JUDGMENT : Rao, J. - On an application by the Assessee the Revenue Commissioner stated a case and referred the following four questions of law arising out of the appellate order of the Assistant Collector of Agricultural income tax, Puri. 2. The four questions are as follows: (1) Whether, on the facts and circumstances of the case, mutation fees can be considered as a part of Agricultural income; (2) Whether, on the facts and circumstances of the case, contribution paid to the Endowment Commissioner under the Orissa Hindu Religious Endowments Act is to be admitted as a legitimate expense under the Orissa Agricultural income tax; (3) Whether, on the facts and circumstances of the case, apportionment of expenditure on Seba-puja and charity on proportion of agricultural and non-agricultural income is valid under the Orissa Agricultural income tax Act: (4) Whether on the facts and circumstances of the case, Section 16 of the Orissa Agricultural income tax Act is the appropriate section under which the amounts spent on charity by a trust created for public purposes of a religious and charitable nature are to be considered. 3. The Assessee is the Executive Officer of Shri Jagannath Ballav Math, Puri, which is stated to be a public religious and charitable trust. The Math has considerable landed properties endowed by the members of the public for the purpose of seba-puja of Lord Jagannath and other deities and for the purpose of charity. It derives income both agricultural and non-agricultural. For the agricultural income tax assessment year 1953-54, the Assessee returned a net agricultural income of Rs. 3/- after deducting among others Rs. 2579/- as contribution paid under the Orissa Hindu Religious Endowments Act and Rs. 25,552/- as expenses for seba-puja and charity. 4. The Agricultural income tax Officer added Rs. 454/- which the Assessee had derived as mutation fees to the gross agricultural income and disallowed the contribution paid under the Orissa Hindu Religious Endowments Act and allowed only Rs. 14,402/- out of Rs. 22,597/- spent on seba-puja and Rs. 1891/- out of Rs. 2955/- spent on charity. He also held that the sum spent on charity was considered as sum spent on charity u/s 16 of the Agricultural income tax Act and not u/s 8 of the said Act and as such only rebate was allowed thereon. 5. 14,402/- out of Rs. 22,597/- spent on seba-puja and Rs. 1891/- out of Rs. 2955/- spent on charity. He also held that the sum spent on charity was considered as sum spent on charity u/s 16 of the Agricultural income tax Act and not u/s 8 of the said Act and as such only rebate was allowed thereon. 5. The Assessee carried the matter in appeal and the Assistant Collector by his order dated 18-10-1954 rejected all the contentions of the Assessee and confirmed the assessment. 6. The Assessee then applied to the Revenue Commissioner u/s 29(2) of the Agricultural income tax Act for referrer five questions one of which was not referred and only the four questions noted above were referred to this Court. 7. With regard to the first question, whether mutation fees can be considered as a part of agricultural income, the learned Counsel for the Assessee Mr. Bhuyan contends that mutation fees cannot be held to be agricultural income as they do not arise from the land. In support of his contention he relied upon a decision of the Judicial Committee of the Privy Council in the case of Commissioner of income tax Bihar and Orissa v. Raja Bahadur Kamakhya Narayan Singh and Ors. 16 ITR 325, in which it was held. Interest on arrears of rent payable in respect of land used for agricultural purpose is not agricultural income within the definition of that phrase contained in Section 2(1) of the Indian income tax Act, 1922 and is not therefore exempt from income tax. It is neither rent nor revenue derived from land. The learned Counsel relied upon the following observations in the judgment of the Judicial Committee delivered by Lord Uthwatt: The interest clearly is not rent. Rent is a technical conception, its leading characteristic being that it is a payment in money or in kind by one person to another in respect of the grant of a right to use land. Interest payable by statute on rent in arrear is not such a payment. It is not part of the rent, nor is it an accretion to it, though it is received in respect of it. Equally clearly the interest on rent is revenue, but in their Lordships' opinion it is not revenue derived from land. Interest payable by statute on rent in arrear is not such a payment. It is not part of the rent, nor is it an accretion to it, though it is received in respect of it. Equally clearly the interest on rent is revenue, but in their Lordships' opinion it is not revenue derived from land. It is no doubt true that without the obligation to pay rent and rent is obviously derived from land-there could be no arrears of rent and without arrears of rent there would be no interest. But the affirmative