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                                              REPORTABLE

            IN THE SUPREME COURT OF INDIA

             CIVIL APPEALLTE JURISDICTION

            CIVIL APPEAL NO.8284-8285 of 2002

Union of India & Another                    .. Appellants

         Versus

Belgachi Tea Co. Ltd. & Others               .. Respondents

                           WITH

              CIVIL APPEAL No.8283 of 2002.

                      JUDGMENT

Dalveer Bhandari, J.

1.   These appeals are directed against the judgment of the

Division Bench of the High Court of Judicature at Calcutta

delivered on 22nd September, 2000 in FMA No.232 of 1999.

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2.   Brief facts which are necessary to dispose of these

appeals are recapitulated as under:

3.   The assessee Belgachi Tea Company filed a writ petition

in the High Court of Judicature at Calcutta under Article 226

of the Constitution.   The main prayer of the writ petition is

reproduced as under:

    "A writ in the nature of mandamus be issued      commanding the respondents to act according to      law and to cancel and/or rescind and/or withdraw      notices of demand dated 29.03.1984, 04.04.1984,      29.03.1985 and any proceeding taken or purported      to have been taken under the Bengal Act, as      amended by the Bengal Agricultural Income Tax      (Amendment) Act, 1980 for the purpose of levy,      imposition and collection of agricultural income tax      in respect of income derived from the said tea grown      and manufactured by your petitioner and further      forbearing the respondents from giving any effect or      further effect of proceeding in any way to enforce      the impugned notices of demand dated 26.3.1984,      04.04.1984 and 29.03.1985."

4.   The assessee also prayed that sections 3 and 5 of the

Bengal Agricultural Income Tax (Amendment) Act, 1980 be

declared as ultra vires of the Constitution and beyond the

competence of the State Legislature in enacting the same.

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5.   The writ petition was disposed of by the learned Single

Judge of the Calcutta High Court in terms of the judgment of

this court in Tata Tea Ltd. & Another v. State of West

Bengal & Others 1988 (Supp) SCC 316.           In this case, the

court directed that after assessment, the Income Tax Officer

(for short "ITO") can levy the tax on 40% of the income in

accordance with the provisions of the Income Tax Act, 1961

(hereinafter referred to as "the 1961 Act") and balance amount

may be assessed by the Agricultural Income Tax Officer to tax

under   the   Bengal   Agricultural   Income   Tax   Act,   1944

(hereinafter referred to as "the 1944 Act"). The court further

directed that if any assessment order has already been passed

contrary to the aforesaid directions, such order must stand

quashed and a fresh assessment order should be passed in

accordance with law.

6.   Being aggrieved by the said judgment of the learned

Single Judge, the assessee company preferred FMA No.232 of

1999 before the Division Bench of the High Court of Calcutta.

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7.   The assessee is a public limited company carrying on the

composite business of growing and manufacturing tea in the

district of Darjeeling. The assessee company has tea gardens

known as Belgachi Tea Estate, which consists of the gardens

and a factory for manufacture of tea. The assessee company

sells the tea grown and manufactured in the said tea gardens.

The factory in the said tea gardens is licensed under the

Factories Act. The assessee company is also selling tea leaves

produced in its tea gardens which is agricultural produce.

The assessee is also involved in manufacturing of tea.    The

income from such business has been assessed all along under

the provisions of the 1961 Act.   The claim of the assessee

company is that the entire income should be assessed under

the provisions of the 1961 Act and after the income is

assessed, the tax should be charged on 40% of such income

under the 1961 Act and on the balance 60%, the State can tax

under the 1944 Act. The assessee submitted that in view of

the scheme of the 1961 Act read with rule 8 of the Income Tax

Rules, 1962, the income derived from the sale of the tea grown

and manufactured by a seller in India shall be computed

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under the provisions of the Act by the Income Tax Officer on

the basis of aforementioned formula.

8.    Learned counsel for the assessee submitted that the sale

proceeds of green tea leaves be treated incidental to business

and its income should be computed under the provisions of

the 1961 Act.

9.    Learned counsel appearing for the State submitted that

the income from sale of green tea leaves is taxable as income

from agriculture under the 1944 Act.

