assistant Commissioner also held that the Salami was income and that it could not he treated as capital receipt. In coming to this conclusion he observed as follows:

“Salamis were realised by the appellants by granting settlement of waste lands and abandoned holdings. No loss or injury was caused to the land by such settlements. The land continued to remain the property of the appellants and the lessees were only granted the non-occupancy right for use and occupation. There was no transfer of any vital right and Interest permitting waste to be committed on the land and thereby diminishing its capital value. So, salamis as realised by these landlords cannot be treated as capital receipts. Salamis are received by these zamindars in course of their zamindary business. These flow from the land as normal incidents arising in course of the life of the non-occupancy raiyat's lease whenever, landlord's consent is required by law. These salamis are not non-recurring payments. The same land can yield salamia many times with changes of leases.”

48. On these facts he found that the Salamia were covered by the definition of ‘income’ given by their Lordships of the Privy Council in Gopal Saran Narain Singh v. Commr. of Income-tax, B. & O., A.I.R (22) 1935 P.C 143 : (14 Pat. 552), which had been quoted above.

49. He also relied on a decision, of a Division Bench of the Calcutta High Court reported in In re Jyotindra Narayan, 49 C.W.N 472 : (A.I.R (33) 1946 Cal. 15).

50. When referring the question to this Court, the Member, Assam Board of Agricultural Income-tax, expressed the opinion that inasmuch as Salami was derived with some sort Page: 11of regularity or expected regularity from land and flows therefrom or from the ownership thereof, id was ‘agricultural income’ within the meaning of the Act. He relied on Birendra Kishore v. Secy. of State, 48 Cal. 756 : A.I.R (8) 1921 Cal 262), and also on In re Jyotindra Narayan, 49 C.W.N 472 : (A.I.R (33) 1946 Cal. 15). The statement of facts contained in the order of reference is as follows:

“The amount assessed as ‘Salami’ in these case were admittedly realised by the assessee landlord from his tenant in connection with settlement of waste or a banduned holdings is single non-recurring premia. The Zamindar granted leases of waste lands or previously abandoned holding? for the purple of cultivation for period? which were not, fixed. At the time of settlement a Salami was charged and the rate of rent fixed. The rate of rent be fixed is seldom changed. The amount of Salami charge varied according it demand and had no relation so the rate of rent. The Salamis, however, were not based upon any idea of damage done to the laud. It will appear from the returns filed that the Zamindare received considerable sums from Salami and the Salami for triad a normal and regular feature at the Zamindar's receipts from the agricultural lands in his estate. Such receipts were held to be agricultural income and not capital receipt in Birendra Kishore v. Secretary of State 48 Cal 766 : (A.I.R (8) 1921 Cal. 262) and Jyotirindra Nath v. Province of Assam, 49 C.W.N 472 : (A.I.R (33) 1946 Cal. 15).

51. Jyotindra Narayan was the assesses in 19 C.W.N 472 : (A.I.R (33) 1946 Cal. 15). Had is one of the assessees in the reference before us. He was assessed to income-tax under the Assam Act on an item of Rs. 9331-9-4, received by him as Salami for settlement of waste land or abandoned holding at the time os the assessment in 1941–1942. On his application two points of law were referred to the Calcutta High Court. These were; (1) Whether Salami received for settlement of agricultural holdings where the rate of annual rent reserved for such holdings is uniform and where the Salami is taken once in the period of the occupation by a particular tenant; but where the period of occupation is not ascertainable as no written leases are given is agricultural income? and (2) Whether in view of the facts and circumstance of the case, the sum of Rs. 7934 received by the assessee as Salami for settlement of agricultural holdings is agricultural income within the meaning of Section 2(1)(a) of she said Assam Agricultural Income-tax Act?

52. Too answer to these questions were in the affirmative. The reasons for the answers were that the leases were relatively for small areas of leand or the purposes of cultivation for periods which were not fixed. It also appeared on the harass Judges that the holdings so granted were at times abandoned. They could be let out again and the Salamis could be charged. They were not based on any idea of damage done to the land. The amount varied according so the demand for the land. The rent in the case of these holdings was a fixed figure but the Salami varied according to demand. The learned Judges also referred to the receipts of the assessee under this head for about three years and came to the conclusion that Salami? received ware a normal and regular featurs of the zamindar's receipts from his estate which comprised a considerable area of agricultural land.