proposition that interest is derived from J and does not emerge from this series of facts. All that emerges is that as regards the interest, land rent and non-payment of rent stand together as cause (sic) non. The source from which the interest is derived has not thereby been ascertained. The word 'derived' is not a term of Article Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop; as soon as the executive source is discovered. In the genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective source is rent, which has Buffered the accident of non-payment. And rent is not land within the meaning of the definition. There is no commercial connection between the interest and the rented land and an effective source-not land-has become apparent. These considerations supply a negative answer to the question posed, subject to an entirely different point taken by the Respondents. Mr. Bhuyan contends that on the application of these observations mutation fees cannot be held to be income derived from land. There is no commercial connection between the interest and the rented land and an effective source-not land-has become apparent. These considerations supply a negative answer to the question posed, subject to an entirely different point taken by the Respondents. Mr. Bhuyan contends that on the application of these observations mutation fees cannot be held to be income derived from land. Section 2(a) of the Orissa Agricultural Income Tax Act, 1947, says: (a) "agricultural income" means (1) any rent or income derived from and which is used for agricultural purposes, and is either assessed to land revenue in the Province of Orissa or subject to a local cases or rate assessed and collected by officers of the Crown as such; (2) any income derived from such land by(i) agriculture, or (ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent in kind to render the produce raised or received by him fit to be taken to market, or (iii) the sale by a cultivator or receiver or rent-in-kind of the produce raised or received by him in respect of which no process has 'been performed other than a process of the nature described in paragraph (ii) ; (3) any income derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or occupied by the cultivator, or the receiver of rent-in-kind, of any land with respect to which, or the produce of which, any operation mentioned in paragraphs (ii) and (iii) of Sub-clause (2) is carried on ; Provided that the building is on or in the immediate vicinity of the land, and is a building which the receiver of rent or revenue or the cultivator or the receiver of the rent-in-kind by reason of his connection with the land, requires as a dwelling house, or as a store house or other out building; 8. The learned Counsel contends that mutation fees do not come under any of the clauses of definition of agricultural income under the Act. Mutation fees are generally charged by the landlord to recognise a transferee of the holding either by operation of law or by act of parties. Mr. Bhuyan contends that this collection of mutation fees cannot therefore be held to be income derived from land. 9. Mutation fees are generally charged by the landlord to recognise a transferee of the holding either by operation of law or by act of parties. Mr. Bhuyan contends that this collection of mutation fees cannot therefore be held to be income derived from land. 9. The question whether mutation fees can be held to be agricultural income has been decided in India by various High Courts under the Indian Income Tax Act. In the case of Rajendra Narayan Bhanja Deo v. Commissioner of Income Tax Bihar and Orissa ILR 9 Pat : AIR 1929 Pat 449 a Full Bench five Judges of the Patna High Court held: Mutation fees paid by the tenant to the landlord as such upon succeeding the holding or tenure by inheritance is income derived from land used for agricultural purposes within Section 2. The fact that the realisation of these fees is illegal or unenforceable is immaterial. In the case of COMMISSIONER OF Income Tax MADRAS Vs. K. C. MANAVIKRAMAN RAJAH., a Divisional Bench of the Madras High Court consisting of Sir Lionel Leach C.J. and Patanjali Sastri, J. (it, he then was) held, following the above decision, that as the Assessee got the further sum as the owner of agricultural land and as it was paid before granting renewals, it was also agricultural income within the meaning of Section 2(1)(a) of the income tax Act. The facts in that case were The Assessee, the Zamorfn of Calicut, owned agricultural lands in the district of Malbar which he leased to tenants. Under the Malbar Tenancy Act, 1930, a tenant was entitled to renewal of his lease which was usually for twelve years. The Assessee, who was receiving from the tenants, the customary renewal fee known as Avakasam and Additional Avakasam ellacted more from, the tenants before granting them renewals. The question was whether the sum representing the excess