M N NAVALE BIGGER HUF,,PUNE vs. DEPUTY COMMISSIONER OF INCOME TAX,, PUNE

आयकर अपीलीय अिधकरण “ए” �यायपीठ पुणे म� । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM Sl. No. ITA No. Name of Appellant Name of Respondent Asst. Year 1-8 360/PUN/2017 Maruti Nivrutti Navale ACIT, Central Circle- 2001-02 361/PUN/2017 Bigger HUF, 2(2), Pune. 2002-03 362/PUN/2017 Singhad Technical 2003-04 363/PUN/2017 Education Society 2004-05 364/PUN/2017 Campus, Vadgaon (BK), 2005-06 365/PUN/2017 Pune-411041. 2006-07 366/PUN/2017 PAN: AAEHN1259C 2007-08 367/PUN/2017 N.A. 9 542/PUN/2017 Maruti Nivrutti Navale ACIT, Central Circle- 2008-09 (Smaller HUF), 2(2), Pune. Singhad Technical Education Society Campus, Vadgaon (BK), Pune-411041. PAN: AAKHM0881K Assessee by : Shri Chetan Karia Shri Suhas P. Bora Revenue by : Shri S. B. Prasad & Shri S. P. Walimbe सुनवाई क� तारीख / Date of Hearing : 17.10.2019 घोषणा क� तारीख / Date of Pronouncement : 15.11.2019 आदेश / ORDER PER BENCH : There are nine appeals under consideration. This group of appeals preferred by Maruti Nivrutti Navale, Bigger HUF emanates from the respective orders of the Ld. CIT(Appeals) for the respective assessment years as captioned hereinabove and as per grounds of appeal on record. 2. All these cases were heard together. Since issues common and facts are similar, these cases are being disposed of vide this consolidated order. 3. At the very outset, the Ld. AR of the assessee submitted that, for adjudication of all these cases, the appeal ITA No.367/PUN/2017 constitutes a crucial one as it relates to the order passed u/s 171 of the Act relating to ‘assessment after partition of a HUF;. Both Representatives suggested

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adjudication of this appeal in priority. In this order (supra), Assessing Officer rejected the claim of existence of HUF, consequential partition of the same, claim of agricultural income a source of investment in properties etc. Otherwise, HUF filed the returns of income and assessed tax under the I.T. Act prior to the passing of the said order u/s 171 of the Act. We shall now take up the said crucial appeal ITA No.367/PUN/2017 in the coming paragraphs of this order. ITA No.367/PUN/2017 – By Assessee (Order u/s 171 r.w.s. 254 of the Act) Facts: Shri Maruti N. Navale, claimed to be Karta of M.N.Navale Bigger 4. HUF filed an application u/s.171 of the Income Tax Act 1961 (hereinafter referred to as ‘the Act’) on 04.09.2007. Vide this application, a claim of partition of M.N.Navale (Bigger HUF), within the meaning of the provisions of section 171 of the Act, was made and heavy reliance was placed by the assessee, on the Compromise Decree passed by the Civil Court, Pandharpur in support of existence of Bigger HUF and existence of the alleged HUF properties which were claimed to be partitioned by the said Court by mutual consent. M. N. Navale, Bigger HUF, came into existence on the death of Late Nivrutti Babaji Navale in 1952 leaving behind his wife Smt. Kashibai Navale, five sons and one daughter. All the properties owned by the deceased father of Karta of the Bigger HUF, became HUF property and the HUF was naturally formed. As per assessee, the corpus of the HUF started from the time of Late Babaji Navale, the grand-father of Karta. The income generated out of the said properties was recycled for acquisition of many other properties of the HUF in the name of the members of the HUF. Shri Sadashiv Navle is elder brother of Shri M.N. Navale (Maruti M. Navale). Shri Sadashiv Navale wanted

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partition of the said HUF and which resulted into the claim of total partition as per section 171 of the IT Act. A. FIRST ROUND Order of the Assessing Officer u/s 171 of the Act: Acting on the 5. said application for partition and after considering the facts and submissions of the assessee, the AO passed an order u/s.171 of the Act on 06.12.2007, rejecting the partition claim of the Hindu Family. In this order, the Assessing Officer held that there was no existence of HUF of M. N. Navale, Bigger HUF. 6. In that order, the Assessing Officer pointed out that the assessee never filed the returns of income of Wealth tax and Income Tax either in the name of Bigger HUF or in the name of Shri Nivrutti Babaji Navale during his time or by his children prior to 20th July, 2005 i.e. the date of search. Assessing Officer held that the assessee failed to demonstrate that the ancestral properties were acquired by late Shri Nivruti Babaji Navale by filing any credible evidence. The HUF never existed and therefore, it is a non-existent one. The Assessing Officer was of the view that once it is established that M.N. Navale Bigger HUF never existed, the creation of the Karta consequent to the search action for ensuring non taxability of the seized cash and jewellery with a view to avoid paying taxes. The Assessing Officer was of the opinion that the seized cash and jewellery seized from the premises of the Institute of Shri M.N. Navale, were earned out of the unaccounted receipts of cash received from the applicant for admission into the colleges for various courses run by the Sinhagad Technical Education Society (STES). Further, regarding the ‘consent decree’ awarded by the Civil Court, Pandharpur, the Assessing Officer was of the opinion that the said decree is nothing but a

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family settlement made out by Shri M.N. Navale and the Court never had an occasion to examine the legalities of existence of HUF and the HUF properties quantification thereof. It is merely a consent decree which is not binding in matter of income tax proceedings. Before CIT(A) in first round: Aggrieved with the assessment order, 7. the assessee filed an appeal before the Ld. CIT(A) and vide his order dated 29.12.2009, Ld. CIT(A)-II, Pune dismissed the appeal of the assessee and on the issue of consent decree, the CIT(A) held as under: “in the appellant's case by way of an afterthought, an Idea of a Bigger HUF was introduced after the search and seizure operation u/s.132, for which the route of filing a partition suit in the civil court was resorted to. However, the effect of the Suit and the consequential decree would be that the cash and gold ornaments seized u/s.132 from the residence of Shri M.N. Navale and the consequential statement u/s.132(4) recorded during the search with regard to this seizure, as also any resultant and consequential proceedings under the Act, would be modified or get affected. The Hon'ble Supreme Court had held in the judgment of Parameshwari Devi Sultania and others (supra) that section 293 of the I.T.Act does not permit filing of such a suit in a civil court, which has the affect of even indirectly setting aside or modifying any proceedings under the Act or order made thereafter; and therefore such a civil suit was barred by section 293. This makes it abundantly clear that this judgment of the Hon'ble Apex Court was directly applicable in the facts of the appellant's case; and the Hon'ble Bombay High Court decision relied upon by the appellant was distinguishable on facts.” Before the ITAT in first round: Thereafter, being further aggrieved 8. with the said order of the CIT(A), the assessee filed appeal before the Income Tax Appellate Tribunal and the Tribunal vide order dated 07.02.2012 had observed as follows: ……….. In our opinion a primary /secondary/tertiary evidences “44. furnished by the assessee must be accepted considering the legislative intent in matters of partition and also the conduct of the assessee. The AO has never doubted or not disputed the veracity of aforementioned documents furnished by the assessee in the form of additional evidences. But, they were not admitted by the CIT(A) for frivolous reasons and grounds and in our opinion, it is not proper considering primary of the judicial delivery system of the justice. Had they been admitted, the decisions of the first appellate authority ought to have been

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different. Therefore, we find these Page 102, 103, 104, 105, 106 and 107 of the paper book no.1 and other documents filed before us are precious and required to be admitted in the interest of the justice. Thus, existence of HUF properties as to the extent of 60.40 Acres of agricultural land should not be doubted too, Thirdly, regarding the exempt income generating ability of the said lands and reinvestment of the same info acquisition of further lands totaling to 75H 90R i.e. equivalent to 188 Acres again, we find the evidences furnished by the assessee indicate and confirms the fact of growing of the various crops in the said lands. In consequenti, the fact of generation of agricultural income in the above said lands cannot be suspected. However, there can be some debate on the quantification issues of such exempt agricultural income. On the issue of quantification also, the assessee furnished some workings, which were not considered seriously considering the absence of third party evidences in support of the claim of the assessee. We find the assessee relied on the data maintained by the Rahori Mahatma Phule Agricultural University. These details were rejected out rightly by the revenue giving no explanation. In our opinion, such rejection is not fair for the reason that the estimation must have some scientific basis and the data of the Mahatma Phule Agricultural University (MPAU) with necessary changes may constitute a reasonable basis of estimate including agricultural income of the lands claimed by the assessee. The estimation of agricultural income based on the MPAU data was approved in principle of course with necessary changes, vide the orders of this Tribunal, Pune. In the cases of Sri Dattatreya Waman Patil (PAN: ATUP P2995E) ITA No.904/PN/08 (Asstt. Year 2005-06) and also in the case of Shri PaUI Dilip Baburao (PAN: ALJPP5777D) vide ITA No 337/PN/06 Block period 1996-97 to 2002-03 and others. Therefore, as already discussed above, we directed the AO to re-examine the issue after reconsidering the data furnished by the assessee and after hearing the issue with assessee again. He shall either accept the assessee claim if adequate exempt income is available. Alternatively, he shall arrive at the reasonable estimate of agricultural income and examine if such funds are adequate to account for further acquisition of land i.e. from 60.40 acres to 188 acres on one side and the cash and jewellery seizures on the other. Fourthly, In any case of jewellery, considering the lack of direct evidence to demonstrate that it has origin with either Geeta Bunkar or Mrs Nivruti B Navale, the assessee substantially admitted to the conclusion that the seized jewellery constitutes a non-HUF assets AO shall exclude the same from the hotpotch of the HUF properties and however, the same is subjected to the discussion given above and contingent on the outcome of the applicability of provisions of sec. 64(2) 8i 64(2)(b) of the Act as indicated in the preceding paragraph Fifthly, regarding the relevance of the Consent Decree, as slated above, In our opinion, the same is certainly sacrosanct and binding on Income tax matters "so far as the quantity allocated" by the Hon’ble Court, Pandarpur are concerned and for this we rely on the citation discussed above. However, regarding the existence of the HUF & its properties and agricultural income, relevant laws assume importance. Sixthly, regarding cash seizure, the question is whether the same is earned out of the exploitation of the HUF assets or other-wise. This question is answered only ' if the questions relating to the (a) extent of HUF properties and (b) estimation of the related income is finalised. These issues are not sent to the files of the AC for determination in the set aside proceedings and therefore, the answer to the cash related is issues are contingent upon the said set aside proceedings. Therefore, the issue is kept open till then. Finally, regarding the applicability of the provisions of section 293 of the