53. The assessee appealed to the Federal Court. The appeal succeeded. The order of the Calcutta High Court was set aside by order dated 16-5-1949 in civ. App. No. 30 of 1948 not so far reported. In the view of their Lordships of the Federal Court, the material on the record was insufficient for the High Court to return an answer to the questions referred to it. The case was, therefore, sent back with the direction that the reference be disposed of after obtaining from the Member, Assam Board of Agricultural Income-tax, a fuller statement facts bearing on the nature of the Salami receipts as indicated by question speciacally mentioned in the order of remand. These were as follows: 1. The number of settlements of wastelands and abandoned holdings during the accounting year and the maximum and the minimum extents settled and Salami received. 2. Does the Salami vary with the quality of the land, the facilities for irrigation and such other favourable factors? 3 How many tenants were ejected under S. 69 during the accounting year and how long they had been in occupation before such eviction? 4. Is Salami received when the lands are re-let after eviction? 5. Is the Salami that is paid in the zamindary of the assessee is the nature of a ‘present’ given by the tenant to the landlord for his permission to occupy the land, or whether it is in substance a premium payable by a lessee at the inception of the tenancy?

54. In delivering the judgment of the Court, the learned Chief Justice observed as follows:

“In my opinion, the difficulty in deciding the question has arisen because the word ‘Salami’ had not a fixed or definite meaning. Because the lessor chooses to describe a receipt as ‘Salami,’ I do not think, in law, it in exempt from taxation. The nature of receipt has to be ascertained in each case and it is the duty of the Income-tax Officer to determine if the receipt amounts to ‘income’ with the well recognised principles of law describing that word. I do not think because the word ‘salami’ is used, in respect of a receipt, it is necessarily a receipt of a capital nature or is income liable to tax. As the authorities referred to in the above-mentioned three decisions show, the nature of a receipt described as ‘salami’ in each has to be determined as a fact. I am unable to hold that the receipt described as ‘salami,’ if nothing more is stated in respect of it, must be treated as a capital receipt equally so became a receipt in described as ‘salami’ it will be an error to treat it as income and to assess it as such.”

55. Mahajan, J. summed up the position as Regor is ‘Salami’ thus:

“The question whether salami is in the nature of a capital receipt or is income depends on the facts and circumstances of each case and cannot be decided as a mere matter of law. The latest decision on the subject is in Bar Bikram Kishore v. Province of Assam, 53 C.W.N 164. After giving a resume of the earlier cases on the subject it was said that it was impossible to give an answer to the question as it was not known in respect of which transactions the amount retuned as salami was received. In my view the circumstances of the present case are similar to the case cited above and a similar solution of the problem would meet the ends of justice.”

56. The learned counsel for the assessees has urged that the position in the present case is exactly the same as it was in the case before their Lordships of the Federal Court. The orders of reference do not contain a complete and comprehensive statement of facte of the case and it is not possible for the Court on the material now available to determine whether the Salami received in question could be treated as income or capital. The decision of the question depends on the facts and circumstances of each case. According to the decision of their Lordships of the Federal Court, Salami cannot be treated either as capital or as income unless the nature of the receipts itself is determined as a fact. He urges, therefore, that a fuller statement of facts on the lines indicated in the order of their Lordships of the Federal Court be obtained from the Member, Board of Assam Agricultural Income-tax, and questions 3 and 4 be decided after facts necessary for the determination of question 3 are made available to the Court.

57. The learned Advocate-General concedes that the statement of facts now available on the record is not complete and a supplementary statement is necessary before question 3 could be answered. He, therefore agrees to the remand of the case to the Member, Assam Board of Agricultural Income-tax, as proposed by Mr. Ghose, the learned counsel for the assessees.

58. We think the counsel for the parties are correct in their view. It seems to us that references made to as in this case do not being out anything more than what was stated in the reference to the Calcutta High Court in Jyotirindra Narayan Sinha's case, 49 C.W.N 472 : (A.I.R (33) 1946 Cal. 15) which arose out of the assessment for the year 1941–1943. In any case it is obvious that the information which their Lordships of the Federal Court considered necessary for the decision of the question whether receipts in a particular case constitute income or capital receipts is admittedly not before us. The learned counsel for the parties are agreed on this point. It is also clear that farther enquiry into the facts bearing on the nature of these receipts in each case on the line indicated in the judgment of the Federal Court is necessary in order that an adequate statement of facts be furnished to this Court co-enable it to determine the question the material now available not being sufficient for the purpose.

