- (1.) BOTH the references, noted above, may be disposed of together, since common questions of law are involved in them.
(2.) IN order to appreciate the said questions, it would be proper to state briefly the facts of the first reference, namely, No. 7 of 1962. The assessee, in this case, Kubersingh was jagirdar of thikana Dhoola of the former Jaipur State. He was assessed for the year ending 31st March, 1954 by the Agricultural Income Tax Officer, Jaipur, on a sum of Rs. 95,874/- representing his total agricultural income including the income of 'patwar' and that of certain sub-grants standing in the names of his mother, wife, brother, sister, three minor and unmarried daughters and wife of his illegitimate cousin (Khawaswal ). His contentions before the Agricultural Income Tax Officer were (1) that the income from the 'patwar' was not an agricultural income and (2) that he could not be assessed in respect of the agricultural income of his above noted relations to whom sub-grants were made. Both these contentions were not allowed by the Agricultural Income Tax Officer. The assessee, therefore, filed an appeal which was heard by the Assistant Commissioner, Agricultural Income Tax. He allowed the appeal in part and it was held by him that the assets transferred directly or indirectly by the assessee to the major members of the family except his wife, and minor and unmarried daughters should be excluded from the total income of the assessee and be taxed separately. As regards the 'patwar' income, the finding of the Agricultural Income Tax Officer was upheld. The assessee then filed a second appeal before the Appellate Tribunal, Agricultural Income Tax, Jaipur. The Agricultural Income Tax Officer also filed an appeal with regard to the items which were altered by the Assistant Commissioner. Both the appeals were heard and decided together by the Tribunal and they were partially accepted. The Additional Commissioner, Agricultural Income Tax, then presented an application under sec. 86 (2) of the Rajasthan Agricultural Income Tax Act, 1953, which will hereinafter be referred to as the 'act', for referring questions of law to this Court. The Tribunal has accordingly drawn up a statement of case, formulated the following three questions and referred them to this Court: - (1) Whether the income derived from the land assigned by the assessee to his grandmother, wife, brother and sister and to the wife and to the mother of the Khawaswal cousin of the assessee could not be regarded as irrevocable for the purpose of sec. 22 of the Rajasthan Agricultural Income Tax Act, 1953 and should not be excluded from the computation of the total agricultural income of the assessee? (2) Whether the assignment made by the assessee in favour of his wife is hit by the provisions of sec. 13 (a) (iii) of the Act and whether the disposition is not covered by the third proviso to sec. 22? (3) Whether the 'patwar' income as recovered by the assessee, along with rent, is agricultural income within the meaning of sec. 2 (1) of the Act and should not be excluded from the assessment? In reference No. 8 of 1962, the assessee was jagirdar of thikana Chomu of the former Jaipur State. He was assessed by the Agricultural Income Tax Officer, Jaipur, on a sum of Rs. 69,186/- which was considered as his total net agricultural income. This included Rs. 3650/- on account of the sums realised by the assessee as 'patwar' cess. In appeal, it was urged by the assessee that 'patwar' cess did not fall within the ambit of "agricultural income". This contention was, however, rejected by the Assistant Commissioner, Agricultural Income Tax. The assessee then filed a second appeal before the Appellate Tribunal. It was held by the Tribunal that the income realised on account of 'patwar' was not an agricultural income. In this case also, the Additional Commissioner presented an application under sec. 86 (2) of the Act and, therefore, the Appellate Tribunal has formulated and referred the following question to this Court: - (1) Whether the 'patwar' income as recovered by the assessee along with rent is agricultural income within the meaning of sec. 2 (1) of the Rajasthan Agricultural Income Tax Act and should not be excluded from assessment? It would appear from the above narration that the question referred in Reference No. 8 of 1962 and question No. 3 referred in Reference No. 7 of 1962 are identical and, therefore, it would be proper to take up this question first. It is contended by learned Deputy Government Advocate appearing on behalf of the Additional Commissioner, Agricultural Income Tax that 'patwar' came within the ambit of the definition of 'agricultural income', because it was nothing but revenue derived from land which was used for agricultural purposes and, therefore, it is prayed that this question should be answered in the affirmative. The respondents have not cared to appear before this Court in spite of service, and, therefore, both the references have been heard ex parte. We have given due consideration to the argument of the learned Deputy Government Advocate and if we were to find from the record that the department was able to establish that 'patwar' was revenue derived from land used for agricultural purposes, there could be no alternative but to answer the question in the affirmative- We, however, find from the statement of the case which has been presented by the Appellate Tribunal before this Court and to which no exception appears to have been taken at the time when the statement was prepared that 'patwar' was "in the nature of an administrative charge payable to the patwari for maintenance of the records and management of the jagir land. " We further find from the judgment of the Appellate Tribunal dated 12th May, 1958 that in its opinion 'patwar' was a sort of 'cess' recovered at the rate of 7 pies per rupee on the amount of rent and it was realised from the tenants as an administrative charge. After discussing a number of cases which were cited before the Tribunal, it was observed by it as follows: - "it is ture that the charge is recoverable as 