over the customary renewal fee Was also agricultural income within the meaning of Section 2(1)(a) of the Indian income tax, Act. On these facts the learned Judges decided as stated above. In the calle of Member for the Board of Member for The Board of Agricultural Income Tax, Assam Vs. Sindhurani Chaudhurani and Others (And Other Cases), the Supreme Court dealt with the question whether Salami paid by the tenant to the landlord was rent or revenue or his capital payment. On these facts the learned Judges decided as stated above. In the calle of Member for the Board of Member for The Board of Agricultural Income Tax, Assam Vs. Sindhurani Chaudhurani and Others (And Other Cases), the Supreme Court dealt with the question whether Salami paid by the tenant to the landlord was rent or revenue or his capital payment. The Supreme Court held: The payments by way of salami are made by the pruspective lessees anterior to the constitution of the relationship of landlord and tenant as the price for the lessor agreeing to the parting of his rights in an agricultural holding in favour of the proposed lessee. Thus 'Salami is a payment by the tenant as a present or as price for parting by the landlord with his rights under the lease of a holding. It is a lump sum payment as consideration for what the landlord transfers to the tenant. When a tenant pays salami he does so in order to get in return an estate in the land owned by the zamindar. Salami is therefore not rent and it could not be called revenue within the meaning of the word use in the definition of agricultural income u/s 2(1)(a) of the Act because it is a payment to the landlord by the tenant as a consideration for the transfer of a right in zamindari lands owned by the landlord. It has, therefore, all the characteristics of a capital payment and is not revenue. In the course of a judgment, their Lordships referred to the Full Bench decision of Patna High Court and the decision of the Madras High Court cited above. With reference to the Patna case, their Lordships observed: In a Full Bench of the Patna High Court in Rajendra Narayan v. Commissioner of income tax AIR 1929 Pat 449 mutation fees were held to be agricultural income but that was a case of payment after the relationship of landlord and tenant had come into existence. With reference to the Madras case, they observed: Similarly in the Commissioner of income tax v. K.C. Manavikraman RaJah ILR 1945 Mad. 837 : AIR 1945 Mad. 207. monies paid for the renewal of leases were held to be agricultural income within the meaning of Section 2(1)(a), income tax Act. With reference to the Madras case, they observed: Similarly in the Commissioner of income tax v. K.C. Manavikraman RaJah ILR 1945 Mad. 837 : AIR 1945 Mad. 207. monies paid for the renewal of leases were held to be agricultural income within the meaning of Section 2(1)(a), income tax Act. Here again the monies were paid not for the constitution of the relationship of landlord and tenant but after that relationship had come into existence and for its continuance. 10. Mr. G.K. Misra, the learned Counsel for the Department contended that these observations clearly show that the Supreme Court approved of the Patna and Madras decisions and also gave a reason which shows that mutation fees are agricultural income. According to Mr. Misra, the reason is that as mutation fees are received after the relationship of landlord and tenant was constituted, they formed part of the agricultural income. In the case of Nawabzadi Mehar Bono Khanum and Others Vs. The Secretary of State a Full Bench of five Judges of the Calcutta High Court Walmsley J. dissenting, held: Nazar or salami paid by a tenant to landlord for the recognition of a non-transferable holding is rent or revenue within the meaning of the expression as it occurs in Section 2(1)(a) and is (sic) from assessment to income tax by virtue of the provisions of Section 4(3)(viii) of the same Act. The judgment of the majority was delivered by Greaves, J. He observed: The conclusion seems to me irresistible that if it is admitted, as I think it is rightly admitted, that nazar is revenue, it is profit of the land and that it flows therefrom or from the ownership thereof; but in Birendrakishor Manikya v. Secretary of State ILR Cal. 766, it is said that this is, not so and that it cannot be deemed the return, vield, or profit of any land. But that it is money paid by the transferee to the landlord to purchase peace, so that he may not contest the validity of the transfer. This no doubt is true, but it seems to me to ignore another aspect altogether, namely, that it is money which comes to the landlord by virtue of the fact that he is owner of the land. This no doubt is true, but it seems to me to ignore another aspect altogether, namely, that it is money which comes to the landlord by virtue of the fact that he is owner of the land. Viewed in this light it clearly is derived from the land and is agricultural income within the definition thereof contained in the income tax Act, and as such exempt from assessment to income tax under that Act. The learned Counsel for the Department also pointed (sic) that even according to the observations made by the Judicial Committee in the case relied upon by the Assessee, mutation fees should be regarded as agricultural income. The learned Counsel laid stress on the expression "in respect of the grant of a right to use land". Mr. Misra contended that the recognition of the transferee to hold the land amounts to a grant of a right to use the land. It is therefore income arising out of land. On these authorities, I am of opinion that mutation fees constitute agricultural income. 