P.B. MUKHARJI J. - This is an income-tax reference under section 66(1) of the Income-tax Act. The question of law raised in the statement of the case is as follows :
'Whether on the facts and in the circumstances of this case, the income from sale of sal trees in the forests of the assessee was agricultural income within the meaning of section 2(1) of the Income-tax Act ?'
The assessee is Raja Jagadish Chandra Deo Dhabal Deb of Chilkigarh. He had income from sale of sal trees grown in his sal forests. He claimed that this income was agricultural income as defined in section 2(1)(b)(i) of the Income-tax Act. It is also asserted by the assessee that he was assessed to agricultural income-tax on this forest income in 1944-1945 and later on a reference under the Bengal Agricultural Income-tax Act, the Calcutta High Court in the case reported in Commissioner of Agricultural Income-tax v. Raja Jagadish Chandra Deo Dhabal Deb [ 17 I.T.R. 426.], held that he was rightly so assessed under the Bengal Agricultural Income-tax Act. The assessee points out that the facts in the present assessment year which is 1942-1943 are the same as in 1944-1945.
The facts in this case are shortly these :
There was no tilling of the soil, no sowing of the seeds or grants and there was no watering done. During the rainy season new shoots came out from stumps of old trees cut. Forest officers and guards were maintained to prevent new shoots from being damaged by men and cattle. The plot in which the sal trees grew was kept free from leaves and undergrowths to prevent damage to the new shoots. No operations were done on the land except that it was kept free from objectionable undergrowth. It is also found as a fact that there was no breaking up of the soil by tilling or digging. There was no planting of seeds or saplings. There was no weeding in the ordinary cultivators sense because the removal of the undergrowth was not, in the facts of this case, done by the assessee or at his expense but the villagers were allowed to clear and take away the undergrowth free of cost.
The Tribunal held that on those facts, the income from the sale of sal trees was not agricultural income within the meaning of section 2(1) of the Income-tax Act.
When this assessment was made, the decision of the Supreme Court in Commissioner of Income-tax v. Raja Benoy Kumar Sahas Roy [ 32 I.T.R. 466 (S.C.).], had not been given. Since that decision it is now quite clear that the answer to the question asked must be in the negative on the facts of this case. In other words, the income in the facts of this case was not agricultural income at all. Here there is no proof that the assessee carried on any basic or subsidiary agricultural operations taken in conjunction with the basic operation so as to bring him within the principle laid down by Bhagwati J. in Supreme Court at pages 507-508 of that report. Mere performance of subsequent operations on the products of the land, where such products were not raised on the land by the performance of the basic operations, would not be enough to characterise them as agricultural operations. Weeding, digging the soil around the growth and removal of undergrowths are operations which are described in the judgment as subsidiary operations or subsequent operations which by themselves alone would not bring the income within the meaning of agricultural income within the meaning of section 2(1) of the Income-tax Act. Two other decisions of the Supreme Court which followed this decision are Maharajadhiraj Sir Kameshwar Singh v. Commissioner of Income-tax [ 32 I.T.R. 587 (S.C.).] and Commissioner of Income-tax v. Jyotikana Chowdhurani [ 32 I.T.R. 705 (S.C.).]. In the former case, it was pointed out by the Supreme Court that even though operations in the nature of forestry operations were performed by the assessee which had the effect of nursing and fostering the growth of such forest trees, they had nothing in common with the basic operations of agriculture and could not constitute agricultural operations unless they formed part and parcel of and integrated themselves with such basic operations. In the second case, the assessee had claimed that she had employed human skill and labour (1) in reservation of blocks of forests and their operation by rotation, (2) by making the trees for felling and (3) by clearing jungles and undergrowths etc. The Supreme Court even there held that, assuming that those operations had been done by the assessee, such operations in forestry were performed after the produce had sprouted from the soil and no human skill and labour were spent by the assessee on the cultivation of the forest land nor were any operations performed on the land itself.
In the light of these decisions, the answer seems to fellow inevitably. It was argued on behalf of the assessee, however, that the forest in this case was described in the settlement record as 'Abadi Sal Jungle'. This will appear from the remand report which found certain facts in this case. On the strength of this expression, the argument on behalf of the assessee was that this meant that this forest was a man-made forest and human labour and skill were employed to plant and grow sal trees there. We do not think that on the facts this argument is at all open to the assessee first because the expression, 'Abadi Sal Jungle', was construed and interpreted by the Additional Appellate Commissioner himself as 'land for cultivation of sal trees'. A land fit for cultivation of sal trees may still remain uncultivated and the fact of actual cultivation for the assessment year must be proved by the assessee to bring himself within the meaning of agricultural income under section 2(1) of the Income-tax Act. Nothing has been done by the assessee in that behalf. On the contrary, the facts found showed clearly that no tilling of the soil or sowing of the seeds or grafts or watering was done and certainly no human skill or labour was employed on the land itself within the meaning of the Supreme Court decision which we have just quoted.
For these reasons, it must be held that the income from the sale of sal trees in this case was not agricultural income within the meaning of section 2(1) of the Income-tax Act and, therefore, the question is answered in the negative. The assessee must pay the costs of this reference.
BACHAWAT J. - I agree.
Question answered in the negative.