April 27, 2017: TAXING AGRICULTURAL INCOME IN OUR COUNTRY: old story retold By Shiva Kant Jha, Advocate

NOTE: I  have read in the Times of India this morning that someone in the Niti Aayoga  is pleading for the levy of income tax on agricultural income.  The idea has kept on popping up from time to time for certain obvious reasons. Some  Sir Launcelot keep emerging  to plead for it. Some time back the Central Board of Direct Taxes had solicited public comments on the issue. I had written a short article that I had sent to the CBDT for whatever worth it had. It seems that the CBDT saw some sense in it. As this idea has again cropped up in public domain, I deem it appropriate to put my said article in public for all to reflect and decide.  But I think it apt to enter a caveat at the threshold. Agriculturists should not be harassed, but we must devise vigilant methods to detect the cases where gains are cornered by the corporate zamindars, and the tycoons of the market.


DANIEL Bell, in his ‘The Coming of the Post-Industrial Society : A Venture in Social Forecasting’ aptly said that politics has become the ‘cockpit’ of the post-industrial society. Politics has become the visible instrument of the invisible hand controlled and guided by the corporate imperium ruling now the world under the U.S leadership. This trend manifests itself in many segments of socio-economic management of country. One such segment is agriculture involving the plight of the agriculturists, tillers, and farm labourers. Whilst the lobbyists for the de luxe India, and the protagonists of the India incorporated plead for reducing taxation to a vanishing point, they are most vociferous for subjecting the income from agriculture to tax by eliminating exemption granted to it under Section 10 of the Income-tax Act, 1961.  The present article is in response to the Board’s request. The issue of the taxation of agriculture by the Central Government is extremely complex.

Let us first examine the issue under constitutional perspective. Entry 82 of the Union List enables Parliament to impose taxes on income ‘other than agricultural income’. As it is a specific exclusion, no legislative power can be drawn from the residuary entry 97 to impose tax on agricultural income. Entry 46 of the State List empowers the States to impose taxes on agricultural income. The approaches of the States in taxing or not taxing agricultural income are shaped by the variables of socio-economic conditions of which they are the best judges. Our Parliament cannot tax it even under Art 249, which empowers it to legislate with respect to the matter in the State List in national interest. It cannot be done so for two obvious reasons: first, such legislation cannot be considered in ‘national interest’ unless the interest of the deluxe India and the India Incorporated is considered equivalent to ‘national interest’. Art 265 provides that “No tax shall be levied or collected except by authority of law.”   It is well established that ‘authority of law’ means ‘authority of constitutionally valid law”.

Hence, the Centre cannot tax agricultural income without a constitutional amendment. Assuming that things can be engineered to effect a constitutional amendment, that amendment may itself be held unconstitutional, as it would violate one of the   basic features of Constitution. In Kesavanand our Supreme Court held that our polity created by the Constitution is federal in character. In Bommai’s Case the Court observed that democracy and federalism are the essential features of our Constitution.

It is the time to think why the constitutional mandate to reduce the concentration of wealth, and the various statutory commands under the land ceilings and reforms Acts have virtually been given up, or diluted to the point of being completely ineffective. In this present day market economy we are moving in the reverse gear. We have allowed our State to become a Sponsored State. Granting huge plots of land to the Special Economic Zones, and corporations, including MNCs, are creating a breed of neo-zamindars. Their interests are being promoted by the executive government through international agreements done under the oblique system, which has been constructed through the studied art of deception and craft of corruption. It is true that for a section of our society this neo-capitalism has brought some affluence but it has done so at a very heavy cost. Peter Watson has perceptively observed: ‘Affluence plays a part, says Galbraith, because further a man is from the breadline – the more affluent he is – the more his desires can be manipulated, and the bigger the role of advertising, and here it was fortunate that the rise of radio and then television coincided with the maturation of corporation and rise of affluence.’ We are witnessing a strange syndrome of fast technology but stagnant morality producing a sinister ‘intersection of power, money, and writing’.

The strategy the waxing neo-colonialists is to destroy our way of life by turning the agriculturists and tillers to a band of serfs and slaves for the corporate masters which are a crazy herd of greedy reapers of super profits. Corporatization of agriculture is clearly a new zamindari settlement. It would be of the worst type as we would by ruled by heartless corporations having an evident symbiotic relationship with the government, which would exist as their protectors and facilitators. This assertion is borne out by examining the attitudes of our government to the taxation of agricultural income, and of capital gains.

In 1970 the definition of ‘agricultural income’ was altered retrospectively to cast a net wider. In 1973 the statute was amended to provide for the inclusion of agricultural income in one’s total income for the purposes of determining the rates applicable to one’s total income. Now the sinister idea to tax agricultural income is on the anvil. These facts are meaningful when we see how untaxing and mitigation of tax have been liberally provided in recent years in the segment of capital gains. With effect from 1.4.88 in the case of a share held in a company the holding period for being treated as a short-term gain became 12 months instead of 36 months in other cases. After 1991 our government played surrogate mother for the FIIs, MNCs, and others of similar feathers. In the recent years capital market liberalization allowed investment capital to flow in and out. The predatory international financiers made best of this crazy international capital churn. Now the position is that   those who reap rich harvests do not pay any tax, except that insignificant domestic segment which now bears only a much-attenuated burden.