'patwar' as a percentage on rent but the affirma- a percentage on the rent payable by tenants and, their lordships of the Privy Council in C. I. T. Bihar and Orissa v. Kamakhya Narainsingh (AIR 1949 Privy Council, J), there could be no doubt that without the obligation to pay rent, there could have been no charge recoverable as tive proposition that the charge is derived from land does not emerge from this series of facts and the immediate and effective sources of the income is not land but the rent and, in the genealogical tree of 'patwar', land appears in the second degree. " The order of assessment passed by the Agricultural Income-Tax Officer on 17th December, 1954, has also been placed on record and we find therefrom that the Agricultural Income Tax Officer made no particular remarks about the nature of the 'patwar' and he remained content with making the following observation: - "on examination it was found that a sum of Rs. 6081/- received on account of 'patwar' has been left out. This is nothing but pure agriculcural income and hence should be included. " It is obvious from the small remark, referred above, that the Agricultural Income Tax Officer did not try to make any investigation and, at any rate, he did not throw any light on the question as to what was the nature of 'patwar' and how he considered it to be an agricultural income of the assessee. The Appellate Assistant Commissioner also did not discuss the details as to how this income was derived and collected. He was content with making an observation that 'patwar' was an income realised from the cultivators and, therefore, the Agricultural Income Tax Officer was right in treating it as agricultural income. It is clear from this remark that the Assistant Commissioner was under the impression that any amount realised by the assessee from an agriculturist could be nothing but as agricultural income. He did not apply his mind to the question whether it was revenue derived from land. It ought to have been appreciated by him that every amount recovered from the cultivator could not necessarily be revenue derived from land. In the absence of detailed investigation as to how 'patwar' was realised, we have no option but to accept the finding of the Appellate Tribunal to the effect that it was a sort of cess recovered at the rate of seven pies per rupee of the rent from the tenants as an administrative charge and that this charge was payable to the patwari for the maintenance of the records and management of the jagir land apart from the cost of collection. If the charges for 'patwar' were recovered by the assessee for the amount payable to the patwari for the maintenance of records and management of the jagir land apart from the cost of collection and if it was not recovered as rent, but as a sort of cess at the rate of seven pies per rupee of the rent as an administrative charge, then it is difficult to say how it could be called an agricultural income falling within the ambit of the definition of that term as given in sec. 2 (1) (i) of the Act. It is not necessary to consider the entire ambit of the definition of the term 'agricultural income', because the learned Deputy Government Advocate has confined his argument to the application of sec. 2 (l) (i) of the Act which runs as follows: - Sec. 2 - In this Act, unless there is anything repugnant in the subject or context - (i) "agricultural income" means - (1) any rent or revenue derived from land which is used for agricultural purposes "and is either assessed to land revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such". In Maharaja Shri Brij Bhushanlalji Goswami, Kankroli vs. The Commissioner of Income-Tax, Delhi and Rajasthan, New Delhi D. B. Civil Income Tax Reference No. 20 of 1963, decided by this Court on 30th July, 1965), we had occasion to discuss the distinction between rent and revenue and it was observed that since the legislature has used three different expressions, rent, revenue and land revenue, they cannot be taken to mean the same thing in the same sense. It was pointed out that 'revenue' is ordinarily a word of wider connotation. The distinction between the words 'rent' and 'land revenue' has always been well understood. The rent is paid by a tenant to a landlord, whereas land revenue is paid to the State. In our opinion, the charges made by the assessee for 'patwar' may be called revenue in the wider sense of the term, but it would appear from the definition reproduced above that it is not every revenue which can come within the ambit of the agricultural income. It is only revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such, which can be termed as "agricultural income". It is clear from the statement of the case and also from the judgment of the Appellate Tribunal that 'patwar' was not charged by the assessee from the agriculturists for use of the land as such. Those charges could not therefore be said to be derived from land because they were not directly related to the agricultural land or its use. They were realised from the cultivators as administrative charges payable to the patwari for the maintenance of the records and management of the Jagir land and, therefore, although this amount was realised from the agriculturists, it could not be said that it was derived from land. The rent was already collected from the tenants and this charge was then recovered over and above it at the rate of seven pies per rupees of the rent. We, therefore, agree with the Appellate Tribunal that this revenue was not derived from land and, to use the expression of their lordships of the Privy Council made in G. I. T. Bihar & Orissa v. Kamakhya Narayansingh (1), land appeared in this context only in the second degree. In the said case, a question arose before their lordships whether interest payable by statute on rent in arrear was agricultural income. It was held that it was not agricultural income within the definition of that term used in sec. 2 (1) of the Income Tax Act and was, therefore, not exempt from income tax. It is pertinent to note that the definition of the term Agricultural income' at