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TMI Blog2009 (4) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... -4-2009 - RAVIRAJA PANDIAN K., SUNDRESH M. M., JJ. JUDGMENT K. Raviraja Pandian J.- 1. The appellant has preferred this appeal against the order of the Income-tax Appellate Tribunal dated July 8, 2008 made in I. T. A. No. 2626/Mds/96. 2. The facts of the case are : The assessee is an individual and owner of a coffee estate and filed his return of income for the assessment year 1991-92 declaring loss. The said return of income had been processed under section 143(1)(a) of the Income-tax Act accepting the loss returned. Subsequently, the case of the assessee was taken up for scrutiny and notice under section 143(2) of the Act has been issued. After rejecting the stand of the assessee that the sale proceeds of the silver oak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Kil Kotagiri Tea and Coffee Estates Co. Ltd. v. State of Tamil Nadu [1998] 234 ITR 252, arising out of the Tamil Nadu Agricultural Income-tax Act, has held that the Supreme Court in the case of CIT v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 has observed that any income to be regarded as agricultural income, it should be derived by the assessee by tilling of the land, sowing of the seeds, planting and similar operations on the land. The other operations like weeding, digging the soil around the growth, removal of undesirable undergrowth, etc., would not per se be regarded as agricultural operations and in order to invest them with the character of agricultural operations, the subsequent operations of weeding, digging etc. must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issues have been covered by the judgment of the Division Bench of this court in W. A. No. 372 of 2002 decided on April 5, 2007 (assessee's own case). The appellant cannot have a say or to argue differently in this case. The issue whether the income derived from the sale of shade trees would partake of the character of capital gains has already been concluded by judgments of various High Courts and even in the assessee's own case. He also highlighted that the appeal against the said judgment was dismissed by the Supreme Court and the order impugned requires no interference in this appeal. 9. We heard the learned counsel on either side and perused the materials available on record. 10. In the assessee's own case in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was liable to tax under section 45 of the Act. 11. The Division Bench also has taken note of the decision in the case of Beverley Estates Ltd. v. CIT [1979] 117 ITR 302 (Mad), wherein also the income derived out of sale of trees were treated as capital gains following Karimtharuvi _Ts case cited supra. The Division Bench has held that the gain arising to the assessee therein by the sale of standing shade trees grown by him are assessable under section 45 of the Income-tax Act, 1961. For reaching such a conclusion, the Division Bench has also relied on the deci-sions in the cases of Travancore Tea Estates Co. Ltd. v. CIT [1974] 93 ITR 314 (Ker), CIT v. Silver Cloud Forest and Plantations [1998] 231 ITR 671 (Mad) and State of Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the Revenue by the decision of the Income-tax Appellate Tribunal in the case of ITO v. Late C. Seshagiri Rao in I. T. A. No. 2320/Mds/1996 decided on May 23, 2002. As rightly contended by the learned counsel for the Revenue, the assessee cannot approbate and reprobate the issue in different forums in respect of the same issue. In order to make it clear, we are of the view that it is better to extract that portion of the order of the Tribunal, where the assessee conceded that the issue has been covered by an earlier judgment against the assessee. The extract is under : "The only issue involved in this appeal by the assessee is against the consideration of profit on sale of silver oak trees which were shade trees standing i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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