59. We therefore, direct that references 1 to 9 be referred back to the Member Assam Board of Agricultural Income-tax, for furnishing on with a fuller statement of the case in the light of the Judgment of their Lordships of the Federal Court after collecting necessary material on the five questions specifically stated in the order of that Court and also on question 6 given below which is now added to that list by this order.

60. Question 6 which is ad led at the request, of the learned Advocate-General is as follows:

“What amount, if any, has been received as Salami by the assessee in each accounting year by the settlement of waste lands?”

61. Question 4 contained in the references' before us about collection charges is connected with question 3. In case it is ultimately found that receipts by way of salami are not taxable as agricultural income, the determination of question 4 would not be necessary. In these circumstances it is advisable to defer its consideration till a fuller statement bearing on question 3 is received.

62. Ref. no. 1 arises from the two assessments for the years 1947–1948 and 1948–1949 in the case of Joytirindra Narayan Sinha Chmdhury (49 C.W.N 472 : A.I.R (33) 1946 Cal. 15). Only three questions were referred to the Court in this reference. The question whether the amounts received by the assessee as Salami for settlement of agricultural holdings is agricultural income was not included in the reference. Though the order of reference in his case does not clearly say so, it appears that this, question was not included in the reference as the Calcutta High Court had decided on a reference-arising from the assessment of 1941–1942 in the case of this assessee that the Salami receipts-were income and were liable to taxation. The learned counsel for the assessees has now shown that the decision of the Calcutta High Court has been reversed and the question whether Salami receipts of the year 1941–1942 in the case of this assessee were income or not is still an open one. The question, therefore, be urged should have been included in Ref. No. 1 also. The learned Advocate-General agrees and does not object to a direction to the Member, Assam Board of Agricultural Income-tax, to refer this question to the Court under Section 28(3) of the Assam Agricultural Income-tax Act.

63. We, therefore, direct under Section 53, clause 3 of the Assam Agricultural Income-tax Act that when-Bending a fuller statement of the case with respect Page: 13to question 3, as regards the nature of the Salami receipts, the question should be included in at No. 1 arising out of the to assessments of Jyotirindra Narayan Sinba Cboudhury.

64. There remains one more question to be answered. This is contained in Ref. no. 6 above. This question is as follows:

“Whether the amount paid to the ladies mentioned in para. 11 of the petition for reference under the will of the late Raja P.C Barua and charged on Lakheraj Srijangram (Touzi No. 34 of Goalpara Collectorate) should be deducted from the agricultural income of the petitioners?”

65. Permissible deductions are enumerated in Section 7 of the Assam Act. Clause (m) of S. 7 provides that the assessable income shall be subject to such other deduction on account of depreciation or any other cause as may be prescribed by rules under S. 50.

66. Rule 2, clause (1), Assam Agricultural Income-tax Rules, 1939 describes deductions provided under cl. (m) of S. 7 in addition to the deductions specifically allowed under S. 7 of the Act. Under sub-cl. (5) of R. 2 maintenance allowance paid to a widow if it forms a charge on the estate is a permissible deduction. It is admitted that the annuities in question are being paid not to widows but to the wives of existing proprietors. The deduction permitted is only on account of maintenance paid to a widow if the allowance is a charge on the estate. The annuities, which are being paid to wive?, under the will of late Raja P.C Barua, therefore, are obviously not covered by S. 2(1)(v) as found by the Income-tax authorities.

67. The learned counsel has not contended for obvious reasons that a widow in the rule would include a wife. The only possible answer to the question, therefore, is that the amount paid to the ladies under the will of the late Raja P.C Barua though charged on Lakheraj Sujangram shall not be deducted from the agricultural income of the petitioner. The answer to the question is in the negative.

68. Our answers to the questions are as follows: (1) That the amounts realised by the petitioner in each case from sale of Sal trees are revenue receipts, (2) Being revenue receipts they can be regarded as agricultural income within the meaning of Section 2(a) of the Assam Agricultural Income-tax Act, 1939.

69. The consideration of questions 3 and 4 is deferred till a fuller statement of facts bearing on the point involved in question 3 is received. The answer to question 5 in Ref. No. 8 is in the negative.

Thadani, C.J:— I agree.

70. Answer accordingly.