Judgement Appeal from a decree of the High Court (January 7, 1907) affirming a decree of the Subordinate Judge of Burdwan (February 22, 1905) which dismissed the appellants suit. The appellant, a zamindar in Bengal, was the proprietor of an estate known as Chati Baliapur in the district of Burdwan. On his estate were coal mines which he had let on lease to various persons and companies. Under their leases the lessees paid to him royalties at a fixed rate per maund upon the quantity of coal raised, and coke and coal dust sold. For the year 1900-01 the appellant was assessed under chapter V. of Act IX. of 1880 of the Bengal Council, known as the Cess Act, 1880, with, and on September 20, 1900, called Law Rep. 38 Ind. App. 31 ( 1910- 1911) Maharajah Manindra C handra Nandi v. Secretary of State on to pay Rs.11.227.7 in respect of the rates for road and public works cesses calculated upon the amount of the royalties so paid to him. The appellant was also assessed for the same year under the Income Tax Act (II. of 1886) upon the amount of the said royalties. Against the assessment under chapter V. of Act IX. of 1880 (Bengal Council) the appellant preferred an appeal to the Board of Revenue, by whom it was rejected on January 28, 1901. The appellant paid to the Collector of Burdwan the amount of the said road and public works cesses assessed upon him, namely, Rs.5613.11 on November 26, 1900, Rs.5613.12 on February 5, 1901, and Rs.175.7 for interest on May 15, 1901 ; and on January 28, 1902, the appellant sued-in the Court of the Subordinate Judge of Burdwan, alleging that the assessment under the said Act IX. of 1880 was illegal, null, and void, he having been assessed for the same royalties under Act II. of 1886. He prayed for a declaration to that effect and for the recovery of the sums paid by him with interest and costs. The plaint was subsequently amended so as to claim in the alternative that in the event of its being held that the cess was rightly assessed a refund should be decreed of the amount paid for income tax under Act II. of 1886. The plaint was subsequently amended so as to claim in the alternative that in the event of its being held that the cess was rightly assessed a refund should be decreed of the amount paid for income tax under Act II. of 1886. With regard to a refund of the cess the Subordinate Judge held that the appellant was the owner of the coal mines within the meaning of s. 72 of Act IX. of 1880 (B. C.); that the royalties received by him from the lessees constituted his share of the net profits from the mine within the meaning of the said Act; that there was nothing in the Act which required that only one return of net profits should be made when the owner was not the occupier of the mine; that s. 6 of the Act made all net profits from the mine which resulted to every one interested in the mine liable to assessment; and that the orders of the Collector and the Board of Revenue bringing the said royalties paid to the appellant under assessment were legal and valid. He further held that the levying of income tax upon the said royalties did not affect the validity of the levy of cesses under Act IX. of 1880 (B. C.) and did not entitle the plaintiff to any refund of the latter. He also held that a claim for refund of income tax was not maintainable. The High Court held that the royalty payable by a lessee (occupier) of the mine to the owner forms a part of the annual net profits from the mine and is liable to assessment for cesses under Act IX. of 1880 (B. C), and also for income tax under i Act II. of 1886 ; and observed that the suit for a refund of the cesses was not based on the ground that though payable they had been irregularly levied from him, but that they were not assessable as such at all. De Gruyther, K.C., and Ross, for the appellant, contended that the royalties received by the appellant were not on the true construction of Bengal Act IX. of 1880 liable to be assessed with cesses. They were not included in the term " annual net profits " in ss. 6 and 72. Reference was also made to ss. 2, 4, 73, 79, 80, 81, 88, and 98. of 1880 liable to be assessed with cesses. They were not included in the term " annual net profits " in ss. 6 and 72. Reference was also made to ss. 2, 4, 73, 79, 80, 81, 88, and 98. The persons who work the mines are liable for the cesses. The owner is taxed under the Income Tax Act (II. of 1886). Cohen, K.C., and Dunne, for the respondent, contended that the royalties were that portion of the profits of the mines which fell to the share of the appellant, and that he was properly assessed in respect of them. The lessees paid cesses on the actual net profits made by them after deduction of the royalties, and unless the appellant was assessed in respect of the share of the profits received by him, Law Rep. 38 Ind. App. 31 ( 1910- 1911) Maharajah Manindra C handra Nandi v. Secretary of State 126 that share would escape assessment entirely. They referred to Coltness Iron Co. v. Black (( 1881) 6 App. Cas. 315, 331.) and were stopped by their Lordships. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by MR. AMEER ALI. The plaintiff is the owner of considerable landed property in Bengal, part of which he has leased to various parties for the working of coal mines. Besides the rent for the surface land he receives, under the designation of royalty, a percentage on the coal raised by the lessees or mine-owners. He has been assessed for " cess" under the provisions of Bengal Act IX. of 1880, in respect of the royalty received or receivable by him from the coal mines on his estate. This Act provides for the levy of " cess " on all immovable property situate in the province for the construction of roads and other means of communication, and it gives to the " Collector," denned in the Act, the power of making the assessment. For the purposes of the Act, mines, &c, are included in the definition of immovable property, and it is declared that, in the case of lands, the "cess" should be assessed on their "annual value," and in the case of mines, &c, on " the annual net profits " from such property. For the purposes of the Act, mines, &c, are included in the definition of immovable property, and it is declared that, in the case of lands, the "cess" should be assessed on their "annual value," and