Judgement

KAPUR, J. - In all these appeals the question for decision is the character and purport of the payment termed Salami and whether it fails within the meaning of "agricultural income" as defined in the Assam Agricultural Income Tax Act (Act IX of 1939) hereinafter called the "Act".

2. C.A. No. 162 of 1955 is directed against the judgement of the Calcutta High Court dated 15-1-1953. C.A. Nos. 38 to 44 of 1956 have been brought against the judgment of Assam High Court dated 2-4-1952. The matters were all heard together in the Assam High Court and were disposed of by one judgment.

3. C.A. No. 162 of 1955 relates to the assessment year 1941- 42. The assessee in that case was a-/8/9 annas co-sharer in a zamindari estate known as "Parbatjoar estate" in Assam. The original assessee was Jyotindra Narayan Chowdhury who died on 25-1-1953 and on his death his widow, Shrimati Sindhurani Chowdhurani and others were substituted. The gross agricultural income of the assessee was Rs. 89,633 and income from salami was Rs. 9, 331-9-4 which was received from settlement of 414 different holdings out of which 278 were holding of virgin lands and 136 were those of what are described as auction- purchase lands.

Out of the gross income from salami 15 percent has been allowed as collection charges and the amount in dispute in this appeal therefore is Rs. 7, 934. The agricultural Income Tax Officer held this sum to be agricultural income by his order dated 10-11-1941, which was affirmed on appeal to the Assistant Commissioner of Agricultural Income-Tax. The revision taken to the Commissioner under S. 27 of the Act was dismissed but as the instance of the assessee the following two questions were referred for the opinion of the High Court.

(1) Whether the single non-recurring premia or salamis paid to the landlord assessee once only as consideration for the settlement of agricultural land at the time of granting a lease can be held to be income within the meaning of the Act?

(2) Whether single non-recurring premia or salamis paid to the landlord assessee as consideration for the settlement of agricultural land once only at the time of granting lease when such premia or salamis are not dependent on the rate of rent charged, can be held to be income within the meaning of the Act?

4. The Calcutta High Court by its Judgment dated 12-4-1945, held these receipts to be "agricultural income". Against this judgment an appeal was taken to the Privy Council but on the abolition of the jurisdiction of the Privy Council the appeal was transferred to the Federal Court and was heard by that Court as C. A. No. 30 of 1949. That Court set aside the judgment of the High Court and remitted the case to the High Court "to be dealt with again after ascertaining and considering the following additional factors likely to show the true nature of the receipts described as salami in the present case.

"1. The number of settlement of waste lands and abandoned holdings during the amounting year and the maximum and the minimum meets settled and salami received.

2. Does the salami vary with the quality of the land, the facilities for irrigation and such other favourable factors?

3. How many tenants ejected under S. 68 during the accounting year and how long they had been in occupation before such eviction?

4. Is Salami received when lands are re-let after eviction?

5. Is salami that is paid in the zamindary of the assessee in the nature of a present given by the tenant to the landlord for the permission to occupy the land or whether it is in substance a premium payable by lessee at the inception of the tenancy.

5. After the remand the case was again stated by the Member of Assam Board of Agricultural Income Tax. Dr. Goswami, and answers to these questions were;

1. Total number of settlements were 414, maximum extent being 59 bighas 2 cottahs and 10 Dhurs, and salami Rs.161-8-6 1/4 and minimum extent was 15 Cottahs and salami received therefrom Rs. 2-11-9.

2. Rate of salami varies with t