AGRICULTURE UNDER GST – WHETHER TAXABLE
The revised model GST law on GST (version-II) defines agriculture and agriculturist. The agriculture under GST is out of scope of GST and agriculturist is not a taxable person.
Agriculture [Section 2(7)]
As per section 2(7) of the revised Model GST law, ‘agriculture’ means all its grammatical variations and cognate expressions, includes floriculture, horticulture, the raising of crops, grass or garden produce and also grazing, but does not include dairy farming, poultry farming, stock breeding, the mere cutting of wood or grass, gathering of fruit, raising of man-made forest or rearing of seedlings or plants.
Therefore, agriculture would include:
all its grammatical variations
all its cognate expressions,
floriculture, (cultivation of ornamental flowers)
horticulture, (cultivation of garden)
sericulture, (rearing of silk worms)
the raising of crops,
grass or garden produce, and
but does not include :
the mere cutting of wood or grass,
gathering of fruit,
raising of man-made forest, or
rearing of seedlings or plants.
‘Forest’ means the forest to which Indian Forest Act, 1927 applies. Only raising of man-made forest is excluded from definition of ‘agriculture’.
As per Oxford English Dictionary, ‘forest’ means a large area covered with trees and undergrowth and trees growing on it.
A forest is a large tract covered with trees and undergrowth; unenclosed woodland district kept for hunting. [See Manwood’s Forest Law; Coke’s Fourth Institute’ Charter of the Forest. See U.B. R. (1894-1901), Vol. I, 196].
The word ‘forest’ must be understood according to its dictionary meaning. It covers all statutorily recognised forests whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Act. [T.N. Godavarman Thirumulkped v. Union of India, 1996 (12) TMI 390 – Supreme Court of India , para 4] [Forest Conservation Act (69 of 1980), S.2(i)].
The terms forest is to be understood in the dictionary sense and also that any area regarded as a forest in the Government records, irrespective of ownership would be forest. [M.C. Mehta v. Union of India (2004) 12 SCC 118, 181, para 82]
‘Forest means such large areas where agricultural is not done and which is covered by trees and shrubs. Land having an average number of 200 trees per hectare ought to be treated as ‘forest’. [ T.N. Godavarman Thirumulpad (98) v. Union of India, (2006) 5 SCC 28, 32, para 3]
The Indian Forest Act, 1927 covers all categories of forests and extends to whole of territories specified in First Schedule of the Constitution.
Agriculturist [Section 2(8)]
As per section 2(8) of the revised Model GST law, ‘agriculturist’ means a person who cultivates land personally, for the purpose of agriculture.
One who is engaged in agriculture is called agriculturist, i.e., in the field of growing or cultivation of activities enlisted in the definition of agriculture. The proposed definition uses the word ‘personally’ which implies that one who cultivates the land personally for agriculture will be considered as agriculturist.
As per section 2(106) of the revised Model GST law, ‘to cultivate personally’ means to carry on any agricultural operation on ones own account-
by one’s own labour, or
by the labour of one’s family, or
by servants on wages payable in cash or kind or by hired labour under one’s personal supervision or the personal supervision of any member of one’s family.
For this purpose, a widow or a minor or a person who is subject to any physical or mental disability or is a serving member of the armed forces of the Union, shall be deemed to cultivate land personally if it is cultivated by her or his servants or by hired labour. Further, in the case of a Hindu Undivided Family, land shall be deemed to be cultivated personally, if it is cultivated by any member of such family.
This expression has been used in the definition of ‘agriculturist’ and a person will be considered as an ‘agriculturist’ only when a person cultivates land personally. To cultivate personally would imply carrying on agricultural operations on his own account by employing own labour, family’s labour or hired labour under own supervision or of his family. In case of HUF, it could be done by any member of HUF.
The explanation clarifies that cultivation can be treated as being cultivated personally if it is done by servants or by hired labour in case of widow, minor, physically or mentally disabled persons or serving members of armed forces of Union.
Where persons who do not cultivate personally by employing a labour but do so by awarding contract of cultivation on sharing basis, which is generally called ‘Batai’, such batai work other than under employment contract will not be covered under the scope of the term ‘to cultivate personally’. As such, such an arrangement will not make the person an agriculturist.
As per section 10 read with Schedule V of the revised Model GST law, agriculturist shall not be considered as a taxable person.