in the case of mines, &c, on " the annual net profits " from such property. The mode of ascertaining " the annual value of lands" and the " annual net profits" from mines, &c, is specifically laid down. The plaintiff contends that the royalty he receives from the coal mines cannot, upon a proper construction of the Act, be included in the term "annual net profits," and that, therefore, the assessment is illegal. He accordingly brought a suit in the Court of the Subordinate Judge of Burdwan to obtain a declaration to that effect. This judge dismissed the action on February 22, 1905, and his decision was affirmed by the High Court of Calcutta in two elaborate judgments in which many subsidiary matters have been discussed at considerable length. From the decree of dismissal by the High Court the plaintiff has preferred this appeal to His Majesty in Council. In their Lordships opinion the only point for determination in this case turns on the meaning to be attached to the words "annual net profits" in ss. 6 and 72 of the Act. Sect. 6, so far as it is material for the purposes of this decision, is in these terms " The road cess and the public works cess shall be assessed on the annual value of lands and on the annual net profits from mines, quarries, tramways, railways, and other immovable property, ascertained respectively as in this Act prescribed." Chapter V., which begins with s. 72, lays down the procedure for valuation, assessment and levy of cesses on mines, &c. Sect. 72 is in these terms "On the commencement of this Act in any district, and thereafter before the close of each year, the Collector of the district shall cause a notice to be served upon the owner, chief agent, manager, or occupier of every mine, quarry, tramway, railway, and other immovable property not included within the provisions of chapter II., and not being one of the tramways or railways mentioned in section 8, such notice shall be in the form in Schedule (E) contained, and shall require such owner, chief agent, manager, or occupier to lodge in the I office of such Collector within two months a return of the net annual profits of such property, calculated on the average of the annual net profits thereof for the last three years for which accounts have been made up." Law Rep. 38 Ind. App. 31 ( 1910- 1911) Maharajah Manindra C handra Nandi v. Secretary of State 127 It is contended on behalf of the plaintiff that the term " net annual profits" used in this section means " the net annual profits " of the person actually working the mine, and who or whose agent or manager has to make the return; and that it does not include royalty paid to the proprietor of the land, which stands in the same category as the ordinary expenses and outgoings connected with its working, such as boring, haulage, &c. In their Lordships judgment this contention has no substance. Schedule (E) is referred to as indicating the meaning of the words " net annual profits," but it goes no further than the section itself. It is to be observed that both in s. 6 and s. 72 the "net annual profits " have reference to the property and not to the individual. The inference is clear that the return required under the section is not with regard to the mine-owners profits but has reference to the general net profits of the property. The obligation to make the return is laid on the person most cognizant of the circumstances-under which the mine is worked and of-the profits derived from it. But that does not alter, in their Lordships view, the character of the royalty received by the proprietor for his share of the profits of the mine. This conclusion is enforced by an examination of the provisions of ss. 76, 80, and 81. Sect. But that does not alter, in their Lordships view, the character of the royalty received by the proprietor for his share of the profits of the mine. This conclusion is enforced by an examination of the provisions of ss. 76, 80, and 81. Sect. 76, which provides for the valuation of property assessable under chapter V. where the annual net profits cannot be ascertained by the officer making the assessment, speaks again of the property itself, and declares that in such eventuality "he [that is the Collector] may by such ways or means as to him shall seem expedient, ascertain and determine the value of such property, and shall thereupon determine six per centum on such value to be the annual net profits thereon." The language of the section leaves little room for doubt that the annual net profits are to be taken as a whole. Sect. 80 provides for service on the person making the return under s. 72 of a notice " showing the amount of road cess and public works cess payable in respect of such property." This again clearly shews that, although the cess is assessed on the basis of the net annual profits, it is paid in respect of the property, and not in respect of any part of the profits. Sect. 81 deals with cases where the " occupier of such property " is different from the " owner," and provides the mode by which, in case he pays more than his share of the cess, he might recover such excess. In this section the word "owner" appears to be used in the sense of proprietor. It is clear, however, that the liability for the cess lies on both " occupier " and " owner " in the case of mines, &c, as in the case of land it lies on holders of estates or tenures and raiyats, the policy of the Act evidently being that all persons who benefit by the maintenance and construction of " roads and other means of communication " or " works of public utility " out of these cesses should bear the liability of paying the same. On the whole their Lordships are of opinion that the conclusion at which the lower Courts have arrived is correct, that the royalty receivable by the plaintiff is part of the net annual profits of the mine, and that he has been properly assessed with cess thereon. This appeal consequently fails. It has been found by the Courts in India that the plaintiff has not been prejudiced by any irregularity on the part of the Collector in the mode of assessment; their Lordships do not feel called upon to express any opinion on the question of the pro cedure he should have adopted. The appeal must, in their Lordships judgment, be dismissed with costs, and they will humbly advise His Majesty accordingly.