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Equivalent Citations

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Case Number

Privy Council Appeal No. 15 of 1948

Advocates

High Commissioner for India
Chapman-Walkers
P.V. Subba Row
J.M. Tucker
J.M.R. Jayakar
Cyril King

Judges

Sir Malcolm Macnaghten
Sir John Beaumont
Sir Madhavan Nair
Lord Reid
Justice Lord Oaksey

Acts

provisions of the Madras Permanent Settlement Regulation XXV [25] of 1802, and of the Income-tax Act
Income-tax Act, 1922, S. 6 (vi) ('other sources'), and S. 12, sub-s. (1),
Income-tax (Amendment) Act of 1939 (Act VII [7] of 1939).
S. 4 (3) (viii) read with S. 2 (1). Income-tax Act, 1922."
George" Articles 1, 2 and 4 of this Regulation
S. 66 (1), Income-tax Act, (Act XI [11] of 1922),
Indian Income-tax Act (Act XI [11] of 1922).
INDIAN INCOME TAX ACT
S. 2, Sub-s. (1) (a) or (b), Income-tax Act, 1922,
S. 2 (1) (a) and (b) (i), Income-tax Act
S. 2 (1), Income-tax Act, 1922. [3]
S. 2 (1), Income-tax Act
INCOME TAX ACT

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Smart Summary

Structured Summary of the Opinion (Sir Madhavan Nair)

Factual and Procedural Background

This appeal arises from a judgment of the High Court of Judicature at Madras dated 10 December 1945, given on a reference under S.66(1) of the Income-tax Act, 1922 (as amended). The appellants are sons of the Maharajah of Pithapuram and assessees for the year 1942-1943 (previous year 1941-1942). A part of their permanently settled zamindari, Pulivela, included forest and non-forest areas containing trees and spontaneous growth from which the appellants derived income by selling wood, bark, leaves, minor forest produce, usufructs (including Jadivala in Jiarayati lands), and by levy of licence fees. It was admitted that the trees had grown wild and that no agricultural operations were carried on in those areas.

For the year 1941-42 the appellants derived Rs. 7,612 from these sources and were assessed to tax on that amount for 1942-43. The Income-tax Officer held the income not to be "agricultural income" within S.2(1)(a) and (b) of the Income-tax Act and therefore taxable. The Appellate Assistant Commissioner and the Income-tax Appellate Tribunal upheld that assessment. The Tribunal referred two questions to the High Court:

Whether imposition of income-tax in respect of income derived from a permanently settled estate would be a breach of Madras Permanent Settlement Regulation XXV of 1802; and
Whether the Rs. 7,612 was exempt under S.4(3)(viii) read with S.2(1) of the Income-tax Act (i.e., whether it was agricultural income).

The High Court answered both questions against the appellants. The present appeal to the Board follows that decision.

Legal Issues Presented

Whether income derived from a permanently settled estate (here, Rs. 7,612 from forest and related produce) is immune from further taxation by reason of the Madras Permanent Settlement Regulation XXV of 1802.
Whether that income is "agricultural income" within the meaning of S.2(1) of the Income-tax Act, 1922, and therefore exempt under S.4(3)(viii) of the Act.

Arguments of the Parties

Appellants' Arguments

The appellants contended that because the Pulivela estate was permanently settled under the Madras Permanent Settlement Regulation, the peishkush (jama) fixed at settlement could not be increased; any taxation of income from estate produce would effectively be an increase on the zamindar's assessment and hence breach the permanent settlement (sannad).
The appellants initially relied on local decisions such as Chief Commissioner of Income-tax, Madras v. Zamindar of Singampatti (45 Mad. 518) and Maharajadhiraj of Darbhanga v. Commissioner of Income-tax (3 Pat. 470) to support the contention that items such as the present receipts fell outside taxable income by virtue of the permanent settlement.
The appellants also originally contended that the receipts amounted to "agricultural income" under S.2(1) of the Income-tax Act and thus fell within the exemption in S.4(3)(viii); however, after the Board's recent decision in Raja Mustafa Ali Khan ... v. Commissioner of Income-tax (75 IA 268; AIR 1949 PC 13) was brought to their attention, their counsel (Mr. Cyril King) expressly declined to press the agricultural-income contention in this appeal.

