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TMI Blog2013 (8) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 81 - CALCUTTA High Court], wherein it has been held that sale of trees grown spontaneously as not taxable - Receipt on sale of trees grown spontaneously has to be treated as capital in nature and since there is no cost of acquisition, it cannot be assessed as taxable income - Calcutta High Court judgment in the case of Suman Tea & Plywood Industries (P) Ltd (supra) may be squarely applicable to the facts of the case – Therefore, sale of trees grown spontaneously has to be treated as capital in nature and since there is no cost of acquisition, it is not liable for taxation. Estimation of agricultural income - The copies of the data said to be collected from the Agricultural Officer is not available on record. Details regarding varieties of banana cultivated are also not on record – Held that:- In the absence of the details of varieties of banana cultivation on the land, it is not known how the Agricultural Officer was able to provide the data. The price of each variety of banana would depend upon the prevailing market rate during the relevant assessment year. Moreover, when the assessee claims that he is maintaining the books of account for cultivation, without finding faul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable with the assessee for making a deposit of Rs.99,052 in the personal account of the assessee maintained with SBT. As rightly submitted by the ld.DR, the assessing officer has not examined the availability of the cash balance as on 31-03-2003. The lower authorities found that the so-called deposit was not included in the net wealth statement filed by the assessee before the assessing officer. Now the ld.representative contends that by inadvertent omission it was not included in the net wealth statement filed before the assessing officer. Since the assessee has filed details of transactions and claims that sufficient funds are available, this Tribunal is of the considered opinion that the details filed by the assessee needs to be examined by the assessing officer. Accordingly, the orders of the lower authorities for the assessment year 2003-04 in respect of addition of Rs. 99,752 are set aside and the matter is remitted back to the file of the assessing officer. The assessing officer shall examine the details of personal transactions entered into during the relevant assessment year and thereafter decide the same in accordance with law after giving reasonable opportunity of hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not in respect of trees grown spontaneously. Referring to the judgment of the Apex Court in the case of Maharajadhiraj Sir Kameshwar Singh vs CIT (1957) 32 ITR 587 (SC), the ld.DR submitted that when the trees are sold, which are grown spontaneously, the receipt of the same has to be taxed as casual and non recurring income of the assessee. 11. We have considered the rival submissions on either side and also perused the material available on record. It is not in dispute that the trees were grown spontaneously in the property purchased in the year 2001. The question arises for consideration is - whether the sale consideration received on sale of the trees which were grown spontaneously without any human aid could be treated as a casual receipt or capital receipt? We have carefully gone through the judgment of the Apex Court in the case of Maharajadhiraj Sir Kameshwar Singh (supra) before the Apex Court. In that case various trees grown spontaneously without any human aid and labour were sold. The Apex Court, after referring to the judgment of the Privy Council in Raja Mustafa Ali Khan vs CIT (1948) 16 ITR 330 found that the receipt on sale of such trees cannot be treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances are also same, we direct the assessing officer to reconsider the issue on the lines of directions already issued for assessment years 2003-04 to 2005-06. 14. The next ground of appeal is with regard to estimation of agricultural income. The assessee claimed agricultural income of Rs. 11,59,247. However, the assessing officer disallowed Rs.8,35,092 based on the data said to be collected from the Agricultural Officer at Idukki. According to the ld.representative, the assessee has only 3.5 acres of land at Idukki, the rest of the land are at Vaikom, Marangattupalli and Coimbatore. Therefore, the data collected from Agricultural Officer, Idukki may not be supporting the estimation of agricultural income in respect of other places. According to the ld.representative, the assessee maintains books of account and therefore, there is no need for estimation of agricultural income. The ld.representative further submitted that Idukki is a hill station where cultivation of spices is common and banana cultivation is not common in Idukki. On a query from the bench what is the nature of crop cultivated, the ld.representative submitted that the assessee is cultivating coconu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing officer shall consider the books of account said to be maintained by the assessee for agricultural income and thereafter decide the issue afresh in accordance with law after giving reasonable opportunity to the assessee. We make it clear that it is open to the assessing officer to reject the books of account in case the books of account are not properly maintained or any other defect was pointed out by the assessing officer during the course of examination. 17. Coming to the appeal for the assessment year 2007-08, the only issue raised in the appeal pertains to estimation of agricultural income. The issue is identical to ground No.2 raised for the assessment year 2006- 07 where we have restored the issue to the file of the assessing officer for reconsideration after verifying the books of account maintained by the assessing officer. The facts and circumstances are admittedly one and same. Therefore, following the order for assessment year 2006-07, the orders of lowers authorities on this issue are set aside and restored to the file of the assessing officer. The assessing officer shall reconsider the issue in the light of directions issued for the assessment year 2006-07 aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee claimed that the building was constructed during the first half of the accounting year and the same was completed during the second half of the accounting year under consideration. No income was disclosed from the building. Therefore, according to the ld.DR, the building was not put to use for the purpose of business. According to the ld.DR, unless the building was put to use in the business, the assessee is not entitled for any depreciation. 22. We have considered the rival submissions on either side and also perused the material available on record. The assessing officer disallowed the claim of the assessee on the ground that no income was disclosed for utilization of the building. However, the assessee claims that the building was used for business and it was used by the tourists before and after boating. The food was cooked in the kitchen for the tourists. This claim of the assessee was not examined by the lower authorities. Therefore, this Tribunal is of the considered opinion that the claim of the assessee that building was used by the tourists before and after the boating and food was also cooked there for tourists needs to be verified and examined by the assessing o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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