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Income Tax Appellate Tribunal, MUMBAI BENCH “B” MUMBAI
Before: SHRI PRAMOD KUMAR & SHRI RAVISH SOOD
PER RAVISH SOOD, J.M: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-49, Mumbai, dated 20.03.2020, which in turn arises from the order passed by the A.O u/s 143(3) of the Income Tax Act, 1961 (for short „Act‟), dated 29.12.2017 for A.Y. 2015-16. The assessee has assailed the impugned order on the following grounds before us:
2 Nitta Jatiya Vs. DCIT, CC-7(1)
On the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeal)-43. Mumbai has erred in confirming the disallowance of 20% of Agricultural Income i.e. Rs.21,45,698/- made by Learned Assessing Officer by erroneously treating it as Unexplained cash credit" under section 68 of the Income-tax Act, 1961, despite the fact that the appellant had duly exhibited the source of the agriculture income during the course of proceedings.”
Briefly stated, the assessee had e-filed her return of income for A.Y 2015- 16 on 29.08.2015, declaring an income of Rs.1,46,34,160/- a/w agriculture income of Rs.1,03,02,193/-. The return of income filed by the assessee was processed as such u/s 143(1) of the Act. Subsequently, the case of the asesssee was selected for scrutiny assessment u/s 143(2) of the Act.
3. During the course of the assessment proceedings, it was observed by the A.O that the assessee had claimed to have earned net agriculture income of Rs.1,03,02,193/- from sale of mangoes (kaichi kairi) and various other vegetables. It was observed by the A.O that the assessee had a total land holding of 913.3 guntha (22.82 acres) at Panvel, District: Raigad. However, it was observed by the A.O that a perusal of the 7/12 extracts revealed that most of the aforesaid land was categorized under the head “not fit for agriculture”. Out of the total 913.3 guntha (22.82 acres) of land 414.5 guntha (10.36 acres) of land was not fit for agriculture purpose for the entire year. Further, it was observed by the A.O that as per the 7/12 extracts 431.2 guntha land was under paddy (rice) cultivation during Kharif season and there was no mention of any other agriculture produce. In order to verify the factual position the A.O deputed his inspector to visit the actual lands and prepare a field report. As instructed, the inspector visited the lands and reported as under:
“1. Chiple and Koproli land:- The inspector made a field visit on 21.09.2017 and reported that these lands are barren with only with grasses growing in the land. No agriculture activity was being carried out. Some mango trees were growing up here and there. From local sources, people told that this land was vacant for past 3-4 years and no agricultural activity was carried out. He also attached images of the barren lands.
3 Nitta Jatiya Vs. DCIT, CC-7(1)
2. Nere Land: - The inspector made a field visit on 31.10 2017 and reported that he inquired about the lands owned by Ms. Nita Jatia to local people but they were not aware of the same. Hence, he could not locate the said land.