Respondent's Arguments

The respondent (as represented in argument by Mr. Tucker) pointed out that the Privy Council's decision in Probhat Chandra Barua v. The King-Emperor (57 IA 228; AIR 1930 PC 209) had already held that Bengal permanent settlement regulations did not exempt zamindari income from future general taxation; thus, the permanent settlement did not guarantee exemption from future income-tax measures, although allowances for jama would be recognised in computing assessment.
The respondent also drew attention to the fact that the earlier items relied upon in Probhat Chandra Barua included some matters taken into account in assessing the jama and some that were not, thus undermining any broad distinction the appellants sought to draw between items included or excluded at settlement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raja Mustafa Ali Khan, through Special Manager, Court of Wards, Utraula, District Gonda v. Commissioner of Income-tax, United Provinces, Ajmer and Ajmer-Merwara, 75 IA 268 (AIR 1949 PC 13)	Held that income from sale of forest trees growing naturally, without human agency, is not 'agricultural income' within S.2(1)(a) or (b) and is not exempt under S.4(3)(viii) of the Income-tax Act, 1922.	The Board noted this decision and, as a direct consequence, the appellants' counsel withdrew the argument that the receipts were agricultural income; the Board therefore did not consider the agricultural-income contention further in the present appeal.
Probhat Chandra Barua v. The King-Emperor, 57 IA 228 (AIR 1930 PC 209)	Held that Bengal Permanent Settlement Regulation did not promise that a zamindar's zamindari income would be exempt from any future general scheme of property or income taxation; zamindars are assessable under S.6(vi) ('other sources') and S.12(1), subject to allowances in computing jama.	The Board applied this principle to the Madras Permanent Settlement context: it concluded that permanent settlement does not exempt the appellants' income from general income-tax; Probhat Chandra Barua is treated as controlling authority.
The Chief Commissioner of Income-tax, Madras v. Zamindar of Singampatti, 45 Mad. 518 (AIR 1922 Mad. 325 FB)	Relied upon by the appellants as supporting the proposition that certain receipts from a permanently settled estate might lie outside future taxation (as interpreted by the appellants).	The Board observed that this decision (and similar Patna decision) must now be regarded as no longer good law in view of the Privy Council's decision in Probhat Chandra Barua; therefore these earlier decisions do not prevail over Probhat.
Maharajadhiraj of Darbhanga v. Commissioner of Income-tax, 3 Pat. 470 (AIR 1924 Pat. 474)	Relied upon by the appellants in support of immunity from further taxation under permanent settlement principles.	The Board held that this decision is no longer good law in light of Probhat Chandra Barua and accordingly declined to follow it.

Court's Reasoning and Analysis

The Board proceeded in two stages reflecting the issues referred. First, an earlier Privy Council decision (Raja Mustafa Ali Khan) clarified that income from naturally growing forest trees is not agricultural income under S.2(1) and therefore not exempt under S.4(3)(viii). In consequence the appellants' counsel abandoned the agricultural-income contention and the Board did not press that issue further.

The only remaining question was whether the Madras Permanent Settlement (Regulation XXV of 1802) operated to exempt the appellants' income from any future general income-tax. The appellants argued that because peishkush (jama) was fixed "for ever" by the settlement, any additional taxation on income from estate produce would be tantamount to increasing the peishkush and so contravene the settlement.

The Board confronted that submission by applying the principle established in Probhat Chandra Barua v. The King-Emperor. That decision, under the Bengal permanent settlement, held that the settlement contained no promise that zamindari income would be exempt from future general schemes of taxation; zamindars remained assessable under the Income-tax Act subject to allowances reflecting the jama. The Board regarded the Bengal and Madras Regulations as being in effect similar for present purposes and therefore held Probhat controlling.

The appellants sought to distinguish Probhat by contending that some items in Probhat were excluded from the jama while others were included. The Board (via its consideration and as amplified by the respondent's submissions) observed that the record in Probhat showed some items were taken into account in assessing the jama, some were not, and some items were doubtful — undermining a neat distinction the appellants attempted to draw. Given that, the Board concluded it could not sustain the appellant's permanent-settlement immunity argument.

The Board further noted that earlier decisions relied upon by the appellants (Singampatti and Darbhanga) were inconsistent with the Privy Council's decision in Probhat; accordingly those earlier authorities could no longer be treated as good law.

Holding and Implications

APPEAL DISMISSED.

Direct holding: The Board advised His Majesty to dismiss the appeal with costs. The tax assessment of Rs. 7,612 imposed on the appellants for the year 1942-1943 was held to be rightly levied.

