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Judgment
Meredith, J.—This is a case stated by the Board of Agricultural Income Tax. Bihar, at the instance of six assessees, the individual proprietors of the Bam Nagar Estate, who formerly formed members of a Hindu undivided family in which partition took place in 1944, since when the members have been individually assessed.
The question referred to us as a point of law is:
"Whether in the circumstances of this particular case the Assessing Officer was legally bound to accept the assessees'' applications for the multiple system of assessment u/s 7(1)(a) of the Bihar Agricultural Income Tax Act, 1938 (Bihar Act VII of 1938)."
The assessment in question is in respect of the accounting year 1351 Fasli and for the financial year 1944-45. The assessment orders upon the six assessees, so far as material, may be summaris-ed as follows. The assessees all chose to be assessed on the multiple basis. They made returns for their ''zerat'' and ''babasht'' lands, copying the area from the cess revaluation papers of the last cess revaluation which took place in 1920, and from this they deducted areas said to have been settled with ''raiyats'' subsequent to the cess revaluation. This return, in the opinion of the Income Tax Officer, did not correctly give the present area of lands directly cultivated because it was just possible that the area of ''bakasht'' land had increased on account of the acquirement of lands abandoned by ''raiyats'' and acquired in execution of rent decrees. Accordingly the assessees were asked to produce papers showing the present area of ''bakasht'' and ''zerat'' lands under their possession, but they could not produce any such papers, saying that there were none such in their possession. This he regarded as incredible, and he thought that they were deliberately suppressing papers to evade payment of tax. The highest area of ''bakasht'' returned by any of the assessees was 1287 acres in the return of one of them. He accordingly took this figure of 1287 acres as the ''bakasht'' area for each of them upon the assumption that in the recent partition the ''bakasht'' lands had been equally divided. Without saying anything further about the option or giving his reasons for refusing to allow it, he proceeded to assess the income for this area for each assessee at Rs. 34/- per acre, accordingly taking a net assessment for ''bakasht'' in come at Rs. 43,758/-.
From this all six appealed, more or less in the same terms. The assessees stated that they had duly made a return u/s 17 of the Act, and had complied with all the terms of the notice served on them u/s 18(2). The ''bakasht'' lands had not been equally divided, and there was no justification for taking an area of 1287 acres. The Act gave the assessees the option to be assessed either on multiple basis or on produce basis, and they had chosen to be assessed on the multiple basis, and the Income Tax Officer had no jurisdiction to change the basis of the assessment. The rate of Rs. 34/- per acre was, in any event, arbitrary and too high. They had filed all the papers in their possession.
The Appellate Commissioner dealt with all the appeals in two judgments. He (Mr. W. G. Lacey) noted that the areas of ''bakasht'' given had been arrived at by referring to the cess revaluation records of the year 1920, deducting all lands which were said to have been settled with the ''raiyats'' during the subsequent 25 years, but including no land which had come in ''khas'' possession during that period. The assessees were asked by the Income Tax Officer to produce papers and accounts showing the actual area of ''bakasht'' and ''zerat'' cultivated during 1351 Fasli. He was told that there were no such papers in existence, and rightly characterised that as incredible. He accordingly took 1287 for each, and it was difficult to see what else he could have done. The Income Tax authorities had not insisted on any particulars about acreage when the estate had been jointly assessed to income tax in previous years. He thought the Income Tax Officer was justified in what he did.
With regard to the rejection of the multiple system, he said necessary materials for employing it were not before the Agricultural Income Tax Officer, and he had no option but to make the assessment on produce basis. He said that the assessees had produced no papers whatever to show what the cess valuation of the lands was. ''Chalans'' for the payment of cess had been produced, and, it was argued before him that the Income Tax Officer could have calculated the cess valuation from the data given, but no such request had been made to the Income Tax Officer, and the law did not require or expect him to make good the default of the assessee by having recourse to roundabout methods of arriving at the cess valuation. If the assessee claimed to have his income assessed on the multiple basis, it was his duty to produce papers showing what the cess valuation of the land was. Should he fail to do so, he could not exercise the option. In his opinion the Income Tax Officer was right in making the assessment on produce basis.
