Madras High Court
Kil Kotagiri Tea And Coffee Estates Co. ... vs State Of Tamil Nadu on 28 January, 1997
Equivalent citations: [1998]234ITR252(MAD)
JUDGMENT Abdul hadi, J.
1. This is a revision preferred by the assessee under s. 54(1) of the Tamil Nadu Agrl. IT Act, 1955 (hereinafter referred to as "the Act"), in relation to the asst. yr. 1978-79. The assessee was originally assessed by the Agrl. ITO in his order dt. 19th October, 1981, determining the taxable agricultural income at Rs. 26,64,554. Subsequently, the Agrl. ITO found that a sum of Rs. 2,19,581, being the sale proceeds of blue gum and wattle trees had escaped assessment. He, therefore, initiated proceedings under s. 35 of the Act. The AO then determined the net agricultural income at Rs. 28,84,135 by adding the sale proceeds of the said trees. Aggrieved by the tax levied accordingly by the Agrl. ITO, the assessee preferred an appeal to the AAC but there too, he failed. Then the assessee preferred a second appeal before the Tribunal. The Tribunal also concurred with the authorities below and dismissed the said appeal. Aggrieved, the assessee has preferred this revision.
2. The above said trees were cut pursuant to the agreement entered into on 5th August, 1977, between the assessee and one K. A. Mohammed. The relevant portions of the clauses in the said agreement as extracted by the Tribunal, inter alia, are as follows :
"The vendor will sell and the purchaser will purchase all the blue gum and wattle trees only, standing over an area of 41.94 acres ... for the total price or consideration of rupees 2,21,000 ...
The purchaser agrees to cut the trees at a height of six inches from the ground and that the bark being left intact on the stump ..."
Though the Tribunal has come to the conclusion it reached, mainly relying on the abovesaid letter extracted clause in the abovesaid agreement, after referring to V. Venugopala Varma Rajah vs. CIT . The Tribunal observed thus :
"The principle laid down there is against the appellant (assessee) as the trees were cut leaving the stump intact. The various clauses in the agreement prohibit the purchaser from laying new roads, etc. This is meant to prevent damage to the soil so that there is no obstruction to regeneration."
3. Learned counsel for the assessee has initially argued that the case is covered, in favour of the assessee, by the judgment of this Court in Younus Sait Sons vs. State of Tamil Nadu . He also argued that the abovesaid income in question has been taxed as capital gain under the Central income-tax law, viz., the IT Act, 1961. On the other hand, learned counsel for the Revenue reiterated the reasoning of the Tribunal and also pointed out that as per the decision of the Tribunal, there is no evidence to show that the abovesaid trees are of spontaneous growth and that the Tribunal also did not accept the argument of the assessee that the above said trees are shade trees.
4. In our view, there is no necessity to directly consider the said rival arguments, in view of our following reasons in favour of the assessee.
As per CIT vs. Raja Benoy Kumar Sahas Roy (1957) 32 ITR 466 (Mad) :
"'Agriculture' in its primary sense denotes the cultivation of the field and is restricted to cultivation of the land in the strict sense of the term, meaning thereby tilling of the land, sowing of the seeds, planting and similar operations on the land. These are basic operations and require the expenditure of human skill and labour upon the land itself."
The Supreme Court further points out that after the produce sprouts from the land, there may be other operations like weeding, digging the soil around the growth, removal of undesirable undergrowth, etc. Then the Supreme Court points out in the said decision that the mere performance of these subsequent operations on the products of the land, where such products have not been raised on the land by the performance of the basic operations, would not be enough to characterise them as agricultural operations; in order to invest them with the character of agricultural operations, these subsequent operations must necessarily be in conjunction with and in continuation of the basic operations which are the effective cause of the products being raised from the land. Thus, as laid down by the Supreme Court, such subsequent operations divorced from the above said basic operations cannot constitute by themselves agricultural operations and only if this integrated activity which constitutes agriculture is undertaken and performed in regard to any land can that land be said to have been used for "agricultural purposes" and the income derived therefrom be said to be "agricultural income".
5. As per the relevant legislative entries in the Constitution of India with the taxing powers of the Union, on the one hand, and the State on the other hand, it is well known that tax on "agricultural income" can be levied only by the State leaving the "non-agricultural income" to be taxed by the Union. Art. 336(1) of the Constitution of India defines "agricultural income" thus :
"'Agricultural income' means agricultural income as defined for the purposes of the enactments relating to Indian income-tax :"
While so, the Central Act, viz., the IT Act, 1961, defines the term "agricultural income" under s. 2(1) thereof. The definition found in the above said s. 2(1) of the IT Act, 1961, has to be adopted in construing the said term under the Constitution of India. Just as the definition in the IT Act, 1961, there was also a similar definition of "agricultural income" in the old IT Act, viz., the Indian IT Act, 1922. Only with reference to the abovesaid definition of "agricultural income" under the Indian IT Act, 1922, the Supreme Court in the abovesaid decision in CIT vs. Raja Benoy Kumar Sahas Roy (supra) explained the term "agricultural income" as referred to above.