Implications:

The Board applied the Privy Council's precedent in Probhat Chandra Barua to hold that a permanent settlement (here, the Madras Permanent Settlement Regulation XXV of 1802) does not amount to a guarantee that zamindari income is exempt from future general income-taxation; zamindars remain liable to assessment under the Income-tax Act subject to any specific statutory allowances (e.g., for jama).
Earlier local decisions that supported a broader immunity from taxation for permanently settled estates (such as Singampatti and Darbhanga) were treated as no longer good law to the extent they conflict with Probhat Chandra Barua.
No broader new legal principle was laid down by this appeal; the Board applied existing Privy Council authority to the facts and affirmed the High Court's answers to the referred questions. The practical effect is that the appellants must pay tax on the Rs. 7,612 and similar receipts from wild-growing trees and spontaneous growth in a permanently settled estate are not automatically exempt from income-tax.

This summary is limited to the information expressly contained in the provided opinion and does not introduce facts or holdings beyond that text.

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Sri Rajah Ravu Venkata Mahipathi Gangadhara Rama Rao Bahadur, Yuvarajah Of Pithapuram And Another v. Commissioner Of Income Tax, Madras

Sir Madhavan Nair.-

This is an appeal from a judgment of the High Court of Judicature at Madras dated 10th December 1945, delivered on a reference made to it under S. 66 (1), Income-tax Act, (Act XI [11] of 1922), as amended by various amending Acts including the Income-tax (Amendment) Act of 1939 (Act VII [7] of 1939). The appellants are the assessees. The assessment was made with respect to the year 1942-1943, the previous year being 1941-1942.

[2] The question arising for determination in this appeal is whether the appellants are exempt from taxation in respect of a part of their income amounting to Rs. 7,612, derived from the sale of wood, bark, leaves, usufruct of trees, etc., on the ground that: (a) the income was derived from a permanently settled estate and (b) the income was agricultural income within the meaning of S. 2 (1), Income-tax Act, 1922.

[3] Before stating the facts, it will be convenient to refer to the relevant provisions of the Madras Permanent Settlement Regulation XXV [25] of 1802, and of the Income-tax Act bearing on the question.

[4] Madras Permanent Settlement Regulation XXV [25] of 1802. This Regulation was passed

"for declaring the proprietary right of lands to be vested in individual persons, and for defining the rights of such persons, under a permanent assessment of the land aevenue in the British territories subject to the Presidency of Fort St George"

Articles 1, 2 and 4 of this Regulation are as follows :

Article 1. For the reasons stated in it, Art. 1 says :

". . . . the British Government . . . has resolved . . . to grant to zamindars and other landholders, their heirs and successors, a permanent property in their land in all time to come, and to fix for ever a moderate assessment of public revenue on such lands, the amount of which shall never be liable to be increased under any circumstances."

Article 2.

"In conformity to these principles, an assessment shall be fixed on all lands liable to pay revenue to the Government; and, in consequence of such assessment, the proprietary right of the soil shall become vested in the zamindars or other proprietors of land, and in their heirs and lawful successors for ever."

Article 4.

"The Government having reserved to itself the entire exercise of its discretion in continuing or abolishing, temporarily or permanently, the articles of revenue included, according to the custom and practice of the country, under the several heads of salt and saltpetre - of the sayar or duties by sea or land - of the abkari or tax on the sale of spirituous liquors and intoxicating drugs-of the excise on articles of consumption- of all taxes personal and professional, as well as those derived from markets, fairs or bazars- of lakhiraj lands (or lands exempt from the payment of public revenue), and of all other lands paying only favourable quit-rents- the permanent assessment of the land - tax shall be made exclusively of the said articles now recited."

[5] The Indian Income-tax Act (Act XI [11] of 1922). The relevant provisions of the Indian Income-tax Act are as follows :

"Section 2. Definitions-In this Act, unless there is anything repugnant in the subject or context,-

(1) 'agricultural income' means -

(a) any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land evenue in British India or subject to a local rate assessed and collected by officers of the Crown as such;

(b) any income derived from such land by

(i) agriculture,* * * * *""Section 4-(3) Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them:-(i) to (vii). . . (viii) Agricultural income."

"Section 6.-Heads of income chargeable to income-tax. - Save as otherwise provided by this Act, the following heads of income, profits and gains, shall be chargeable to income-tax in the manner hereinafter appearing, namely:-(i) Salaries. (ii) Interest on securities (iii) Income from property, (iv) Profits and gains of business, profession or vocation. (v) Income from other sources."