Liberalization of the financial and capital markets let loose a flood of short-term capital which Stiglitz explains as   “… the kind of capital that looks for the highest return in the next day, week, or month, as opposed to long-term investment in things like factories.” The view of the IMF and its protégées is that their transactions in capital and capital gains be not taxed; if at all taxed, they be taxed less. They are not troubled by qualms of conscience. Writing about the US tax policy Stiglitz has observed in his Roaring Nineties: “Another example was what we did with tax policy. As the bubble was going up and getting worse, what did we do? We cut capital gains taxes, saying to the market: if you make more money out of this speculative bubble, you can keep more of it. If you look at what happened to tax policy during the nineties, it is quite astounding. What we did in 1993 was raise taxes on upper-middle-income Americans who worked for living, and then in 1997 we lowered taxes for upper income Americans who speculated for a living. You ask the question: what sorts of values did this change represent?” Things are worse in our country.

If at all some statutory tinkering is a must, then think of dispensing with the distinction between a long-term capital gain and a short-term capital gain so that the entire net gain is charged at the normal rate of taxation. The persuaders world over paint some remote El dorado, and plead that when judging capital gains tax reductions, the weight put on the benefits to economic growth and on international competitiveness should exceed the weight put on fairness and equity considerations ¾ because of the resulting job creation and stimulus to the economy, even those who do not benefit directly from a cut in the tax rate will receive indirect benefits. We cannot afford to evade  reality.

Those who talk about taxing agricultural income should do their home work better. Our Supreme Court in CIT v. Benoykumar Sahas Roy had held that agricultural income contemplates the basic operation, prior to germination, involving expenditure of human skill and labour on land itself . By this criterion, the income of the adhatias and intermediaries cannot be agricultural income. Why not tax them effectively? Why not increase the tax rates on their exploitative and extractive income?

Land reforms are still not complete, but the policy underlying them is clear to all. Why not complete them? Why lands meant for tillers shouldn’t be allotted to them alone? Why should our government be so servile to the international manoeuvrings of the corporate lobby through the WTO? Already much prejudice has been caused to the common people of our country.

It would be a disaster if the agriculturists and the farm labourers were marginalized by the corporate power, which believes for obvious reasons in commercialism, corporatism, consumerism, hedonism, and acute crazy greediness. India’s culture would be destroyed if our agriculture were ruined.   With the ruin of agriculture the verve that sustains our independence and culture would also go. Before the USA dropped an atom bomb on Japan, it had appointed a commission to study the Japanese psyche in order to understand people’s possible response. Let there be, in our country, a study by those who have not yet sold themselves to the capitalist lobby to find out the view of all the stakeholders.

If you tax agricultural income you would let loose the minor minions of bureaucracy to suck the blood of the already anaemic village folk. The abysmal decline in the morality of public life has been noted of by our Supreme Court in a number of cases. In those days when Estate Duty was being levied, we had seen and heard, in the corridors of the government offices, how poor widows of the villages rent the air with their cries because of the exploitations by petty wretches of the government, and the lawyers believing neither in law nor in ethics. Besides, is not what Edward Gibbon said in the 18th century wholly true for us: ‘All taxes must, at last, fall upon agriculture?’

Then why this cries to tax agricultural income? It seems that the sole reason for this is the conspiracy designed to reduce taxation on the non-agriculturists and to force our government to be caught in a cleft stick in the matter of collecting resources.

My suggestions to our government are, in brief, (i) that no agricultural land be distributed for any reasons to the new zamindars proliferating these years, and land must be with tillers for whom our government should act as facilitators; (ii) our water resources must remain people’s property which none should use for commercial purpose as this would lead the sad situation when our rivers would be without water and their beds would go under corporate franchise; (iii) our environment, both of our mind and of nature, be not allowed to be plundered and polluted by those who believe in gross acquisitiveness, and brutal power, often exercised by creatures with human face but with the monster’s heart; (iv) those who have non-agricultural income above certain sums should not be allowed to possess any holding of agricultural land; and the benami transactions be made a cognizable offence; (v) the intermediaries and the adhatias be heavily and effectively taxed; (vi) our government should not sell itself to the abounding capitalist lobby, and it must consider the views of all stake holders, who obviously are the agriculturists, farm-labourers, and tillers, before it goes ahead in the matter.

It is prudent to look before you leap. Has any comprehensive and realistic study been made to find out how much widening of tax base is possible if agricultural income is taxed? In my assessment our government would lose more, and gain less in this pursuit. The Department’s   General Index Register already is already cluttered with   ineffective cases (the bhusha cases) where the expenditure in terms of men and material is more than gains: why should we add a few bags more?”

