P.S.SAHAY, J.

1. This application is for quashing the letter of respondent No. 1, Deputy Collector, Cess, dated 27.03.1977, a copy of which has been filed along with this application and marked Annex. 4, passed under the provisions of the Cess Act (hereinafter to be referred as the Act).

2. The petitioner is a public limited company and manufactures Matches having its factory at Calcutta. Semul wood is required for the purpose of making match boxes and match sticks and the company takes on lease trees from the various departments of the State where semul trees are available and pays royalty for the exploitation of such trees. The petitioner company took a lease from the State of Bihar for a period of eight years on 16th March, 1972 in order to exploit the semul trees (which included the following terms : conversion, collection, extraction, removal, transport and all other acts to be performed in the realisation of the benefits conferred therein). A copy of the deed has been filed along with this application and marked Annexure-1. Under cl. (6) of the aforesaid lease the exploitation of those trees has to be done under the supervision of the Divisional Forest Officer and under cl. (7) if the trees marked by the Forest Department are not cut and removed the company forfeits its right to cut and remove those trees and they become the properties of the State. The royalty charged was at the rate of Rs. 170 per tree which was raised to Rs. 232.90 and all those formalities and cutting and removal had to be done under the supervision and guidance of the Forest Department. The petitioner company was served with a notice issued under S.72 of the Act to lodge, within two months, return of the net annual profits calculated on the average as annual net profits for the last three years in order to make an assessment under the Act, a copy of the notice is Annex. 2 to this application. Objection was filed denying its liability on behalf of the petitioner company, a copy of the same has been filed and marked Annex. 3. Thereafter the petitioner received another notice from respondent No. 1 by which he was directed to pay cess in advance and to submit return of the accounts, a copy of the letter dated 27.06.1977 is Annex. 4 to this application. The petitioner has moved this court for quashing Annex. 4.

3. Mr. S.N. Mishra, learned counsel for the petitioner has contended that the trees standing are not immovable property and, therefore, the provisions of the Cess Act will not be attracted. He has, further contended that the petitioner company is neither owner nor occupier of the forest in question and has no interest in the land, and thus is not liable to pay cess. He has also urged that from the terms and conditions embodied in the lease the company was a bare licensee having no interest in the land, and, therefore, there was no question of payment of cess. Learned Additional Advocate-General, appearing on behalf of the State, has, submitted that the words Immovable property should take its true colour and meaning from the Cess Act which includes land and benefits accruing from the land and does not include crop and, thus even standing timber will come within the definition of immovable property. He has, further submitted that the petitioner is a licensee and the agreement is with regard to immovable property and therefore, the provisions of the Act will be attracted. Alternatively, it has also been urged that it the petitioner, is a licensee then he is a licensee with a grant with regard to specified area of land for a specified period in order to go upon the land and use the tree or the timber and in that view of the matter it will amount to profits a prendre (a benefit that aries out of land which will amount, in other words, to an interest in the immovable property) and in that view of the matter, the petitioner was liable to pay cess and the notice was rightly issued.

4. This case was formerly placed before a Division Bench of which