"Section 12. - Other sources.- (1) The tax shall be payable by an assessee under the head 'Income from other sources' in respect of income, profits and gains of every kind which may be included in his total income (if not included under any of the preceding heads).* * * *"

[6] The appellants are the sons of the Maharajah of Pithapuram, the proprietor of the zamindary of Pithapur, which was permanently settled under the Madras Permanent Settlement Regulation. A part of the permanently settled estate known as Pulivela was settled upon the appellants by their father. This estate includes forest and non-forest areas of spontaneous growth from which the appellants derive income by the sale of wood, bark, leaves, minor forest produce, usufruct of trees including Jadivala in Jiarayati lands, and levy of licence fees. They also derive income from the sale of proceeds of trees which are also of spontaneous growth, in non-forest areas. It is admitted that the trees in the forest and non- forest areas have grown wild, and that agricultural operations are not carried on in any of the areas from which the income in question was derived.

[7] For the year of account 1941-42 the income derived by the appellants from the sources mentioned above amounted to Rs. 7,612, and the appellants were taxed on this sum for the year 1942-1943. The material part of the assessment order made by the Income-tax Officer is as follows :

"It is stated that the income from forests as well as miscellaneous income from non-forest areas referred to above are in the nature of agricultural income and not liable to be taxed. It is, however, admitted that the entire income from various sources detailed above relates to trees of spontaneous growth in forests as well as in non-forest areas, that no trees are grown by the assessees and no agricultural operations are carried on in any of these areas. The income from these sources does not then fall under 'agricultural income" as defined in S. 2 (1) (a) and (b) (i), Income-tax Act and is not exempt from tax. The total income of Rs. 7,612 1-5 will therefore be taxed."

[8] The above order was objected to before the Appellate Assistant Commissioner on two grounds :-(1) that as the Government have fixed the public assessment for ever under the Madras Permanent Settlement Regulation, any further taxation will be illegal; and (2) that the income sought to be taxed was agricultural income within the meaning of S. 2 (1), Income-tax Act and exempt from the levy of the tax by virtue of S. 4 (3) (viii). Both contentions were rejected by the Appellate Assistant Commissioner, and also on appeal from his order by the Income-tax Appellate Tribunal.

[9] At the request of the appellants the Tribunal referred two questions to the High Court. These are :

"(1) Whether the imposition of income-tax in respect of income derived from a permanenty settled estate would be a breach of Regulation XXV [25] of 1802 relating to Permanent Settlement.

(2) Whether the income of Rs. 7,612 derived from the sale of wood, etc. (as detailed herein above) is exempt under S. 4 (3) (viii) read with S. 2 (1). Income-tax Act, 1922."

Both these questions were answered against the appellants by the High Court.

[10] In a recent decision of the Board, viz., Raja Mustafa Ali Khan, through Special Manager, Court of Wards, Utraula, District Gonda v. Commissioner of Income-tax, United Provinces, Ajmer and Ajmer-Merwara, 75 IA 268 : (AIR (36) 1949 PC 13), it was held that :

"income derived from the sale of forest trees growing on land naturally and without the intervention of human agency, even if the land is assessed to land revenue, is not 'agricultural income' within the meaning of S. 2, Sub-s. (1) (a) or (b), Income-tax Act, 1922, and is not therefore exempt from income-tax under S. 4, sub-s. (3) (viii), of the Act..."

In view of this decision, Mr. Cyril King, learned counsel for the appellants, stated frankly that he was not prepared to argue that the income in the present case is exempt from taxation on the ground that it is "agricultural income"

[11] Therefore, their Lordships have to consider in this appeal only one question, namely, whether the income should be held to be exempt from taxation under the Income-tax Act on the ground that it arose from a permanent settled estate which must be presumed to have been exempted from all taxation, beyond the peishkush (jama) payable to Government, fixed under Regulation XXV [25] of 1802.

[12] The argument of the learned counsel proceeded in these lines : - The forest and the non-forest areas from which the income is derived have all been included in the zamin lands on which the zamindar has to pay peishkush, and as such peishkush has been fixed for ever no increase in the peishkush can ever be made under any circumstances, as the tax levied on the income from the produce of the forests will in effect amount to an addition to the peishkush and will thus be contrary to the terms of the sannad. It is admitted that the forest and non-forest areas were all included in the zamindari at the time of the settlement.