that time was "any rent or revenue derived from land which was used for agricultural purposes and was either assessed to land revenue in British India or subject to a local rate assessed and collected by officers of the Grown as such. " This definition was very much similar to the definition given in sec. 2 (3) (i) of the Rajasthan Agricultural Income-Tax Act, reproduced above. The following words in both the sections were identical: - "any rent or revenue derived from land which is used for agricultural purposes. " While discussing the scope of rent, it was observed by their lordships that it was a technical conception, its leading characteristic being that it was a payment in money or in kind by one person to another in respect of the grant of a right to use land. Then, it was pointed out that interest payable by statute on rent in arrear was not such a payment and, therefore, it was neither part of the rent, nor an accretion to it, though it was received in respect of it. Thereafter, their lordships proceeded to examine the scope of the term 'revenue' and to consider whether the interest on rent could come within its ambit. It was observed as follows: - "equally clearly the interest on rent is revenue, but in their lordships' opinion it is not revenue derived from land. It is no doubt true that without the obligation to pay rent - and rent is obviously derived from land - there could be no arrears of rent and without arrears of rent there would be no interest. But the affirmative proposition that interest is derived from land does not emerge from this series of facts. All that emerges is that as regards the interest, land rent and non-payment of rent stand together as cause sine cuibus non. The source from which the interest is derived has not thereby been ascertained. " Then, adverting to the scope of the word 'derived', it was observed by their lord ships as follows: - "the word 'derived' is not a term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of nonpayment and rent is not land within the meaning of the definition. " In our opinion, these observations apply with equal weight to 'patwar' because 'patwar' is clearly not rent and it is not payable in respect of the grant of a right to use the land as such. It may be called revenue in its wider sense, but it is not revenue derived from land. It is a charge made by the landlord for purposes of administration, that is, for emoluments to be paid to the patwari for maintenance of the records and management of the jagir land. It was charged apart from rent and land revenue and the mere fact that the revenue of seven pies per rupee was fixed on the amount of the rent did not make it a part of rent or land revenue. It was not derived from land because (in their lordships' language), land appeared in this context only in the second degree. In Partapsingh Bahadur v. Province of Bihar (2), a question arose whether Malikana allowance was income derived from land. Proprietors who were dispossessed of their lands in consequence of their refusal to enter into an engagement for the payment of revenue demanded by Government in 1753, were paid in consideration of their proprietory right, an allowance and that allowance was called Malikana. It was held that it was not an income derived from land although land in the genealogical tree of Malikana appeared in the second degree, its immediate and affective source was the Government's obligation to pay it, and this obligation was not rent within the meaning of the definition. Similarly, in H. T. Conville and another v. Commissioner of Income-tax, Punjab (3), the lambarder used to be given remuneration for collecting land revenue at the rate of Rs. 5/- for every 100 rupees of land revenue collected by him. It was held the net profit from the said commission did not fall within the definition of the 'agricultural income' under section 2 (1) of the Income Tax Act.
(3.) IT would now be proper to notice those cases on which reliance has been placed by the learned Deputy Government Advocate. In Birendra Kishore Manikya v. Secretary of State for India (4), it was held that salami or premium received from the settlement of waste land but not on transfer of a holding was exempt from the assessment of income-tax. In our opinion, this case is not helpful, because it was found in the said case that salami was the premium and it represented essentially the capitalized value of a portion of the land. In the present case, it cannot be urged' with any justification that 'patwar' represents even a fraction of the capitalized value of the land. He has next referred to Mehar Bano Khanum v. Secretary of State for India (5 ). This case is also of little help to the petitioner, because it was also a case of nazarana paid by a tenant to a londlord for non-transferable holdings and the learned Judges followed the view taken in the first case - Birendra Kishore Manikya v. Secretary of State for India (4), referred to above. He has further relied upon Maharaja Dhiraj of Darbhanga vs. The Commissioner of Income-Tax, Bihar & Orissa (6 ). This case is also of no avail to the petitioner because it related to fees paid by the transferee of a non-transferable occupancy holding and those paid by the transferee of a tenure known as landlord's fees. The last case relied upon by him is Raja Rajendra Narayan Bhanja Deo v. Commissioner of Income-tax, Bihar & Orissa (7 ). In that case, the question for decision was whether mutation fees paid to a landlord in Orissa upon succession, to a holding or tenure by inheritance wore "agricultural income" and it was held that the said fees were derived from land used for agricultural purposes. It would thus appear that all the cases which have been referred by learned Deputy Government Advocate are of little assistance to the petitioner and we see no reason to disagree with the view taken by the Appellate Tribunal. Our reply to the question, therefore, is that the 'patwar' income recovered by the assessee was not agricultural income within the meaning of sec. 2 (1) (i) of the Act and it was rightly excluded from the assessment. ;