10.   The Division Bench in the impugned judgment placed

reliance and followed the judgment of this court in Tata Tea

(supra), in which the court considered how the income from

‘tea grown and manufactured’ activities shall be taxed by the

Centre and the State. After considering the provisions of both

the 1944 Act and the 1961 Act, the court observed as under:-

     "41. ........ the result would still be the same,       namely, that the Kerala State Legislature can       impose tax only in respect of 60 per cent of the       income derived by an assessee who sells tea grown       and manufactured by him in India and such income       has to be computed in the manner laid down in the       Act of 1922 and thereafter in the Act of 1961 for

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     computation of business income. The same is the       position in respect of the powers of the legislature of       the State of West Bengal in spite of the       amendments made by the said legislature by the       Amendment Act of 1980 and earlier under the       Amending Act of 1979 which was in force only for       one year as we have stated before. It is not       necessary to strike down the said amendments       because they do not directly conflict with the       definition of the term "agricultural income" under       the Constitution as we have pointed out earlier, but       we may make it clear that they do not confer any       wider power on the State Legislature to impose       taxes on agricultural income than what we have set       out earlier."

11.   This court considered the amendments made by the

State Governments i.e. West Bengal and Kerala regarding tax

on the entire income.     There is no dispute on the fact that

from the income assessed, 60% is taxable by the State under

the 1944 Act and 40% is taxable by the Centre under the

1961 Act.

12.   The object behind taxing the 60% and 40% share of the

income assessed appears that there are common expenses on

establishment and staff for two different activities that is tea

grown and tea manufactured.         There can be independent

income from sale of green tea leaves and by sale of tea, that is,

after processing of green tea leaves when green tea leaves

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become tea for use. Income from agriculture is taxable by the

State and sale of tea after manufacturing is taxable by the

Union of India as business income.   To segregate income and

expenses from two combined activities of assessee is not

possible, but at the same       time there cannot be two

assessments of income by two different authorities. Therefore,

there can be only one assessment of income from the tea

business.   In order to properly comprehend the legislative

intention, a combined reading of relevant provisions of both

the Acts i.e. the 1961 Act and the 1944 Act and the Rules

framed thereunder is necessary. The relevant provision is rule

8 of the Income Tax Rules, 1962 which reads as under:

    "8. (1)   Income derived from the sale of tea grown      and manufactured by the seller in India shall be      computed as if it were income derived from      business, and forty per cent of such income shall be      deemed to be income liable to tax.

    (2) In computing such income an allowance shall      be made in respect of the cost of planting bushes in      replacement of bushes that have died or become      permanently useless in an area already planted, if      such area has not previously been abandoned and      for the purpose of determining such cost, no      deduction shall be made in respect of amount of      any subsidy which under the provisions of clause      (30) of section 10 is not includible."

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The similar provision in the 1944 Act is sub-section (1A) of

section 8, which reads as under:-

     "(1A) Notwithstanding anything contained in this       Act, in the case of tea grown in West Bengal and       sold by the grower himself or his agent after       manufacture, the agricultural income derived       therefrom shall, as long as the purpose of       assessment of income tax under the enactment       relating to Indian Income Tax, the income derived       therefrom is computed under those enactment in       such manner as to include agricultural income, be       deemed to be that portion of such income as so       computed on which income tax is not payable       under those enactments, and agricultural income       tax at the rates specified in the Schedule shall be       payable on the whole of such agricultural income as       so computed."

13.   The aforesaid sub-section (1A) which has been inserted

with retrospective effect also provides that income from ‘tea

grown and manufactured’ shall be assessed under the

provisions of Income Tax Act and the income assessed also

includes agricultural income which is taxable by the State.

14.   Sub-section (3) of section 8 of the 1944 Act further

provides that for the purpose of assessment of agricultural

income tax a certified copy of an order of the assessment

made under the Income Tax Act shall be conclusive evidence

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of the contents of such order. The relevant sub-section (3) of

section 8 of the 1944 Act reads as under:-

     "(3) For the purpose of the assessment of       agricultural income-tax under this section or any       rule made thereunder a certified copy of an order of       an assessment under the Indian Income-Tax Act,       1922, or a certified copy of an order of any appellate       or revising authority or of the High Court or of the       Supreme Court altering or amending such order of       assessment under the provisions of that Act shall       be conclusive evidence of the contents of such       order."