Harigram Land: - The Inspector made a field visit on 03.11.2017 and reported that the land is lying vacant and no crop is growing From local sources, people told that this land was vacant for past 3-4 years and for agricultural activity was carried out. He also attached images of the barren lands. 4. Vihighar Land:- The inspector made a field visit on 09.11.2017 and reported that the land is lying vacant and only some papaya trees are growing up here and there on the land. Form local sources, people told that no agricultural activity was earned out on this land. 5. Akruli Land: - The inspector made a field visit on 23.11.2017 and reported that of farm house is situated on this land. Some mango trees and coconut trees were growing up. From local sources, people told that no agricultural activity was carried out on this land.” Also, the A.O in exercise of the powers vested with him u/s 133(6) of the Act obtained the photographic images of the 4 land parcels of the assessee‟s family spread over the period 2013 till 2017 form ISRO SAC, Ahmedabad. As per the report furnished by ISRO the following details regarding the agricultural land holding of the assessee was gathered by the A.O:
“Vihighar Land: We have used the Google earth images for the period front Jan 2073 to December 2016. Overall from the analysts of images, it is concluded that only 30% of the total area marked was under agricultural activity during the period 2014-15. No 3ctiv& agriculture was observed for the remaining 70% area of Vihighar land Parcel. Chiple & Koproli:- We have used the Google earth images for the period from Jan 2013 to December 2016. Overall, from the analysis of images no active agriculture was observed for the area of Chiple & Koproli land parcel Approximately 40 % area of marked land parcel was occupied by (he irregularly grown perennial trees/plantations. seems to be social forestry, need to be verified on ground whether it is horticultural plantations (e.g. Mango / Sapota Etc.). Akruli Land: We have used the Google earth images for the period from Jan 2013 to December 2016 Overall, from the analysis of images, it is concluded that two sub-land parcels marked with yellow colour in 2011 & 2012 images (30%), were new plantations, seems to be horticultural in nature (need to be verified on ground) However, 3-4 year horticultural plantation cannot give any substantial produce. No active agriculture was observed for 4 Nitta Jatiya Vs. DCIT, CC-7(1) the remaining area of Akruli land parcel Overall, the land parcel was of farmhouse type in nature with built-up lawn, swimming pool, road with palm/coconut trees on both sides and borders with tree of social forestry in nature (need to tie verified on ground?) Harigram Land: We have used the Google earth images for the period from Jan 2013 to December 2016 Overall, from the analysis of images, ii is concluded that no active agriculture was observed for the area of Harigram land Parcel.” On the basis of the aforesaid details the A.O called upon the assessee to explain as to why her claim of agriculture income may not be treated as bogus. In reply, the assessee vide her submission dated 28.12.2017 referring to her aforesaid 4 parcels of land tried to impress upon the A.O that her claim of having earned the agriculture income under consideration was in order. However, the aforesaid claim of the assessee did not find favor with the A.O. The A.O was of the view that the assessee had not raised a genuine claim of having earned the agriculture income under consideration for the following reasons :
As per 7/12 documents, most of the land is categorised under the head "not fit for agriculture" for the entire year. As per 7/12 documents, land was under paddy (rice) cultivation. There is no mention of any other agriculture produce as claimed by the assessee. The Inspector of this office reported from the field that no agricultural activity is carried out. He also took photos of the barren land. The historical (for FY 2014-15) images sent by ISRO and their report reveal that no active agriculture is being carried out. The Google Earth satellite historical images (for FY 2015-15) also show no activity like ploughing, standing crop, etc on the assessee's land The practical yields (as per technical expert) from fruits and vegetables mentioned by the assessee are negligible as compared to the assessee's claims. Even if the assessee's contention of these crops being actually grown is considered the market value of the produce is barely enough To cover the various costs. None of the vegetables mentioned by the assessee are grown round the year as claimed. There are barely any labour charges shown by the assessee. The expenses claimed to be borne by the assessee are insignificant.
5 Nitta Jatiya Vs. DCIT, CC-7(1)
In Mustafa All Khan vs. CIT(1948) 16 ITR 330 (PC), the court held that income from sale of forest trees, fruits and flowers growing on land naturally and spontaneously and without the intervention of human agency is not agriculture income. Thus the mango sale is not agricultural income. Only income from basic operations of cultivation land and requiring the expenditure of human skill and labour on land is agricultural income as held in CIT Vs Raja Benoy Kumar Sahar Roy (SC) 32 ITR 466, CIT Vs Maddi Venkalasubbayya & another (Mad) 20 lTR 151, Papaya Farms Pvt. Ltd Vs PCIT (Mad)325 ITR 60. The assessee's land is situated within the jurisdiction of Municipality of Panvel and is not assessed to land revenue. As per the Allahabad High Court in the case of Smt Anand Bala Bhushan vs Commissioner Of Income-Tax (217 ITR 144) the produce from this land is not agricultural income.” Accordingly, the A.O on the basis of his aforesaid deliberations concluded that the asessee had disguised her income from “Other sources” of Rs.1,03,02,193/- as agriculture income earned by her during the year under consideration. After, inter alia, re-characterizing the impugned agriculture income as the income earned by the assessee from „Other sources‟, the A.O vide his order passed u/s 143(3), dated 29.12.2017 assessed her income at Rs.5,56,55,850/-.
