TMI Blog1920 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... reby, the Court may refer the case back to the Revenue Authority by which it was stated, to make such additions thereto, or alterations therein as the Court may direst in that behalf. 3. The High Court upon the hearing of any sash case shall decide the questions raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Revenue Authority by which the case was stated, a copy of such judgment under the seal of the Court and the signature of the Registrar; and the Revenue Authority shall dispose of the case accordingly, or if the case arose on reference from any Revenue Officer subordinate to it, shall forward a copy of such judgment to such Officer who shall dispose of the case conformably to such judgment. 4. Where a reference is made to the High Court on the application of an assessee, costs shall be in the discretion of the Court. 2. The assessment which has led up to the present proceeding was made by the Collector of Tipperah, in whose jurisdiction the assessee resides, within the meaning of the definition of the term Collector contained in Sub-section (5) of Section 2 of the Indian incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nda Chandra Dey Ray and Mr. Birendra Chandra Das, two of the Vakils of this Court, were ready to enter appearance on behalf of the assesses. After Mr. Das had thus been properly instructed, the matter was heard on the merits. We shall now state the grounds for our ruling on the question of procedure and then give our decision on the points raised in the Reference. 3. For the solution of the question of procedure, it is necessary to investigate the nature of the proceeding under Section 51 of the Indian Income Tax Act. It is plain that the nature of the proceeding cannot be affected by coincidental circumstances, such as the plane from or the channel through which the Reference has been made; it is immaterial whether, at the time of the Reference, the Chief Revenue Authority was at Calcutta, Darjeeling or Dacca, or, whether the Chief Revenue Authority caused the order of Reference to be transmitted to the Government Solicitor who placed the matter in the hands of the Registrar on the Original Side or to the Legal Remembrance who entrusted the matter to the charge of the Government Pleader on the Appellate Side. The nature of the proceeding is a matter of substance and not of form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the rules made there under. When such a reference has been made, the opinion pronounced by the High Court cannot be ignored, because it is made obligatory on the Revenue Authority concerned to decide the case conformably to the judgment of the High Court. What then is the nature of the jurisdiction which the High Court exercises on such reference? Under the Letters Patent, the civil jurisdiction of the High Court is classified as original (ordinary and extraordinary), and appellate (from the Original Side or from the Courts in the Provinces.) The Letters Patent makes no mention of revision (as distinguished from superintendence) of the proceedings of subordinate Courts or of references from them. This does not justify the inference that the Court has no power to revise proceedings or to hear references. It was pointed out by Sir Richard Couoh, C.J., in Girdharee Singh v. Hurday Narain Sahoo 21 W.R. 263 : 13 B.L.R. 103, that the power of revision is in essence an aspect of appellate jurisdiction. The substance of the matter is, as explained in Secretary of State for India v. British India Steam Navigation Co. 9 Ind. Cas. 183 : 18 C.L.J. 90 : 15 C.W.N. 848, that the error of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to appeals front the Original Side; in the latter class of cases, the procedure should be that applicable to appeals from the Courts in the Provinces under Clause 16 of the Letters Patent. This distinction, as is well-known, has a historical origin and cannot be ignored. It was faintly contended, however, by Mr, Das, as a last resort, that the jurisdiction which the High Court exercises under Section 51 of the Indian Income Tax Act is neither original nor appellate, but a new kind of jurisdiction not contemplated by the Letters Patent. It is sufficient to say that this argument, though not lacking the merit of novelty, could not be of any practical assistance to Mr. Dass for, while an Attorney can appear only on the Original Side, a Vakil is excluded only from the Original Side. Consequently, if the jurisdiction were neither original nor appellate, an Attorney would not be, but a Vakil would be, competent to appear. In the present case, the assessment under Section 18 was made by the Collector of Tipperah and the order under Section 22 (which ultimately came under examination by the Board of Revenue) was made by the Commissioner of the Chittagong Division. Consequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... references from subordinate Courts for disciplinary action against Pleaders and Muktears under the Legal Practitioners Act, 1879, as also in proceedings instituted in this Court for disciplinary action against Vakils. 6. We have next to consider the questions referred by the Board of Revenue to this Court for decision: (1) Is selami or premium agricultural income within the meaning of Section 2(1) of the Indian Income Tax Act, 1918, when charged. (a) for the settlement of waste lands or abandoned holdings? (b)for recognition of a transfer of a holding from one tenant to another? (2) Are illegal abwabs, such as uttarayan agricultural income within the meaning of that section? 7. Section 4 provides that agricultural income shall not be chargeable to income tax. Section 2(1)(a) lays down that agricultural income means any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue or subject to a local rate assessed and collected by officers of Government as such, The assessee contends that the incomes mentioned in the two questions are exempt from assessment as they constitute agricultural income within the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a transfer of a holding from one tenant to another. When the transfer is recognized, the original tenancy continues and there is no new demise. The sum paid as selami or premium in such circumstances is obviously not rent in any sense of the term; nor can it be deemed the return, yield, or profit of any land. The money is paid by the transferee to the landlord to purchase peace, so that he may not contest the validity of the transfer. We cannot hold that money so levied by the landlord can be comprised within the scope of the definition of agricultural income. 9. Finally, the contention that illegal abuabs, such as uttarayan, constitute agricultural income, is manifestly untenable. The item uttarayan is a voluntary payment, made by tenants, at one piece per rupee of their rent, for expenses of the Bastu Puja on the Uttarayan Sanskranti day (the list day of the Bengali month Pous) and for distribution of sweets and oranges to all servants of the estate, Government officers and local residents. The item consequently is an illegal exaction and cannot, on the widest interpretation which may be placed on the phrase rent or revenue, be possibly included therein; nor can it be said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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