The assessees then went in revision to the Board. They said that when the assessees chose to be assessed on the multiple basis on the cess valuation, only relevant evidence for the purpose of the determination of the agricultural income was the cess valuation, and assessees had been denied their statutory right. The Appellate Commissioner had ignored the fact that the cess valuation papers, the only relevant material and evidence had been actually produced, (It should be mentioned here that the list of papers shown as filed in the orders of the Income Tax Officer includes cess valuation papers.) The Board heard all the applications together, and as the assessees claimed that they still held in ''khas'' possession exactly the same lands which they held at the time of the cess revaluation, the Board directed an enquiry into whether that contention was correct. The Income Tax Officer then made a comparison of the areas shown by the six assessees as ''bakasht'' with the areas shown as such in the cess revaluation papers and said that they did not correspond, and gave a number of instances where they had shown ''bakasht'' lands in villages where the cess revaluation papers showed no ''bakasht'' lands, and said that it was clear that they did not hold exactly the same lands that they held at the time of the cess revaluation. (Incidentally this is quite inconsistent with the statements made by the Agricultural Income Tax authorities that the areas were shown in accordance with the cess valuation papers, with deductions only).
On receipt of this report the Board said :
"It appears that the contention of the assessee petitioners that they hold as ''bakasht'' exactly the same lands that they held at the time of the cess revaluation was incorrect."
The Board, therefore, considered that the Assessing Officer was justified in refusing to adopt the multiple system of assessment and dismissed the motion. The petitioners pressed for a reference which has been accordingly made.
In the statement of the case the Board said :
"But because they could not produce the cess valuation papers in respect of all the lands shown in their respective returns, the Agricultural Income Tax Officer rejected their claim to be assessed on the basis of the multiple system. It was contended before the Commissioner that the Assessing Officer might have arrived at the cess valuation figures by making certain calculations from the known data furnished by them, but the Commissioner was unable to accept this contention because no such request had been made, and the law did not either require or expect the Assessing Officer to make good the default of the assessees by having recourse to roundabout methods for arriving at the cess valuation figures. In his opinion, should the assessees, claim to have their agricultural income assessed on the multiple basis, it was their duty to produce papers showing what the cess valuation of the lands was, and, should they fail to do so, they could not exercise that option."
As the enquiry made showed that the ''bakasht'' areas were not the same as in 1920, the Board considered the Assessing officer was justified in refusing to adopt the multiple system. In the opinion of the Board, the assessees could not legally exercise the option given u/s 7(1)(a) unless they produced papers and good and reliable evidence to prove what lands were actually held by them as ''zerat'' and ''bakasht'' and what was the cess valuation of those lands.
In my considered opinion the Appellate Commissioner and the Board were wrong in both fact and law. With regard to the facts, there has been considerable argument before us as to whether the assessees had actually filed the cess valuation roll or not. It seems to me apparent from the facts and orders I have set out above that they did do so. What really happened was that the Income Tax Authorities refused to be satisfied with the cess valuation papers of 1920 and wanted something more, which did not in fact exist. Mr. Bal-deva Sahay, who has appeared for the assessees, has produced some of the cess valuation papers, which, he says, were filed, and, as it contains the Collector''s valuation, it is clear that it is not a ''chalan'' or even merely a return, but is the actual cess valuation roll.
Even, however, if it be assumed for the sake of argument that the cess revaluation rolls were not produced, that makes no difference. The Income Tax authorities were not entitled to demand any such papers from the assessee; and it is apparent that they did not demand any such papers u/s 18, Sub-sections (2) and (3).
That they were not entitled to demand any such papers is clear from Section 44 of the Act which runs as follows :
"Nothing in this Act shall be deemed to authorise any of the Income Tax authorities mentioned in Section 16 to call for any papers or documents for the purpose of ascertaining agricultural income or for any other purpose under this Act except the papers noted below :
Papers showing the amount of rent which accrued due in the previous year;
Papers showing the actual receipt of agricultural income by an assessee in the previous year;
Letters showing the actual expenditure incurred for which a deduction or exemption is claimed under this Act; and
Original vouchers supporting the items of expenditure referred to in Clause (3)."
Under this section four classes of papers alone can be demanded. Cess valuation papers do not come under any of the four headings.
That they did not demand them is equally apparent. What they alone demanded u/s 18 was materials regarding the actual area of ''bakasht'' and ''zerat'' under cultivation in the year 1351. There is nothing to suggest that any demand for cess valuation papers was made and refused. On the other hand, the enquiry report of the Income Tax Officer made at the instance of the Board plainly shows that he had all the cess valuation papers before him, and he was able to make full comparison between the cess valuation papers and the returns of areas shown as ''bakasht''.
It is no doubt apparent from that report that certain areas shown in the returns as ''bakasht'' were not shown as ''bakasht'' and assessed to cess accordingly at the cess valuation in 1920. The assessees could not, therefore, be expected or called upon to show a cess valuation of such lands on a ''bakasht'' basis. It was not for them to make a hypothetical cess valuation themselves, nor does the law require it.
