(Judgment of the Court was delivered by the Honble the Chief Justice).
The assessee is the Zamorin of Calicut. He owns agricultural lands in the district of Malabar which he leases to tenants. Under the Malabar Tenancy Act, 1930, a tenant is entitled to renewal of his lease, which is usually for 12 years. It is the custom in that part of India for the tenant to pay a renewal fee, which is known as Avakasam and additional Avakasam which is a percentage of the Avakasam. The assessee has been in the habit of requiring his tenants to pay more than the Avakasam and additional Avakasam before granting them renewals. What the assessee exacts from his tenants on a renewal is allocated in his books under the following heads : (1) Avakasam, (2) additional Avakasam, (3) Thirumasapoli, (4) Power of attorney fees, (5) writing charges, (6) Thirumalkazcha, (7) Thirukkaikanom, (8) sundry expenses, (9) expenses at the tenants place, and (10) expenses for the estate office. We are told that Thirumasapoli is a religious ceremony held monthly, Thirumalkazcha is an offering made by the tenant for the purpose of getting a personal interview with the landlord and that Thirukkaikanom is a further present to him. The Income-tax Officer treated the Avakasam and the additional Avakasam as agricultural income as the Indian Income-tax Act defines such income as rent or revenue derived from land which is used for agricultural purposes. He was not, however, prepared to treat the excess demanded from the tenants as agricultural income. On an appeal by the assessee to the Appellate Assistant Commissioner it was held that the excess must also be treated as agricultural income. The Appellate Tribunal, Bombay Bench, agreed with the Appellate Assistant Commissioner but at the request of the Commissioner of Income-tax it has referred to this Court under Section 66 (1) of the Income-tax Act the following question :-
'Whether in the circumstances of the case, the extra amount of Rs. 3,500 is agricultural income within the meaning of Section 2 (1) (a) of the Act ?'
The sum of Rs. 3,500 represents the excess over the Avakasam and additional Avakasam.
We consider that the Tribunal correctly decided this question. The further exactions of the landlord may be reprehensive, but he insists on these payments before he is prepared to grant a renewal of a lease. He gets the further income as the owner of agricultural land. It is accepted that the Avakasam and additional Avakasam come within the definition of agricultural income. If a fee exacted for the granting of a renewal is agricultural income it is difficult to see why a further exaction for whatever purpose should not be so classified if the payment is demanded before the lease is renewed. A Full Bench of the Patna High Court in Rajendra Narayan Bhanja Deo v. Commissioner of Income-tax, Bihar & Orissa, held that mutation fees paid by the assessees tenants upon although the exactions were illegal, as the money was paid by the tenants to the landlord by reason of the relationship or landlord and tenant. The Tribunal relied on that case. We consider that there is no difference in principle between that case and this.
The answer which we give to the reference is that the extra amount of Rs. 3,500 recovered by the assessee is agricultural income within the meaning of Section 2 (1) (a) of the Act.
The Commissioner will pay the costs of the reference, Rs. 250.
Reference answered accordingly.