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Act, considering the fact the impugned civil suit does not involve the Government or its officer, we find there is a application of the said section to the instant case. The revenue has not brought out anything substantial onto the record to demonstrate successfully that the said suit is intended for setting aside or modifying any proceedings taken or order made under the Act. Further, there is no discussion on which of the Government or its officer is the subject matter of the said suit or on which of the proceedings or order made are intended to be set aside or modified by the Assessee by the said Civil Suit. It is an admitted fact that the said suit is merely a Compromise Decree between the assessee and one of the coparceners and no government or its officer is involved. It Is clear from the provisions of section 293 that "No suit shall be brought in any civil to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other proceeding shall He against the Government or any officer of the Government for anything in good faith done or Intended to be done under this Act". Thus, the arguments of the Ld DR, both oral and in writing, have to be dismissed and it is our opinion, the case laws relied upon by Ld DR are misplaced. Therefore, there is no applicability of the \ provisions of section 293 of the Act to the Instant suit or assessee. Accordingly, the grounds are decided pro- tanto.” Summation of proceedings: Therefore, essentially, what the Tribunal 9. did in the first round, as per the reasons recorded therein, that the existence of HUF with agricultural land holding of 60.40 acres is upheld. Secondly, regarding the quantification of said income, the Tribunal held that any estimation must have some sustainable basis and the data of the Mahatma Phule Agricultural University (MPAU) with necessary changes specific to the assessee may constitute a reasonable basis. The Assessing Officer was therefore directed to re-examine the issue after reconsidering the MPKV data. Another thing which the Tribunal settled was that, so far as 60.40 acres land is concerned, there should not be any dispute. There exists direct evidence in favour of land holding by the grandparents in 1950s. However, from 60.40 acres, how the land holding by HUF grew to further holding upto 188 acres or so was to be explained by the assessee before the Assessing Officer in remand proceedings and through corroborative evidences. Regarding the seized cash and jewellary seized during search action u/s 132 of the Act, the question that needs to be analyzed, as per observation of the Tribunal, was whether

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the same were earned out of the exploitation of the HUF assets or otherwise. These questions can only be answered if it is determined what exactly the extent of HUF properties and the estimation of the related agricultural income. Since the said issues were set aside to the file of Assessing Officer, these issues remained open. After giving adequate opportunity, the Assessing Officer passed the order. The Assessing Officer’s finding in the second round are discussed in the following paragraphs. B. SECOND ROUND Before the Assessing Officer: That, in the second round i.e. the 10. round in the order giving effect to the order of the Tribunal, the Assessing Officer issued letter to the assessee asking him to furnish various details/ documents etc. from time to time. In response, the assessee made various submissions. On verification of the submissions made by the assessee, it was noticed that the so called evidences produced are merely in the form of typed statements showing receipts and payments since 1952 onwards i.e. for almost 50 plus years. The said statements/figures include the figures of agricultural income/expenses, household expenses, sale and purchases of trees, fruits, vegetables, milk, livestock, fodder, manure etc. for different years. However, assessee filed some evidences and however, they did have the strength of the supporting bills. Further, the assessee submitted 7/12 extracts for the relevant pieces of land claimed to be belonging to the Bigger HUF for some years since 1952, located in and around villages Ekhatpur and Sangola. Thus, the assessee did not furnish the complete details for the relevant years for this period of almost 50 years to indicate the area cultivation for agricultural, earning of income, type of crop etc. The requisite

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primarily records like purchase bills, sale bills, vouchers, receipts for sale of cash, crops, sugarcane, cotton, onion, fruits etc. were not submitted by the assessee in support of aforementioned statements/figures. Enquiries by the Assessing Officer: That further during the course of 11. assessment proceedings, since no documentary evidences were furnished by the assessee, Inspector was sent to Village Ekhatpur on few occasions to make enquiry about the state of affairs of agricultural activities in the area around villages Ekhatpur and Sangola and collected certain information from some of the local farmers. It was reported by the Inspector that the lands allegedly owned by the HUF from 1952, were mostly fallow lands, wherein changes of reasonable agricultural income was also in doubt. The Assessing Officer, however, since information from the farmers were not collected in accordance with section 131 of the Act, they were not utilized by the Assessing Officer in this proceedings. Further, the Assessing Officer further noticed that all the transactions done by HUF were in cash only and no transactions involving the banking channels were reported. That further, the brothers of Shri M.N. Navale (Karta of Bigger HUF) have borrowed various loans of small amounts from different Co-operative Banks and Co-operative Societies for their personal needs. The question arises that when the said HUF was claiming to be in possession of such huge agricultural income and cash in hand what was the need for the other brothers of Shri M.N. Navale to borrow such loans, when they were also the members of the said HUF and had equal rights over the income and assets of the said HUF. The Assessing Officer also noticed that whatever figures and amounts quoted by the assessee, they cannot be called reliable

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since the assessee has not bothered to verify whether some of the claims made by him are factually correct or not. It was seen by the Assessing Officer that the assessee had shown agricultural income from some pieces of lands when the said land was not even owned by him/HUF during that particular year. In some instances, substantial production of crops was shown from plots of land which were ‘not in use’ as per the records of the “Talathi”. When these irregularities were brought to the knowledge of the assessee, he only challenged the correctness of the records of the Talathi who is responsible Officer of Govt. of Maharashtra and is primarily responsible for maintaining all the relevant records of land holdings, crops planted, agricultural activities conducted in a particular plot of land during the particular year and so on and issuance of 7/12 extracts. MPKV Data Procurement: The Assessing Officer further noticed that since the assessee is claiming to have such a huge exempt income, the onus was on the assessee to establish it. In the case of CIT Vs. Ramkrishna Deo, 35 ITR 312, the Hon’ble Supreme Court of India has held that “the law is well settled that it is for a person who claims exemption to establish it and there is no reason why it would be otherwise when the exemption claimed is under the Income Tax Act. A person who claims the benefit of an exemption has to establish it.” In the case of Gopi Ram Lila Vs. CIT, 86 Taxmann 348, the Hon’ble High Court of Rajasthan has categorically held that “the onus is on the assessee to show the extent of the agricultural income.” Since the assessee did not produce any corroborative evidence in support of its claim of agricultural income, as per the directions of the Tribunal in first round, the Assessing Officer obtained data from independent agencies and as per the directions of the Tribunal, the data of MPKV with necessary changes may

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constitute a reasonable basis of estimate including agricultural income of the lands claimed by the assessee. The estimation of agricultural income based on the MPKV data has been approved in principle with necessary changes vide the order of the ITAT, Pune in the case of Sri Dattatraya Waman Patil in ITA No.904/PN/2008 for the assessment year 2005-06 and also in the case of Shri Patil Dilip Baburao in ITA No.337/PN/2006, Block Period 1996-97 to 2002-03 and others. Of course, the estimation of agricultural income out of trees i.e. fruits/vegetables/sugarcane was the issues in those appeals. The estimation of agricultural income of cereal/millet crops/sugarcane is the issue in the preset litigation. 12. That, on the basis of method of calculation from MPKV, Rahuri, the Assessing Officer attempted to make an estimation of the agricultural income at least for one year i.e. financial year 2001-02 as a base year. Assessing Officer is of the opinion, based on the estimation, a formula of gross agricultural income, agricultural expenditure, surplus of agricultural income can be worked out. However, Assessing Officer dropped this idea prematurely. Assessing Officer faced the irreconcilable problem with MPKV data, which suggest the agricultural losses only. In the process, the Assessing Officer lost sight of the fact on the direction of the Tribunal for adopting/making necessary assessee-specific changes to the said MPKV data before adopting that data only. Instead, the Assessing Officer relied on the returns of income of the HUF-assessee, the agricultural income claims made in the return of income and quantified the surplus agricultural income of the assessee for various assessment years since the assessment year 1953-54 till assessment year 2006-07. Thus, the Assessing Officer goes on to estimate the agricultural income of the assessee HUF adopting the ad-hoc rate 10% of

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the claimed agricultural income by the assessee HUF for assessment year 2002-03. Accordingly, the gross and surplus agricultural income for assessment year 2002-03 are Rs.14,38,800/- and Rs.1,43,880/- respectively. The ‘livestock income’ is held as taxable income and taxed it as ‘other sources’ income. Rs.11,47,500/- is the livestock income for assessment year 2002-03. Same is the case with the claims relating to manure and fodder income. Assessing Officer taxed all three (i) Livestock; (ii) Manure; and, (iii) Fodder income claims rejecting the assessee’s claim of agricultural income. Thus, the Assessing Officer estimated the agricultural income, surplus agricultural income, taxable livestock income etc. Relevant discussion is given in para 13 and 14 of his order. 13. The relevant paragraphs (para 13 and 14) from the order of the Assessing Officer dated 28.03.2014 are extracted hereunder :- “13. In view of the foregoing detailed discussion on the various issues involved and considering the facts of the case and the directions of the Hon’ble ITAT Pune ‘B’ Bench (as contained in order in ITA No. 149/PN/2010 dated 30/03/2012), the year wise agricultural income of the assessee HUF is estimated by applying the following formula: - Agricultural income claimed by the assessee in the charts submitted during the proceeding. Less- Income claimed from “sale of live stock” Balance amount 10% of this balance amount is to be treated as the actual agricultural income the HUF for the respective Financial Year. Accordingly, the computation of estimated agricultural income of the assessee HUF is given below:- Sr. F.Y. Gross (A)-(B) i.e. (C) 10% of (C) being Income from sale of livestock (B) agricultural Agricultural No. income income estimated claimed by assessee (Before any expenses) 1 2 3 4 5 6 1 1952-53 102345 19675 82670 8267 2 1953-54 104207 17865 86342 8634 3 1954-55 109026 26270 82756 8276 4 1955-56 125879 30350 95529 9553

