Income Tax have various contentious issues despite being one of the oldest Law of the Land. On these issues assesse and revenue used to loggerhead each other on various form of Authorities. Taxation of AGRICULTURAL INOCME is also one of such contentious issue. One of the main reason for various dispute on Agriculture Income is attribute to the status of EXEMPT INCOME conferred by Income Tax Act vide section 10(1) of the Act.
The term “Agricultural Income“ has been defined u/s 2(1A) of the Act. The definition of ‘agricultural income’ under section 2(1A) provides that the following shall constitute agricultural income:
(i) any rent or revenue derived from land which is situated in India and is used for agricultural purposes [Section 2(1A)(a)]
(ii) any income derived from such land by agricultural operation including processing and sale of the agricultural produce as rent-in-kind so as to render it fit for the market [Section 2(1A)(b)],
(iii) income derived from building or land used for agricultural operation, in certain cases. [Section 2(1A)(c)]
What constitutes agriculture
Hon’ble Supreme Court had elaborately explained what constitute the term agriculture in depth in the case of CIT v. Raja Benoy Kumar Sahas Roy (1957) 32 ITR 466 (SC). It is a landmark case for the understanding of agriculture under the Income Tax Act. It was an interesting case wherein assesse was growing tress on a forest land. Growing of trees was inter alia includes of cutting of tress and leaving the stumps to regrow. The Supreme court held such income as agriculture income and held as under:
“ The primary sense in which the term agriculture is understood is agar-field and cultra–cultivation, i.e., the cultivation of the field, and if the term is understood only in that sense agriculture would be restricted only 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. They would be the basic operations and would require the expenditure of human skill and labour upon the land itself. There are, however, other operations which have got to be resorted to by the agriculturist and which are absolutely necessary for the purpose of effectively raising the produce from the land. They are operations to be performed after the produce sprouts from the land, i.e., weeding, digging the soil around the growth, removal of undesirable under growths and all operations which foster the growth and preserve the same not only from insects and pests but also from depredation from outside, tending, pruning, cutting, harvesting, and rendering the produce fit for the market. The latter would all be agricultural operations when taken in conjunction with the basic operations above described, and it would be futile to urge that they are not agricultural operations at all.
However, 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 which have been described above would not be enough to characterize 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 a continuation of the basic operations which are the effective cause of the products being raised from the land. It is only if the products are raised from the land by the performance of these basic operations that the subsequent operations attach themselves to the products of the land and acquire the characteristic of agricultural operations. The cultivation of the land does not comprise merely of raising the products of the land in the narrower sense of the term like tilling of the land, sowing of the seeds, planting, and similar work done on the land but also includes the subsequent operations set out above, all of which operations, basic as well as subsequent, form one integrated activity of the agriculturist and the term ‘agriculture’ has got to be understood as connoting this integrated activity of the agriculturist. One cannot dissociate the basic operations from the subsequent operations and say that the subsequent operations, even though they are divorced from the basic operations can constitute agricultural operations by themselves. If this integrated activity which constitutes agriculture is undertaken and performed in regard to any land that land can be said to have been used for ‘agricultural purposes’ and the income derived therefrom can be said to be ‘agricultural income’ derived from the land by agriculture. The mere fact that an activity has some connection with or is in some way dependent on land is not sufficient to bring it within the scope of the term and such extension of the term ‘agriculture’ is unwarranted. The term ‘agriculture’ cannot be dissociated from the primary significance thereof which is that of cultivation of the land and even though it can be extended in the manner stated before both in regard to the process of agriculture and the products which are raised upon the land, there is no warrant at all for extending it to all activities which have relation to the land or are in any way connected with the land. The use of the word agriculture in regard to such activities would certainly be a distortion of the term.
It the term ‘agriculture’ is understood as comprising within its scope the basic as well as subsequent operations in the process of agriculture and the raising on the lands of products which have some utility either for consumption for trade and commerce, it will be seen that the term ‘agriculture’ receives a wider interpretation both in regard to its operations as well as the results of the same.