Aggrieved, the assessee carried the matter in appeal before the CIT(A). As the assessee in the course of the proceedings before the CIT(A) had claimed that she was not afforded sufficient opportunity to explain her case and rebut the various evidences that were relied upon by the A.O, therefore, the CIT(A) called for a „remand report‟ from the A.O. After perusing the „remand report‟ dated 18.03.2019 and exhaustively deliberating on the issue at length, it was observed by the CIT(A) that a survey action was conducted on the assessee and her family members u/s 133A of the Act on 15.09.2016, in which nothing adverse as regards the claim of agriculture income was found. It was noticed by the CIT(A) that the assessment in the case of the assessee for A.Y. 2014-15 was completed by the then A.O and the entire amount of agriculture receipts was accepted as genuine in nature. However, it was observed by the CIT(A) that the A.O while framing the assessment for A.Y 2014-125 had added 20% of the gross agriculture receipts as “unexplained expenditure” incurred by the assessee u/s 6 Nitta Jatiya Vs. DCIT, CC-7(1)
69C of the Act. It was noticed by the CIT(A) that on appeal the aforesaid addition made by the A.O u/s 69C was vacated by his predecessor, vide his order passed in Appeal No. CIT(A)-2/IT/186/2016-17, dated 01.01.2018. Also, it was observed by the CIT(A) that subsequent to the aforesaid order passed by his predecessor for A.Y 2014-15 the then CIT(A) while disposing off the appeals of the assessee for A.Y. 2011-12 and A.Y. 2012-13 had vide her respective orders passed in Appeal Nos.CIT(A)-49/IT-24/2018-19 AND CIT(A)-49/IT-25/2018-19, dated 23.05.2019, after considering the order of her predecessor for A.Y 2014-15 a/w the facts and evidences which were not there before the CIT(A) for A.Y 2014-15, held, that the assessee‟s claim of agriculture income was not to be accepted in toto. It was noticed by the CIT(A) that his predecessor while disposing off the appeals in the case of the assessee for the aforementioned preceding years i.e A.Y.2011-12 and A.Y. 2012-13 had allowed the assessee‟s claim of agriculture income only to the extent of 80%. Observing, that the evidence which were gathered by the A.O in the course of assessment for the year under consideration i.e A.Y. 2015-16 had formed the basis for reopening of its case for A.Y 2011-12 and A.Y 2012-13, the CIT(A) followed the view of his predecessor and allowed the claim of agriculture income of the assessee to the extent of 80% and disallowed the balance 20% amount.
The assesee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee, at the very outset submitted, that the CIT(A) by relying on the order of his predecessor for A.Y 2011-12 and A.Y 2012-13 had allowed the assessee‟s claim of agriculture income only to the extent of 80% and had disallowed the balance 20%. It was submitted by the ld. A.R that on further appeal by the assessee the Tribunal had vide its consolidated order for A.Y. 2011-12 in and A.Y. 2012-13 in ITA No.4884/Mum /2019, dated 02.03.2021 had allowed the appeals of the assessee and had 7 Nitta Jatiya Vs. DCIT, CC-7(1)
vacated the disallowance of the balance 20% of her agriculture income that was sustained by the CIT(A). In sum and substance, it was the claim of the ld. A.R that the assessee‟s claim of agriculture income had been accepted in toto by the Tribunal while disposing off her appeals for the aforementioned preceding years i.e A.Y.2011-12 and A.Y. 2012-13. Backed by the aforesaid fact, it was submitted by the ld. A.R, that now when the disallowance of the balance 20% of the assessee‟s claim of agriculture income that was sustained by the CIT(A) in A.Y 2011-12 and A.Y 2012-13 had been vacated by the Tribunal, therefore, no disallowance of agriculture income for the year under consideration i.e A.Y 2015- 16 could be sustained.
Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities.