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5 1956-57 125622 29550 96072 9607 6 1957-58 118734 32400 86334 8633 7 1958-59 118601 33200 85401 8540 8 1959-60 174737 46700 128037 12804 9 1960-61 202825 55800 147025 14702 10 1961-62 192965 58150 134815 13481 11 1962-63 233880 64750 169130 16913 12 1963-64 221502 65600 155902 15590 13 1964-65 229256 74100 155156 15516 14 1965-66 220485 73200 147285 14728 15 1966-67 292273 74300 217973 21797 16 1967-68 266244 94100 172144 17214 17 1968-69 290573 107200 183373 18337 18 1969-70 359018 117800 241218 24122 19 1970-71 355353 121600 233753 23375 20 1971-72 308692 122400 186292 18629 21 1972-73 267660 99550 168110 16811 22 1973-74 247521 98300 149221 14922 23 1974-75 276271 94950 181321 18132 24 1975-76 264364 85750 178614 17861 25 1976-77 331055 84100 246955 24695 26 1977-78 349973 97900 252073 25207 27 1978-79 407264 103200 304064 30406 28 1979-80 408538 104700 303838 30384 29 1980-81 423671 105600 318071 31807 30 1981-82 472286 114650 357636 35764 31 1982-83 596788 122400 474388 47439 32 1983-84 600161 134400 465761 46576 33 1984-85 463324 135100 328224 32822 34 1985-86 539185 160950 378235 37823 35 1986-87 575110 176500 398610 39861 36 1987-88 649355 175800 473555 47355 37 1988-89 839823 193250 646573 64657 38 1989-90 960351 185300 775051 77505 39 1990-91 1359560 200400 1159160 115916 40 1991-92 1186410 207800 978610 97861 41 1992-93 1287305 263800 1023505 102350 42 1993-94 1151703 238250 913453 91345 43 1994-95 1295318 242550 1052768 105277 44 1995-96 1351100 262400 1088700 108870 45 1996-97 1728040 506821 1221219 122122 46 1997-98 2191555 653900 1537655 153765 47 1998-99 2199810 959200 1240610 124061 48 1999-00 2486450 1070500 1415950 141595 49 2000-01 2474977 1028600 1446377 144638 2586300 1438800 143880 50 2001-02 1147500 51 2002-03 2826450 1171900 1654550 165455

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52 2003-04 2772630 1245700 1526930 152693 53 2004-05 4390424 1841800 2548624 254862 54 2005-06 6220295 2728600 3491695 349169 TOTAL 50333244 17307131 33026113 3302611 Thus, the total net agriculture income of the HUF for the period from F.Y. 1952-53 to 2005-06 is fairly estimated at Rs.33,02,611/-, out which the assessee HUF’s members could spend for their household expenses, children’s education, daughter’s marriages, medical expenses, family functions, religious ceremonies and so on. 14. From the above chart, it is also concluded as under:- 1) The assessee HUF has claimed huge agricultural income, a claim which is not supported by the facts of the case and by any independently verifiable documentary evidences. 2) In fact, the agricultural income for each year is seen to be a very small amount just enough for the subsistence of the families of Shri. M. N. Navale’s Parents, brothers and his own family. 3) There is no possibility of any substantial savings or surplus out of the aforesaid agricultural income, which the said HUF could have possibly utilized for making investment in further acquisition of more agricultural lands. 4) Therefore, there is no possibility of further accumulation and increase in the assessee HUF’s agricultural income on account of further acquisition of agricultural lands. 5) There being no scope for any substantial surplus or savings out of the agricultural income of the Bigger HUF, the theory of cash and other assets found, being the manifestation of the said surplus / savings, in not found to be genuine. Encl: 1. annexure ‘A” (Page-1) : letter to MPKV Rahuri dt. 19/02/2014. 2. annexure ‘B” (Pages 1-4) : letter to assessee dt. 16/04/2013. 3. annexure ‘C” (Pages 1-4) : letter from assessee dt. 09/10/2012.” 14. Thus, it is the finding of the Assessing Officer that (i) MPKV linked direction of Tribunal is not implementable; (ii) the contents of the return of income of HUF can be the basis and 10% of the assessee claims is reasonable; (iii) with only Rs.33,02,611/- of surplus agricultural income, the assets/property valuable discovered in search action remain unexplained. Further, the livestock, manure and fodder receipts constitutes taxable and not exempt agricultural income. 15. Aggrieved with the above finding of the Assessing Officer and also non- compliance to the order of the Tribunal, the assessee filed an appeal before the CIT(A).

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Before the CIT(A) in second round: Assessee made various 16. submissions, filed statements, evidences etc in support of the claims in the return of income. On considering the same, the CIT(A) confirmed the above order of the Assessing Officer, in principle. However, CIT(A) is of the adhoc opinion, the estimate needs to be made applying the rate of 15% instead of 10% adopted by the Assessing Officer. CIT(A) confirmed other findings of the Assessing Officer on livestock, manure, fodder etc. Before the Tribunal – 2nd Round: Aggrieved with the finding of the 17. Assessing Officer/CIT(A), the assessee filed the present appeal before the Tribunal with the following original/concise/revised grounds. The final set of grounds are extracted as under :- “1. The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in estimating agricultural income @ 15% of agricultural income declared by the asseessee and the same is erroneous and in violation of guidance provided by the Hon’ble Income Tax Appellate Tribunal while setting aside the earlier order u/s 171. 2. The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in ignoring yield from crops which are not recorded in 7/12 extracts. 3. The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in ignoring sale proceeds of fodder and manure in determining agricultural income. 4. The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in adopting cost as per MPKV data without adjusting for deficiencies and specific circumstances applicable to the case of the assessee HUF. 5. The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in ignoring live stock income in adopting amount available for investment. 6. The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in holding that the assessee has no investible surplus from agricultural income and the income is merely sufficient to meet house hold expenses. 7. The learned Commissioner of Income Tax (Appeals) and the learned Assessing Officer erred in holding that the assessee HUF does not own any assets and investments. 8. The appellant prays that:

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i) It may held that assessee had sufficient income to explain assets and investments made upto 31.03.2000 and 31.03.2007; ii) Appropriate amount may be held to be earned from agricultural income; iii) Appropriate amount may be held to be earned from live stock and the same is available to make investments; iv) Personal hearing may be granted, v) Any other relief your honours may deem fit. 9. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.” 18. From the above grounds (i) the non-compliance of Assessing Officer to Tribunal’s directions and his decision to pursue the estimations as the way of determining the amount of agricultural income of the assessee-HUF at 10% by CIT(A); (ii) rejecting the assessee’s claim of earning income from Manure/Fodder/Livestock sources; (iii) receiving the MPKV data with assessee – specific cost data with adjustments as the base for quantifying the HUF-income, and the core issues for adjudication. AR’s Submissions before the Tribunal Oral Submissions: Explaining and criticizing the decisions of 18(A). the Assessing Officer and the CIT(A), ld. Counsel for the assessee made various submissions highlighting the Assessing Officer’s failure in complying with directions of the Tribunal in first round. In first round, the Tribunal directed the Assessing Officer to estimate the MPKV data with necessary assessee’s specific changes to the said data for the purpose of quantifying the gross agricultural income, gross agricultural expenditure, net agricultural income, surplus agricultural income available with the assessee. Otherwise, this is a case where the Assessing Officer out-rightly rejected the assessee’s estimate and the data maintained by the MPKV. Addressing to the core

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issues decided by the Assessing Officer against the assessee, ld. Counsel for the assessee highlighted the same and requested for undoing the unfairness in the decisions of the I.T. Authorities. Ld. AR addressed to some of these decisions which are separately discussed in the following paragraphs. A. Assessing Officer’s finding on the extent of the agricultural holding of HUF - the generation of agricultural income: After discussing the agricultural holding properties of Bigger HUF, the Assessing Officer gave a categorical finding that the said HUF is certainly left with properties of the grandparents amounting to 60.40 acres of land and the same is the basis for generation of agricultural income since 1952. Further, in quantifying the agricultural income in the assessments since 1952 @ 10% of the reported agricultural income in return of income as the net agricultural income (after substracting the livestock income) of the assessee, Assessing Officer partly accepted the assessee’s claim of gross agricultural income indirectly and rejected the MPKV data and also the claims of agricultural holding of above 188 acres of agricultural lands. Assessing Officer held that agricultural income so calculated is meager and not adequate for acquiring agricultural lands, other properties, valuables and also personal withdrawals for the co- partners. 18(B). In this regard, before us, ld. Counsel for the assessee prayed for directing the Assessing Officer to accept the claims of the assessee made before the ITAT now. These claims include (i) the rejection of the adhocism of calculating the net income applying the 10% flat rate on the income disclosed by the assessee in the returns and (ii) relying on MPKV data with necessary changes specific to the assessee. The ld. Counsel for the assessee filed the

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said chart/submission broadly relying on the MPKV data when it comes to gross yield and gross agricultural income figures of 7 crops recorded in the 7/12 extracts. 18(C) With reference to the agricultural expenses, ld. AR made an assessee’s specific adjustment thereby the agricultural expenditure figures undergo substantial changes. In this regard, ld. Counsel highlighted the facts relating to the absence of finance cost for agricultural activities interest burdens, absence of labour expenses, bullock power etc. Referring the cost calculation of agricultural, ld. AR desired making changes to all the 9 heads of expenses appearing in the data sheet of MPKV for each crop. Relevant charts/workings are extracted in the subsequent paragraphs dealing with agricultural cost topics. B. Gross Yield: Commenting on the errors appeared in the working of gross yield of the 7 crops, ld. AR submitted that the Assessing Officer made various typographical and arithmetic mistakes while generating the 8.50% which in turn led to his decision to adopt 10% reported income as the assessee agricultural income. The details of the errors were narrated by the ld. AR before us. In the written submissions of the assessee contains the details and they are required to be corrected. The same were discussed elaborately in the open Court and ld. DR agreed for removal of such errors. If the said arithmetic errors and other omissions are removed the gross yield figures for all the crops are in tune with the statement filed by the assessee before us. It is also to be mentioned that out of the 7 crops which were considered in the 7/12 extracts of four of the crops have a regular data and rest of the crops had to be worked out with support of the said data for the

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said crops or the data of the other years. Otherwise, the 7/12 extracts reports the said 3 crops in other financial years. Particular reference was given to the gross yield figures for the assessment year 2002-03 as done by the Assessing Officer in the assessment/remand proceedings. The figures for the assessment year 2002-03 are considered, and therefore, the gross agricultural income works out to Rs.8,41,537/- for the assessment year 2002-03. About this finding both the parties submitted for considering the same as a gross agricultural income before the said agricultural expenses is considered. The livestock, fodder and manure receipts are discussed separately. In this regard, ld. Counsel for the assessee furnished the following written submissions :- “63.1 In its submissions in para xix(b), the learned DR has objected to considering receipts for crops other than 7 crops considered in working for A Y 2002-03. 63.2 The assessee submits that in the working now furnished in paper book 16, only gross receipts from 7 crops have been considered. 64.1 In its submissions in para xix(d), the AO has objected to inclusion of fodder and manure in the gross receipts. 64.2 The assessee submits that in the working now furnished in paper book 16, gross receipts from fodder and manure have not been separately considered. 64.3 Without prejudice, the assessee objects to the logic used that when by product sale is considered, fodder is considered. The assessee submits that its claim for fodder is supported by huge fallow land even as per the AO and not sale of by products as fodder. Further by products have been considered on the basis of MPKV data and even the AO has considered the same in his working for A Y 2002-03. 65.1 The learned DR mentioned during the hearing, that self consumption of products grown has not been considered by the assessee in working out the income. 65.2. In this regard the assessee submits that the basis of estimate is survey sheet prepared by MPKV and furnished to the AO. A cursory look at the sheet shows that it is data obtained by a MPKV personnel directly from a farmer. In the row for yield, quantity is mentioned in quintals in specific figures and not round figures and sale rate and sale amount is also mentioned in specific figures with the same specific information for quantity, rate and value of by products. Obviously, the information is collected from farmer on very specific basis. Now if the information is collected from farmer about sale made by him, obviously the farmer has informed the surveyor about the quantity as weighed at the market yard as the farmer does not own weighing scale. If the farmer