15.   For the purpose of tax on agricultural income, the

Agricultural Income Tax Officer will go by the assessment

order made under the provisions of the 1961 Act and the

contents of the assessment for the year made by the Assessing

Officer under the 1961 Act shall be conclusive evidence of the

contents of such order and he has to go by the assessment

and tax only 60% income made under the assessment for the

purpose of the 1944 Act. If there is any apparent mistake in

the order of the ITO, he can bring it to the notice of ITO and

that can be rectified by the ITO but no separate assessment of

the income from ‘tea grown and manufactured’ business can

be made by the Agricultural Income Tax Officer under the

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1944 Act.    He cannot once again assess for that business

income under the 1944 Act.

16.   The combined reading of rule 8 of the Income Tax Rules,

1962 and section 8 of the 1944 Act and its amendment by

insertion of sub-section (1A) in section 8 of the 1944 Act left

no doubt that the income from ‘tea grown and manufactured’

business, the income shall be computed in accordance with

provisions of the 1961 Act by the Assessing Officer under the

1961 Act and 40% of the income is taxable under the 1961

Act and 60% income is taxable under the 1944 Act by the

State treating it as income from agriculture.

17.   According to the assessee, agricultural income derived

from the sale of green tea leaves is incidental income from the

business of the assessee and cannot be taxed separately by

the 1944 Act.

18.   There is no dispute that agricultural income of the

assessee is taxable under the 1944 Act.         The agricultural

income has been defined in clause (1) of section 2 of the 1944

Act. The said definition reads as under:

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"2(1) "agricultural income" means

(a)           any rent or revenue derived from land               which is used for agricultural purpose,               and is either assessed to land revenue in               a State or subject to a local rate assessed               and collected by officers of the               Government as such;

(b)           any income derived from such land by-

     (i)     agriculture or

     (ii)    the performance by a cultivator or               receiver of rent-in-kind of any process               ordinarily employed by a cultivator or               receiver of rent-in-kind to render the               produce raised or received by him fit to               be taken to market, or

     (iii)   the sale by a cultivator receiver of rent-               in-kind of the produce raised or received               by him, in respect of which no process               has been performed other than a process               of the nature described in item (ii)

(c)           any income derived from any building               owned and occupied by the receiver of               the rent or revenue of any such land, or               occupied by the cultivator, or the receiver               of rent-in-kind of any land with respect to               which, or the produce of which, any               operation mentioned in items (ii) and (iii)               of sub-clause (b) is carried on;

     Provided that the building is on or in the immediate vicinity of the land, and is a building which the receiver of the rent or revenue or the cultivator or the receiver of the rent-in-kind by reason of his connection with the land, requires as a dwelling house, or as a store house or other out building."

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The definition of the 1944 Act makes it clear that the income

from sale of green tea leaves is an agricultural income.

19.   Now the question which arises for adjudication is

whether the agricultural income be taxed under the 1961 Act?

It is true that both rule 8 of the Income Tax Rules, 1962 and

section 8 of the 1944 Act provide how the mixed income from

the growing tea leaves and tea manufacturing can be taxed.

Mixed income means the income derived by an assessee from

the combined activities i.e. growing of tea leaves and

manufacturing    of   tea.   Therefore,   for   the   purpose    of

computation of income under the 1961 Act, it should be the

mixed income from ‘tea grown and manufactured’ by the

assessee.

20.   If the income is by sale of green tea leaves by the

assessee it cannot be called income assessable under the

1961 Act for the purpose of 40:60 share between the Centre

and the State. In both the provisions i.e. rule 8 of the Income

Tax Rules, 1962 and section 8 of the 1944 Act, the word used

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is    income    derived   from    the    sale   of   ‘tea   grown      and

manufactured’.

21.    The income from sale of green tea leaves is purely income

from the agricultural product. There is no question of taxing

it as incidental income of the assessee when there is a specific

provision and authority to tax that income i.e. the State,

under the 1944 Act.              In this view of the matter, the

agricultural income cannot be taxed under 1961 Act.