11. Mr. Bhuyan also relied upon a decision of the Calcutta High Court in the case of MAHARAJA BIKRAM KISHORE OF TRIPURA Vs. PROVINCE OF ASSAM.. He relied upon an observation of Chief Justice Harries to the effect: But it would not be income if the payments were made in respect of transfers. But the learned Chief Justice afterwards quoted the observations of Mukherjee, A.C.J. in Birendra Kishore Manikya v. Secretary of State for India ILR Cal. 766, and held that in his view it seemed impossible to give a promise answer to this question as it was not known respect of what transactions the amount returned as salami was received. But the decision in ILR Cal 766 was over ruled by the Full Bench of the Calcutta High Court in the case above referred to. In my opinion, therefore, this decision does not support the contention raised br Mr. Bhuyan. I am therefore of opinion that mutation fees which are collected in recognition of a transfer of the holding constitute income derived from land and as such agricultural income. The question is, therefore, answered in the affirmative. 12. In my opinion, therefore, this decision does not support the contention raised br Mr. Bhuyan. I am therefore of opinion that mutation fees which are collected in recognition of a transfer of the holding constitute income derived from land and as such agricultural income. The question is, therefore, answered in the affirmative. 12. The next question is whether contribution paid to the Endowments Commissioner under the Orissa Hindu religious Endowments Act is to be admitted as a legit mate expense under the Orislila Agricultural income tax Act, Section 6 of the Act categorically lays down what deductions can be made in order to arrive at the agricultural income of the previous year on which assessment is to be levied. It contains 11 Clauses each dealing with a particular item of deduction. None of these refers to the contribution made to the religious endowments board. Clause (a) deals with any sums actually paid in the previous year on account of land revenue, local rates and cesses, water-rate or watercess, and municipal taxes in respect of the land from which the agricultural income is derived. Clause (d) deals with any rate paid or payment made in the previous year under the Village Choukjdari Act, 1870, the Khondmals Laws Regulation, 1936, or the Angul Laws Regulation, 1936, in respect of any building used by the Assessee as an office for collection of the rents due in respect of the land from which such agricultural income is derived. As the Act specifically enumerates all the heads of deduction and though some clauses refer to certain payments made as water-ceases, local rates, land revenue etc., no specific mention is made about the contribution made under the Hindu Religious Endowments Act. The Hindu Religious Endowments Act was in existence at the time the Agricultural Income Tax Act, 1947, was passed. As such in the absence of the legislative authority for allowing the deduction, the contribution paid to the endowments board under the Hindu Religious Endowments Act cannot be allowed as a deduction. No doubt a substantial percentage of the income is paid as contribution and equity requires that it could be allowed as a education, but it is for the legislature to make an amendment by adding the contribution paid to the endowments board also as a legit mate deduction. No doubt a substantial percentage of the income is paid as contribution and equity requires that it could be allowed as a education, but it is for the legislature to make an amendment by adding the contribution paid to the endowments board also as a legit mate deduction. u/s 6, as it stands, the contribution paid to the endowments board cannot be allowed as a deduction, in arriving at the total agricultural income. I would answer this question, therefore, in the negative. 