Nevertheless there is present all throughout the basic idea that there must be at the bottom of its cultivation of land in the sense of tilling of the land, sowing of the seeds, planting, and similar work done on the land itself.
This basic conception is the essential sine qua non of any operation performed on the land constituting agricultural operation. If the basic operations are there, the rest of the operations found themselves upon the same. But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations”.
This judgment makes it clear that the term ‘agriculture’ is “cultra”, i.e., cultivation of the “agar” i.e., field/land. In other words, raising of a product through the use of human skill and labour on land may be classified as agricultural activity. The “product should have some utility either for consumption, for trade and commerce. The term “Agriculture” receives a wider interpretation both with regard to its “operations” as well as the “results” of such operation.
Looking to the definition given in the Act and above referred landmark decision of the supreme court on the matter, following ingredients must be existing in Agricultural Income:
1. Existence of Land,
2. Ownership of Land is immaterial
3. Cultivation of land is must
4. The resultant items through basic operation should be in a shape of products either for consumption or trade.
Apart from basic agricultural income referred above the following income shall also be characterized as agricultural income.
1. Rent or revenue derived from Indian land used for agricultural purposes.
2. Any income derived from building owned and occupied by the receiver of the rent. Such building should be on land which is being used for agricultural purpose or should be situated on the immediate vicinity of such land but in such a situation such land should be either assessed to land revenue or should be situated outside the specified kilometer to the municipal area having population more than ten thousand as per last census etc then only income shall be classified as agricultural income. If rent is for the purpose of residential purpose than it shall not be treated as agricultural income.
3. As per explanation 3 of the section 2(1A), Any income derived from saplings or seedlings grown in a nursery shall be deemed to be agricultural income.
4. It has also been clarified that Revenue derived from transfer of land situated within municipal limit having population more than ten thousand or within certain Ariel distance from the such municipal limit shall not be treated as agricultural income. In other words such income shall be chargeable to tax under the head capital gain.
Discussion on various situation/activities:
There are various activities/situation wherein it is frequently discussion is taken place whether these activities will be considered as agricultural income or not and consequent exemption from income tax is available in these situation: A few of such activities are as under:
1. Whether agriculture activity on urban land is exempt: Agriculture activity carried out on agriculture land whether it is rural or urban is exempt from tax hence profit from agricultural operation carried out at urban land is exempt from tax.
2. Whether agriculture activity carried out by company is exempt: Section 10(1) speaks about exemption of agricultural income irrespective to the constituent of the person be it individual, HUF, Company, trust etc hence profit from agricultural activity carried out by company is also exempt from tax.
In such a situation agricultural operations must be actually carried out by such entity other than individual and mere supervision and guidance provided to agricultural operation by outsourcing is not sufficient. As per decision of Ld. Delhi ITAT in the case of P.H.I. Seeds P Ltd v/s DCIT If agricultural activity is carried out by corporates than following points should be kept in mind to get it eligible for exemption.
a) Agricultural activity should be carried out by employee of the company.
b) Risk of the agricultural produce should be bear by the company.
c) Mere supervision and guidance provided to the farmers cannot be termed as agricultural activity.
One will be surprised to note that assesse other than individual are declaring high agricultural income. As per reports of CAG, 729 companies had declared agricultural income of Rs 2094 crore during FY 2014-15 to FY 2016-17. Likewise various partnership firm, AOP, trust had also declared handsome amount of exempt agricultural income in their return of Income. These figure is derived from the sample size of 7082 cases only audited by CAG during the period.
3. Whether Profit on sale of fruits from the trees planted around the house/Bunglow is exempt being agricultural activity: As per section 2(1A) any income derived from agriculture on the land which is used for agricultural purposewill be considered as agricultural income for the purpose of Income tax Act. Since fruits is extracted from trees which are planted on the land which is for residential purpose hence profit on sale of such fruits will be taxable under the Income tax Act and cannot be considered as agricultural income.
