JUDGMENT B.L. Gupta, J. - This is a Writ petition under Article 226 of the Constitution of India. Relief is sought in respect of liability to agricultural in come tax in respect of a sum of Rs. 37,747-15-0 on account of arrears of rent realized by the Petitioner in the year 1360F. The arrears were of one year 1359F and earlier years. These arrears were taxed by the assessing authority under the UP Agricultural Income tax Act (hereinafter called the Act) by order dated October 15, 1956 in the assessment year 1361F. 2. The Petitioner is an ex-taluqedar and his estate comprised of villages in the districts of Sultanpur, Faizabad and Rae Barreilly. Upon the abolition of Zamindari, by reason of the notification dated July 1, 1952, the estate of the Petitioner vested in the State of Uttar Pradesh with effect from that date except parts of some villages within the municipal limits of Sultanpur and Faizabad. In para, 4 of the affidavit filed in support of the writ petition it has been stated the arrears of rent in question were in respect of the land which had ceased to belong to the Petitioner & had vested in the State under the notification. This statement of fact has not been denied in the counter affidavit. It is also an admitted fact that the arrears of rent were in respect of the year 1359F and earlier years. 3. The Petitioner disputed his liability to agricultural income tax in respect of these arrears on the short ground that as he was divested of property under the notification dated July 1, 1952 in respect of which arrears arose and did not "own or hold" the same in the previous year (July 1, 1952 to June 30, 1953), he was not a "person" within the meaning of the Act, and it was only the agricultural income of the previous year of a person "that can be taxed in any year (assessment year) under the Act". 4. The assessing authority under the Act over ruled the contention in the following words: The Assessee filed his return but at the same time challenged the validity of the AI Tax on the income derived as arrears of rent in l360F on the ground that be was not a 'person' within the meaning of Section 2(11) of the Agricultural Income Tax Act. I have heard the Learned Counsel for the Assessee but am unable to agree with the contention in view of the amendment of the section and the insertion of a new Section 3 by the Amendment Act of 1953, which clearly lays down that it is not necessary that a person should hold or own property in the year for which the tax is to be charged. 5. The conclusion of the assessing authority was challenged by Sri R.L. Gulati, Learned Counsel for the Petitioner as being vitiated by an error of law apparent on the face of record. Learned Counsel referred to the charging section namely, Section 3 of the Act, the relevant portion of which runs as follows: 3(1). Agricultural income tax and super tax at the rate or rates specified in the schedule shall be charged for each year in accordance with and subject to the provisions of this Act "and rules framed under Clauses (a), (b) & (c) of Sub-section (2) of Section 44 on the total agricultural income of the previous year of every person. 6. It was submitted that the charge of agricultural income tax is for a particular year namely, the assessment year which in this case is 1361F. The charge is on the agricultural income of the previous year. The previous year in this case is 1360F. The income of the previous year has to be of a "person". If the income of the previous year sought to be brought to tax is not of a "person", the charge of tax shall not operate upon such income. 7. The word 'person' is defined in Section 2(11) of the Act, the relevant words of which are as follows: Person means an individual or association of individuals owning or holding property for himself or for any other, or partly for his own benefit and partly for that of another.... 8. It was submitted that it follows from this in order that an individual may be a person under the Act he must 'own or hold' property. Some doubt appears to have arisen whether it was necessary that the 'owning or holding' of the property should be in the assessment year also or it was sufficient if the property was owned and held in the previous year. Some doubt appears to have arisen whether it was necessary that the 'owning or holding' of the property should be in the assessment year also or it was sufficient if the property was owned and held in the previous year. In order to set this doubt at rest the State Legislature by Section 3 of the UP Agricultural Income Tax (Amendment) Act (Act No. XIV of 1955) provided as follows: Whereas doubts have arisen as to the liability of a person to assessment to a agricultural income tax under the Principal Act (that is UP Agricultural Income Tax Act, 1948) where such person while owning or holding property in the previous year has ceased to own or hold it subsequently, it is hereby declared that the words "owning or holding property" in Clause (11) of Section 2 of the Principal Act shall be deemed never to have required such person to continue to own or hold the property in the year for which the tax is to be charged. 