Chakravartti, C.J. - (1.) This Reference under Section 66 (1) of the Indian Income-tax Act involves a question of law which it is not easy to decide. The difficulty of arriving at a decision, satisfactory at least to our own minds, has been increased by the fact that certain additional information which would have been of real assistance has not been available, although requisitions for it were made of the Board of Revenue, the Collector of 24 Parganas and the Corporation of Calcutta. Another difficulty has bean that although several pieces of documentary material were produced before the tribunal and have been referred to in their order, not one of them has been included in the paper book. Indeed, besides the application for a Reference and the respondent's reply, the paper book contains nothing except the several orders passed in connection with the assessments under reference and the assessment for a prior year. The Statement of the Case, again, is wholly useless. In form, it is merely the order passed by the tribunal on the assessee's application for a reference, refusing its request in respect of several questions and acceding to it in respect of only one. As regards the question referred, no facts are stated, nor is it stated how the question arises, nor are the ground's of the tribunal's appellate decision set out. We have had to collect the facts from the serveral orders over which they lay scattered and from the documents referred to in the appellate order of which copies were supplied to us by the parties.
(2.) Briefly stated the facts are as follows:--
(3.) The assessee, a Hindu undivided family, holds a square mile of land situated in the southern suburbs of Calcutta under a long lease granted by the Calcutta Corporation. It appears that the land was acquired in 1865 by the then Government of Bengal for the Corporation of Calcutta in order that it might be used by the Corporation for the conservancy purposes of the town. It is still used for those purposes, being chiefly utilised for the drain-age outfall for the city's sewage and for dumping the city's refuse, but it has at the same time been leased out to the assessee at a progressive rent and on condition that it will unload wagons of refuse at its own expense. The assessee derives income from the land in various forms, some of which are non-agricultural in character and about which no question arises in this Reference. A portion of the land has, however, beer, brought under cultivation and it has been let out by the assessee to cultivating tenants who grow vegetables on it and from whom the assessee receives selami and rent. In the course of the assessments for the years under reference, the assesses claimed that the income received by it from the portion of the leasehold land which was used for agricultural purposes was agricultural income and accordingly it was exempt from tax under Section 4 (3) (viii) of the Income-tax Act. The Income-tax Officer disallowed the claim in the view that although the land had been a part of a revenue-paying estate, it appeared that at the time when the Government of Bengal convoyed it to the Corporation after its acquisition under the Land Acquisition Act, they had granted a redemption of the land-revenue on receipt of its capitalized value, computed at twenty times the annual revenue payable on account of it and, since then, the land was being held by the Corporation as revenue-free. On appeal, the Appellate Assistant Commissioner accepted the assessee's contention and the view he took was that the land had been subjected to land-revenue by the method of obtaining payment of revenue in advance. On further appeal, the tribunal held that the assessee's claim could not be sustained. According to the tribunal, the payment received by the Government was not an advance payment of laud revenue, but only a consideration for freeing the land of the revenue charge and since, by the payment, the liability for land-revenue had been extinguished for ever, the land no longer stood assessed to land-revenue.;