6. While such is the case, when the ITO sought to reassess the abovesaid sale proceeds of the abovesaid trees realised by the assessee, he should have made the necessary allegations in his reassessment notice in the light of the abovesaid observations of the Supreme Court. In other words, he should have specifically alleged therein that the assessee had done any of those basic operations, viz., tilling of the land, sowing of the seed, planting and similar operations on the land in relation to the abovesaid trees, otherwise, there will be no scope for the Revenue contending that the said sale proceeds were agricultural income. But, we find that the relevant portion of the reassessment notice sent by the officer runs only as follows :
"M/s. Kilkotagiri Tea & Coffee Estates Co. Ltd., Coimbatore, is an assessee of this circle under the provisions of the Tamil Nadu Agrl. IT Act, 1955, engaged in growing and manufacturing of tea and the assessment has been finalised following r. 7 of the Tamil Nadu Agrl. IT Rules, 1955. For the asst. yr. 1978-79, the net agricultural income of the assessee was determined at Rs. 26,64,554 - under s. 17(3) of the Act in this office GIR-51(k)/1978-79/ KIG, dt. 31st October, 1980. Subsequent scrutiny of the assessment records for the year 1978-79 reveals that a sum of Rs. 2,19,581 from sale of blue gum and wattle bark was treated as non-agricultural income. This has to be added to the 60 per cent. of income computed by the ITO and taxed "under the Agrl. IT Act, as this is an agricultural income. This is thus an escaped income."
It is obvious that only in relation to the abovesaid r. 7 of the Tamil Nadu Agril. IT Rules, the officer has referred to the abovesaid 60 per cent. of the income. The said rule runs as follows :
"7. Computation of income from tea. - In respect of agricultural income from tea grown and manufactured by the seller in the State of Madras, the portion of the income worked out under the Indian IT Act and left unassessed as being agricultural shall be assessed under the Act after allowing such deductions under the Act and the rules made thereunder :
Provided that the computation made by the Indian ITO shall be accepted by the Agrl. ITO :
Provided further that if the income for the purpose of the Indian IT Act has not been determined before the filing of return under s. 16, the assessee shall submit along with the returns a statement of profit and loss in respect of his entire income derived partly from agriculture and partly from business and thereupon he shall be assessed treating his agricultural income to be 60 per centum of the income from tea grown and manufactured in the State of Madras after allowing the deductions allowed by this Act this assessment being subject to revision after the income for the year has been determined for the purpose of the Indian IT Act, 1922 (Central Act XI of 1922).
Note : (1) The Act shall apply to income from sales of tea grown and manufactured in the State of Madras irrespective of the fact whether the sale is made within or without the State.
(2) The deductions referred to above are specified in s. 5 and rr. 3, 4 and 5."
7. It is obvious from the said rule, that it applied only to income in relation to tea and not to the abovesaid trees, even though they might have been owned by the assessee, along with the tea plantation. So, r. 7 has no application at all in the present case.
8. Thus, we find in the above reassessment notice there is absolutely no reference to the above referred to basic operations as explained by the Supreme Court. That apart, in the assessment order also, there is no finding at all regarding the existence of the abovereferred to basic operations in relation to those trees. In fact, in none of the orders of the authorities below including the Tribunal such a finding is there. Therefore, on this short ground, there is no justification for holding the above said income as "agricultural income" in the light of the above referred to Supreme Court decision.
9. No doubt, learned counsel for the Revenue submitted that even in the reply to the abovesaid reassessment notice, the assessee did not say that the abovesaid trees were all of spontaneous growth or that there was no such basic operations on the land in question in bringing the said trees into existence. But, this submission has no merit, because, unless in the reassessment notice, the relevant allegations are there regarding the abovesaid basic operations, the assessee cannot be expected to traverse this aspect, in his reply to the said notice. In the light of the above feature, and particularly when necessary allegations are not there in the reassessment notice, there is no scope for contending that the assessee has not met the relevant allegations in his reply. It is the duty of the Department, when it chooses to assess a particular income and issues reassessment notice, to make the necessary allegations. But, in the present case, the relevant allegations in the light of the abovesaid Supreme Court observations, are not in the reassessment notice. There is also no finding by any of the authorities on the above aspect. Therefore, the orders of the authorities below cannot stand.
10. Accordingly, we set aside the orders of the authorities below and allow this revision. No costs.