TMI Blog1932 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ri, the water in which is used for agricultural purposes. Excepting the right to fish, the lessees have no other rights whatsoever in the water of the tanks and channels nor have they any right over the bed of the tanks and channels. The land on which the tanks are, and through which the channels run, is agricultural and assessed to land revenue in British India. It will be seen from the question referred to us that exemption is claimed for the income on two grounds, but Mr. S Srinivasa Ayyangar for the petitioner stated that he was not prepared to argue that the income was exempt for the former reason states in the question because he was unable to argue that there was any real difference between the Madras Regulation XXV of 1802 and the Bengal Regulations which were relied upon for a claim to exemption of Zamindari income, a claim which was negatived by a Full Bench of the Calcutta High Court in Emperor v. Prabhat Chandra Barua. On appeal to the Privy Council this decision was affirmed in Raja Prabhat Chandra Barua v. King-Emperor. Mr. s. Srinivasa Ayyangar accordingly directed his argument to the latter ground for exemption raised in this question referred. It would appear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, as the land surrounding the tanks and through which the channels run is agricultural land or land used for agricultural purposes and the water is used for agricultural purposes, namely, to irrigate the land used for agriculture, the income from the fisheries is income derived from agriculture. It is not suggested by the petitioner that the beds of the tanks and channels are ever used for agricultural purposes. In fact we do not gather that the tanks or the channels are ever dry although I do not for one moment think that the question is of any importance in view of the before-mentioned admission by the petitioner. No authority in support of this argument has been referred to and there does not appear to be any case in which income from fishery rights has been held to be agricultural income. But there are decisions to the contrary. In Emperor v. Probhat Chandra Barua, it was held by Rankin and Page, JJ., that income from fisheries, that is to say, income derived from the rental of fisheries, is not agricultural income. But there are decision to the contrary. In Emperor v. Probhat Chandra Barua, it was held by Rankin and Page, JJ., that income from fisheries, that is to say, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral purpose. The fact that some of the water in the tanks of channels is used for agricultural purposes does not make this income revenue derived from land which is used for agricultural purposes. The land upon which the water is, is not being used for agricultural purposes and whilst the water is there fact there it cannot be used for agricultural purposes and there is no evidence here to show that the land is ever or has ever been used for agricultural purposes; nor do I think that any assistance to the petitioner is to be derived from the use of the word revenue in Sub-S. (a) to S. 2(1). It is argued that, as both rent and revenue are used in that sub-section, revenue means something different from the rent derived by the landowner from land used for agricultural purposes and must be taken to include all other sources in income derivable in different ways to that by which the rent is derived that is to say, to include all income which is got from anything of value which may be upon land used for agricultural purposes. It is even contended that, if valuable stones are to be found on the surface of land being used for agricultural purposes, the income derived from the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds : 1. That the income from fisheries was included in the assets of the Zamindari for fixing peshkush payable by the Zamindar to the Government, and that he could not be required to pay Income Tax on any of the items of income included in the assets of the Government, and that he could not be required to pay Income Tax on any of the items of income included in the assets of the Zamindari with reference to which peshkush was fixed, - since it would be a case of double taxation, which, it was contended, would be illegal : and 2. That income derived by leasing the right to fish in the tanks and connected supply channels in the Zamindri, is agricultural income, and as such is exempted under s. 4(3)(viii) of the Act. After decision of Privy Council in the case reported in Raja Probhat Chandra Barua v. King-Emperor, the first contention is not tenable. With reference to a similar contention based on substantially (for the present purpose) similar provisions of the Bengal Permanent Settlement Regulation (1 of 1793), the Privy Council held that while the regulations contain assurances against any claim to an increase of the income which he derives from hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son claiming the benefit of an exception should strictly prove that this case comes within the exception. Agricultural income is defined in s. 2 of the Act as follows :- 2. In this Act, unless there is anything repugnant in the