JUDGMENT 1. THE principal question which arises for consideration in this Reference is what was the date of sale of 441 maunds of paddy belonging to the assessee. According to the assessee the sale took place in the year 1356 B. S., or to be more precise, on February 12, 1950. According to the Commissioner of Agricultural Income Tax the sale took place on June 23, 1950, the corresponding Bengali year being 1357. If the sale be held to have taken place on the date alleged by the assessee, the price of paddy sold by it will be Rs. 7-8-0 per maund under rule 4 (1) of the Rules framed under the Bengal Agricultural Income Tax Act which provides that if the agricultural produce is sold in the market, the market value shall be deemed to be the price for which it was sold. If, on the other hand, the sale be held to have taken place on June 23, 1950, the price of paddy will be calculated at the rate of Rs. 11/- per maund under rule 4 (2) of the Rules framed under the Bengal Agricultural Income Tax Act, which provides that if the agricultural produce has not been sold in the market, the market value shall be deemed to be the average price at which such produce has been sold in the locality during the previous year in respect of which the assessment is made. 2. THE facts upon which this controversy has arisen are as follows. The assessee which carries on business in agricultural farming and fisheries entered into a contract for sale of 2,250 maunds of paddy with a rice mill named Bajrang Rice Mill on December 19, 1949, corresponding to the month of Pous, 1356. The price at which the paddy was agreed to be sold was the Government Procurement rate of Rs. 7-7-0 per maund. It is provided in this agreement that the buyer is to supply boats for the transport of paddy, but the loading charges will be borne by the seller and that delivery will be given as soon as the threshing of paddy was completed. It is admitted that in pursuance of this agreement the assessee gave delivery of 1,812 maunds of paddy on February 12, 1950, but delivery was given of the balance of 441 maunds on June 23, 1950. It is admitted that in pursuance of this agreement the assessee gave delivery of 1,812 maunds of paddy on February 12, 1950, but delivery was given of the balance of 441 maunds on June 23, 1950. The Agricultural Income Tax Officer in his assessment order held that the sale of 441 maunds of paddy took place not on February 12, 1950 but on June 23, 1950 and, therefore, the price of the aforesaid quantity should be calculated at the average market rate according to rule 4 (2) (a) at the rate of Rs. 11/- per maund, because, in the opinion of the Agricultural Income Tax Officer, the average upon market rate of paddy at the relevant time was Rs. 11/- per maund. Against this order the assessee took an appeal to the Assistant Commissioner, Agricultural Income Tax. According to the decision of the Assistant Commissioner the property in the goods passed to the buyer on, June 23, 1950 as held by the Agricultural Income Tax Officer, but in his opinion the market value should be determined by the Government Procurement rate of Rs. 7/8/0 per maund following certain principles which were laid down by the Appellate Tribunal Agricultural Income Tax, in another case. Against the decision of the Assistant Commissioner, Agricultural Income Tax, the Department took an appeal to the Appellate Tribunal. The Appellate Tribunal has held that (a) the entire quantity of paddy including 441 maunds agreed to be sold by the assessee was ready for delivery on February 12, 1950; (b) admittedly, the purchaser took delivery of 1,812 maunds of paddy on February 12, 1950; (c) it was nobody's case that the delivery of the total quantity of paddy was to be given by installments and (d) neither the buyer nor the seller had any intention of severing the paddy, which was delivered on February 12 1950, from the entire quantity to be sold. Upon these findings the Tribunal came to the conclusion that though the delivery of 441 maunds of paddy took place on June 23, 1950, by the operation of section 34 of the Sale of Goods Act, property in the whole of the goods had passed to the buyer on February 12, 1950. Consequently, the sale was completed on February 12, 1950, though the delivery of 441 maunds took place on a later date. Consequently, the sale was completed on February 12, 1950, though the delivery of 441 maunds took place on a later date. Upon this view the Tribunal held that the market value of the 441 maunds of paddy which were delivered on June 23, 1950 should be calculated at the rate stipulated in the agreement for sale. The Tribunal further held, in the alternative, that even if the sale be held to have taken place on June 23, 1950, the Department would not succeed, because the market value would have to be calculated at the Government procurement rate of Rs. 7-8-0 per maund. In this view of the matter, the Tribunal dismissed the appeal filed by the Department and upheld the order of the appellate Assistant Commissioner. I ought to mention that there was also another small point on which there was a controversy between the assessee and the Department and that related to the allowance of a sum of Rs. 146/- representing the fee paid by the assessee to its Auditor. The Agricultural Income Tax Officer disallowed this amount, but the appellate Assistant Commissioner allowed it and that decision was upheld on appeal to the Tribunal. Against the order of the Appellate Tribunal, the Commissioner of Agricultural Income Tax has obtained this Reference and the questions of law which have been referred to this Court by the Tribunal are as follows:- (I) "whether on the facts and in the circumstances of the case the Appellate Tribunal was justified in holding that the property in 441 maunds of paddy in dispute passed to the Bajrang Rice Mill in 1356 B. S. though actually delivered in 1357 B. S. and that the sale of the said quantity of paddy