13. The next question is whether apportionment of expenditure on sebapuja and charity in proportion of agricultural and non-agricultural income is invalid under the Orissa Agricultural Income Tax Act. In the petition for reference it is alleged by the Assessee that an amount of Rs. 22,597/- was spent for sebapuja out of which the income tax Officer allowed Rs. 14,402/- and the amount of Rs. 2955/- was spent on charity out of which a sum of Rs. 18911- was allowed. He held that the sums of Rs. 14,402/- and Rs. 2955/- represented the proportionate expenditure under the two heads out of agricultural income, he having held that the balance of the amounts represented the expenditure out of the nonagricultural income. He arrived at this proportion on the basis of allowing 64 percent of the expenditure as arising out of the agricultural income. From these facts it is clear that there is no dispute as to the amounts actually spent towards sebapuja and towards charity. The Department did not contest the actual amount spent. 14. The learned Counsel for the Assessee contends that it is not open to the agricultural income tax department to apportion the amount to be deducted between the agricultural income and non-agricultural income. According to the learned Counsel, the Act does not authorise the Department to make any such apportionment. The Assessee had stated that he spent Rs. 22,597/- towards sebapuja and Rs. 2,955/- towards charity. According to the learned Counsel, the Act does not authorise the Department to make any such apportionment. The Assessee had stated that he spent Rs. 22,597/- towards sebapuja and Rs. 2,955/- towards charity. The agricultural income is certainly more than the said item of expenditure and according to the learned Counsel for the Assessee if this expenditure is less than the agricultural income and he claimed that as the expenditure and if the Department accepted the correctness of that expenditure, then it should be deducted in toto and it is not for the Department to say that it would deduct only a proportionate amount taking the agricultural and non-agricultural income into consideration and divide the expenditure between the two. In support of his contention, the learned Counsel relied upon the following decisions Rajendra Narayan Bhanj Deo v. Commissioner of income tax, Bihar and Orissa AIR 929 Pat 449. THE PROVINCE OF BIHAR Vs. RAJA BAHADUR KAMAKHYA NARAYAN SINGH.. Sir Kameswar Singh v. State of Bihar AIR 1953 Pat. 67, and SAILENDRA NARAYAN BHANJ DEO Vs. ASSISTANT COLLECTOR OF AGRICULTURAL Income Tax, ORISSA., . In the first case reported in Sir Kameshwar Singh Vs. State of Bihar, a Full Bench of five Judges consisting of Coutney-Terrell, C.J., and Ross, Wort, Kulwant Sahay and Macpherson, JJ., Macphers J., dissenting, held, "The word 'requires' means that the Assessee demands to appropriate the building for the purpose of a dwelling house or as a storehouse or other outbuilding and the words "by reason of his connection with the land" mean that only the fact of his being a receiver of rent or revenue or the fact of his being a cultivator or the fact that he is a receiver of rent in kind entitle him to claim any building as a dwelling house, a store house or an out building.... It is open to the income tax authorities to hold that a particular building on account of its size or situation is not a building which the receiver of rent or revenue does require by reason of his connection with the land as a dwelling house, and in that case it would be open to them to assess the Income from the entire building, but the come not they find that the house is required by the receiver of the rent or revenue by reason of his connection with the land as a dwelling house or a store-house or other out-building, it is beyond their jurisdiction to determine what portion of the building is or should be required by the Assessee as such receiver of the rent or revenue." The second case reported in THE PROVINCE OF BIHAR Vs. RAJA BAHADUR KAMAKHYA NARAYAN SINGH. was one decided by a Special Bench consisting of Manohar Lall, Meredith and Shearer, JJ. It was held by Manohar Lall and Shearer, JJ., Meredith J. dissenting, that there was no justification for adding the word "wholly" before the words "for the benefit of the landor for the purpose of deriving such agricultural income" in Section 6(i) of the Act; and that the Assessee was entitled to claim the full depreciation allowance for the buildings. Mr. Justice Manohar Lall, in the course of his judgment, observed: I see no justification for adding the word 'wholly' before 'the words 'for the benefit of the land or for the purpose of deriving such agricultural income' in the clause as the income tax authorities appear to have done. If once it is found that the buildings have been constructed for the benefit of the land or for the purpose of deriving agricultural income from the land whole depreciation must be allowed. I can conceive of a case where the Assessee derives a very small agricultural income and the whole income is substantially non-agricultural In that case his claim for deduction would be disallowed on the finding that these buildings are not required for the benefit of the land from which agricultural income is derived. In the third case reported in Sir Kameshwar Singh