KING-EMPEROR Vs. RAJAH PROBHAT CHANDRA BARUAH

JUDGEMENT

(1.) On the 12 March 1926 the Commissioner of Income-Tax, Assam, referred to this Court for decision under Section 66(2) of the Indian Income-Tax Act of 1922, the following questions: I Whether the following sources of income are agricultural and therefore exempted from assessment to income-tax under Section 4(3)(viii) of the Act. (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 assessee's land. (v) Fees received from land used for storing purchase of crops (paiali). (vi) Fees received from cart stands. (vii) Punyaha nazar or nazar paid by fcdnant3 of agricultural holdings at the beginning of the zemindari year. (viii) Nazar for petitions presented to the zemindar dealing with questions of succession, settlement and partition. (ix) Ground-rent for permanent shops at hats and bazar3. (x) Stall fees paid by temporary (daily) sellers at hats and bazars. II. Whether income derived from such of the above sources as were not taken into consideration at the time of fixing the Jama at the Permanent Settlement is assessable for Income-tax purposes. III. Whether having regard to the terms of the Permanent Settlement Regulation income derived from the above sources in permanently settled estates is liable to assessment to Income-tax.

(2.) This Reference came on for hearing before the late Chief Justice and Mr. Justice Rankin, as he then was, on the 21 May 1926, when the attention of the learned Judges having been drawn to the conflict of opinion, as disclosed in the judgments in the cases of Emperor V/s. Raja Probhat Chandra Barooah , and Emperor V/s. Indu Bhusan Sarkar A.I.R. 1926 Cal. 819 questions II and III were referred by the learned Judges to a Full Bench for decision. The case of Emperor V/s. Rajah Probhat Chandra Barooah was before a Division Bench, consisting of Mr. Justice Rankin and Mr. Justice Page. Mr. Justice Rankin held that income derived from fisheries and from Sthaljat (i.e., land used for stacking timber) was not agricultural income or income derived from land which is used for agricultural purposes, within the meaning of Secs.2 and 4 of the Income Tax Act, and that such income was liable to income tax, notwithstanding the Permanent Settlement Regulations of 1793. Mr. Justice Page held that such income was not assessable to income-tax by reason of the Permanent Settlement Regulations. There being this difference of opinion between the two learned Judges, the opinion of the senior Judge Mr. Justice Rankin, prevailed under Section 36 of the Letters Patent.

(3.) The case of King-Emperor V/s. Indu Bhusan Sarkar A.I.R. 1926 Cal. 819 was before a Division Bench, consisting of Mr. Justice Cuming and Mr. Justice Page, and it was there decided that where income from fisheries lying within an estate was included in the assets upon which land revenue was assessed under the Permanent Settlement Regulations, incomes from such fisheries were not further liable to assessment under the Indian Income Tax Act.