TMI Blog1962 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... possession either as owner or as mortgagee. He plucked tamarind from those trees; he made them into flower tamarind by a process of cleaning which involved removing fibre as well as seeds and thereafter sold the same in the market. The Tribunal has come to the conclusion that raw tamarind as such had also a market; therefore, its conversion into flower tamarind is not an agricultural process; consequently, the extra income realised by the sale of flower tamarind cannot be considered as agricultural income. It did not give any finding as to what was the process ordinarily employed by the cultivators before marketing their tamarind. It was of the opinion that as raw tamarind as such also could be marketed, the assessee could not claim the benefit of section 2(1)(b)(ii) of the Act merely because, in his view, the flower tamarind will get him better price. The parties are at issue as to the true meaning of the words process ordinarily employed by a cultivator to render the produce raised by him fit to be taken to market found in section 2(1)(b)(ii). According to the revenue, before an assessee can claim the benefit of that provision, he must establish two conditions, i.e., (1) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may well be deemed to be agriculture. But the latter part of the process is really manufacture of tea, and cannot, without violence to language, be described as agriculture. Counsel for the company appreciated this difficulty and made an endeavour to bring the case under the second clause of the definition. That clause, in our opinion, cannot be applied to the case before us. The manufacture of tea as a marketable commodity from the green leaves cannot be held to be the performance by a cultivator of a process ordinarily employed by a cultivator to render the produce raised by him fit to be taken to market. The assertion of the company that the actual leaf of the tea plant is of no value as a marketable commodity must be taken with a qualification. The green leaf is not a marketable commodity for immediate use as an article of food, but is a marketable commodity to be manufactured by people who process the requisite machinery into tea fit for human consumption. We must further observe in view of the expression used in the definition, that the manufacturing process cannot properly be said to be employed to render the tea leaves fit to be taken into the market. The means employed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y such as employed by the assessee and therefore the process 'ordinarily employed' is in fact that used by the assessee. In spite of the enquiries which the department has been able to make nothing in connection with the cultivation of aloe fibre has been discovered, save that aloe leaves are bought by certain jail authorities from persons who cultivate it and supply the leaves to the jail, the jail being apparently the only market which such cultivators have for the disposal of their leaves. The so bought by the jail authorities are treated by the prisoners by means of the same laborious and uneconomic process which is employed by some villagers in treating the leaves of the wild and uncultivated plant. The object of manufacture in jails is not the conducting of an economic process which shall render profitable the cultivation of the aloe plant but merely to keep the prisoners employed on sufficiently laborious and punitive work. In other words, this instance relied on by the department does not provide a standard of comparison for the process employed by the assessee. We are in respectful agreement with the above observations which we think correctly brings out the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransport to do so it cannot be said that ginning is essentail in order to enable the produce to be fit to be taken to market. (As summarised in the head note). In the course of the judgment, it was observed: It has been suggested on behalf of the applicant that, even assuming that it is not the general practice amongst the cultivators to have their cotton ginned in the first instance, as he does, the sub- section quoted should be taken as implying that the process in question should be postulated to be one 'ordinarily employed by an agriculturist' in the position and standing of the applicant. We do not think however that this interpretation is the correct one. The process 'ordinarily employed by a cultivator' must, in our opinion, mean one in ordinary use amongst cultivators generally, and the Income-tax Act, so far as agricultural income is concerned, only relieves the producer from liability to income-tax so long as he is a bona fide agriculturist carrying on that business in the ordinary course of good husbandry. This decision again supports the view taken by us. The last case cited is Brihan Maharashtra Sugar Syndicate Ltd. v. Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in that condition. If there is no market to sell the produce then any process which is ordinarily employed to render it fit to reach the market, where it can be sold, would be covered by the definition. The view expressed in the above case appears to unduly restrict the benefits conferred by section 2(1)(b)(ii) though the conclusion reached therein may be justified on the facts of that case. That is probably the reason why Kania J. observed at the end of the judgment our observations in this case are limited to the facts noticed in the reference. If the learned judges meant that the mere possibility of selling the product and not the marketing of the product in the ordinary way, is what is contemplated by section 2(1)(b)(ii) then we are unable to accept that decision as laying down the law correctly. What is of essence is that the process employed must be the one that is ordinarily employed to make the produce fit for marketing. The nature of the process in question would depend upon the prevailing practice in a given locality. It may differ from time to time or place to place. In the instant case, unfortunately, the Tribunal has not addressed itself to the question as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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