Vs. In the third case reported in Sir Kameshwar Singh Vs. State of Bihar it was held, following the above decision, that the whole maintenance expenses must be allowed though such at was not used wholly for such purpose and that expenses incurred, in respect of repairs and municipal tax of buildings, repairs of roads, maintenance of power house and depreciation of buildings and furniture should be allowed. In the course of the judgment, Sarjoo Prosad J., as he then was, observed: It was not open to the Agricultural income tax Department to examine and scrutinise as to how much of the building was required for rent collection purposes and how much of it was not so required. He also observed: To take up the controversy afresh would not therefore, serve much useful purpose, and I prefer to abide by the above decision of the Special Bench of this Court in regard to the interpretation of Section 6(g) of the act irrespective of any inclination to the contrary. In view of that decision, it follows that the above deductions claimed by the Assessee should be allowed u/s 6(g) and the other relevant sections of the Agricultural income tax Act already mentioned above. In the fourth case reported in SAILENDRA NARAYAN BHANJ DEO Vs. ASSISTANT COLLECTOR OF AGRICULTURAL Income Tax, ORISSA.. Where the Assessee, the Raja of Kanika, claimed the deduction of a sum of Rs. 10,088/- which he had spent in the accounting year for repairing a building in which he resided for supervising the collection of rents, and the income tax authorities disallowed two-thirds of the amount claimed on the ground that the building consisted of big drawing, dining and billiard rooms, and quarters for guests and that the entire building was not used in connection with collection of rents, a Division Bench of this Court held: As the building was used by the Assessee in connection with the collection of rents due in respect of the land from which the agricultural income was derived, he was entitled to a deduction of the entire repairing charges u/s 6(f). It was not open to income tax authorities to enquire how much of the building was actually required for collection of rent or sit in judgment as to what comes the Assessee should have provided for himself in his residence, or to disallow the charges on the ground that the building was more commodious than what other may consider necessary for their needs. In arriving at this conclusion, the learned Judges relied upon the Patna case under the Indian income tax Act, the case before them being one under the Agricultural income tax Act. The Nagpur High Court in the case of (1946) 14 ITR 479 dealt with a case u/s 8 of the Indian income tax Act. In that case, the Assessee a bank had borrowed money for the purpose of investing in tax-free and taxable securities. The income tax Appellate Tribunal found that it was very difficult to allocate any particular borrowing to any particular investment. A Division Bench of the Nagpur High Court consisting of Niyogi and Bose, JJ. held that in computing the income u/s 8 of the income tax Act, the department was not justified in splitting up and apportioning the interest on borrowed capital between the taxable and tax-free securities in proportion to the amount spent on the purchase of each kind of security and allowing deduction only in respect of the interest so apportioned to taxable securities; that under the first proviso to Section 8 the whole of the interest on such part of the borrowed capital as was expended on the purchase of tax-free as well as taxable securities should be deducted; that under the second proviso the whole of the interest receivable on the tax-free securities should be excluded in addition to the deduction in respect of the interest on borrowed capital; and that the income tax Act is a fiscal measure and as such many of its provisions are of necessity arbitrary, and the duty of the High Court is to interpret the provisions of the Act and, if they are plain, to give effect to them regardless of the consequences; and if there is ambiguity to construe the provision in favour of the subject even if it results in his obtaining a double advantage. The learned Judges observed: Agricultural income is exempt 'under Section 4(3)(viii). The learned Judges observed: Agricultural income is exempt 'under Section 4(3)(viii). But say a man's business is partly agricultural and partly commercial, the commercial end of it being mixed up with the agricultural. Say he runs one office and one staff to supervise both sections. Would he have to apportion the Office expenses which are permissible as a good deduction u/s 10(2)(xii) between the two kinds? We can hardly think that would be the case 15. From these decisions a principle can be derived to the effect that where a particular deduction claimed comes under the wording of the section, it should be allowed unless it looks absurd as in the case of the total agricultural income being less