Hegde, J.
1. Two contentions were advanced by Sri K. Shivashankar Bhat, the learned counsel for the petitioner, at the hearing of this writ petition. They ar : (i) rule 33 of the Mysore Agricultural Income-tax Act, 1957 (to be referred to hereinafter as the 'Act'), is ultra vires the powers of the rule making authority; and (ii) the assessing authorities could not have levied any tax on the price fetched by the sale of rosewood timber.
2. In order to pronounce on the correctness of these contentions, it is necessary to refer to the relevant provisions of the 'Act'. Section 3 is the charging section. It provides for levy of agricultural income-tax on agricultural income for each financial year commencing from April 1, 1957. Section 5 provides for certain deductions. Section 5(k) reads thu :
'5. The agricultural income of a person shall be computed after making the following deductions, namely :....
(k) any expenditure (not being in the nature of capital expenditure) laid out or expended in the previous year wholly and exclusively for the purpose of deriving the agricultural income.' 'Agricultural income' is defined in section 2(a). Section 2(a)(1) read :
''Agricultural income' means - (1) any rent or revenue derived from land which is used for growing all or any of the commercial crops and is either assessed to land revenue in the State or subject to a local rate assessed and collected by officers of the State Government as such....'
3. 'Commercial crop' is defined in section 2(e) as follow :
''Commercial crop' means any plantation crop, areca, chillies, cocoanut, coriander, cotton, ganja, garlic, ginger, grapes, groundnut, mango, mulberry, onion, plantain (irrigated), potato, sesamum (til), sugarcane, tobacco or turmeric;
Explanation. - Commercial crop shall not include plantain, when grown on land on which areca or cocoanut is grown as a main crop.'
4. Then we may refer to the provision conferring power on the Government to make rules. That is section 63. The material portion of that section read :
'63. (1) The State Government may, subject to the condition of previous publication, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, the State Government may make rules..... (c) as to the special deductions and allowances where expenditure has to be incurred for a number of years before income is derived therefrom;....'
5. Now we may refer to rule 33 of the rules framed. That rule reads thu :
'Special deductions or allowances on new cultivation, etc. - (1) For the purpose of clause (c) of sub-section (2) of section 63 an allowance equivalent to 10 per cent. of the expenditure incurred during the previous year exclusively on new cultivation on new cultivation of land for growing perennial crops and also on maintenance of plants or trees relating to such crops yielding up to period of crop, shall be made and be treated as a deduction under section 5 while computing the agricultural income of the assessee for the year.'
6. Having thus referred to the relevant sections and the rule we may now proceed to consider the correctness of the contentions noticed above.
7. Let me take up the second of the two contentions formulated by Sri Shivashankar Bhat, the learned counsel for the petitioner, namely, whether the Government is entitled to levy agricultural income-tax on the price fetched by the sale of rosewood tress. Quite clearly the attitude of the taxing authority in this regard is unjustifiable. For the purpose of the 'Act' to find out whether a particular article is 'commercial crop' or not one has only to read the definition of 'commercial crop' found in section 2(e). That definition does not include rosewood trees. That being so, the order levying tax on the price fetched by the sale of rosewood trees has to be quashed and it is ordered to be quashed.
8. Now coming to the first point formulated, the most important provision to be looked into in dealing with that point is section 5 of the 'Act'. The section is plain and unambiguous. The legislative mandate is that while computing the agricultural income of an assessee deductions have to be given to 'any expenditure' (not being in the nature of capital expenditure) laid out or expended in the previous year wholly or exclusively for the purpose of deriving the agricultural income. The learned Assistant Advocate-General conceded that if that section had stood by itself there was no room for differences of opinion and the one and the only conclusion possible is that any expenditure expended on agricultural operations whether for the benefit of the yielding plants or non-yielding plants is deductible. In the instant case, the petitioner is a coffee planter. His estate is 198.50 acres in extent. In a substantial portion of that estate there was mature coffee crop. But in about 42 acres of land there were immature plants, which plants may take some years to yield. There is no dispute that in the year 1961-62 the assessee had expended Rs. 21,000 on the land wherein immature coffee crop stood. That fact is not denied by the revenue. But it was contended that because of rule 33, the assessee can only be entitled to get a deduction of 10 per cent. of the expenditure incurred by him. That is undoubtedly so. But then we have to see whether the rule is valid?
9. As mentioned earlier, there is no controversy, nor there is any room for controversy as regards the scope of section 5(k). Section 5 of the travancore Cochin Agricultural Income-tax Act, 1958, is more or less similar to section 5(k) of the 'Act'. Dealing with that provision, the Supreme Court in Travancore Rubber and Tea Company Ltd. v. Commissioner of Agricultural Income-tax answered the question 'whether in calculating the assessable agricultural income of a rubber estate already planted and containing both mature yielding rubber trees and also immature rubber plants which have not come into bearing, the annual expenses incurred for the upkeep and maintenance of such rubber plants are a permissible deduction within the meaning of section 5(j) of the travancore Cochin Agricultural Income-tax Act, 1950' in the affirmative. It laid down that the amount expended on the superintendence, weeding, etc., of the whole estate should have been allowed against the profits earned and it is no answer to the claim for a deduction that part of those expenses produced no return in that year because all the trees were not yielding rubber in that year. This view was again affirmed by the Supreme Court in Commissioner of Agricultural Income-tax v. Calvary Mount Estates (Private) Ltd. Thus far there is no difficulty.
10. Rule 33 is clearly inconsistent with section 5. Therefore, prima facie, it is ultra vires of the powers of the rule making authority. But then it was said on behalf of the revenue, the validity of that rule is vouchsafed because of section 63(2)(c). The language of section 63(2)(c) is somewhat ambiguous. It speaks of 'special deductions and allowances'. It is not easy to make out what those special deductions and allowances are. It is somewhat difficult to accept the contentions that though the legislature made its intention clear in section 5, yet at the same time, it gave power to its delegate to cut down the ambit of section 5. If the legislature wanted to confer any such power, more explicit language should have been used assuming that such a power can be conferred on a rule making authority on which point we do not propose to pronounce in this case.
11. Hence we are of the opinion that section 63(2)(c) cannot sustain rule 33 which is plainly opposed to section 5.
12. For the reasons mentioned above, this petition is allowed and the impugned order of assessment quashed. The case will be sent back to the Agricultural Income-tax Officer, Coorg, for making a fresh assessment in the light of the directions given above. The respondents will pay the costs of the petitioner.
13. Petition allowed.