M.S. Menon, J.
1. The petitioner in those two petitions is an assessee under, the Agricultural income-tax Act 1950. He challenges the validity of the assessments for the assessment years 1958-59 and 1959-60 in so far as they relate to his income from the cultivation of tobacco. According to him the levy of amagricultural income tax on the income from the cultivation of tobacco is in substance and in effect the levy of an excise duty and lienee beyond the powers of the State legislature under the Constitution of India.
2. There can be no doubt that if the tax amounts to an excise duty, the contention of the assessee has to be sustained and these petitions allowed. Duties of excise, on tobacco come under Entry 84 of the Union List and Article 246(1) of the Constitution specifically provides that Parliament has the exclusive power to make laws with respect to any of the matters enumerated in that list.
3. The only question for determination, therefore, is whether a tax on the income derived from the cultivation of tobacco amounts to a duty of excise within the ambit of Entry 84 of the Union List or only to a tax on agricultural income within the meaning of Entry 46 of the State List. In every case where the legislative competence of a legislature in regard to a particular enactment ischallenged with reference to the entries in the various lists it is of course necessary as pointed out by the Supreme Court in Chaturbhai M. Patel v. Union of India, AIR 1960 SC 424:--
'to examine the pith and substance of the Act and if the matter, comes substantially within an item in the Gentral list it is not deemed to comewithin an entry in the Provincial list even though the classes of subjects looked at singly overlap in many respects.'
We entertain no doubt that the levy has nothing to do with Entry 84 of the Union List, that the assessments made in respect of the income derived by the petitioner from the cultivation of tobacco are sustainablc, and that these petitions have to be dismissed.
4. The wording of Entry 84 of the Union List in the Constitution of India is virtually the same as that of Entry 45 of the Federal Legislative List in the Government of India Act, 1935. What exactly is meant by the expression 'duties of excise' came op for consideration in Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, in the matter of, AIR 1939 FC 1; 'Province of Madras v. Boddu Paidanna and Sons, AIR 1942 FC 33; Governor General in Council v. Province of Madras, AIR 1943 FC 11 and Governor General in Council v. Province of Madras, AIR 1945 PC 98.
5. In the first of the cases above-mentioned Gwyer, C.J., observed:
'The only kind. of excise duties which were known in India by that name were duties collected from manufacturers or producers, and usually payable on the issue of the excisable articles from the place of Manufacture or production.'
'It seems a not unreasonable inference that Parliament intended the expression 'duties of excise' in the Constitution Act to be understood in the sense in which up to that time it had always in fact been used in India, where indeed excise duties of any other kind were unknown.'
in the last of these cases the Privy Council ...aid:
'Their Lordships are of opinion that a dutyof excise is primarily a duty levied upon a manu-facturer or producer in respect of the commodity manufactured or produced. It is a tax upon goods.'
6. as pointed out in Abraham T.K. v. State of Travancore Cochin, 1957 Ker LT 1184: (AIR 1958 Kerala 129) (FB):
'The base of a tax --the object Or objects to which the tax applies, such as the 'sales value' of tangible property or the 'net income' of an Individual -- provides the chief element of distinction between the various tax forms obtaining in modern communities.'
The base of an agricultural income tax is the income derived and the base of a duty of excise is the commodity produced. According to Article 366(1) of the Constitution 'agricultural income' mean 'agricultural income is defined for the purposes of the enactments relating to Indian Income Tax.' The definition of 'agricltnrat income' in Section 2(1) (a) of the Indian Income Tax Act, 1922, is:
'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.'
7. 'Income-tax, if J may be pardoned for saying so' said Lord Matiiai;hten in London County Council v. Attorney General, 1901 AC 26 'is a tax on income. It is not meant to be a tax on anything else.' An excise duty as for example under the Central Excises and Salt Act, 1944 Is not a tax on income. as stated by the Privy Council in AIR 1945 PC 98 an excise duty is 'a tax upon goods.'
8. Section 5 of the Agricultural Income Tax Act, 1930, provides that the agricultural income of a person shall be computed after making the deductions enumerated therein. One of the deductions enumerated is:
'Any tax, cess or rate paid On the cultivation or sale of the crop from which agricultural incomeis derived' (Section 5(ii) (ii) ).
According to the petitioner he is entitled to a deduction under this provision of the excise duty on tobacco paid by him under the Central Excises and Salt Act, 1944. It is agreed that this matter may be dealt with in the appeals filed by the petitioner and now pending disposal, and that the question need not be considered in this judgment.
9. In the light of what is stated above these petitions have to be dismissed and we do so, though in the circumstances of the case without any order as to costs.