Section 7 (1) is as follows :
"(1) The agricultural income mentioned in Sub-clause (2) of Clause (a) of Section 2 shall, at the option of the assessee,
(a) be deemed, for the purposes of assessment to agricultural Income Tax, to be a multiple,
(i) in the case of land assessed to rent, of the rent of such land,
(ii) in the case of land not assessed to rent, of the cess valuaton of such land; or
(b) be assessed on the net amounts of such income determined in the prescribed manner."
It is apparent that for the purposes of the option, the law contemplates all land under ''khas'' cultivation as falling into two classes -- land assessed to rent and land not assessed to rent. If it is assessed to rent, the multiple taken is to be a multiple of the rent, if it is not assessed to rent, it is to be taken as a multiple of the cess valuation. No third alternative is provided for. The law does not contemplate land which is not assessed to rent and not assessed to cess, the reason being that there can be no such land. If any land is not assessed to cess on the basis of ''khas'' cultivation, then it is assessed in the cess valuation papers as rent-paying land at a lesser figure, and it seems to me apparent that in the case of land which was tenanted land at the time of the last ess valuation and has since become ''bakasht'' the income Tax authorities will have to value it u/s 7(1) either as a multiple of the cess valuation arrived at as rent-paying land, or as a multiple of the rent of the land which it carried when tenanted land. But, it is an amazing proposition that because a ''Zamindar'' shows such lands in his return, in regard to which he cannot give a cess valuation, on a ''bakasht'' basis, he is, therefore, to be refused the exercise of the option.
The wording of Section 7(1) does not qualify the option in any way, and the option is given subject to no conditions whatever. It seems to me, therefore, an entirely incorrect proposition that the assessee, having exercised his option, can be, deprived of it merely because certain information is not furnished.
No doubt where information called for if not supplied the Income Tax Officer u/s 18(4) may make the assessment to the best of his judgment. But, as I read the two sections taken together he must make it to the best of his judgment in accordance with the option previously exercised, and which is expressed in Section 7 as an option free from any qualifications or conditions whatsoever, much less the supply of any particular papers.
The present case does not depend solely upon this wide proposition because, as I have said, there was no demand, and no failure to comply with any demand, for papers required in connection with the option selected. The demand and failure were in connection with papers relevant to proceedings for assessment u/s 7 (1) (b), the alternative procedure adopted against.
There was a failure to supply papers called for necessary for the fixation of the area of ''bakasht'' lands under cultivation. That undoubtedly gave the Income Tax Officer the power to use his own judgment in fixing the area of the ''bakasht'' lands. Having done so, however, at 1287 acres, he must clearly proceed to assess the income from the 1287 acres in accordance with the option previously selected. He was not entitled to call for cess valuation papers, but he had access to them, and there was nothing to stop him from making the calculation. I feel it necessary expressly to dissent from the statement of the Board that it is the assessee''s duty to produce papers showing what the cess valuation of the lands is, and, should he fail to do so, he cannot exercise the option u/s 7(1).
The learned Advocate General strongly urged that before the assessee can be allowed to exercise the option he must establish what area has been actually cultivated as ''bakasht''. I do not find any such provision in Section 7. Apart from that it seems to me that when the assessee originally makes his option in sending in his return, he must mean that he selects that method for whatever area may eventually be accepted as ''bakasht.'' No doubt if the Income Tax Officer holds that there is no ''khas'' cultivation, he may refuse the option on the ground that there is no land in respect of which it can be exercised. But if he holds that any particular area is actually under ''khas'' cultivation, he must surely give effect to the option in regard to that area. It is for the Income Tax Officer to decide the area of ''bakasht'' if he does not accept the assessee''s figure. But whatever figure he decides upon, the income must be assessed in accordance with the option which has been made.
In the case of the assessees before us the area is now finally settled at 1287 acres in each case. The income from this land must be assessed upon the multiple basis. Mr. Baldeva Sahay, in order to save the Income Tax authorities trouble, makes before us the concession that he is willing to pay, if necessary, upon a multiple of the cess valuation of the entire village in each case, treating the entire village as ''bakasht''. That may be resorted to if any difficulty is found in making the assessment upon the 1287 acres, but I do not myself see what difficulty there can be since the entire cess valuation papers are available or, if not available, can be obtained by the Income Tax authorities from the Collector''s office. My answer to the question posed is that the circumstances do not appear to be exactly those stated by the Board, but, even if they were, the Assessing Officer was legally bound to adopt the multiple system selected for making the assessment.
As the assessees succeed, they are entitled to their costs, and, as the reference covers six different cases, I would assess these costs at Rs. 100/- which has been deposited in each care which, should now be returned plus a consolidated hearing fee of Rs. 150/-.
Agarwala, C.J.
I agree.