4. Profit on sale of mangoes/Chikoo/Jamun etc. from a farm taken on lease basis for short term period eg. One Year: Since all such type of fruits is extracted from trees which have long gestation period means trees were planted on the land before it is taken on lease but it requires various subsequent operations which tantamount to agriculture operation hence if the land is agricultural land than profit on sale of fruits can be claimed as exempt even though land is taken on short term lease.
Answer of this question would be in negative if the tress were standing tress and no subsequent activity had been carried out, In such a situation profit on sale of standing trees will be taxable under the Income Tax Act.
5. Whether Income from export of agriculture produce is exempt: If he agriculturist had directly export the agriculture produce than profit on export shall be exempt from tax provided other condition as mentioned in section 2(1A) is also satisfied but if any middlemen has undertaken export of agriculture produce than the same shall not be exempt under section 10(1) being agricultural income.
6. Whether profit from agriculture produce is exempt in a case where the subsequent process is undertaken on non-agriculture land/premises to make it marketable: Subsequent process on Agricultural produce to make it marketable is a part of agricultural operations and profit on sale of such produce shall be treated as agricultural income only. Say for example trashing of Rice, wheat, mustard, etc is part of agricultural operations only even though these activities are carried out on non-agricultural land or building.
But in the case of tea, coffee, sugarcane where a major processing (change of very nature of the product) is being done, than income shall be bifurcate as agricultural and non-agricultural as per rule 7, 7A, 7B and 8 of the Income tax rule.
7. Whether growing of grass of specific texture/quality/process is agricultural income when such grass was grown under a tendered contract in a time definite manner for CWG (Common Wealth Games) 2010: The same situation was happened in the case of Hortus Consultants P Ltd wherein the company was granted a contract to grow grass in soil or in peat moss with mesh to a certain height with three mowing and then lifted/rolled with the roots intact to a specific thickness and planted in a time definite seamless manner at the Jawaharlal Nehru Stadium which required foreign technology, implements, consultancy and collaboration. The company claimed the whole income as agricultural income but ITAT held that the concept of income splitting will need to be done in this case. Income up to growing of the grass was held to be agricultural income and thereafter the job of lifting/rolling/relaying will not be agricultural income.
8. Whether converting of jiggery(Gur)from sugarcane by the farmer himself is agricultural activity and thus exempt from tax: Generally both the commodity is separately marketable and conversion of Gur from sugarcane is not a necessary process performed by the cultivator to render the sugarcane fit for being taken to the market hence profit from sale of Jaggery will be bifurcated as agricultural and non-agricultural income if the farmer himself is involved but if someone else is involved than profit from sale of jaggery is taxable as business income.
But When there was no market for the sugarcane produced by the assessee in its natural condition, income received by the assessee from sale of jaggery was exempt from tax as agricultural income. CIT v H.G. Date  82 ITR 71 (Bom.)
9. Whether Income from sale of flowers or nursery products are exempt from tax: There are two type of operations are generally carried out in nursery or greenhouse operations. In the case where soil is removed from the land and kept in various pots etc and subsequent operations are carried out in pots. In such a scenario income from sale of flowers or nursery products will be considered as agriculture income because basic operation had been done on the soil and there is no relevance of subsequent operation hence sapling or seeding grown is considered as deemed agricultural income but if flower plants are sold after purchased it from farm house will be business income.
10. Whether claim received from Insurance company for damage of crop is agricultural income: Insurance claim received from insurance company for loss of crop is agricultural income because such claim is received against basic agricultural operations.
11. Whether compensation received for loss of trees with roots is agricultural income: Where the assesse receive compensation for loss of trees from a company which was laying gas pipeline crossing his farm. The Ld. Hyderabad bench had treated such compensation as agricultural income being equal to sale of crop or claim from insurance company. (Sri meela Satynarayan HUF v/s ITO, Suryapet in ITA no 1047/Hyd/2016.