9. It was submitted that this declaration clarifying doubts about the meaning of the word 'person' did not say that the "owning or holding" of property was not necessary in the previous year. All that it said was that if property was owned or held in the previous year it was not necessary that it should be continued to be owned or held in the assessment year also. It follows that for an individual to be a person under the Act it was necessary that he should "own or hold" property atleast in the previous year. It he did not so own or hold property in the previous year he could not be a 'person' under the Act. 10. This position was accepted in a case reported in Radhey Shyam v. Aqr. Income Tax Officer 1955 ALJ 325. In that case it was sought to be argued that in order that an individual might be a person he should "own or hold" property in the assessment year also and nor merely in the previous year. This was negatived and it was laid down that neither the original definition of person nor the amended definition of person nor the charging section require that a person under the Act should "own or hold" property in the assessment year also. This was negatived and it was laid down that neither the original definition of person nor the amended definition of person nor the charging section require that a person under the Act should "own or hold" property in the assessment year also. It was not, however, laid down that an individual could be a person even if he did not "own or hold" property in the previous year. 11. The Learned Counsel for the Petitioner relied upon a decision of the Board of Revenue reported in Rani Chandrabhan Kuer v. State 1957 AWR (Rev) 99. The decision is on all fours with the facts of the present case and fully supports the submission of Learned Counsel. The reasoning of the decision is as has been pointed out above. The decision of this Court reported in Radhey Shyam v. Aqr. Income Tax Officer 1955 ALJ 325 and mentioned above was also considered by the Board in this decision. 12. The Learned Counsel submitted that the assessing authority completely missed the point. The point was that upon abolition of Zamindari by notification dated 1-7-1952, the Petitioner ceased to "own or hold" property in the previous year 1360 F, in which the arrears of rent were received. Having ceased to own or hold property in that year he ceased to be a person within the meaning of the Act. It is only the agricultural income of a person of the previous year which can be brought to charge under the Act in any assessment year, in this case the year 1361F. The income of the previous year of an individual who had ceased to be a person could not be brought to charge u/s 3, which is the charging section under the Act. The assessing authority instead of applying himself to a consideration of this question mislead himself in to thinking that the contention of the Petitioner was that a person sought to be charged under the Act should "own or hold" property in the year of charge or the assessment year also. This was not at all the point of the Petitioner. It follows that the order of the assessing authority is clearly erroneous and is liable to be quashed. 13. This was not at all the point of the Petitioner. It follows that the order of the assessing authority is clearly erroneous and is liable to be quashed. 13. Sri Shambhu Prasad, Learned Counsel for the Respondent has cited in his support a latter decision of the Board of Revenue reported in Maharaja Pateshwari Prasad v. State 1958 AWR (Rev.) 155. The decision is contradictory of the earlier decision of the Board and supports Sri Shambhu Prasad completely. I am, however, of the view that this decision also suffers from the same infirmity from which the decision of the assessing authority in this case suffers. The Board of Revenue also missed the point which was urged before them, and instead of confining themselves to the submission made on behalf of the Assessee that before the income of an individual could be brought to charge in any year (viz. assessment year), it was necessary that he should have been a 'person' as defined in the Act in the 'previous year', which he could only be if he owned or held property in the previous year misled themselves by the use of expressions 'subsequent year' and 'particular year' and fell in to error. By reason of the abolition of the Zamindari and the issue of notification dated 1-7-1952 all Zamindars including the Assessee in the case before the Board of Revenue ceased to "own or hold" property with effect from 1-7-1952 and therefore, ceased to be a person in 1360F., which was the previous year in the case before the Board of Revenue as it is the previous year in the case before me. Sri Shambhu Prasad has made no attempt to support the reasoning of the Board in the case cited by him in his support. 14. Sri Shambhu Prasad struck out on a new line of approach. He contended that even though it might be necessary that a person as defined in the Act should own or hold property in the previous year, it was not necessary that the property should be one the income of which is sought to be brought to charge. If the individual holds some other agricultural property in the previous year it would be sufficient to constitute him a person under the Act. He sought to support his submission by a reference to the provisions of Section 4 of Act. If the individual holds some other agricultural property in the previous year it would be sufficient to constitute him a person under the Act. He sought to support his submission by a reference to the provisions of Section 4 of Act. The provision in that section runs as follows: Limit of taxable income: Agricultural income tax shall be payable by a person whose total agricultural income of the previous year exceeds Rs. 4,200 or, in the case of any society, trust or other association of individuals, such higher figure as may be prescribed; Provided that the tax shall not be payable by a person who cultivates not more than 30 acres of land. Explanation: Land covered by a grove or orchard is a land cultivated. 