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has informed sale quantity as weighed at market yard, it does not include quantity that the farmer retained back at his farm for self consumption. If the DR is making assumption of self consumption, then such self consumption is also to be presumed at the survey stage as the quantity reported to the MPKV surveyor will be net of self consumption. Therefore, when the assessee has adopted yield figures as per MPKV, self consumption has been appropriately considered.” C. Cost of Agricultural Activity Income: In the agricultural activities undertaken by the assessee involves agricultural expenditure and various expenditure sub-headings like cost on seeds, fertilizers, labour, working capital cost, lease rental, bullock power etc. MPKV data charts reflect such a cost for an agricultural activity. However, in the second round of the proceedings, the Assessing Officer considered 90% of the gross agricultural income constitutes the agricultural expenses and allowed only 10% as the net agricultural income. In the process, the formula of 90:10 (agricultural expenses : agricultural income) is followed. Commenting on the above method/formula, ld. Counsel for the assessee submitted that there are already existing decisions of this Tribunal in favour of various formulas 85:15, 75:25 etc. The case laws relating to Shri Dattatraya Waman Patil (supra) and Shri Patil Dilip Baburao (supra) were cited. However, there is no case mentioned by both parties about the relevant formula for cereal/millet. It is the submission of the assessee that this cereal/millet does not involved much the expenditure as they are dry land crops. Therefore, the formula of 65:35 ratio (agricultural income : agricultural expenditure) was proposed. This request is made notwithstanding the MPKV data with adjustments, if any. When reference is made by the Tribunal of its existing direction on MPKV data, referring to the loss figures mentioned in the MPKV data sheet, ld. Counsel submitted that this MPKV data collected by the Assessing Officer is for the purpose of arriving at the Governmental Support Price to be fixed

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for the farmers of those areas. Therefore, as per the ld. AR, these MPKV data needs amendment/adjustment to apply to the assessee. In this regard, ld. Counsel brought to our notice the page 1788 of the Paper Book where the gross yield and cost of agricultural activities were tabulated for 4 cereal/millet/cottons & proper/complete data is available for these crops and a reliable agricultural income/expenditure formula can be derived. According to the said chart for the assessment year 2002-03, ld. Counsel mentioned, after adjustments are made to the MPKV data sheet, the present formula of agricultural income/net agricultural expenses is in the ration of 51.04 : 48.96. The details of working are inserted in the later page of this order. In this regard, ld. Counsel objected to the finding of the Assessing Officer and the CIT(A) and requested for considering appropriate formula i.e. 65:35 and 51:49 etc. As per ld. AR, the Assessing Officer’s 90:10 formula is a biased one and constitutes complete deviation from the said MPKV data. Ld. AR prayed for rejecting the same. Ld. AR prayed for extrapolation of the formula so arrived at for the assessment year 2001-02 and whatever the formula approves decided only utilize the same to various other assessment years starting from 1953-54 up to 2006-07 ignoring the minor difference in crops, agricultural income, agricultural expenditure etc. Assessee consider price fluctuation @ 2% in these extrapolations to other assessment years. On Assessing Officer’s Calculation Mistakes: Referring to the 19. backgrounds facts whereby the Assessing Officer resorted to ad-hoc rate of 10%, ld. Counsel demonstrated the fallacy of Assessing Officer’s working are pleaded for rejecting the same to fully. Referring to 8.75% worked out by the Assessing Officer, ld. Counsel submitted that, if the errors and omissions are removed, the formula would be 12:88 being agricultural income : agricultural

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expenditure. The errors relates to the by-product calculation too. There are totaling mistakes with regard to the figures of Rs.6,46,478/- and others. In this regard, the ld. Counsel for the assessee filed the following written submissions :- “51. The assessee has prepared reworked cost sheets for four crops being Jawar, Wheat, Bajra and Cotton and the same is filed in paper book 14. In the reworking of cost, the assessee has excluded amount adopted as cost towards the six items, as discussed in para 31 herein above, which were brought to notice of the AO as well as CIT(A). The assessee has also excluded cost towards bullock power, manure and incidental charges as not applicable in its case. Copy of the working is at page 1788/PB 14. 52. The assessee submits that it has excluded three more items as they too do not relate to the assessee. It will be appreciated that the assessee is owning 60 acres of land since the year 1952. By any standards 60 acres of agricultural land is a large holding just at the time India gained independence. Even if one were to discount the possibility of assessee HUF rearing livestock for selling them, it cannot be denied that an entity owning 60 acres of agricultural land in the year 1952 would be owning a few bullocks and cows used for agricultural activity. The nature of expense recorded in MPKV cost sheets is of hire of bullocks for carrying out agricultural activities. Therefore, one can make a reasonable assumption that there would have been no need to hire bullock by the assessee HUF. Similarly, purchase of manure is in addition to purchase of fertilizers. Once purchase of fertilizer is already considered in cost working, there is no need to consider purchase of manure by a entity owning bullock and milch cows. The last item reduced is incidental expenses, which though a small amount is merely an estimate and not supported by specifics. The assessee therefore submits that all 9 items, 6 originally considered while making submissions to the AO and 3 further reduced while making the present working have been correctly reduced as not applicable in the case of the assessee. 53. The copy of cost sheets as furnished by MPKV to the AO for the four crops are at page 1403 (Wheat), 1411 (Jawar), 1414 (Bajra) and 1421 (cotton) of Paper book 7. For Maize, the Assessing Officer has not relied upon any cost sheet but has adopted net income at 20% of gross receipts. In respect of other two crops being Gram and Sugar Cane, the assessee could not locate any sheet from the information supplied by the Assessing Officer. It seems that for the said two crops, the Assessing Officer has adopted average of different sheets as can be seen from following note on page 27 of the order u/s 171: "Net income is reasonably assumed at 20%, for maize, as no item wise details is available. Note: Where, there are different varieties of crop, estimation is made on the basis of average amounts, while preparing the above chart as the assessee has not specified the variety quality of its crops, wherever deemed necessary)." 54. However, once the amendment is carried out to the cost, for the four crops for which sheets are available, the average profit as per the MPKV data itself works out to 51.04%. It will be appreciated that only costs not related to the assessee HUF have been excluded on not because they are inflated or excessive costs. Therefore one will have to make a reasonable allowance for inflation of cost as per MPKV survey data. 55. The assessee seeks to bring to your Honours notice the disparity in cost estimated by MPKV and the MSP declared by the Govt of India. The said

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disparity is not factored in the NP percentage of 51.04%. The assessee submits that for all the years for which data was obtained by the department, the MPKV cost estimate is higher than MSP declared by the Central Government. Also, the report of the Niti Ayog shows that MSP is accepted by farmers as giving them fair return sufficient to make some investments out of the income earned. Therefore, one can safely presume that cost as per MPKV is inflated by a small percentage. Further, one can make a reasonable assumption that Central Government would have factored a return of at least 20% in the MSP price for the farmer. If 20% is considered on sale price, it will amount to 25% on purchase price. If 25% of revised cost of 48.96% is considered as excessive cost estimate, then it works out to 12.24% which reduced from 48.96 gives a cost percentage of 36.72%. If cost is 36.72%, profit will be 63.28% Which is near to 65% adopted by the assessee. 56. The assessee therefore submits that if factor of inflation in cost estimates of MPKV is factored and 9 items of cost which do not relate to the assessee to determine cash income, the profit percentage on sale price works out to 65%. Comments on submissions of the DR on cost 57.1 The learned DR has furnished written submissions along with its own version of alternative income working. The department has furnished cost working by excluding only 6 cost originally proposed by the assessee and according to the same the profit percentage works out to 29.48%. 57.2 The assessee submits that as discussed above, even the other three items do not apply to the case of the assessee HUF and the same have to be excluded. Further the revised cost working both by the assessee and the department has not factored the fact that the Central Government has in each of the year in which data is received by the DDI from Central Government, declared MSP which is lower than cost estimated by Govt of Maharashtra which has been adopted as the starting point for the reworking of cost. The assessee submits that what has been excluded in reworking of cost is only cost not applicable in the present case, whereas some adjustment is also called for the inflated figures of cost reported by the MPKV to Maharashtra Govt which in turn was forwarded to the Central Government to enable it to declare the MSP. 57.3 The assessee therefore submits that estimate of NP percentage of 65% is fair and reasonable and supported by data procured by department from Government agencies with necessary adjustment. Reworking of gross receipts for alternative working 58. Without prejudice to its claim, the assessee has ignored the 3 receipts as described in para 34 herein above, being crops not mentioned in 7/12 extracts, in the amended working attached in paper book 16. Similarly, receipts on account of manure and fodder and income from live stock has been separately mentioned and not included in income figures. 59. For maize, data of MPKV was not available with the AO too and he had adopted gross turnover as per the assessee's estimate. In the present working, for Maize, the assessee has adopted gross receipts as per original working submitted by assessee 60. Land statement for F Y 52-53 onwards is at page 333/PB 2. For F Y 52- 53 to 56-57, the area mentioned in those statements is in acres and not hectares. While preparing fresh income working, the assessee has adopted area in hectares by making necessary amendments for uniformity in comparison 61. The assessee has adopted yield as per MPKV and the same is adopted as base. MPKV data is available only upto F Y 1983-84. For yield prior to those

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years, the assessee has adopted yield of later years. Copy of statement of yield adopted for extrapolation to various years is at page 1890-96/PB 14. 62. For sale rates, wherever MPKV data is available, the same is adopted. If the same is not available, the assessee has adopted sale rates as per APMC Sangola, the said details are at page 1793-97/PB 14 and was furnished before the AO. Where no evidence for sale rate is available for a particular year, the assessee has adopted price increase of 2% p.a. and accordingly prior or later year's data is adopted with necessary adjustment @ 2% p.a.” D. Assessing Officer’s findings in second round – livestock income other receipts: (1) Regarding the live stock income, it is the case of the assessee that the live stock income was consequential to the agricultural activities undertaken by the assessee on his agricultural (HUF) lands. Generally, all agriculturists maintains the livestock like cows, cattle, goats, etc. Merely on the basis of estimation, the assessee worked out the live stock income i.e. purchase and sale of cattle, animals etc and claimed the said income exempt income. This is the way of the livestock-agricultural income was reflected in the returns of the assessee. The same was considered as source of income for explaining the aforementioned unaccounted assets such as property, jewellery, seized cash etc. In the assessment and remand proceedings, the Assessing Officer rejected the claim of livestock income as exempt income. However, Assessing Officer accepted the entire income as the income of the assessee. Assessing Officer proceeded to tax the same wherever, the taxation is possible i.e. for assessment year 2002-03 and other later assessment years. Such income for assessment year 1953-54 till 2001- 02, Assessing Officer did not tax such livestock income. Hence, the same was part of the surplus income in those assessment years. However, this income was not considered by the Assessing Officer while quantifying the available net surplus income of the assessee. Thus, the Assessing Officer considered the above argument of the assessee and dismissed the agricultural nature of the said livestock income. In this regard, ld. AR for the assessee objected to