22.    It is also pertinent to mention that the Income Tax

Officer has assessed the income of tea manufactured by the

assessee       from   1977-78     to    1980-81      to   the   tune    of

Rs.1,44,250/-, Rs.4,28,040/-, Rs.54,450/- and Rs.92,351/-

respectively and income of the assessee from the sale of green

tea leaves was more than Rs.10 lakhs in each accounting year

(1977-78 and 1978-79). In this view of the matter, the income

of the assessee from the sale of tea leaves can never be

incidental to business.

23.    On careful analysis of this argument of the assessee, we

find the same to be devoid of any merit. In a given case the

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assessee can process only 10% of green tea leaves and 90% of

green tea leaves can be sold directly in the market. Can that

income from sale of green tea leaves be treated incidental to

the business? This can never be the intention of legislature.

24.   In case the assessee directly sells the green tea leaves

resulting into an income from agricultural products, it cannot

be taken as incidental income to the business and whatever

the income is derived from the sale of the green tea leaves can

be assessed by the Agricultural Income Tax Officer under the

1944 Act.

25.   The Division Bench of the High Court while following the

ratio of Tata Tea (supra) directed the Assessing Officer to

compute the tax on the income of the respondent assessee on

the basis of the aforementioned formula.

26.   The High Court further directed that in case the

agricultural income had wrongly been included by the Income

Tax Officer in computing the income under the provisions of

1961 Act that could be excluded and assessment could be

rectified.   In the impugned judgment, it is also incorporated

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that by following these principles the Income Tax Officer

would avoid the double taxation of the assessee.

27.   It is also directed that while taxing the income from the

sale of green tea leaves, the Agricultural Income Tax Officer

should see, if expenses on the tea grown are already allowed

to be deducted by the Income Tax Officer, there shall be no

double deduction of the expenses, otherwise it would result in

double deduction.      The Division Bench, in the impugned

judgment, after hearing the parties, while relying on Tata Tea

(supra), summed up the case in the following manner:

     "(I)   The    income     from    ‘tea   grown and              manufactured’ shall be assessed by the              Assessing Officer under the 1961 Act.

     (II)   The income assessed 40% shall be taxed              under the 1961 Act and balance 60% shall be              taxed under the 1944 Act by Agricultural              Income Tax Officer on the basis of income              assessed by the Assessing Officer under the              1961 Act.

     (III) The income derived from sale of green tea             leaves is agricultural income and assessable             under the 1944 Act."

28.   In our view, the conclusion arrived at by the Division

Bench of the High Court is in consonance with the judgment

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of this Court in Tata Tea (supra).     This Court in Tata Tea

(supra) held as follows:

     "35. A reading of Article 245 of the Constitution       with Entry 82 of List I and Entry 46 of List II in the       Seventh Schedule makes it clear that the State       Legislature has exclusive jurisdiction to legislate in       respect of taxes on agricultural income; and in       respect of taxes on other income, it is Parliament       alone which can legislate. The term "agricultural       income" used in that entry has to be construed in       accordance with the definition of the said term in       Art. 366(1) of the Constitution of India and that       sub-article states that agricultural income means       "agricultural income as defined for the purposes of       the enactments relating to Indian Income-tax".

29.   We have heard the learned counsel for the parties at

length. We have also perused the provisions of the 1944 Act

and the 1961 Act. We uphold the view which has been taken

by the Division Bench of the High Court in the impugned

judgment.

30.   Before parting with this case, we deem it appropriate to

direct the Assessing Officer to frame an assessment order in

the case of the respondent assessee on the principle of law

laid down by this Court in the case of Tata Tea (supra) and

followed by the Division Bench of the High Court in the

impugned judgment, if not already made.

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31.   We further direct the Assessing Officer that in case the

assessment order has already been passed contrary to the

ratio of Tata Tea (supra), such assessment order must stand

quashed and fresh assessment order be passed in accordance

with law, as expeditiously as possible.

32.   These   appeals   are   disposed    of     in     terms        of     the

aforementioned directions. In the facts and circumstances of

the case, the parties are directed to bear their own costs.

                                         ......................................J.                                            (Ashok Bhan)

                                         .....................................J.                                           (Dalveer Bhandari)

New Delhi; May 9, 2008.