CHAKRAVARTTI, J. - (1.) : This is a reference under s. 63(1) of the Bengal Agrl. IT Act by which the Agrl. Tribunal, West Bengal, has submitted for the opinion of this Court at the instance of the Commissioner the following question of law : "Whether on the facts and in the circumstances of the case the profits of any part thereof, derived from the lands given to the Halsanas in lieu of services and enjoyed by them as such should have been treated as the agricultural income of the landlord and assessed in his hand?"
(2.) THE income concerned is the income supposed to have been derived from 60 acres of khas lands belonging to the assessee- landlord but in the possession of the Halsanas during the accounting year. This accounting year was Sraban 1351 B.S. to Ashar 1352 B.S. and the relative ast. yr. was 1946-47. THE amount of disputed income is stated to be Rs. 1,680. It is not easy to discover what the real facts of the case are. All that can be ascertained is that 60 acres of land have been given to four Halsanas in lieu of services to be rendered by them to their landlord, the assessee. As regards the nature of the services rendered the finding is that the services are of diverse nature not necessarily of the agricultural type. It is further stated in the statement of the case that settlement would subsist so long as Halsanas were willing to serve the landlord and on their refusal or unwillingness to serve any further the landlord would be entitled to resume the lands. All this, however, appears only in the statement of the case. THE appellate order of the Tribunal where the final findings of fact ought really to occur is a singularly bald document, containing but a bare reference to these sixty acres of land. The question having been referred must however be answered as best it can be. The first enquiry is if the assessee-landlord is to be taken as having derived some income from these 60 acres of land, what was that income ? In answer to our question Mr. Sen who appears on behalf of the Department submitted that his contention would be first that the income was really the actual produce of the land less the statutory allowances or in the alternative the monetary value of the services rendered by the Halsanas. In other words his contention was that the agricultural income which the landlord derived from these 60 acres of land was either "income derived from the land by agriculture" within the meaning of s. 2(1)(b) of the Act or rent or revenue derived from the land within the meaning of s. 2(1)(a). Now it seems to me that whether the alleged income in the present case is considered from the point of view of either s. 2(1)(a) or s. 2(1)(b), the primary requirement, if it is to be treated as agricultural income, is that it must either be income derived from land which is used for agricultural purposes or income derived from the land by agriculture. It is thus essential under both parts of the definition section that the user of the land for agricultural purposes must be established. Most curiously neither the parties nor the Tribunal seem to have ever paid any attention to that requirement of the definition. There is no finding at all that the land was used for agricultural purposes in the accounting year and necessarily no finding that the income was derived from the land by agriculture. Nor is there any finding that the lands are agricultural lands at all. Although the lands might have been given over to the Halsanas to be enjoyed by them in lieu of services to be rendered, it was in no way binding on the Halsanas to use the lands for agricultural purposes. In any event no stipulation of that kind has been suggested or found. In those circumstances it is perfectly conceivable that the lands were not put to agricultural use by the Halsanas after the latter had taken possession of them but they were put to some other kind of use at their will and pleasure. If the lands were not used for agricultural purposes there could not possibly be either any rent or revenue within the meaning of s. 2(1)(a) or any income derived from such land by agriculture within the meaning of s. 2(1)(b). It seems to me, therefore, that the only answer that can be rendered to the question referred is that on the facts stated it does not arise.
(3.) BUT it was contended by Mr. Sen that although it might not have been specifically found that the lands had been put to agricultural use during the accounting year or were agricultural lands both parties had proceeded on that basis and that the questions formulated by the parties for reference to this Court themselves suggested that agricultural user of the lands was never disputed. As I have already stated on the statement of the case submitted by the Tribunal the question does not arise and it cannot be said to arise because the parties chose to advance certain contentions of certain kinds. Nevertheless I shall test the contention of Mr. Sen on the assumption of fact which he has asked us to make. As I have already stated, the part of Mr. Sen's contention was that the agricultural income derived by the landlord from the 60 acres of land concerned was the produce itself. I am entirely unable to see how on the facts of this case it can be said that the landlord derived any income of the nature of agricultural produce from the lands concerned. The main distinction between s. 2(1) (a) and s. 2(1)(b) is that the income under the first sub- section is broadly speaking the hire of the land whereas under the second sub-section it is the yield of agricultural operations carried out by the assessee himself personally or through members of his family or through hired labourers. The agricultural operations actually carried out on the land concerned must, therefore, be operations carried out by or on behalf of the assessee. In other words the income must be the income directly derived from agricultural operations. I cannot see how if the Halsanas were given these lands to be enjoyed by them in lieu of services to be rendered and they carried out agricultural operations on the lands such operations could be said to be operations carried on by or on behalf of the landlord. Quite clearly in cultivating the lands the Halsanas would not be acting as agricultural labourers in the employ of the landlord. They would be cultivating the lands on their own account. They would not be growing on the lands such crops as the landlord suggested or dictated. Nor would they be answerable to the landlord in any way for the kind or the quantity of the crops grown. Their only obligation would be to render to the landlord the services stipulated for. In those circumstances I cannot see how the actual produce of the land yielded by agricultural operations carried out by the Halsanas can be said to be the product of agriculture carried on by the landlord himself and thus to be income assessable under s. 2(1)(b).;