1. In the present reference, the learned vakil who appears for the assessee confines himself to three items included in the first question, namely : item (v), item (vii) and item (viii).
2. With reference to item (v), namely, fees received from land used for storing purchases of crops (paiati); what is actually meant by this is given in the petition of the assessee which he presented to the assistant commissioner of income-tax at Goalpara, He means the income which is derived for the use of land for storing purchases of food-crops, etc., by merchants, Evidently this does not come within the definition of 'agricultural income' as given in Section 2, Indian Income-tax Act. The income, as derived, is not derived from land used for agricultural purposes and, as such, such income cannot be claimed to be exempt from assessment.
3. With reference to item (vii), i.e., punyaha nazar or nazar paid by tenants of agricultural holdings at-the beginning of the zamindari year, I am of opinion that this also does not come within the definition of 'agricultural income' as given in the Act. This nazar is generally paid by tenants who are actually present on the occasion of the punyaha to the landlord. There is no uniformity in the payment of such nazar, nor is there any compulsory method for realizing such nazar. The tenants, if they choose, might not pay any nazar whatsoever on that occasion and the landlord cannot under any law at present in force enforce his supposed right, nor can the landlord demand nazar at a certain uniform rate. It is purely a voluntary payment by tenants, who take part in the ceremony and who usually are present on the occasion. It is not, therefore, an income which is derived from land used for agricultural purposes.
4. The learned vakil draws our attention to the full bench case of Metier Bano Khanum v. Secretary of State : AIR1925Cal929 and particularly to a passage in the judgment delivered by Mr. Justice Greaves where the learned judge says, referring to the salami paid to a landlord for recognition of the transfer of a non-transferable holding that
it is a money which comes to the landlord by virtue of the fact that he is the owner of the land,
and that that being so it would be an agricultural income and so exempt from the operation of the income-tax.
5. Now, in the Full Bench case the reference was in connexion with nazar paid by a tenant for recognition of transfer of a non-transferable occupancy holding. With reference to such a holding the position stands thus in law : that when such a transfer takes place the landlord is not bound to recognize such a transfer and that in case the landlord does not recognize such a transfer the landlord is free to take khas possession of the holding. When he doe3 recognize such a transfer, that practically amounts to a sort of new settlement with the transferee and the nazar which is actually paid on the transfer by the transferee really amounts to the capitalized value of a part of the rent. Under such circumstances such nazar would be an income derived from land, and, as such, would come within the definition of 'agricultural income.' Though this fact was not referred to permanently in the judgment, still the effect of such a transfer and of such a recognition amounts in law to a sort of new settlement by the landlord with the transferee. That being so, the case covered by the Full Bench decision altogether stands on a different basis from the present case and can hardly be used in support of the argument advanced by the learned vakil in connexion with punyaha nazar.
6. Then with reference to item (viii), i.e., nazar paid for petitions presented to the zamindar dealing with questions of succession, settlement and partition, this stands on a worse ground. This has absolutely nothing to do whatsoever with lands used for agricultural purposes unless in a most indirect and remote way. The landlord is not entitled to exact from a tenant nazar for such petitions, nor is a tenant liable to pay it under any provision of law. When the question of succession opens up with regard to a holding no such petition is necessary under the law. If the holding be an occupancy holding the landlord is bound to recognize the succession, petition or no petition. It is only in certain cases that certain steps have got to be taken in connexion with succession of tenures and those have been provided for in the Bengal Tenancy Act. But that has got nothing whatsoever to do with the nazar which is referred to in item (viii).
7. Then, the item (viii) refers to nazar for petitions dealing with questions of succession, settlement and partition. It is not 'nazar paid for recognition of succession or partition or for settlement'. Certainly the landlord may be entitled to something for recognizing succession or partition or for settlement. That would be an income derived from land. In cases of partition the landlord may rightfully demand certain fees. In cases of holdings and tenures, if the tenants choose to partition the same, they can do it with the consent of the landlord, and the consent of the landlord may have to be purchased, and in those cases the fee which the landlord would get may come under the definition of 'agricultural income' as given in the Act. But in this reference we are concerned with the nazar for petitions dealing with the questions of succession, etc., and not with nazar paid to the, landlord referred to above, for obtaining the recognition of the landlord in matters of succession or partition or for settlement. Such being the case, such nazar for petitions would not come within the definition of 'agricultural income' as given in the Act, so this item could also be assessable to income-tax and would not be exempt from the operation of the Income-tax Act.
8. I agree entirely in the judgment which has been delivered.
9. With reference to the first question put by the commissioner of income-tax the answers to all the items are in the negative. The answer is in the negative with reference to items (v), (vii) and (viii) for the reasons which have been given by my learned brother and with which I entirely agree.
10. We make no order as to costs.
11. The judgments now given (together with the judgment given by the Full Bench not he second and third questions, if those have not already been sent to the commissioner) will be forwarded to him under the seal of the Court and the signature of the registrar as provided by Section 66 of this Act (11 of 1922).