1. The question at issue in this appeal is as to the liability of the appellants to pay road-cess. The appellants hold a mokurari jama under the plaintiff and the proforma defendant of Rs. 12-8, which they agreed to pay for the right to hold a mela on certain land, in the month of Falgoon every year, when there are no crops on the land. According to their pottah, dated the 12th Magh 1267, they are to pay this sum to their landlords from the profits of the mela. They were called on by the Collector to submit a valuation roll under the Cess Act with regard to the profits of this mela and submitted it. The Collector then fixed a certain amount of road-cess on the profits of the mela, which he has realized from the plaintiff, and the plaintiff now sues to recover this road-cess from the defendants, as well as the rent due under the lease.
2. The First Court disallowed the plaintiff's claim for road-cess. The Subordinate Judge has allowed it, holding that the defendants are tenure-holders within the definition of tenure-holder contained in the Cess Act.
3. The defendants appeal. It is found by the Munsif to be the case, and it has been admitted before us, that the defendants have to pay income-tax on the profits of the mela, and that they ought not to be held liable for both income-tax and road-cess. The question then is what tax are they, properly speaking, liable to pay--road-cess or income-tax? Now, the Income Tax Act declares that it is an Act intended to impose a tax on income derived from sources other than agriculture, and Section 5 exempts from the liability to the tax incomes derived from agriculture or operations connected with agriculture. 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 agircultural purposes and therefore the profits of the mela are not incomes which would be exempt from income-tax under Section 5 of Act II of 1886. Hence the defendants would seem to be liable to pay income-tax and consequently not road cess.
4. It is argued that the defendants came within the definition of tenure-holder, as defined in the Cess Act. Tenure-holder under the Cess Act means the holder of a tenure, which is an interest in land other than an estate or the interest of a cultivating raiyat. Now the defendants are, no doubt, not the holders of an estate, and they are not cultivating raiyats, and they hold immoveable property, which is defined in the Act as ' land, etc., but not crops, houses, shops, or other buildings.' The definition of tenure-holder would, therefore, seem to be wide enough to include the defendants. But notwithstanding this fact we do not think that it can have been intended by the legislature to assess road cess tax, land from which profits subject to income-tax are derived, except when such land is used for agricultural purposes. It is to be noted that the land, on which the mela annually takes place, is assessed with road-cess in its agricultural character, and the defendants do not pay road-cess on profits derived from it, when it is not used for agricultural purposes.
5. The Munsif says the profits of the mela are not derved from the soil of the lands, but from shop-keepers for their shops in the mela, and he argues that shop are not included within 'immoveable property' as defined in the Act. It is doubtful, if this view of the Munsif is strictly accurate. The ahop put up at mela are more properly described as booths or stalls. They are certainly not permanent structures. Many people, who attend a meal, do not erect even booths or stalls, but sit and sell their goods on the bare ground. But other than agricultural produse is sold at these melas and the people, who attend them, are not all agriculturists.
6. The respondent's pleader calla our attention to (S. III B.) Rule 33 printed at pp. 74 and 75 of the Cess Manual, 1900 framed by the Board of Revenue under Section 106 of the Act. This rule is as follows:
7. 'The benefit, which a Zemindar receives from a fair or hat in the shape of payments for the occupation of land by dealers' or trades, is assessable to cess. When a fair or hat is held on land apperaining to an estate, it is to be valued under Chapter II of Bengal Act, IX of 1880, as part of the estate, to which it belongs. But when, as in some cases in the Darjeeling district, a fair or hat is held on land reservd solely for such purposes, and which does not from part of an estate, it should be valued under Chapter V of the Act under Section 79; the annual valuation of such lands is not necessary.
8. Note--Profits derived from the rent of shops other miscellaneous revenue derived by zemindars from hats and fairs should not be excluded from the cess valuation of the land on which they are situated; valuation should not, however, be made on trade profits or on benefits derived by traders (Boards' cess proceedings of the 12th Novmber 1898, No. 2. collection 10, file 96 of 1897.
9. The Board of Revenue has, therefore, clearty come to rhe conclusion that the profits derived from land used for the purpose of a mela are assessable with road-cess, and no doubt it may be argued that the land is agricultural land and the profits of the mela are derived from the use of this land. But for the reasons already given we do not think this is a correct view to take, and the rule in question would seem to us to be ultra vires. It does not appear to be such a rule as the Board of Revenue is authorised to make under the provisions of Section 106 of Act IX of 1880.
10. For these reasons we decree this appeal with cost.
11. The plaintiffs have no doubt been compelled to pay road-cess by the Collector, and it may seem hard that they should not be allowed to recoup themselves from their lessees or licensees. But the plaintiff's assessment with road-cess by the Collector will now withdraw his demand or cease to enforce it.