Ramachandra Rao vs Agrl. Income Tax Officer, Kasaragod and Another

M.S. Menon, J.—The petitioner in these two petitions is an assessee under the Agricultural Income Tax Act, 1950. He challenges the validity of the assessments for the assessment years 1958-59 and 1959-60 in so far as they related to his income from the cultivation of tob cco. According to him the levy of an agricultural income tax on the income from the cultivation of tob cco is in substance and in effect the levy of an excise duty and hence beyond the powers of the State Legislature under the Constitution of India. There can be no doubt that if the tax amounts to an excise duty, the contention of the assessee has to be sustained and these petitions allowed. Duties of excise on tob ceo come under Entry 84 of the Union List and Article 246 (1) of the Constitution specifically provides that Parliament has the exclusive power to make laws with respect to any of the matters enumerated in that list.

The only question for determination, therefore, is whether a tax on the income derived from the cultivation of tobacco amounts to a duty of excise within the ambit of Entry 84 of the Union List or only to a tax on agricultural income within the meaning of Entry 46 of the State List. In every case where the legislative competence of a Legislature in regard to a particular enactment is challenged with reference to the entries in the various lists.it is of course necessary as pointed out by the Supreme Court in Chaturbhai M. Patel Vs. Union of India (UOI) and Others, :

to examine the pith and substance of the Act and if the matter comes substantially within an item in the Central list it is not deemed to come within an entry in the Provincial list even though ''the classes of subjects looked at singly overlap in many respects.

We entertain no doubt that the levy has nothing to do with Entry 84 of the Union List, that the assessments made in respect of the income derived by the petitioner from the cultivation of tob cco are sustainable, and that these petitions have to be dismissed.

The word�ng of Entry 84 of the Union List in the Constitution of India is virtually the same as that of Entry 45 of the Federal Legislative List in the Government of India Act, 1935. What exactly is meant by the expression "duties of excise" carne-up for consideration in AIR 1939 1 (Federal Court); AIR 1943 11 (Federal Court) and AIR 1945 98 (Privy Council) .

In the first of the cases above-mentioned, Gwyer C.J. observed :

The only kind of excise duties which were known in India by that name were duties collected from manufactures or producers, and usually payable on the issue of the excisable articles from the place of manufacture or production.

and that:

It seems not an unreasonable inference that Parliament intended the expression ''duties of excise'' in the Constitution Act to be understood in the sense in which up to that time it had always in fact been used in India, where indeed excise duties of any other kind were unknown..:

In the last of those cases the Privy Council said:

Their Lordships are of opinion that a duty of excise is primarily a duty levied upon a manufacturer or producer in respect of the commodity manufactured or produced. It is a tax upon goods.

As pointed out in 1957 K. L. T. 1184 (F.B)= 1957 K. L. J. 1146 (F.B.):

The base of a tax - the object or objects to which the tax applies, such as the ''sales value�''of tangible property or the''net income''ofan individual- provides the chief element of distinction between the various tax forms obtaining in modern communities.

The base of an agricultural income tax is the income derived and the base of a duty ofexcise is the commodity produced. According to Article 366(1) of the Constitution "agricultural income" means "agricultural income as defined for the purposes of the enaetments relating to Indian Income Tax". The definition of "agricultural income" in section 2(l)(a) of the Indian Income Tax Act, 1922, is:

any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to landrevenue in the taxable territories or subject to a local rate assessed and collected by officers of The Government as such.

"income tax, if I may be pardoned for saying so", said Lord Macnaghten in 1901 A.C. 26, "is a tax on income. It is not meant to be a tax on anything else". An excise duty-as for example under the Central Excises and Salt Act, 1944-is not a tax on income. As stated by the Privy Council in AIR 1945 P. C. 90 an excise duty is "a tax upon goods".

Section 5 of the Agricultural Income Tax Act, 1950, provides that the agricultural income ofa person shall be computed after making the deductions. enumerated therein. One of the deductions enumerated is:

Any tax, cess or rate paid on the cultivat''on or sale of the crop from which agricultural. income is derived. (Section 5 (n) (ii).

According to the petitioner he is entitled to a deduction under this provision of the excise duty on tob cco paid by him under the Central Excises and Salt Act, 1944. It is agreed that this matter may be dealt with in the appeals filed by the petitioner and now pending disposal, and that the question need not be considered in this judgment. In the light of what is stated above these petitions have to be dismissed and we do so, though in the circumstances of the case without any order as to costs.