than the expenditure or disproportionate to the income and that it is not for the Department to apportion what amount of deduction would be allowed under the Agricultural Income Tax Act and what amount would be deducted under the Indian Income Tax Act. If the expenditure made on sebapuja is less than the agricultural income and the Assessee in his return claims the said deduction from the total income, he is within the express terms of the section. Section 8 says that any sum derived from land held under such trust and actually spent for the said purposes, shall not be included in the total agricultural income of such Assessee. To this case therefore, the amount of Rs. 22,597/- cannot be included to arrive at the total agricultural income, because it was an amount actually spent for the said purpose. 16. Mr. G.K. Misra, the learned Cousel for the Department contends that the Department can apportion and make a proportionate amount deduct able under the Agricultural income tax Act. In support of high contention he relied upon a passage in the Indian income tax Act by Sampath Iyengar, Volume I at page 81, para 56, where it is stated: Where both agricultural and non-agricultural land together are let for a lump sum, the income tax authorities may ascertain the portion relating to the non-agricultural land and assess that portion alone. Where an annuity is made payable out of an estate consisting partly of agricultural and partly non-agricultural land, in the absence of any direction by the grantor of the annuity or an agreement or contract between the annuitant and the holder of the estate that the annuity should be made payable from one source rather than the other, the presumption is that the annuity is payable proportionately from both the sources. Consequently, that part of the annuity bearing the same proportion as the agricultural income bears to the whole income may be treated as agricultural income and be exempted from charge. If the proportion of agricultural to non-agricultural income of such estate were altered by a valid sale, or transfer or exchange, the apportionment of the annuity also would have to correspondingly change. These principles, in my opinion, do not apply to the apportionment of amounts spent towards sebapuja between the agricultural and non-agricultural income. 17. He also relied on the decision in the case of JAGDISH CHANDRA DEO DHABAL DEB Vs. DHANPATI SINGH DEB.. in which it was held that in the absence of any direction in the will or of any contract or agreement between the parties neither party was entitled to claim that the annuity should be treated as coming from one source rather than the other, and therefore. the entire income of the estate of both kinds should be treated as a pool from which the Plaintiff might draw the income for himself; and he was not entitled to take more than his share of a particular kind of income and as the parties had agreed that for the purposes of the suit the income of the estate was half agricultural half non-agricultural the Defendant was entitled to deduct one half of the amount which he claimed to deduct as Plaintiff's share of agricultural income tax. In my opinion, the principle of the decision in this case is not applicable to the case before us. 18. The agricultural income tax Act does not provide that the income tax Department can apportion the amount to be deducted between the agricultural and non-agricultural income. It is only in Section 15 a provision is made with regard to the premium paid for life insurance. 18. The agricultural income tax Act does not provide that the income tax Department can apportion the amount to be deducted between the agricultural and non-agricultural income. It is only in Section 15 a provision is made with regard to the premium paid for life insurance. Section 15 is as follows: (1)(a) Agricultural income tax hall not be payable by an Assessee in respect of any sums paid by him out of own life or on the life of his wife, or in respect of a contract for a deferred annuity on his own life or on the life of his wife, or as a contribution to any provident fund to which the Provident Funds Act, 1925, applies: Provided that agricultural income tax shall be payable in the remainder of the total agricultural income of such Assessee at the rate which would have been applicable if such deduction had not been made. (b) Nothing in this sub-section shall be deemed to entitle on Assessee, who is assessed to income tax under the Indian income tax Act, 922, to claim a deduction in respect of any sum paid by him as mentioned in Clause (a), if such sum was exempted u/s 15 of the said Act. x x x x This provision in the Act indicates that it is only when a deduction is claimed under the Indian income tax At that the same deduction cannot be claimed under the Agricultural income tax Act though it deals with only life insurance premium and provident fund contribution. The passage from Sampath Iyengar's