12. Whether Mashroom Farming is an agricultural activity even though vertical space is used instead of horizontal space on soil: The Hyderabad ITAT in the case of DCIT v. Inventaa Industries (P.) Ltd.  95 taxmann.com 162 had dealt this issue and explained that why mashroom farming is to be considered as agricultural activity. The Ld. Tribunal had held that “ Soil’ is a part of the land. Land is also part of earth. The upper strata of the land is soil and this is cultured and made fit for production of crops, vegetables and fruits, etc., by enriching the soil. When such soil is placed on trays, it does not cease to be land and when operations are carried out on this ‘soil’, it would be agricultural activity carried upon land itself.
For the purpose of understanding the nexus between an agricultural operation and an agricultural land, what needs to be inferred from the term ‘land’ is that, the cultured top layer of the earth, which is fit for any sort of cultivation, is land for this purpose. Hence, the soil which was placed on the vertical space above the land in trays was also land and the income arising from the sale of Mushrooms was agricultural income exempt from tax.”
13. Whether Income from Fish Farming(Jhinga) is agricultural Income: Fish farming is not an agricultural activity as no basic agricultural operation is carried out on land hence income from fish farming is taxable as business income. However income of fish farming to a co-operative society is exempt u/s 80P of the Act.
14. Whether dividend declared by a tea manufacturing company can be claimed as exempt to the extent of 60%: Suppose an assesse is a shareholder of a tea company which is engaged in the growing and marketing of tea. The assesse received handsome amount of dividend from the company and wanted to claim exemption to the extent of 60% being sole source of dividend is agriculture income. The Ld. Supreme court in the case of Union of India v/s Tata Tea Co Ltd 251 taxmann 0010(SC) has held that meaning of income derived from land should be give in case of direct association with the land and an unrestricted meaning to this term shall be unwarranted meaning thereby that agricultural income shall be construed only when captioned income have direct connection with the land.
15. Taxability of income not derived from agricultural land: In our daily life, we used to come across various incomes which seems to be agricultural income but minute study suggests that unless until income is have direct linkage from agricultural land, such income can-not be treated as agricultural income. Example of such incomes which does not have direct linkage with agricultural land are as under. Such income is taxable under the Income Tax Act.
1. Income from Bee Hiving
2. Income from making of salt from sea water.
3. Income from spontaneously grown trees
4. Interest income on crop loan
5. Income from dairy farming
6. Rent received from farm house given for residential purpose or shooting of film
7. Commission received by broker on sale of crop
8. Income from poultry farm
9. Income from selling of milk, ghee etc
10. Interest on belated receipt of rent of land, building.
Is agricultural income really exempt?
Generally, it is understood that agricultural income is exempt from tax and no income tax is payable on agricultural income but it is not as rosy as it is generally think. Agricultural income will be added to total income for rate purpose only and relief to the extent of tax on agricultural income calculated separately adding it to the maximum threshold amount shall be provided to the assesse. For adding to the agricultural income for rate purpose, following two conditions be fulfilled.
1. Agriculture income is in excess of Rs 5,000/-
2. Other taxable income exceeds the threshold limit who is require to pay tax. At present this limit is Rs 2,50,000/-
We can understand the effect of this provision with the help of an example. Let us say that an Individual Assessee Mr X has a total income of INR 9,00,000/- and does not have any agricultural income whereas another assesse Mr Y has a total income of Rs 9,00,000/- (excluding Agricultural income) and a Net Agricultural income of INR 2,00,000/-. Mr Z has total income of Rs 10,00,000/- and agricultural income of Rs 2,00,000/-.