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the contradictory stand of the Assessing Officer/CIT(A). Contradiction is that the Assessing Officer on one hand recognized the existence of the income and did not consider the same as an available surplus on the other. However, Assessing Officer did not give benefic of this income as sources for explaining the investments in the lands/properties etc. The ld. AR reasoned that when the income is taxed, the same is available for explaining the investments in the properties/lands. In this regard, ld. Counsel prayed for grant of set off of these incomes for explaining the sources of the said assets. Other Receipts: As seen from page 1798 and 1799 a chart 2. showing the summary of agricultural income and other income, there is a claim of agricultural income on account of sale of fodder and manure (column no.5 of the chart) Rs.26,74,689/- is considered to be such sale proceeds out of the sale of fodder and manure from the assessment years 1953-54 to 2006- 07. Rejecting the claim of the assessee i.e. agricultural income nature, the Assessing Officer taxed the entire claim of sale proceeds of fodder and manure. For the assessment years 2001-02 to 2006-07 the claims for other years could not be taxed due to litigation of tie. In other words, out of claim of Rs.26,74,689/-, the Assessing Officer taxed an amount of Rs.4,14,900/- (for the assessment years 2001-02 to 2006-07). In this regard, the Assessing Officer did not give benefit of set off for this tax income against the investment of properties. The ignored the existence of such income in the past having taxed the similar income in the later years i.e. assessment years 2001-02 to 2006-07. It is claim of the assessee that since, taxed income, the entire claim amounting to Rs.26,74,689/- should be considered existing and granted benefit of set off of the said income against the unaccounted assets discovered during the search action. Further, it is the claim of the assessee

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that earning of income on account of sale of manure and fodder is consequential to the fact of agricultural activities on the lands of the assessee. 20. We have so far narrated the Assessing Officer’s finding on the (i) agricultural income; (ii) livestock income; and, (iii) other manure/fodder income and the Assessing Officer’s treatment to the claims of the assessee. Now, we shall deal with the deduction of agricultural expenses against the gross agricultural income. Regarding this deduction, in the absence of the direct evidence, the Assessing Officer held 90% of the gross agricultural income should relate to the expenditure. No deduction is allowed from the livestock, manure and fodder receipts. However, the CIT(A) allowed 5% additional relief and held that 85% should be the expenses account. On this aspect, now before us, ld. AR pleaded for treating 65:35 as reasonable. Formula of 65:35 : Further, on the formula of 65:35 (income : 21. expenditure), the assessee filed the written submission at various occasions explaining (i) the yield and earning of the gross agricultural receipts; (ii) cost of cultivation related issues; (iii) the correctness of MPKV data and its relevance to the assessee; and, (iv) the correctness of earning of livestock income, fodder income & manure income were also tallied in the written submissions. Further, the assessee also filed a submission justifying the issues of agricultural income and relied on the decisions of the Tribunal in the case of (i) Dattatray Waman Patil; (ii) Anjum Saukat Bhagwan; and, (iii) Arish Bhagwan justifying the outsourcing of the MPKV data for the purpose of

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estimation. In this note, ld. Counsel for the assessee demonstrated the existence of agricultural income at the rate of 65% (35% of agricultural expenses) in the context of crops other than vegetables and fruits. The relevant submissions are extracted as under :- “39. The assessee seeks to rely on following judgements of Hon’ble Income Tax Appellate Tribunal, Pune Bench on issue of estimate of agricultural income : 40. Dattatray Waman Patil, copy enclosed at page 332A to 332H of Paper book 1. It has been held (see para 10) that data from various authorities like Dhule District or MPKV are estimates and have to be used with necessary adjustments. 41. Anjum Saukat Bhagwan, copy enclosed at page 1706-24 of Paper Book 11. It has been held in para 24 that absence of entry in 7/12 extracts about a particular crop being grown is not final and crop may have been grown which is not entered in 7/12 extracts. Also, rate of NP of 80% has been considered as appropriate for fruits and vegetables. 42. Arish Bhagwan, copy enclosed at page 1579-1586 of paper book 8. It follows the judgment in case of Anjum Saukat Bhagwan. 43. Devendra P Shah, copy enclosed at page 1567 to 1578 of paper book 8. At internal page 12 in para 5.4 it has been held that profit percentage of 65% is appropriate for crops other than vegetables and fruits.”

Formula of 51:49 : Further, on the percentage figures of 51.04 : 22. 48.96%, another formula revolved by the assessee on the basis of MPKV data, the assessee made the following submissions in favour of his formula of 65:35 :- “55. The assessee seeks to bring to your Honours notice the disparity in cost estimated by MPKV and the MSP declared by the Govt of India. The said disparity is not factored in the NP percentage of 51.04%. The assessee submits that for all the years for which data was obtained by the department, the MPKV cost estimate is higher than MSP declared by the Central Government. Also, the report of the Niti Ayog shows that MSP is accepted by farmers as giving them fair return sufficient to make some investments out of the income earned. Therefore, one can safely presume that cost as per MPKV is inflated by a small percentage. Further, one can make a reasonable assumption that Central Government would have factored a return of at least 20% in the MSP price for the farmer. If 20% is considered on sale price, it will amount to 25% on purchase price. If 25% of revised cost of 48.96% is considered as excessive cost estimate, then it works out to 12.24% which reduced from 48.96 gives a cost percentage of 36.72%. If cost is 36.72%, profit will be 63.28% Which is near to 65% adopted by the assessee.

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expenditure at the rate of 51.49%. The assessee’s surplus agricultural income alone is sufficient to explain the agricultural lands acquired in assessment year 1966-67 (Rs.12,88,801/-), in assessment year 1972-73 (Rs.6,90,503/-) and other agricultural income acquired in the assessment years 1991-92 to 2000-01. The assessee invested in these years on the additional agricultural lands. Available surplus agricultural income at the rate of 50% works out to around 62.2 crores against the investments in agricultural lands amounting to Rs.41,38,204/-. E. Income Quantification for A.Y. 2002-03 by A.O.: For the assessment year 2002-03, as per the gross receipts i.e. exempt income out of agricultural crop sale, sale of manure, sale of fodder, sale of live stock etc is Rs.21,01,455/-. Against that the Assessing Officer determined the exempt income of Rs.1,43,880/-. In the process, the Assessing Officer disallowed or treated certain sale of income as taxable income i.e. (i) less sale of live stock of Rs.11,47,500/-, (ii) less sale of manure of Rs.34,600/-, less sale of fodder of Rs.26,400/-. In the process, the Assessing Officer rejected the assessee’s claim and adopted a new way of quantifying the agricultural income of Rs.1,43,880/- being 10% of the assessee’s gross receipts agricultural income at Rs.21,01,455/-. The Assessing Officer did not completely deny existence of the income taxed the same as income from other sources. In the process, the live stock income of Rs.11,47,500/- is treated as taxable other income in adopting the said 10%, the Assessing Officer compared the net income of Rs.83,487/- with gross receipts of Rs.10,96,784/- of the assessee. Giving ratio 8.75%, the Assessing Officer rejected the said percentage before gross estimating the same at the rate of 10%. Around some figure falls under the rate of 10%, the Assessing Officer applied 10% on the total agricultural

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income of Rs.14,38,800/- to determine the estimated income of Rs.1,43,880/-. In the process, the Assessing Officer held that agricultural expenses would be 90% of the gross receipt. Assessee objected to the said ratio of 90:10 (Agricultural Expenditure : Agricultural Income). In the background of the above, as the principle of reasonableness, it is a prayer of the assessee that the formula 65:35 is proper and certainly not the formula 51:49 or 50:50 etc (agricultural income : agricultural expenditure). DR’s Arguments 25. Per contra, ld. DR also filed written submissions in three different occasions. In the first and second occasion, the ld. DR filed the following written submissions (conclusion of the submissions) :- “On consideration of the above issues highlighted, the following conclusions are drawn:- > The working submitted by the assessee HUF is a pure estimation and is not supported by any evidence whatsoever. > In estimating the various elements of cost as per the method arising from MPKV data, the assessee HUF has excluded certain heads of expense as per its convenience. On reworking of the estimation after inclusion of the excluded heads of expenses, it is seen that the result is a deficit in all the years. It can be inferred from the deficit arising in all the years, that the assessee did not have surplus available for investing in lands purchased in various years. > It is therefore concluded that the working of the agricultural income submitted by the assessee HUF can be verified only for arithmetical accuracy and no comments can be offered on factual veracity of the claims by the assessee HUF. Thus it can be seen that the claim of Shri M. N. Navale that various assets in the form of properties, cash, jewellery etc. have been procured out of surplus generated out of agricultural income is factually incorrect and it is just an afterthought to evade taxation of the relevant income in the respective hands.” 25(A) In the third occasion, ld. DR filed the following written submissions :-

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“This is in continuation of written Submission -2, submitted in this case, which contained the ‘Note’ submitted by the Assessing Officer on Paper Book No 14 expressing reservations on the manner in which the appellant proposes to substantiate the surplus arising from the agricultural income claimed by the appellant to have been earned during the period 1952-53 to 2006-07. The Appellant has now submitted a reworked chart for the same period at Page Nos. 1967 and 1968 of Paper Book submitted to the Hon’ble ITAT/ The CIT(ITAT)- DR. In this regard, the comments of the undersigned are submitted as under:- (a) The comments given earlier in Written Submission-2,on the adoption of ratios of 50% and 65% are reiterated and it is stated that the assessee HUF has adopted two ratios i.e. 65% of the gross agricultural income and 50% of the gross agricultural income. Both these ratios are without any verifiable basis. Further, the ratio of 50% is observed to be excessive in so far as if the surplus worked is reworked after considering the expenses viz. bullock power, manure an incidental charges, then the surplus available to the assessee HUF is reduced substantially in so far as there is deficit in all the years under consideration. (b) The comments given earlier on the quantum of household expenses adopted are reiterated and it is stated that the estimation of the household expenses claimed to have been incurred by the assessee HUF are without any basis and have been estimated at very low amounts. (c) The appellant has not submitted any new evidence in so far as the chart now submitted is just a reworking of the earlier chart submitted. The following observations made earlier are resubmitted and reiterated as under:- > The working submitted by the assessee HUF is a pure estimation and is not supported by any evidence whatsoever. > In estimating the various elements of cost as per the method arising from MPKV data, the assessee HUF has excluded certain heads of expense as per its convenience. On reworking of the estimation after inclusion of the excluded heads of expenses, it is seen that the result is a deficit in all the years. It can be inferred from the deficit arising in all the years, that the assessee did not have surplus available for investing in lands purchased in various years. > It is therefore concluded that the working of the agricultural income submitted by the assessee HUF can be verified only for arithmetical accuracy and no comments can be offered on factual veracity of the claims by the assessee HUF. Thus it can be seen that the claim of the appellant that various assets in the form of properties, cash, jewellery etc. have been procured out of surplus generated out of agricultural income is not substantiated.”