income tax Act and the decision relied upon by the learned Counsel for the Department show that in the absence of any direction to the contrary there is a. presumption that the annuity is payable proportionately from both the sources. But these do not cover the point in issue. The authorities relied upon by the Assessee show that the Department is not entitled to make any apportionment and allow a proportionate deduction if the deduction is claimed on account of any reasons allowed by the Act. Section 8 of the Act says that where an Assessee is a trustee of a trust of a religious nature, any sum derived from land held under such trust and actually spent for the said purposes shall not be included in the total agricultural income of the said Assessee. Section 8 of the Act says that where an Assessee is a trustee of a trust of a religious nature, any sum derived from land held under such trust and actually spent for the said purposes shall not be included in the total agricultural income of the said Assessee. The question whether the amount was actually spent or not was not challenged by the Department. The amount spent for sebapuja is not to be included in the total income. 19. The learned Counsel for the Department contends that according to the wording of the section it must be shown that the amount was actually spent for the purpose of sebapuja from our of the agricultural income. The learned Counsel for the Assessee, on the other hand, submits that what all Section 8 requires is that the amount is actually pent and not ear-marked for being spent for the said purpose of sebapuja. The Assessee stated in his return that this amount was actually spent and was spent form out of the income derived from the land. It is not stated by the Department in the statement of case that this amount was not actually spent and it 'was not also' spent from out of the income derived from land. The income from land in this case is certainly higher than the amount actually spent for seba-puja. It therefore follows that the amount was spent for a public purpose by a religious trust. I am, therefore, of opinion that on the facts and circumstances of this case, the Agricultural income tax Department cannot allow a proportionate deduction. I would, therefore, answer this question in the affirmative. 20. With regard to the fourth question, whether on the facts and circumstances of the case, Section 16 of the Orissa Agricultural Income Tax Act is the appropriate section under which the amounts spent on charity by a trust created for public purposes of a religious and charitable nature are to be considered. u/s 8 of the Agricultural income tax Act, it is stated: (1) Where the Assessee is a trustee and the trust under which he holds the property is a trust, created for public purpose of a charitable or religious nature, any sum derived from land held under such trust and actually spent for the said purposes, shall not be included in the total agricultural income of such Assessee. (2) In this section purposes of a charitable nature include relief of the poor, education, medical relief and advancement of any other object of general public utility, This section deals with both a charitable trust as well as a religious trust. Section 16 exclusively deals with the exemption of sums spent for charitable purpose. Though Section 8 deals with both religious trust and charitable trust in order to arrive at the conclusion whether a particular item of expenditure comes u/s 8 has to be arrived at by taking into consideration whether the trust is essentially a religious trust or a charitable trust. The Hindu Religious Endowments Act is applicable to the Assessee. As such it is essentially a trust of a religious nature and with regard to the expenditure for sebapuja it is Section 8 that applies. If the trust is only a trust for charitable purpose, then the entire amount spent on charity shall not be taken into account in arriving at the total agricultural income. As the Assessee is a religious endowment, the expenditure for sebapuja only is covered by Section 8. With regard to the amount spent on charity that would not be covered by Section 8 as the endowment is not essentially a charitable trust. I would therefore reframe the fourth question referred to us as follows: Whether on the facts and circumstances of the case Section 16 of the Orissa. Agricultural income tax Act is the appropriate section applicable for the amount spent on charity. The Assessee is essentially a religious trust and therefore his expenditure on charity cannot fall u/s 8. Simply because Section 8 mentions charitable trust also, the Assessee cannot say that the charity made falls u/s 8. When a religious endowment spends any amount on charity, that amount must come u/s 16. My answer to this question is therefore in the affirmative. Under the circumstances of this case, each party will bear his own costs. Barman, J. 21. I agree. 22. Reference rejected.