We have heard the ld. Authorized Representatives for both the parties, perused the orders of the lower authorities and the material available on record. Admittedly, it is a matter of fact borne from the record that the genesis for disallowing of the assessee‟s claim of agriculture income to the extent of 20% by the CIT(A) during the year i.e A.Y 2015-16, was the order that was passed by his predecessor while disposing off the assessee‟s appeals for A.Y 2011-12 and A.Y 2012-13. As is discernible from the records, the evidences that were gathered by the A.O for the year under consideration i.e A.Y. 2015-16 had formed the basis for reopening of the assessee‟s case for A.Y 2011-12 and A.Y 2012-13. Also, it is a matter of fact borne from the record, that in the course of the reassessment proceedings for the aforementioned years no new evidence was referred to by the A.O, which was not there before him during the course of the proceedings for the year under consideration i.e A.Y. 2015-16. As stated by the ld. A.R, and rightly so, now when the disallowance of 20% of the agriculture income that was sustained by the CIT(A) while disposing off the appeals of the assessee for A.Y 2011-12 and A.Y 2012-13 had been vacated by the Tribunal vide its order
8 Nitta Jatiya Vs. DCIT, CC-7(1) passed in A.Y 2011-12 in AND A.Y 2012-13 in ITA No.4884/Mum/2019, dated 02.03.2021, therefore, there would be no justification much the less any basis to uphold the disallowance of 20% of the assessee‟s claim of agriculture income for the year under consideration i.e A.Y. 2015-16. For the sake of clarity, we herein cull out the observations of the Tribunal in its consolidated order for A.Y 2011-12 and A.Y 2012-13 in ITA Nos. 4883 & 4884/Mum/2019 for A.Y 2011-12 and A.Y 2012-13, wherein the agriculture income disclosed by the assessee in her return of income was accepted as such:
“5. After hearing the rival parties, in this case, we notice that undisputedly, the assessee is the owner of the land measuring 22.82 acres in Panvel, District Raigad. We note that the 7/12 extracts downloaded from the official website of Government of Maharashtra has categorized 70% of the land as not fit for agricultural operation. However, it is also undisputed that there were substantial plantations of mango trees and also seasonable vegetables being grown in the said land. The only objection of the AO is that the assessee is having a farmhouse and income was received from the natural activity which is not agricultural activity as per the provisions of the Act and AO has merely acted on the basis of surmises and conjuncture in estimating 20% of the total receipt as unexplained cash credit without carrying out any further verification from the buyer/purchasers of these agricultural products/produce. The ld. CIT(A) affirmed the order of the AO on the ground that the assessee has incurred a very meager expenses of 2% on agricultural expenses and thus sustained the addition as stated hereinabove. In this case, we note that both of the authorities have failed to discharge their duties properly as none of the parties have brought any substantial material on record to prove that assessee has incurred expenses over and above what has been stated by the assessee. The AO has made a ground that some income received by the assessee was in the nature of non-agriculture and substantial too in nature, whereas ld. CIT(A) has gone on a different footing that assessee has incurred expenses to earn the said income which seems to be understated . Under these circumstances, we are not in a position to sustain the order of the ld. CIT(A) as the same appeared to be a guess work to sustain the addition made by the AO and therefore, we are inclined to set aside the order of first appellate authority and direct the AO to delete the addition of Rs. 10,30,694/-. Accordingly, the appeal of the assessee is allowed.” Backed by our aforesaid observations, we are of the considered view that as the facts and the issue involved in the appeal of the assessee for the year under consideration remains the same as were there in her case for A.Y 2011-12 and A.Y 2012-13, therefore, finding no reason for taking a different view we respectfully follow the aforesaid order of the Tribunal. We, thus, in terms of our aforesaid deliberations vacate the disallowance of 20% of the assessee‟s claim
9 Nitta Jatiya Vs. DCIT, CC-7(1) of agriculture income as was sustained by the CIT(A). The Ground of appeal No. 1 is allowed in terms of our aforesaid observations
Resultantly, the appeal filed by the assessee is allowed in terms of our aforesaid observations.
Order pronounced in the open court on 24.09.2021