NARASIMHAM C.J. - These are three references under section 29(2) of the Orissa Agricultural Income-tax Act, made by the Agricultural Income-tax Tribunal, Orissa, referring the following questions of law for the opinion of this court :
'(1) Whether in the facts and circumstances of this case the Tribunal is right in holding that income from milk derived from milch cows maintained by the opposite party is not agricultural income so as to be assessed to income-tax under the Agricultural Income-tax Act, 1947 ?
(2) Whether in the facts and circumstances of the case the Tribunal is right in holding that the Hindu undivided family represented by Shri Shyam Sundar Patnaik, in the instant case, is a Hindu undivided family consisting of brothers only ?
The facts found by the Tribunal are that the joint family at present consists of four persons, namely, Binod Behari, Purna Chandra, Shyam Sundar and Lakshmidhar, whose relationship will appear clear from the geneological tree shown below :-
In my opinion both the aforesaid questions are concluded by a decision of the supreme Court and by a previous Division Bench decision of this court also in commissioner of Income-tax v. Benoy Kumar Sahas Roy. Their Lordships of the Supreme Court held that the expression 'agriculture' occurring in the Income-tax Act should not be given a wide meaning so as to embrace dairy farming also and this court also in State of Orissa v. Ram Chandra Choudhury, decided on August 16, 1961, followed the aforesaid decision and held that dairy farming will not be 'agriculture' and income from dairy farming will not be agricultural income for the purpose of the Orissa Agricultural Income-tax Act. Following the aforesaid decisions therefore we must answer the first question in the affirmative.
As regards the second question also there is a Bench decision of this court reported in Sridhar Sahu v. The Member-in-charge of Commercial Taxes, board of Revenue, in which it was held that though the expression 'brothers only' occurring in the Schedule to the Agricultural Income-tax Act must be given a wide meaning in view of the inclusive definition given therein so as to include a joint family consisting of sons of a brother or grandsons of a brother, nevertheless, it cannot be further extended to include a joint family in which one of the members is a great-grandson of a brother. That decision would inferentially show that if the family consisted of sons of brothers or grandsons of brothers that family would come within the scope of the said Schedule to the Orissa Agricultural Income-tax Act. Mr. Ghosh appearing for the defendant however challenged the correctness of this decision and urged that it was implied in the very definition of the expression 'brothers only' in the Schedule that at least one of the brothers must be a surviving coparcener though the other brothers branches may be represented either by their sons or sons sons. We are however unable to find anything in the language of the Schedule to support this contention. Explanation 1 to the Schedule says that 'brother' includes the son and the son of a son of a brother and the widow of a brother. It does not say, nor does it follow by necessary implication, that one of the brothers must be surviving in the joint family. To that extent the Orissa Act differs from the Bihar Agricultural Income-tax Act (7 of 1948), where in section 11 (corresponding to section 10 of the Orissa Act) the language used is as follows :
'11. The total agricultural income of a Hindu undivided family shall be treated as the income of one individual and assessed as such :
Provided that if a Hindu undivided family consists -
(i) of brothers only, or
(ii) of a brother or brothers and the sons or sons of a brother or brothers..................'
Here it will be noticed that the expression 'brothers only' has not been defined in clause (i). It is expressly stated that the family must consist of a brother or brothers on the one hand and the son or sons of a brother or brothers on the other, thereby implying that at least one of the original brothers of the family must be alive. In the Orissa Act however the definition given to the expression 'brothers only' in the Schedule was of a very inclusive nature as already mentioned. We see therefore no reason to differ from the view taken by the Division Bench in the aforesaid decision and the Patna decision in Province of Bihar v. Gajendra Narain Singh, which is based on identical provisions in the Old Bihar Agricultural Income-tax Act of 1938 will be applicable. Question No. 2 is therefore answered also in the affirmative.
The reference is disposed of accordingly. The department must pay the costs of this reference which we assess at Rs. 100. There will be one set of costs in all the three S. J. Cs.
DAS J. - I agree.