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TMI Blog2015 (2) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/Mum/2013, 3819/Mum/2013, 3820/Mum/2013,3821/Mum/2013, 3822/Mum/2013, 3823/Mum/2013 - - - Dated:- 4-2-2015 - Shri R.C. Sharma, And Shri Vivek Varma, JJ. For the Petitioner : Smt Abha Kala Chanda For the Respondent : Shri Anant N Pai ORDER PER VIVEK VARMA, JM: The following appeals are filed by the department against the orders of the CIT(A) and submitted for our consideration: Asst. Year CIT(A) Dt. Of CIT(A) Order 2005-06 36, Mumbai 11.02.2013 2004-05 36, Mumbai 11.02.2013 2004-07 36, Mumbai 11.02.2013 2007-08 36, Mumbai 11.02.2013 2008-09 36, Mumbai 11.02.2013 2009-10 36, Mumbai 11.02.2013 2010-11 36, Mumbai 11.02.2013 2. Since the appeals have been filed by the department in the above c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any of the grounds of appeal, if need be. 4. The facts are that there was a search and survey operations u/s 132(1) and 133A on M/s Pooja Exports Group of which the assessee is one of the associates on 28.07.2009. Consequent to which, notice u/s 153C was served on the assessee and against which the assessee filed its return at NIL income. 5. The assessee is engaged in agricultural activities at their farm at Kolad-Bhira Road, Taluka-Roha, Distt. Raigarh. The assessee is having its registered office at 13-A, Surya Kiran, August Kranti Marg, Gamdevi, Mumbai -400 036. 6. In its return the assessee had shown income of ₹ 84,99,577/-(Rs. 96,66,725 - ₹ 3,10,386 - ₹ 8,56,762, being the balance of sale proceeds of mangoes, Chickoo, watermelon, papaya, coconut and vegetables at ₹ 96,66,725/- and deducted expenses of ₹ 3,10,386/- and ₹ 8,56,762/-). The assessee claimed the net agricultural income of ₹ 84,99,577/-as exempt u/s 10(1) of the Income Tax Act, 1961. The assessee was also subjected to survey action at its office premises and at the farm, from where loose papers were found along with 7/12 extracts of different agricultural land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the utilization of said land for agriculture purpose only. The certificate from Tehsildar certifying the no. kind of trees situated in the farm is also submitted. Further appellant has incurred various expenditures such as purchase of seeds, fertilizer pesticides, payment to labours, water charges, fuel charges, etc. for basic operations like plantation of new trees, fertilization, maintenance, purchase of plant. From the above it is evident that the appellant has conducted genuine agricultural activity earned income by sale of M/s Green Field Agro Products ITAs 3817 to 3823/M/2013 agricultural produce which has been shown in the return of income filed by appellant from time to time. 7.2 Further, the chart submitted by the appellant again confirms the contention of the appellant which is as under : 1. Apeda Certificate: The appellant was awarded a certificate from APEDA - Agriculture Body, a Government Institute which certifies that the mangoes grown by M/s Greenfield Agro Products are fit for export in the Japanese and European Markets. Chemical Testing and Analysis certificate was issued. The same was submitted during the assessment as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Original expenses bills and sale vouchers were produced for verification The learned AO ignored all these positive facts of the appellant which clearly establish that agriculture activity were carried out by the appellant. The AO is relying on one fact for denying the benefit of exemption that the appellant is not cultivator. . 9. Partnership deed dated 1/10/2001, wherein it is mentioned that the partners hereby agree and acknowledge that the agricultural land belonging to each partner shall always be construed as individual property and at no time shall it be construed as partnership property-Ownership of land is not criteria for carrying on agricultural activities. It is further mentioned in the deed that all plantations, trees and other plants grown/to be grown on the land pooled in for the business of carrying on agricultural produces shall be property/asset of the partnership The learned AO has not taken any cognizance of the same in the Assessment order as well as remand proceeding that the land is pulled together for better harvest and agriculture produce. No mention of the same made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of disclosure of such item in balance sheet does not arise. Further as the appellant has not constructed any of the above structure, mere presumption of construction cost of living house, storage house, stable for 9 horses of ₹ 1,00,00,000/- is prejudicial to the interest of natural justice. Hence const of construction cannot be considered as Income from unaccounted undisclosed Sources. On perusal of assessment order, it is observed that the AO has not enquired properly before arriving on conclusion for estimating 1,00,00,000/- as construction cost. In his remand report also, the AO is silent on this point. Such ad hoc estimation does not hold good in the eyes of law,hence the addition made on this count is hereby deleted . 10. The CIT(A), thus deleted both the additions as made by the AO. 11. Against this order of the CIT(A), the department is in appeal before the ITAT. 12. Before us, the DR submitted that the additions were made on the basis of documents which were found at the time of survey operations. The fact that none of the 7/12 extract specifies assessee s ownership of land parcels. 13. In any case, the land records showed that no fruit or vegetables we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the issue dealt with and decided hereinabove of our order in ITA No. 3818/Mum/2013 for AY 2004-05, while resolving the issue in the ground, vide paras 3 to 7 17 to 21 of our order, ultimately, we direct the AO to follow specific direction given at para 18 of our order, accordingly, the impugned issue per se involved in the grounds is allowed for statistical purposes. 23. In the result, appeal as filed by the revenue stands allowed for statistical purposes. 24. The only issue pertaining to agricultural income is involved in the impugned appeal is identical to the issue dealt with and decided hereinabove of our order in ITA No. 3818/Mum/2013 for AY 2004-05, while resolving the issue in the ground, vide paras 3 to 7 17 to 21 of our order, ultimately, we direct the AO to follow specific direction given at para 18 of our order, accordingly, the impugned issue per se involved in the grounds is allowed for statistical purposes. 25. In the result, appeal as filed by the revenue stands allowed for statistical purposes. 26. The only issue pertaining to agricultural income is involved in the impugned appeal is identical to the issue dealt with and decided hereinabove of our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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