took place in 1356 B. S., that is, accounting year, at Rs. 7-7 per maund." (II) "whether on the facts and in the circumstances of the case the Appellate Tribunal was justified in holding that even on the assumption that 441 maunds of paddy in dispute was sold in 1357 B. S., the said quantity of paddy was to be valued not at Rs. 7-7 per maund." (II) "whether on the facts and in the circumstances of the case the Appellate Tribunal was justified in holding that even on the assumption that 441 maunds of paddy in dispute was sold in 1357 B. S., the said quantity of paddy was to be valued not at Rs. 11, being the value calculated according to the average open market price at which such produce had been sold in the locality in 1356 B. S., but the price at which the said quantity of paddy was actually sold in 1357 B. S." (III) "whether on the facts and in the circumstances of the case the Appellate Tribunal was justified in allowing under section 7 (9) of the Bengal Agricultural Income-tax Act a sum of Rs. 146 out of Rs. 150 paid as auditor's fee." 3. ON the first question the learned Counsel for the Commissioner of Agricultural Income Tax has raised two points before us. In the first place, he has argued that in the absence of a finding to the effect that the goods had been unconditionally appropriated to the contract either by the seller or by the buyer on or before February 12, 1950, the property in the goods could not have passed to the buyer on that date and the Tribunal erred in law in holding otherwise. The second point raised by him on the first question is that 441 maunds of paddy which were delivered on June 23, 1950, were not ascertained on February 12, 1950, and, consequently, the property in 441 maunds of paddy could not pass to the buyer on that date. Both these points are, in my opinion, covered by a comprehensive finding arrived at by the Tribunal to the following effect:- "on the material before us, we are satisfied that the entire stipulated quantity of paddy was ready for delivery on 12th February, 1950, if not earlier, and that the purchaser took delivery of the said 1,812 maunds of paddy in progress of delivery of the whole. Neither the buyer nor the seller appears to have had any intention of severing the part of the paddy delivered from the whole stipulated to be sold. On the contrary the balance quantity of paddy was taken delivery by the buyer on a subsequent date on the same terms." 4. Neither the buyer nor the seller appears to have had any intention of severing the part of the paddy delivered from the whole stipulated to be sold. On the contrary the balance quantity of paddy was taken delivery by the buyer on a subsequent date on the same terms." 4. UPON the above finding, the Tribunal applied section 34 of the Sale of Goods Act which consists of two parts. The first part of section 34 provides that if delivery of part of the goods takes place in progress of the delivery of the whole "for the purpose of passing the property in such goods," it has the same effect as the delivery of the whole. The second part of section 34 contemplates a case of the delivery of a part of the goods as taking place with an intention of severing it from the whole; in which case the delivery of the part does not operate as delivery of the remainder. The finding of fact arrived at by the Tribunal is to the effect that the delivery of part of the goods took place in progress of the delivery of the whole and not with the intention of severing it from the whole. Upon this finding the first part of section 34 is attracted to the facts of the present case and according to the provisions of the first part of section 34, the delivery of the part has, for the purpose of passing the property in the goods, the same effect as the delivery of the whole. According to section 23 (2) of the Sale of Goods Act, if the seller delivers the goods to the buyer in pursuance of the contract without reserving a right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. It is nobody's case that the seller in the present case reserved to itself the right of disposal. Consequently, as a result of the operation of sub-section (2) of section 23 the delivery of the goods to the buyer had the effect of unconditionally appropriating the goods to the contract; and under sub-section (1) of section 23 as soon as the goods are unconditionally appropriated to the contract, the property in the goods passes to the buyer. Consequently, as a result of the operation of sub-section (2) of section 23 the delivery of the goods to the buyer had the effect of unconditionally appropriating the goods to the contract; and under sub-section (1) of section 23 as soon as the goods are unconditionally appropriated to the contract, the property in the goods passes to the buyer. The combined effect of section 34 and the two subsections of section 23 is that the property in 441 maunds of paddy passed to the buyer on February 12, 1950 when 1,812 maunds of paddy was delivered to the buyer. Mr. Sen attempted to argue that on February 12, 1950, the goods were not specific goods within the meaning of section 2 (14) of the Sale of Goods Act. Section 2 (14) defines "specific goods" as goods identified and agreed upon at the time a contract of sale is made. The finding of the Tribunal to the effect that the entire stipulated quantity of paddy was ready for delivery on February 12, 1950, takes away the foundation of this argument because this finding means that the goods were identified and were weighed and were ready to be dispatched to the buyer on that date. The points raised by Mr. Sen on the first question, therefore are without substance. In agreement with the decision of the Tribunal, I hold that the property in 441 maunds of paddy passed to the buyer on February 12, 1950, on which dale a part of the goods was delivered to the buyer. The answer to the first question, in my opinion, should therefore be in the affirmative. As I have held that the property in 441 maunds of paddy passed to the buyer in 1356 B. S. which is the accounting year and not 1357 B. S., as claimed by the Commissioner of Agricultural Income Tax, the second question referred by the Tribunal does not arise for consideration and need not be answered. 