15. Sri Shambhu Prasad was not able to show to me how the above provision supports his submission. On the other hand it appears to me that for an appreciation of the provision in Section 4 where the words "agricultural income", "person", "total agricultural income", "previous year", all occur, it is necessary to go back to the definitions in Section 2 and no aid can be derived from this section for the interpretation and elucidation of the word 'person' as defined in the Act. To my mind it seems preposterous that the Act should have made the "owning or holding" or property a sine qua non of an individual being a person and yet all that it should have intended was the "owning or holding" of some agricultural property even if the property was not one from which the agricultural income was sought to be taxed under the Act. To me it appears that if this was so, there was no point at all in the legislature making the "owning or holding" of property a necessary requisite for constituting an individual a person under the Act. My view finds support from the words it and the used by the legislature in Section 3 of the amending Act of 1953, which is quoted in an earlier portion of this judgment, and in which I have underlined both these words. 16. My view finds support from the words it and the used by the legislature in Section 3 of the amending Act of 1953, which is quoted in an earlier portion of this judgment, and in which I have underlined both these words. 16. During the course of hearing it also struck me, even though the point was not argued at the bar that arrears of rent of earlier years realised in the previous year when the land in respect of which the arrears had arisen had already passed out of the hands of the Assessee and there was nothing on the record to show that the land was still being used for agricultural purposes in the previous year could not constitute agricultural income of the Assessee in the previous year. The definition of agricultural income in Section 2(1) of the Act has the same meaning as in the Income Tax Act from which it has been adapted. In Sub-section (a) of Section 2(1) agricultural income is defined as follows: Agricultural income means (a) any rent or revenue derived from land which is used for agricultural purpose .... The expression "land which is used for agricultural purposes" in the above definition has been the subject of interpretation under the parallel provision in the Income Tax Act. The authorities are collected in the case reported in SENAIRAM DOONGARMALL Vs. COMMISSIONER OF Income Tax, ASSAM., AIR 1955 Guw 201 where at page 138 of the report it is stated as follows: It is necessary that the land should be actually used for agricultural purposes before rent or revenue derived from it can be treated as agricultural income. It was held in Commissioner of Income Tax Bengal v. B.K. Wards Estate (1949) 17 ITR 191 that it is not enough that lands were leased for agricultural purposes if in fact agriculture operations do not take place. If lands leased for cultivation should happen to be used for housing or accommodation of refugees the rent would cease to be agricultural income. In Maharaja Sir Bijay Chandra Mahtab Bahadur of Burdwan, In re (1940) 8 ITR 191, it was emphasized that the user of the land for agricultural purposes must be in the year accrual of income under dispute, not any where before or after. In RAJA BAHADUR VISHWESHWARA SINGH Vs. In Maharaja Sir Bijay Chandra Mahtab Bahadur of Burdwan, In re (1940) 8 ITR 191, it was emphasized that the user of the land for agricultural purposes must be in the year accrual of income under dispute, not any where before or after. In RAJA BAHADUR VISHWESHWARA SINGH Vs. COMMISSIONER OF Income Tax., (1954) 26 ITR 573 Ramaswami, J. laid down that in order to find out whether the income of the Assessee is agricultural income, the test is not to find out the purpose of the lease but the test is actual use of the land for agricultural purposes. In his view as the land was not actually used for agricultural purposes the income was not exempt from being taxed under the Income Tax Act. 17. I am in respectful agreement with the above statement of the law. It follows that in the absence of a finding by the assessing authority that the lands to which the arrears related and which were no longer owned or held by the Petitioner were used for agricultural purposes in the previous year, the arrears of rent even if they were included in the word "rent" in the definition of "agricultural income" could not constitute such agricultural income as is liable to be taxed under the Act. It may be noted that under the Income Tax Act agricultural income is exempt from tax and the burden is upon the Assessee to bring himself within the exception. The position is entirely different under the UP Agricultural Income Tax Act. The burden is upon the department to establish in the first instance that an income on which tax is sought to be levied is agricultural income. If there is no proof for finding that the and was used for agricultural purposes in the previous year, income from such land, of earlier years would not constitute agricultural income within the meaning of the definition in the Act and would be exempt from tax. Sri Shambhu Prasad, learned senior Standing Counsel, did not urge anything to meet this position. 18. For all these reasons I am of the opinion that this writ petition must be allowed and the relief prayed for granted to the Petitioner. Sri Shambhu Prasad, learned senior Standing Counsel, did not urge anything to meet this position. 18. For all these reasons I am of the opinion that this writ petition must be allowed and the relief prayed for granted to the Petitioner. Accordingly I issue a direction to the assessing authority who is the Respondent in this petition to modify and amend his assessment order dated 15-10-1956 annexure 'A' to the affidavit accompany the writ petition deducting from his computation of the total agricultural income of the petition, the sum of Rs. 37,747/15/- and to desist from levying agricultural income tax on the Petitioner in respect of the said sum of money. The Petitioner shall be entitled to his costs of the petition.