Judgement

KRISHNA IYER, J.:- The freak but few facts of this appeal appear to highlight an issue of morality versus legality. But a closer scrutiny whittles down this conflict and induces us to dismiss the appeal, subject to certain observations warranted by the circumstances of the case. We may proceed straight to a miniaturised statement of the circumstances giving rise to the controversy before us.

2. The appellant has been the owner of a mango grove of long ago from which he has been deriving income by way of fruits and fallen trees. Way back in 1939-40 he claimed this income to be agricultural and therefore immune to Central income tax. His plea was overruled by the Income-tax Officer, but adverse orders notwithdanding, the assessee reached the High Court undaunted by the disappointment he met with as he steered through the statutory spiral of authorities. Unfortunately, on account of the zigzag course of this litigation which had its deck-by-deck slow motion, more than two decades passed before the High Court could pronounce at long last in favour of the appellant holding that the income in dispute was agricultural income and therefore could not be taxed.

3. The State did not carry the ease further to this Court and thus the decision of the Allahabad High Court rendered on March 21,1963 became final. As a proposition of law, on the facts of the case, the ruling was that such income as arose from mango fruits and fallen trees was agricultural income and therefore outside the pale of the Income-tax Act (vide S. 4 (3) of the Income-tax Act). We have no reason to disagree with this view and proceed to dispose of this writ appeal which has come to us by certificate under Art. 133 (1) (a) of the constitution on the footing that for all the assessment years with which we are concerned - as will be explained presently - what has been taxed and is in dispute is agricultural income.

4. Some more facts are necessary to bring out the real grievance of the appellant. We have already mentioned that although the first assessment related to the year 1939-40, the final pronouncement by the High Court came only in 1963. During this protracted pendency, years rolled on and, at the base, the tax officer was busy ritually repeating annually, by his orders, the tax impost on similar income accruing year after year, treating it as non agricultural income. Indeed, the assessee had been assessed to tax for 21 years on this assumption but he filed appeals only for 8 years, and even that only upto the Appellate Assistant Commissioner s level where he left it off apparently in the hope that if ultimately the High Court upheld his contention for one year, the tax authorities would give effect to that holding for all the years - not a fantastic assumption if Government were a virtuous litigant.

5. At this stage we may state that for the years1940-41, 1941-42, 1947-48, 1949-50, 1950-51 and 1958-59 to 1961-62 appeals had been preferred most of which were dismissed although in one year or so the appellate authority gave relief accepting the plea of agricultural income. So far as the Income-tax Officer was concerned, he uniformly adopted the hostile line of treating the income as non-agricultural and, except for the years referred to above, the assessee did not think it necessary - was it wise or otherwise the sequel proves -to challenge these assessment orders. But when the High Court held in his favour in 1963 for the assessment year 1939-40, he applied for refund to the Central Board of Direct Taxes for the tax paid by him for the other years on the glib ground that, limitation apart, the income having been found by the High Court to be agricultural, had to be excluded from the tax. The Central Board of Revenue, however, declined to oblige him and when on May 11, 1968 his petition was rejected, the assessee moved the High Court under Art. 226 seeking many reliefs including a direction to the Central Board to issue necessary instructions to the Income-tax