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the manner above by the Assessing Officer/CIT(A). Taxation of livestock income as other sources income. Ld. DR justified all the decisions of the I.T. authorities. Assessing Officer was also present before us. Commenting on the MPKV data collected by the Assessing Officer, ld. DR submitted that the data gives unrealistic picture and the same should be rejected. Referring to the loss figure, Ld. DR submitted that Assessing Officer quantified the income details realistically and the same need to be accepted of the gross receipt are worked out on MPKV data, the expenditure data should also be considered from the same source. In which case, the agricultural income of the assessee for that year could be 8.76%. Rebutting the above objection of the ld. DR for the Revenue, ld. Counsel took us loss of Rs.13,652/- (Page 1753 of the Paper Book). In the process, this calculation was not accepted by the Assessing Officer as he adopted 10% of the gross receipts. As per the assessee, MPKV figure as lower. In this regard, ld. DR’s argument is that the Assessing Officer could not be found MPKV data. Page 1744 and 1745 of the Paper Book, para 3.4.5 mentioning that it is never case of loss, ld. Counsel for the assessee relied on the reports of the Niti Aayog. Further, referring to the contents of para 5.3.5, ld. Counsel highlighted the facts relating to the agricultural is a main source of income and not the agricultural losses. Further, referring to data given in said para, ld. Counsel highlighted the facts relating to the agricultural income source to certain household. He also submitted the facts MSP scheme of the Government held for the farmers in generation of agricultural income in that area. In fact, the case of the ld. Counsel for the assessee that if MPKV reports are valid qua the facts of agricultural product, it is a case of loss, which is not the case of earned agricultural income and, therefore, for the purpose of cost production data from MPKV must consider. On cost of production, the case of the Revenue is that the Assessing Officer

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answered these facts and with due regard to the MPKV, he estimated the income of the assessee at the 10% of the gross receipts as per the scheme of the assessee. Thus, it is the case of the Revenue that the data collected from the MPKV is not available for all the years ever since 1952 and, therefore, the estimation of income adopted by the Assessing Officer applying the flat rate of 10% of the exempt income as returned by the assessee in the returns of income and estimation of said income applying the flat rate of 15% as done by the CIT(A) in his order is fair and reasonable. Whether 10% or 15% estimated by the Assessing Officer and the CIT(A) respectively, the net income so arrived at as just enough to meet the household expenditure of the percentage and, therefore, no income is available for appropriation or to explain the sources of the loans/agricultural lands/jewellery/flats/farm houses etc. However, difficulty in utilization MPKV data for arriving at the agricultural income of the assessee was highlighted. Findings of the Tribunal 27. Having deliberated on the arguments of both the counsels, we shall now take up the ground-wise adjudication. The summary of the grounds is as under. Summary of Grounds: In ground no.1, assessee is aggrieved with the 28. order of the CIT(A)/Assessing Officer, who merely resorted the blank estimation of agricultural income instead of complying with the written directions of the Tribunal. In the first round, the Tribunal directed for

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quantifying the agricultural income of the assessee based on the MPKV data with necessary changes specific to the assessee-HUF. The said direction stands violated by the Assessing Officer and the CIT(A) and the assessee is aggrieved with the same. Ground no.2 relates to the yield from crops grown in agricultural lands of the HUF. In other words, it relates to the total agricultural income of the assessee. In ground no.3, assessee is aggrieved with the decision of ignoring the assessee’s claim of earning receipts only the sale proceeds from the fodder and manure generated in the assessee’s lands. Ground no.4 relates to the agricultural cost incurred for earning the agricultural income. There exists various formula in this regard. Where the assessee claims that the assessee incurs 35% of the agricultural income and the Assessing Officer/CIT(A) adopts 85% to 90% of the same. Ground no.5 relates to non-consideration the “livestock income” for explaining the sources of investments in lands/properties etc. Ground nos.6 and 7 constitute argumentative. The ground-wise adjudication given in the following paragraphs. Ground no.1 Ground no.1 relates to the non-compliance to the Tribunal’s 29. directions: The assessee’s claim regarding the existence of Maruti Nivrutti Navale Bigger HUF and corpus of HUF (60.40 acres of the land since 1952), the Tribunal accepted the same and, however, it remanded the issue of quantification of land holdings earnings from the said lands to Assessing Officer. In the first round of proceedings, the issues are recommended to the file of the Assessing Officer for quantifying the agricultural income earned by the assessee, the availability of the surplus agricultural income accounting for the investments in additional agricultural lands/other assets after netting

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the personal expenditure. The relevant para from the order of the Tribunal dated 07.2.2017 (supra) was already extracted in the preceding paragraphs. In this regard, the Assessing Officer was under directions to consider the MPKV data as a source data with the necessary modification. 29(A). However, the Assessing Officer did not comply with the above directions of the Tribunal (supra) for his own stated reasons and, eventually, estimated the agricultural income of the assessee applying the flat rate of 10% of the agricultural income returned by the assessee. In the remand proceedings, the Assessing Officer held that the livestock, fodder and manure receipts constitute taxable income. It is the finding of the Assessing Officer, with the said estimation of agricultural income, that the assessee is left with no surplus agricultural income for investing in the additional agricultural lands and other assets. In-fact, the assessee claimed the agricultural lands holding of 60 acres since 1952 and presently, assessee Bigger HUF holds the lands around 188 acres as on date. 29(B). During the proceedings before us, now the assessee objected to (i) the Assessing Officer’s manner of quantifying the agricultural income, (ii) Nil availability of surplus funds for accounting for subsequent acquisition of agricultural lands, (iii) ignoring the directions of the Tribunal (supra) for lying on the MPKV data both the agricultural receipts and agricultural expenditure, (v) resorting against to the estimation applying the flat rate of 10% of the agricultural income shown in the returns filed by the assessee-HUF. 30. Highlighting the said finding of the Tribunal in the first round, Ld. Counsel submitted that the MPKV data for assessment year 2002-03 should

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constitute the basis for determining the gross agricultural receipts and relatable agricultural expenditure. If the gross agricultural receipts and agricultural expenditure is quantified based on the MPKV data read with the 7/12 extracts for the relevant period, the same will continue compliance to the order/direction of the Tribunal (supra) in the first round of proceedings. 31. In the remand proceedings, the facts that the Assessing Officer gathered the requisite data from the MPKV was brought our attention by the ld. Counsel for the assessee. On plain reading of the said data, Assessing Officer noted that the agricultural income of the assessee will be in losses if the data is adopted without any adjustments. The Assessing Officer committed various mistakes in analyzing the MPKV data too. In the process, the Assessing Officer overlooked the directions of the Tribunal regarding the making of requisite adjustments specific to the assessee. The case of the assessee – Ratio of Agricultural income : 32. Agricultural expenditure: Assessee objected to the Assessing Officer’s estimation @ 10% and the reasons for doing so. It is the case of the assessee that, if Rs.100 is gross agricultural income, around 35% of the same is incurred on agricultural expenditure. Certainly, Rs.90/- is never spent to earn Rs.10/-. It is also born out of the records by way of the order of the Tribunal (supra) that the said agricultural income is vary from one crop to the other crop. The expenditure incurred for quantifying the serial crops which are annually seasonal crops is different from the expenditure incurred on the perennial trees. In any case, neither the assessee nor the Revenue has clear data on this crop-wise expenditure details. Therefore, considering the direction of the Tribunal (supra) in the first round of proceedings in

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assessee’s own case, the MPKV data has become extremely relevant for the agricultural expenditure with details also. However, there is requirement of adjusting the agricultural cost details to the data covered by the MPKV in that area/district. On these details, the assessee furnished a table, copy of this placed at page 1788 of the Paper Book. The table shows that the adjustments made to the cost details. It is the case of the assessee that the assessee has not incurred any interest working capital, no depreciation of farm and instrument (being notional cost) no rental was paid over the land cultivated, no family labour male or female was incurred, no cost of bullock power is involved and no expenditure on manure and other incidental charges. In all these expenditures are not relevant for the agricultural of the assessee and therefore the same is required to be reduced from the agricultural cost estimated by the MPKV. If the same is considered, the net agricultural cost incurred by the assessee is comparatively to the lessor.

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Cost which are not relatable Less: to HUF 508.19 665.59 427.89 1,222.21 I Interest on working capital Depreciation of farm 337.62 1,145.80 418,97 626.96 II instrument (being notional cost) 2,676.89 2,143.17 2,896.99 III Rental Value of Land 1,544.45 422.32 2,633.05 1,015.41 1,431.98 IV Interest on Fixed capital Family labour-male (being 899.34 1,353.80 500.60 1,123.84 V notional cost) Family labour-female (being 236.60 419.29 999.73 VI notional cost) 2,139.03 1,425.45 1,262.24 2,375.09 VII Bullock power 317.45 685.03 322.39 VIII Manure - 128.05 152.05 129.32 21.08 IX Incidental charges CIT(A) Total cost not relatable to 6,533.05 11,156.95 7,219.72 9,698.15 Cost as can be relatable to D 4,707.95 7,277.34 4,417.75 9,252.96 HUF's land and family conditions (B-C) Modified per quintal Cost E 271.20 359.20 220.89 1,017.93 relatable to HUF (D/A) E(a) Total cost 1,12,002.13 25,470.69 24,297.63 41,638.32 Cost as taken by AO (per 459.10 844.35 407.55 2,084.97 F quintal) Sale value by adopting yield 2,25,361 56,850.00 55,847.00 77,436.00 F(a) 4,15,494.00 and sale rate as per MPKV (page 1749 of paper book 12) F(b) 2,12,085.23 Profit amount as per MPKV 113359 31379 31549 35798 F(c) Percentage 50.3 55.2 56.5 46.2 51.04