Now calculation of taxability of the above assesse will be as under:
|Name of the Assessee||Mr X||Mr Y||Mr Z|
|Income for rate purposes||9,00,000||11,00,000||12,00,000|
|Less: Relief for agri. Income i.e. tax on 4,50,000(2,50,000+2,00,000)||Nil||10,000||10,000|
|Total Increase in tax||Nil||40,000||70,000|
|Tax on income other tan agricultural income i.e. Rs 1,00,000(1000000-900000)||Nil||Nil||30,000|
|Tax on agricultural income||Nil||40,000||40,000|
From the above example we can say that though agricultural income is marginally liable to tax if other income of the assesse other than agricultural income crosses the specified tax slab and tax on agricultural income shall also be charged under the tax rate in which he is falling but once assesse reaches maximum marginal rate slab than income tax on agricultural income remain stagnant and no additional income tax is payable.
TAX ON SALE OF AGRICULTURAL LAND:
Another major issue which come up for discussion is taxability on sale of agricultural land. It is a general impression amongst public that no tax is payable on sale of agricultural land but this notion is half side of the coin.
Tax on sale of land is exigible when it is considered as capital assets whether is agricultural land or otherwise.
Section 2(14) defines the term capital asset. It provides an inclusive definition of capital asset. As per section 2(14) following land will be considered as capital asset and their transfer will give rise to capital gains
(a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand, OR
(b) in any area within the distance, measured aerially, —
(I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or
(II) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or
(III) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh.
According to Explanation to section 2(14)(iii) population means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year
Accordingly, it can be concluded that if agricultural land is capital assets than profit on sale of such land will be taxable under the head CAPITAL GAIN and profit on sale of land which is not capital assets is EXEMPT from tax.
Exemption of capital gain on transfer of agricultural land:
Profit on sale of agriculture land being capital assets can be claimed as exempt under various section on fulfilling conditions enumerated in the specific section as under:
1. Section 54B speaks about deduction of capital gain on transfer of land for agriculture purpose: Conditions to be satisfied to claim the benefit of this Section:
a. The assessee must be an individual or a HUF.
b. The agricultural land should have been used for agricultural purposes. It may be a long term asset or a short term asset.
c. It must have been used either by the assessee or his parents for agricultural purposes in at least two years immediately preceding the date on which the transfer of land took place.
d. The assessee should have purchased another land, which is being used for agricultural purposes, within a period of two years from the date of sale. Here it is pertinent to note that agriculture land purchased BEFORE transfer of agriculture land will not be eligible for deduction.
2. Exemption u/s 10(37) of the Act: Capital Gain arise on compulsory acquisition of agricultural land under any law shall also be exempt on following conditions:
1. Such land is situated in any area under municipal limit or within specified distance as referred in section 2(14) of the Act.
2. Such land was used for agriculture purpose during the two years immediately preceding such acquisition either by Individual, HUF or parents of the Individual.
3. Compensation or enhanced compensation is received after 1stApril, 2004.
3. Deduction u/s 54EC on investment in certain bonds: Capital gain arise from long term capital gain including agricultural land shall be exempt on investment in certain infrastructure bonds for 5 years. Such investment shall be made within 6 months from date of transfer.
4. Deduction u/s 54F on investment in residential house: Capital gain arise from long term capital gain including agricultural land shall be exempt on investment in residential house. To claim deduction u/s 54F assesse has to fulfil various conditions as enumerated in the section.
Applicability of provisions of tax audit:
Frequently it is also asked about applicability of the provisions of tax audit. If receipts of sale of agricultural exceeds threshold amount whether tax audit is required in this case and if tax audit is not carried out than whether penalty can be levied for not obtained of tax audit report.