13 In support of the above argument, reliance was placed on The Chief Commissioner of Income-tax Madras v. Zamindar of Singampatti, 45 Mad. 518 : (AIR (9) 1922 Mad. 325 FB) and Maharajadhiraj of Darbhanga v. Commissioner of Income-tax, 3 Pat. 470 : (AIR, (11) 1924 pat. 474), both of which support the appellants. It is not necessary to discuss these decisions, or to consider further the arguments of the learned counsel, for it was decided by the Board in Probhat Chandra Barua v. The King-Emperor, 57 IA 228 : (AIR (17) 1930 PC 209)-a case under the Bengal Permanent Settlement Regulation-that :

"While the Bengal regulations contain assurances against any; claim to an increase of the jama, based on an increase of the zamindari income, they; contain no promise that a zamindar shall in respect of the income which he derives from his zamindari be exempt from liability to any future general scheme of property taxation, or that the income of a zamindari shall not be subjected with other incomes to any future general taxation of incomes.

Under the Income-tax Act, 1922, S. 6 (vi) ('other sources'), and S. 12, sub-s. (1), the zamindar of a permanently settled estate is assessable to tax under the Act in respect of income, profits and gains derived from his zamindari, subject to the exemptions in S. 4 sub-s. (3); the assessment should be computed after making proper allowance, under S. 2, sub-s. (2) in respect of the jama assessed and paid."

[14] Ten items were mentioned in that case, those being:

"(i) Jalkar or rents received from fisheries, (ii) Ground rent from land used for potteries. (iii) Ground rent from land used as brick fields. (iv) Fees received from the tying up of boats against the asseesee's land. (v) Fees received from land used for storing purchases of crops (paliali). (vi) Fees received from cartstands. (vii) Punyaha nazar or nazar paid by tenants of agricultural holdings at the beginning of the zamindari year. (viii) Nazar for petitions presented to the zamindar, dealing with questions of succession, settlement and partition. (ix) Ground rent for permanent shops at hauts and bazaars, (x) Stall fees paid by temporary (daily) sellers at hauts and bazaars."

[15] The Bengal Permanent Settlement Regulation is Bengal Regulation, I [1] of 1793. Though the two Regulations are differently worded it was conceded by the learned counsel, and their Lordships think rightly, that the language of both the Regulations is to the same effect. The decision of the Board was sought to be distinguished by the learned counsel on the ground that the items mentioned in the case before the Board had been excluded from the assessment of the jama at the time of the permanent settlement. If that was so, no doubt the decision would be inapplicable to the present case. As pointed out by Mr. Tucker, the learned counsel for the respondent, from the "case" stated by the Commissioner of Income-tax, Bengal, for the opinion of the High Court (see vol. II I. T. C. 392 at 394), it clearly appears that some of the items were admittedly taken into account in assessing the jama. It appears from it that some of the items

"such as 'Jalkar' were admittedly taken into account in assessing the jama at the time of the Permanent Settlement; some were not, such as the abwabs. The cases of some of the remaining items are not free from doubt..."

In the circumstances, the learned counsel for the appellants stated that it was not possible for him to press his contention based upon the Permanent Settlement Regulation any further, but he pointed out that the decision in The Chief Commissioner of Income-tax, Madras, v. Zamindar of Singampatti, (45 Mad. 518 : AIR (9) 1922 Mad. 325 FB) (supra), on which he relied strongly, has not been referred to in the judgment of the Board, though as will appear from the arguments reference had been made to it. Their Lordships have no doubt that though the case is not mentioned by name it must have been considered by the Board. In view of the decision in Probhat Chandra Barua v. The King-Emperor, (57 IA 228 : AIR (17) 1930 PC 209) (supra) it must now be held that the decisions in The Chief Commissioner of Income-tax, Madras, v. Zamindar of Singampatti, (45 Mad. 518 : AIR (9) 1922 Mad. 325 FB) (supra) and Maharajadhiraj of Darbhanga v. Commissioner of Income-tax, (3 Pat. 470 : AIR (11) 1924 Pat. 474) (supra), are no longer good law. Following the decision in Probhat Chandra Barua v. The King-Emperor, (57 IA 228 : AIR (17) 1930 PC 209) (supra), their Lordships hold that the decision of the High Court on the questions referred to it is right; and that the tax was rightly levied on the amount of Rs. 7,612 in the present case.

[16] For the above reasons, their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.

Appeal dismissed.

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