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after certain adjustments as mentioned above works out to Rs.1,13,359/-. Thus, ld. Counsel for the assessee filed a detailed chart for assessment year 2002-03 showing the income and expenditure ratio of 51:49. Without prejudice, it is the submission of the assessee that this ratio should be at least favourable one for the assessee. Ld. DR’s objections – Ground no.1: The case of the Revenue is that 35. the figures on the working provided by the assessee before the Assessing Officer or the CIT(A) or before the Tribunal are same estimation and the same are not supported by the primary evidence with the 7/12 extracts and MPKV data which were already available with the IT authorities. The ld. DR dutifully relied on the orders of the Assessing Officer and the CIT(A). The ld. DR filed a written submission-3, which reads as under :- “This is in continuation of written Submission -2, submitted in this case, which contained the ‘Note’ submitted by the Assessing Officer on Paper Book No 14 expressing reservations on the manner in which the appellant proposes to substantiate the surplus arising from the agricultural income claimed by the appellant to have been earned during the period 1952-53 to 2006-07. The Appellant has now submitted a reworked chart for the same period at Page Nos. 1967 and 1968 of Paper Book submitted to the Hon’ble ITAT/ The CIT(ITAT)- DR. In this regard, the comments of the undersigned are submitted as under:- (a) The comments given earlier in Written Submission-2,on the adoption of ratios of 50% and 65% are reiterated and it is stated that the assessee HUF has adopted two ratios i.e. 65% of the gross agricultural income and 50% of the gross agricultural income. Both these ratios are without any verifiable basis. Further, the ratio of 50% is observed to be excessive in so far as if the surplus worked is reworked after considering the expenses viz. bullock power, manure an incidental charges, then the surplus available to the assessee HUF is reduced substantially in so far as there is deficit in all the years under consideration. (b) The comments given earlier on the quantum of household expenses adopted are reiterated and it is stated that the estimation of the household expenses claimed to have been incurred by the assessee HUF are without any basis and have been estimated at very low amounts. (c) The appellant has not submitted any new evidence in so far as the chart now submitted is just a reworking of the earlier chart submitted. The following observations made earlier are resubmitted and reiterated as under:- > The working submitted by the assessee HUF is a pure estimation and is not supported by any evidence whatsoever.

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> In estimating the various elements of cost as per the method arising from MPKV data, the assessee HUF has excluded certain heads of expense as per its convenience. On reworking of the estimation after inclusion of the excluded heads of expenses, it is seen that the result is a deficit in all the years. It can be inferred from the deficit arising in all the years, that the assessee did not have surplus available for investing in lands purchased in various years. > It is therefore concluded that the working of the agricultural income submitted by the assessee HUF can be verified only for arithmetical accuracy and no comments can be offered on factual veracity of the claims by the assessee HUF. Thus it can be seen that the claim of the appellant that various assets in the form of properties, cash, jewellery etc. have been procured out of surplus generated out of agricultural income is not substantiated.” 35(A). Thus, the assessee’s failure to furnish evidence, non-discharge of onus, non-reliability of the MPKV data, are the reasons for his decision to adopt estimation of agricultural income. The same is done in violation of the direction of the Tribunal. 36. In our view, such overlooking of the direction constitutes violation to the direction of the Tribunal. In this regard, we considered the MPKV data specific to the assessee and specific to the assessment year 2002-03 and find with changes adopted adjustments done, the MPKV data is still relevant. For this purpose, we considered the data relevant for the assessment year 2002- 03, copy of which is placed at page 1788 of the Paper Book; where four crops i.e. (i) Jawar; (ii) Wheat; (iii) Bajara; and, (iv) cotton was considered for working out the gross yield and agricultural cost for determining the net profits. 37. In the preceding paragraphs, we discussed the facts and arguments relating to the total agricultural income earned by the assessee for an assessment year out of 7 crops mentioned in the 7/12 extracts. For earning

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above income, it goes without say, the assessee were to incur certain expenditure for earning of the same. The expenditure incurred curtailing includes cost on seeds, fertilizers, labour, capital cost, lease rental, power to the bullocks etc. The assessee does not have primary evidences in support of the said expenditure. It is an agreed position the said expenditure is required to the estimated on same reliable basis. Findings of the Tribunal on Ground no.1 : Focusing on the 38. agricultural income and agricultural expenditure of the assessee for the assessment year 2002-03, for which data is collected by the Revenue and analyzed by the assessee as mentioned in the earlier paragraphs of this order, we find the adjudication of quantification of agricultural income (on gross agricultural income and agricultural expenditure and income for rest of the assessment years involving from the assessment year 1953-54 onwards) are relevant. In our opinion, considering the principle of judicial discipline, the finding of the Tribunal is in the first round is sacrosanct. MPKV data needs to be used for this object. Ld. AR demonstrated how MPKV can be utilized with data necessary modification. In principle, the same is in order and hence acceptable. In effect, the ratio of 51:49 (Income : Expenditure) should be the base for quantification of agricultural income. Accordingly, ground no.1 is allowed. Ground no.2 Ground no.2 relates to the “yield from crops grown in agricultural 39. lands” of the HUF. The relevant details are already discussed in preceding paragraphs. The base paper for this purpose of crops grown in the agricultural lands are the 7/12 extracts as well as the MPKV data. The said

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extracts mentioned the facts about the crops grown on fields of the assessee. However, there are certain inconsistencies with respect to crops grown in the assessment years started from assessment year 1953-54 onwards. While there is consistency with respect to 7 crops and there are inconsistencies with respect to others qua the claims in return of income. Some crops are mentioned in 7/12 of some years, the other crops are not shown in other years. However, MPKV data supports the facts of cultivation of such crops in those areas/districts. Considering the same, rejecting the assessee’s claim is not proper. We need to take some decision and for that, we need to the stated inconsistencies. Therefore, we are of the opinion that the Assessing Officer need to consider the all the 7 crops which are recorded in 7/12 extracts only and not the others. Accordingly, ground no.2 is allowed. Ground no.3 Ground no.3 relates to non-consideration of the sale proceeds of 40. fodder and manure for data determining the agricultural income: As seen from the statements given in page 1788 – 1789 of the Paper Book, it is a claim of the assessee that assessee earned agricultural income on sale of fodder and manure amounting to Rs.26,74,689/- for the period commencing from 1953-54 to 2006-07. For want of evidence, the Assessing Officer rejected the claim of the assessee. Per contra, according to the assessee, agricultural activity is taken up by the assessee in the large scale of 188 of acres of lands the generation of manure and fodder is a natural output. However, ld. Counsel submitted that such a claim for assessment years 1953- 54 to 2000-01 is not insisted before the Tribunal considering the non- taxation of such income by the Assessing Officer in those periods. Therefore, for that period, the fodder and manure receipts are not really relevant.

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Eventually, the Assessing Officer could not tax the fodder and manure income upto the assessment year 2000-01 and the same is the decision of the Assessing Officer with regard to the livestock income as well. Further, the Assessing Officer taxed such income for the assessment years 2001-02 upto the assessment years 2006-07 as “income from these sources” (para 3 of the assessment order). The said amount is part of the income added under the head other sources. In effect, such income should available for the accounting for investments, if any. It is not the case of the Assessing Officer that the taxation of livestock income and the taxation of fodder/manure income is totally denied but it is taxed not considered for explaining the sources of the other investments with appropriate time.

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for explaining the sources of investments/other discoveries. Thus, the said income was not considered by the Assessing Officer as agricultural income. We confirm the same. Accordingly, the ground no.3 stands dismissed. Ground no.4 Ground no.4 relates to the adopting the agricultural 42. cost/agricultural expenditure or cost figures based on MPKV data – assessee’s specific adjustments: In the preceding paragraphs of this order we discussed the manner of estimation of agricultural income by the Assessing Officer i.e. applying the flat rate of 10% on the agricultural income claimed by the assessee in the return of incomes. The CIT(A) substituted 15% in place of 10%. The Assessing Officer adopted this against the decision of the Tribunal. In the preceding paragraphs, we disapproved the Assessing Officer’s manner of such ad-hoc estimation against the written direction of the Tribunal. In the context of the said background, ld. Counsel for the assessee pleaded before us the MPKV data is utilizable and contested the Assessing Officer’s finding in this regard. Bringing our attention to the MPKV data summed up in page 1788 of the Paper Book with reference to the various crops i.e. jawar, wheat, bajara and cotton. In the appropriate above paras where the claim of the assessee for adjustments of cost which are not relatable to the HUF, we have also analyzed the absence of substantial interest bearing borrowed working/fixed capital, absence of lease rental expenses and decided that the assessee is not required to bear such expenditure and to that extent the cost of agricultural expenditure has to be reduced. If the same is considered, the percentage of agricultural profits/agricultural cost works out to 51.04 : 48.96% if rounded of the

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agricultural income/agricultural expenditure is in the ratio of 51:49%. The details are already analyzed in the arguments portion of this order. Determination of agricultural cost for the assessment year 2002- 43. 03 and others: MPKV data is the source and the basis for working of the agricultural cost. We have discussed this issue in the preceding paragraphs and also the requirement of making certain adjustments qua 9 types of expenditures considered by the MPKV while preparing a report to the Central Government for a different purpose of recommending the support price for the farmers of the Region. We have also noticed that the inclusion of certain relevant expenditure to the assessee to be Maruti Nivrutti Navale, Bigger HUF and held the requirement of adjustments by way of reducing the said 9 heads of expenses from the cost estimated by the MPKV. It is an undisputed fact that the assessee never paid interest either on the working capital or on the fixed capital. The cost of depreciation is not a real cost. There is no whisper about the assessee hiring labour or bullock power or purchase of manure etc. Therefore, the adjustment requested by the assessee before us to the cost estimated by the MPKV appears reasonable and sustainable. 44. In our view, the said ration is held to be proper and sustainable in this case of the assessee. We have also held that the Revenue has not made out a case that all the 9 heads of expenditure [(i) interest on working capital; (ii) depreciation of farm instrument (being notional cost); (iii) rental value of land; (iv) interest on fixed capital; (v) family labour-male (being notional cost); (vi) family labour-female (being notional cost); (vii) bullock power; (viii) manure; and, (ix) incidental charges] are incurred by the assessee. Thus, for this assessee, the ratio of agricultural income and agricultural expenditure can be

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51:49%. Considering the reasonability of the claims of the assessee with reference to the agricultural cost, the issue raised in ground no.4 is partly justified. In the process, the Assessing Officer’s ratio of 10:90; CIT(A)’s ratio of 15:85; and assessee’s ratio of 35:65 are disapproved. Formula of 80:20 decided by the Tribunal in the cases of (i) Arish Shoukat Bagwan (ITA No.193 to 203/PUN/2013 order dated 17.05.2017) and (ii) Venkateshwara Agricultural Farm (ITA Nos.386 to 390/PN/2009) do not apply to the present case fully as it relates to other crops such as vegetables, fruits, sugarcane, flowers etc (not the cereals/millets/sugarcane in the present case). Formula of 65:35 as approved by the Tribunal in the case of Devendra P. Shah (ITA No.675 to 679/PUN/2016 order dated 12.10.2018) relates to the grass (alpha-alpha). Accordingly, ground no.4 is partly allowed in favour of the assessee. Ground no.5 Ground no.5 relates to considering of the tax on livestock income for 45. the purpose of the surplus income available for explaining the sources of the investments in lands and others. These have analyzed this issue partly while dealing with the taxation of fodder and manure income. The stands of the assessee is that the livestock income is consequential to the large scale of agricultural activity undertaken by the assessee-HUF with 188 acres of land. In cultivation, the maintaining of live stock, cow, bullock, goats etc is normally occurrence. Agriculturist purchases the said livestock and therefore, the same is the product of the agricultural activities. The assessee quantified livestock income amounting to Rs.1,66,56,960/- for the assessment years from 1953-54 to 2006-07. This amount of Rs.1,66,56,960/- has two segments of event on the taxation. The Assessing Officer ignored the claim of livestock income upto the assessment year 2000- 01 due to the reasons of limitation. However, Assessing Officer taxed the same for assessment years 2001-02 to 2006-07. The limited prayer by the assessee in this regard is that the said tax income should be considered and adopted for explaining the sources of investments in assets/properties.

