UMED RASUL SHAHA FAKIR Vs. ANATH BANDHU CHOWDHURI (A MINOR)
LAWS(PVC)-1901-7-10
PRIVY COUNCIL
Decided on July 30,1901

UMED RASUL SHAHA FAKIR Appellant
VERSUS
ANATH BANDHU CHOWDHURI (A MINOR) Respondents

JUDGEMENT

- (1.) The question at issue in this appeal is as to the liability of the appellants to pay road-cess. The appellants hold a mokurari jama under the plaintiff and the proforma defendant of Rs. 12-8, which they agreed to pay for the right to hold a mela on certain land, in the month of Falgoon every year, when there are no crops on the land. According to their pottah, dated the 12 Magh 1267, they are to pay this sum to their landlords from the profits of the mela. They were called on by the Collector to submit a valuation roll under the Cess Act with regard to the profits of this mela and submitted it. The Collector then fixed a certain amount of road-cess on the profits of the mela, which he has realized from the plaintiff, and the plaintiff now sues to recover this road-cess from the defendants, as well as the rent due under the lease.
(2.) The First Court disallowed the plaintiff's claim for road-cess. The Subordinate Judge has allowed it, holding that the defendants are tenure-holders within the definition of tenure-holder contained in the Cess Act.
(3.) The defendants appeal. It is found by the Munsif to be the case, and it has been admitted before us, that the defendants have to pay income-tax on the profits of the mela, and that they ought not to be held liable for both income-tax and road-cess. The question then is what tax are they, properly speaking, liable to pay--road-cess or income-tax? Now, the Income Tax Act declares that it is an Act intended to impose a tax on income derived from sources other than agriculture, and Section 5 exempts from the liability to the tax incomes derived from agriculture or operations connected with agriculture. It would seem to us that the profits of a mela cannot be regarded as incomes derived from agriculture. The land on which the mela is held, is no doubt land used for purposes of agriculture, when it is not being used for the purposes of the mela, but when it is being used for the purposes of the mela, it is not being used for agircultural purposes and therefore the profits of the mela are not incomes which would be exempt from income-tax under Section 5 of Act II of 1886. Hence the defendants would seem to be liable to pay income-tax and consequently not road cess.;


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