5. THE third question referred to us relates to the Auditor's fee of Rs. 146/-which was allowed by the Assistant Commissioner as well as by the Tribunal. Upon the materials before us and also upon the admission made by learned Counsel on both sides, this audit fee was paid for the purpose of auditing the balance-sheet and the revenue account of the assessee. The assessee claimed a sum of Rs. 146/-which was allowed by the Assistant Commissioner as well as by the Tribunal. Upon the materials before us and also upon the admission made by learned Counsel on both sides, this audit fee was paid for the purpose of auditing the balance-sheet and the revenue account of the assessee. The assessee claimed a sum of Rs. 150/-, the whole of which was disallowed by the Agricultural Income Tax Officer, but since the income of the assessee was partly agricultural and partly non-agricultural, the appellate Assistant Commissioner allowed a proportionate amount of Rs. 146/- out of the total of Rs. 150/- claimed by the assessee. The question before us is whether it is an allowable deduction under section 7 (9) of the Bengal Agricultural Income Tax Act. That section provides that one of the items which may be allowed as a deduction in the computation of the agricultural income of the assessee is "any other expenditure of the assessee not being in the nature of capital expenditure or personal expenditure laid out wholly and exclusively for the purpose of deriving such agricultural income from such land." The point in controversy before us is whether the Auditor's fee in the present case is an expenditure laid out wholly and exclusively for the purpose of deriving the agricultural income. On behalf of the Commissioner of Agricultural Income Tax Mr. Sen emphasised the word "deriving" which appears in sub-section (9) of section 7 and he argues that in order to be an allowable deduction under sub-section (9) of section 7 the expenditure must have a direct connection with the deriving of agricultural income. The question, therefore, is whether the Auditor's fee has a direct connection with the deriving of agricultural income. It is to be noted that section 7 lays down the method of computation of agricultural income from agriculture, referred to in clause (b) of sub-section (1) of section 2 of the Bengal Agricultural Income Tax Act. Clause (b) of sub-section (1) of section 2 contemplates three kinds of agricultural income: (i) income from agriculture, (ii) income by the performance of any process ordinarily employed by a cultivator to render the produce raised fit to be taken to the market and (iii) income from land by sale of the agricultural produce. Clause (b) of sub-section (1) of section 2 contemplates three kinds of agricultural income: (i) income from agriculture, (ii) income by the performance of any process ordinarily employed by a cultivator to render the produce raised fit to be taken to the market and (iii) income from land by sale of the agricultural produce. Clause (b) of sub-section (1) of section 2, therefore, is not confined to income derived from agriculture alone, but includes income derived by rendering the agricultural produce fit. to be taken to the market and by sale of the agricultural produce in the market It is, therefore, necessary to ascertain what expenses were incurred by the assessee for the purpose of rendering the produce fit to be taken to the market and what expenses were incurred by it for the purpose of selling the agricultural produce in the market. The employment of an accountant or auditor for the purpose of ascertaining what sums were spent by the assessee for the two purposes mentioned in section 2 (1) (b) (ii) and (iii) is, in my opinion, an expenditure which is paid out wholly and exclusively for the purpose of deriving the Agricultural income. I have already said that in this case the Auditor was employed only for the purpose of auditing the balance-sheet and the revenue account. Expenses incurred for having the accounts investigated for the purpose of preparation of profit and loss account or of the balance-sheet are, in my opinion, incidental to the deriving of income and they are an admissible deduction under section 7 (9) of the Bengal Agricultural Income Tax Act. For the reasons given above, I would also answer question No. (III) in the affirmative. The assessee will have the costs of this Reference. Bachawat, J.- I agree. 6. I wish to add a few words on the third question referred to us. The assessee claims deduction of the audit fee for the preparation of the revenue account and the balance-sheet under clause (9) of section 7 of the Bengal Agricultural Income Tax Act in respect of agricultural income from agriculture referred to in sub-clause (b) of clause (1) of section 2. Income under the head is derived not only from tillage and the performance of processes employed to render the produce fit to be taken to market, but also from sale of the produce. Income under the head is derived not only from tillage and the performance of processes employed to render the produce fit to be taken to market, but also from sale of the produce. In order to facilitate the carrying on of these operations and of the incidental operation of finding out the true income and the financial position of the assessee it is necessary to keep books of account and to prepare a revenue account and a balance-sheet and for that purpose to employ accountants and auditors. In my opinion the fees paid to the auditor for preparing the revenue account and the balance-sheet are an expenditure laid out wholly and exclusively for the purpose of deriving the agricultural income in question.