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proceedings. The Assessing Officer shall pass a speaking order in this regard after granting reasonable opportunity of being heard to the assessee. Accordingly, ground no.6 is allowed for statistical purposes. Ground no.7 Ground no.7 relates to the finding of the Assessing Officer on 48. assets and investments reported in HUF return: Through this ground, Ld. AR makes an argument that the assessee has adequate surplus to explain the HUF assets of 188 acres of land holding in general and other assets/properties in particular. 49. The ld. Counsel submitted for the said assessment year 2002-03 that the gross receipts out of the said 7 agricultural products, the correctness of the income is quantified based on the MPKV data with adjustments at Rs.8,41,537/-. This agricultural receipt for the assessment year 2002-03 was arrived at on considering the primary documentary evidences such as 7/12 extract on one side and MPKV data on the other. It is also a fact that wherever some figures are missing for certain crops in this year, the MPKV data of further years was also relied upon and the same constitutes an acceptable proposition for all the sides. Thus, based on the MPKV data, now come to the compilation by the ld. AR for the assessee at least for the assessment years 1953-54 to 2006-07. The gross agricultural figures (Column No.3) are extracted as under :- A.Y. Gross Income as per MPKV sheets (attached herewith) (Rs) 1953-54 41,263 1954-55 42,105 1955-56 42,964 1956-57 43,841

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1957-58 44,736 1958-59 34,473 1959-60 33,402 1960-61 61,335 1961-62 55,539 1962-63 57,157 1963-64 61,573 1964-65 54,007 1965-66 54,810 1966-67 65,891 1967-68 1,94,542 1968-69 1,39,147 1969-70 1,57,980 1970-71 2,11,382 1971-72 1,25,807 1972-73 1,45,454 1973-74 1,22,038 1974-75 95,118 1975-76 96,058 1976-77 98,531 1977-78 1,01,732 1978-79 1,29,297 1979-80 1,59,461 1980-81 1,81,840 1981-82 1,73,877 1982-83 1,46,402 1983-84 1,76,666 1984-85 1,84,026 1985-86 1,38,658 1986-87 60,027 1987-88 2,31,135 1988-89 2,36,021 1989-90 1,92,716 1990-91 3,96,783 1991-92 3,25,120 1992-93 3,50,666 1993-94 5,20,316 1994-95 3,03,365 1995-96 6,91,193 1996-97 3,63,404 1997-98 7,11,603 1998-99 8,49,650 99-2000 13,62,112 2000-01 11,77,311 2001-02 11,15,230 2002-03 8,41,537 2003-04 13,78,225 2004-05 12,10,867 2005-06 14,61,604 2006-07 16,02,968 2007-08 14,52,368 Total 2,03,05,333 50. Thus, from the above chart, subject to the needful correctness by the Assessing Officer, the total agricultural income earned by the assessee, Bigger

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HUF since 1953 (A.Ys. 1953-54 to 2000-01 works out to Rs.1,12,42,535/- plus Rs.90,62,798/- (A.Ys. 2001-02 to 2007-08) totaling to Rs.2,03,05,333/-. The agricultural income for the block assessment years 1953-54 to 2000-01 is considered as block and gross agricultural income for this block works out to Rs.1,12,42,535/-. Similarly, the gross agricultural income for the block assessment years 2001-02 to 2007-08 is considered as bock and the gross agricultural income for this block works out to Rs.90,62,798/-. Thus, the total agricultural income is quantified based on the MPKV data. This being the gross amounts, there is need for adjusting the same arrive at the net surplus agricultural income. Further, in the preceding paragraphs, after due analysis/discussion, the formula of 51:49 is derived. 49% constitutes the agricultural expenditure. The Assessing Officer is directed to reduce the said gross agricultural income figures by the said 49% for arriving at the net agricultural income of the assessee for both blocks i.e. (i) A.Ys. 1953-54 to 2001-02 and (ii) A.Ys. 2002-03 to 2007-08.6. Summary of our findings 51. To sum up, we proceed to reiterate the directions of the Tribunal in the first round (supra) i.e. requirement of adopting the MPKV figures with necessary changes/adjustments considering of the specific facts of the assessee under consideration (refer para 8 above). This relates quantification of agricultural income. To sum up, the assessee reports three sources of receipts i.e. (i) agricultural income; (ii) livestock income; and, (iii) fodder/manure income to explain the investments/other assets of HUF. Our finding on each of these sources are summed up as follows,-

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Agricultural Income: The Assessing Officer is directed to adopt 51(A) the gross agricultural income of figures extracted above (para 49) after removing arithmetic errors, if any, as they are based on the MPKV figures read with 7/12 extracts. Compliance to (para 8) the existing direction of the Tribunal is met. Further, regarding the allowability of deduction towards agricultural expenses, the Assessing Officer is directed to adopt the formula of 51:49% (49% towards the agricultural expenses) and calculate the net agricultural income. This income should be available for explaining the personal withdrawals of the coparcenaries and the sources for investments in additional lands/other properties, if any. In the process, the Assessing Officer’s formula 10:90% (90% towards agricultural expenses) (vide para 13 above) is not approved. There are existing orders of the Tribunal in favour of the assessee with better formula. Further, the assessee’s formula for 65:35% (35% towards agricultural expenses) 50:50 are also rejected as they are not in tune with the existing directions of the Tribunal (vide para 8). Judicial discipline assumes significance. Livestock Receipts: Tribunal confirms that the said income is (B). no longer agricultural income exempt from tax. We confirm the action of Assessing Officer in taxing the same from the A.Y. 2001-02 onwards. Assessee failed to demonstrate how the same is exempt. We approve the Assessing Officer’s action. However, Assessing Officer is under obligation to include the said income in the surplus income of the assessee-HUF for the purposes of explaining the sources of said properties/investments etc. Manure and Fodder Receipts: Like in case of Live-stock (C). Receipts, for want of discharge of onus, we confirm the AO/CIT(A)’s findings in matters of denying claim of exemption to these receipts. Hence, the same

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constitutes non-agricultural income. Consequently, the income from this source should be available to the assessee for explaining the source of investments etc. Accordingly, Assessing Officer is ordered. Additional Directions: (i) The direction relating to the addition (D). on the protective basis stands dismissed in view of likely surplus in HUF hands. (ii) The Assessing Officer is directed to undertake the exercise of quantifying required withdrawals for meeting the personal/domestic needs of the coparcenaries of the HUF. Assessee is directed to provide specific needs of all the members of HUF too. The Assessing Officer is directed to grant reasonable opportunity of being heard to the assessee while doing this exercise of quantification. (iii) In the result, surplus is quantified after aggregating all receipts [para 51 (A)+(B)+(C)], after reducing personal withdrawals of all members of HUF. Accordingly, Ground 1, 2, 4, 5 & 7 also allowed as protanto. Further, ground 3 stands dismissed. Ground 6 is allowed for statistical purposes. 52. In the result, the appeal of the assessee in ITA No.367/PUN/2017 is partly allowed for statistical purposes. ITA Nos.360 to 366 & 542/PUN/2017 (8 Appeals) 53. Before us, at the outset, both the Counsels submitted that all these eight appeals of the assessee-HUF relate to the assessment years 2001-02 to 2007-08 in the second round. The Assessing Officer made additions on account of (i) agricultural income and (ii) livestock/fodder/manure receipts. The Assessing Officer estimated the agricultural income at the flat rate of 10% of the agricultural income claimed by the assessee in its returns (supra). Further, the Assessing Officer made additions on account of livestock income and manure/fodder income (other sources of income) too. Regarding the

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agricultural income addition, the CIT(A) made amendment to the said flat rate of 10%. The CIT(A) of the view 15% should be fair. Otherwise, in principle, the CIT(A) confirmed all the additions on account of livestock income and manure/fodder income and they remain taxed. However, CIT(A)/Assessing Officer did not grant benefit of such taxed receipts for explaining the investments in all these A.Ys. under consideration. We have given certain directions to Assessing Officer (supra-para 51). 54. With the said direction, relying on the elaborate discussions given in the order above (ITA No.367/PUN/2017 connected to the order of Assessing Officer passed u/s 171 of the Act), the Assessing Officer should be directed to adopt the assessee’s income quantified with regard to all the three sources of income i.e. (i) net agricultural income; (ii) livestock income; and, (iii) manure & fodder income. After reducing the withdrawals for personal needs of the HUF-members, the balance surplus income needs to be considered as sources of income for explaining the investments/assets of the HUF, if any. 54A. The names, on which the HUF assets are held, are not relevant in view of the consent decree as approved by the Hon’ble Court. The effect of our direction given in ITA No.367/PUN/2017 is that all these 7 appeals are required to be remanded for limited purpose of compliance only to the file of the Assessing Officer for third round of the proceedings. Accordingly, we order. 55. The Assessing Officer shall grant reasonable opportunity of being heard to the assessee in accordance with set principles of natural justice. Assessing Officer shall adhere to the directions given in the order of the Tribunal vide ITA No.367/PUN/2017 above. Accordingly, all the grounds raised by the assessee in all the rest of 8 appeals are partly allowed for statistical purposes.

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Order pronounced on 15th day of November, 2019. Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) �याियक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 15th November, 2019. SB/Sujeet आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(A)-Central, Pune. 4. The CIT, Central, Pune. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “ए” ब�च, 5. पुणे / DR, ITAT, “A” Bench, Pune. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, //True Copy// िनजी सिचव / Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.