subject or context :- (1) Agricultural income means :- (a) Any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land revenue in British India or subject to a local rate assessed and collected by officers of Government as such; (b) Any income derived from such land by (i) Agriculture, or (ii) The performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market, or (iii) The sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in sub-clause (ii); (c) Any income derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held that income thus derived would not be agricultural income within the meaning of the Income Tax Act. See Umed Rasul Shaha Fakir v. Anath Bandhu Chaudhuri. He may let the land for shooting; he may similarly make money by allowing quarrying on the land; he may allow boating not the waters of the tanks and levy fees for the same; he may allow a ferry to be established a cross the tank, which may enable the public to travel from one side to the other in a convenient way, and levy fees therefor; there may be springs in the tank, and even after supplying water necessary for the customary cultivation of wet lands under the Ayacut of the tank, he may sell the surplus water of the tank to a neighbouring village, town or municipality, for consumption by the people thereof, or let the water to the lands of the neighbouring village which otherwise may have no right to the said water, and receive money for the same. Other instances might be imagined. Could it be said that such incomes are rent or revenue derived from land which is used for agricultural purposes ? The word agriculture even in its widest import, has received some sort of definite and restricted meaning, and I find i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was cited to us by the learned advocate for the assessee. On the other hand some decisions of Indian Courts were cited to us by the learned advocate who appeared for the Commissioner of Income Tax as supporting the contention of Crown. I have already noticed the decision in Umed Rasul Shaha Fakir v. Anath Bandhu Chaudhuri - the mela case. At page 639, the learned Judges, Rampini and Gupta, JJ., observed as follows :- 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 agricultural purposes, and therefore the profits of the mela are not incomes, which would be exempt from Income Tax under S. 5 of the Act II of 1886. In Emperor v. Probhat Chandra Barua it was held that income derived from fisheries, and from Sthalijat, (i.e., land used for stacking timber) is not agricultural income or income derived from land which is used for agricultural purposes with the meaning of Ss. 2 and 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers, to understand the meaning of the word agriculture. This is what the learned Chief Justice stated at page 485. It was urged, however, that fisheries were, or might be in certain cases, as where the fishing is from tanks so intimately connected with the pursuit of agriculture that they should be included under that designation. The popular conception of agriculture, even if it should include the rearing of live stock and poultry fed on the produce of the land and requiring in certain cases cultivation of the land of grazing purposes, or otherwise, seems hardly wide enough to include the earning of fish in rivers or tanks. Agricultural income is defined in cl. (2) of the Income Tax acts of 1918 and 1922. The definition includes rent or revenue derived from land used for agricultural purposes as well as income derived from agriculture and from the sale of agricultural produce. The definition does not carry the case any further. The question is whether the rent paid for the fishing rights, or for the markets, ferries or moorings is income derived from agriculture. In my opinion, it is not. The fact that the Bengal Tenancy Act, by S. 193 applies the procedure provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is undoubtedly an agricultural purpose. But the money sought to be taxed is received for the right of catching fish, and there is ample authority that the use of a tank as fishery is not a use of land for agricultural purposes. But the money sought to be taxed is received for the right of catching fish, and there is ample authority that the use of a tank as fishery is not a use of land for agricultural purpose : Raja Probhat Chandra Barua v. King-Emperor, Emperor v. Probhat Chandra Barua and Maharajadhiraj of Dharbhanga v. Commissioner of Income Tax. In those cases, it is true, the tanks do not appear to have been used for any other purpose than a fishery. And in the Patna Case, Sir Dawson Miller, C.J., Suggests that it might make a difference if the fishing rights included a right to cultivate the bed of the tank when dry. The argument here is that if the land is used for an agricultural purpose, any source of income from it is agricultural income. This supposes that agricultural income means income derived from agricultural land. But the definition clause in S. 2(1)(a), shows that the income intended is the income derived as rent or revenue from the use of the land for ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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