Drawn up by

Shiva Kant Jha, Advocate

Mob. 9811194697




















THE UNWHOLESOME AADHAAR: The conundrum of Sec. 139AA of the I. T. Act ( by Shiva Kant Jha, Advocate) 5 POINTS WHICH SHOULD NOT BE MISSED

1.The Income-tax Act had been legislated as a Money Bill, and enacted as law in terms of Art. 265 of the Constitutution.  [The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (18 of 2016) has its specified purpose, and is neither a Money Bill, nor an enactment under the discipline of Art. 265 of our Const.\

2.The tax under a statute framed under Art 265 must conform to the tax law discipline, and it must not transgress Constitutional restraints as judicially interpreted and evolved. Section 139AA of the Income-tax Act yokes arbitrarily two distinct legal provisions made for different purposes together. PAN and Aadhaar number were conceived for distinct purposes. Not to see what is obvious may not be fair. We all hear that to woo the foreign investors our tax-law deserves to be stable. But when it is ordinary Indian citizens Section 139AA contemplates almost an anarchy!

  1. The extraction of all sorts of biological, social, and personal data from the free citizens under the requirements of the Aadhaar cards, even when a citizen is under no bondage to earn anything which can ever be considered a chargeable event under the Income-tax Act, would be grossly unreasonable and arbitrary. Validity of such provisions require examination first in the context of the Income-tax Act, then in the context of the constitutional restraints, but all viewed under the footlight of the values of a democratic society for building which “We the People “ have established our democracy under the discipline of our laws and values which give content to our Constitution.
  2. The requirements under Section 139AA of the Income-tax Act, 1961, are irrelevant. Once there is taxable event, the right to get tax thereon in accordance with law gets vested in the Government (can be called the person of inherence). Corresponding duty to pay tax at the prescribed rate is cast on the tax payers (can be considered the persons of incidence. In a situation of this sort, the core provisions Act, 2016 (18 of 2016), esp. the Objectives as enacted, are wholly irrelevant and extraneous[1].

5  It is submitted that we stand at a cross-road requiring an insightful decision that may have effect subversive to our democracy and cultural values which, when all is said, remain to save us from turning into a society of slaves. All the criss-cross,  even in the  blood drops wherein all genetic information remain housed, or finger print, Iris scan, or such other biological attributes can be  mapped to be stored somewhere exposing the citizens to the risk of morbid  manipulation  for purposes which right now no human being can foresee. Our judiciary would  consider the reach of “biometric information”, “core biometric information”, “demographic information” not only to see their relevance to the filing of the Income-tax Returns, but also to measure the risk that our society is exposed to. We should mark that  the definition of “demographic information” is inclusive that provides deliberately battered  frontiers on extension of its import. Besides, before taking such decision, our Government should have got the issues  examined by experts, with no axe to grind, the appropriateness of such study when a drop of blood can present baffling problems. In order to teach humility even to our experts this layman would quote two short extracts from Cambridge Minds, edited by Richard Mason:

“All the information which specifies us, the information which specifies a human being, is laid down in 46 chromosomes, which together contain a length of DNA of about I metre. This one meter contains about 3 billion bases, the equivalent of a library of about 5,000 volumes, all packed together into a single cell. Because the DNA is of atomic dimensions, that information is packed so tightly that it can fit into a single sperm or a single egg.”( page 200)

“I have not yet told you why I worked on haemoglobin, and what it does. It is the protein of the red blood cell. It carries oxygen from the lungs to the tissues and helps the return transport of carbon dioxide to the lungs. It is a protein that evolved at the same time as large animals, because without this oxygen-transport molecule, the life of the higher animals would not be possible. So it’s a crucial protein. If you are anaemic you are short of haemoglobin, you don’t get enough oxygen and feel weak. There are 250,000,000 red cells in one small drop of blood, and inside every red cell there’s the same number – about 250,000,000 – of haemoglobin molecules. Haemoglobin contains four atoms of iron embedded in a dye – a pigment – called haem; this is what makes blood red. The four haems in the haemoglobin molecule are arranged in separate pockets on its surface.” (page 202)

We know that “biometric information”, “core biometric information”, “demographic information” are mapped in many countries but not with right results. To cast this duty on the ordinary Indians is alarming. They are to be saved from all possible traps. They should not be left to be exploited by the so-called experts. The experts have many concealed agenda. Art of concealment delights  the experts most, it also  delights government quite often. Harold Pinter, the winner of the Nobel Prize for Literature, 2005, very perceptively said:

“Political language, as used by politicians, does not venture into any of this territory since the majority of politicians, on the evidence available to us, are interested not in truth but in power and in the maintenance of that power. To maintain that power it is essential that people remain in ignorance, that they live in ignorance of the truth, even the truth of their own lives. What surrounds us therefore is a vast tapestry of

lies, upon which we feed.”


In fine:

We are optimists, we are even incorrigible optimists.  We believe Justice would surely be done some day.

In this context two comments are worth consideration, one by Thomas Balogh said in The Irrelevance of Conventional Economics: ”The modern history of economic theory is a tale of evasions of reality.”; and the other byProf. John Kenneth Galbraith in his A Short History of Economics:The Past as the Present (at p. 236):

                          “Here another great constant in economic life: as between grave ultimate disaster and conserving reforms that might avoid it, the former is frequently preferred.”

Drawn up by

Shiva Kant Jha, Advocate

Mob. 9811194697



[1] “An Act to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto.”