Though no specific exemption is granted under the Income Tax Act and every assesse has to get its accounts audited if the turnover exceeds the threshold amount mentioned in the Act but Guidance note on Tax Audit issued by ICAI specifically mentioned this situation and suggest that no tax audit is required even though turnover exceeds the threshold amount if the assesse is engaged in the sole activity as agriculturist but if the assesse is having any other source of income under business than one is required to get its books of accounts audited if turnover of agriculture operation and other operation together exceeds threshold amount for tax audit but as per my understanding TDS provisions might be applicable to such situation. Relevant portion of GN on tax Audit is as under:
“ An agriculturist, who does not have any income under the head “Profits and gains of business or profession” chargeable to tax under the Act and who is not required to file any return under the said Act, need not get his accounts audited for purposes of section 44AB even though his total sales of agricultural products may exceed the prescribed limit.
It may be appreciated that the object of audit under section 44AB is only to assist the Assessing Officer in computing the total income of an assessee in accordance with different provisions of the Act. Therefore, even if the income of a person is below the taxable limit laid down in the relevant Finance Act of a particular year, he will have to get his accounts audited and to furnish such report under section 44AB, if his turnover in business exceed the prescribed limit.”
Other Provisions under the Income Tax Act:
1. Provisions of Section 40A(3): As per rule 6DD (e)of the Income Tax Rule, Provision of section 40A(3) is not applicable if cash payment in excess of Rs 10,000/- is paid for purchase of agricultural produce to a farmer directly. If the Payment is made to a trader or middleman than this exemption is not applicable.
2. Provision of section 269ST: As per provision of section 269ST of the Act, No person shall receive an amount or Rs Two lac or more from a person
a. in aggregate from a person in a day, or
b. In respect of Single Transaction, or
c. In respect of transaction relating to one event or accession.
Since no relaxation has been given to the Agriculturist in the said section hence contravention of this section may invite penalty of the same amount to the agriculturist.
3. Compulsory Filing of Return of Income: As per amended provision of the section 139 of the Act, Now every assesse has to file his return of income if total expenses on consumption of electricity in a year exceeds Rs 50,000/- irrespective of his taxable income. This provision would affect various agriculturist who otherwise does not require to file their return of income as total income does not exceeds the threshold limit.
4. Special treatment to rubber, tea, coffee etc: Since following type of agricultural produce requires basic agricultural operation as well as non agricultural activity bifurcated as agricultural and non agricultural income as under:
|Particulars of business||Agricultural (Exempt) portion||Non-agricultural (Taxable) portion|
|Growing & Manufacturing of tea||60%||40%|
|Growing & Manufacturing of rubber||65%||35%|
|Growing & Manufacturing of coffee||75%||25%|
|Growing & Manufacturing of coffee grown, cured, roasted and grounded||60%||40%|
Statics of Agriculture Income in India for a few years:
As per a report published in the leading newspaper “ The Hindu” on march 19, 2019, It was came to know that there was substantial increase in the agricultural income in the period 2010 to 2013. Believe it or not, income figures shared by the Income-Tax Department in response to an RTI application by a retired Indian Revenue Service official has revealed that agricultural income recorded an exponential increase from 2004 to 2013, touching a total of almost Rs.2,000 lakh crore for individual assessees in 2011.The agricultural income earned by the 6.57 lakh assessees who filed returns in 2011, at nearly Rs. 2,000 lakh crore, is over 20 times the country’s gross domestic product of over Rs. 84 lakh crore at the time, according to the Income Tax Department data shared under the RTI Act.
The matter went to Patna High Court wherein the Ld High court dismissed petition in the same year (in 2016) on the grounds of (a) abnormally high values (particularly for 2011, 2012) of agricultural income appearing in the RTI reply “could be due to inadvertent data entry error” as the tax authorities had claimed in their counter affidavit (b) if found doubtful in nature, the tax authorities “will take proper steps” and (c) such assesses being spread all over India, it is better “left to the individual action of the Income Tax Officers“.
A money trail published in the said newspaper is as under:
Though figures seem to be typo error still average income shown as exempt agriculture income seems to be higher.
Looking to the above, it is transpired that tax treatment of agricultural income have various pros and cons and it cannot be termed as fully exempt. One has to take care various provisions based on the facts of the case.