Assistant Commissioner of Income-tax, V. K F Bioplant Pvt. Ltd., Pune

ITA 2265/PUN/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6748 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 19-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income
• Section: 143(3)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , ! ' , $ % BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.2265/PUN/2014 ' ' / ASSESSMENT YEAR : 2010-11 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 14, PUNE, 2 ND FLOOR, PMT COMMERCIAL COMPLEX, SWARGATE, PUNE 411 037. . / APPELLANT V/S K F BIOPLANT PVT LTD., 2413, KUMAR CAPITAL, EAST STREET, CAMP, PUNE 411 001. PAN : AABCK4309E . / RESPONDENT / APPELLANT BY : SHRI RAJEEV KUMAR / RESPONDENT BY : SHRI RAJENDRA AGIWAL ( / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) I, PUNE DT.30.05.2014 FOR THE ASSESSMENT YEAR 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- / DATE OF HEARING : 09.03.2017 / DATE OF PRONOUNCEMENT: 30.03.2017 2 ITA NO.2265/PUN/2014 AY.NO.2010-11 2.1 ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUSINESS OF PLANT FLORICULTURE / TISSUE CULTURE. ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2010-11 ON 01.10.2010 DECLARING TOTAL INCOME AT RS.3,53,273/-. THE CA SE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.27.02.2013 AND THE TOTAL INCOME WAS DETERMINED AT RS.10,14,79,040/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD . CIT(A), WHO VIDE ORDER DT.30.05.2014 (IN APPEAL NO.PN/CIT(A)-I/ITO WD.11(3)/PN/47/2013-14) GRANTED SUBSTANTIAL RELIEF TO ASSES SEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APP EAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GRO SSLY ERRED IN DIRECTING THE ASSESSING OFFICER TO TREAT T HE ASSESSEES INCOME AS AGRICULTURAL INCOME U/S 2(1A)( B)(I) OF THE INCOME TAX ACT, 1961 AND TO EXCLUDE THE SAID IN COME U/S 10(1) OF THE INCOME TAX ACT,1961. 2. THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) ER RED IN IGNORING THE FACTS THAT THERE IS NO BASIC PLACE IN A GREEN HOUSE AND TISSUE CULTURE LABORATORY WHICH CANNOT BE TERMED AS LAND OR NURSERY FOR GROWING PLANTS. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GRO SSLY ERRED IN IGNORING THE FACTS THAT SALE OF THE ASSESS EE CONSISTED MAINLY OF FLOWERING PLANTS DEVELOPED OUT OF IMPORTED MOTHER PLANTS IN A TISSUE CULTURE LABORATO RY AND NOT GROWN IN A NURSERY. 4. FOR THE FACTS AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF LD. COMMISSIONER O F INCOME TAX-(APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BEFORE US, AT THE OUTSET, LD.D.R. SUBMITTED THAT THOUG H REVENUE HAS RAISED VARIOUS GROUNDS BUT THE SOLE ISSUE IS WHETHER THE INCOME EARNED BY THE ASSESSEE IS EXEMPT B EING AGRICULTURAL INCOME. 3 ITA NO.2265/PUN/2014 AY.NO.2010-11 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTIC ED THAT ASSESSEE HAD SHOWN AGRICULTURAL INCOME OF RS.10,04,85,506/- AND IT WAS CLAIMED TO BE EXEMPT U/S 10(1) OF THE ACT BEING FROM AGRICULTURAL ACTIVITIES. AO NOTED THAT IN A.Y. 2004-05, THE CONTENTION OF THE ASSESSEE OF THE INCOME BE ING AGRICULTURAL INCOME WAS NOT ACCEPTED AND THE INCOME WAS HELD AS BUSINESS INCOME AND NOT FROM AGRICULTURAL ACTIVITIES. HE HAS NOTED THAT THE ORDER FOR A.Y. 2004-05 WAS ALSO CONFIRMED BY LD. CIT(A). HE THEREAFTER HELD THAT SINCE THE FACTS AND CIRCUMSTANCES OF THE CASE FOR THE YEAR UNDER CONSIDERAT ION WERE SIMILAR TO A.Y. 2004-05, HE THEREFORE FOR SIMILAR REASONS, CONCLUDED THAT ASSESSEE WAS NOT ENGAGED IN ANY AGRICULT URAL ACTIVITY AND ACCORDINGLY THE INCOME OF RS.10,04,85,506/- THAT WAS DECLARED AS AGRICULTURAL INCOME HAS TO BE ASSESSED A S PROFIT AND GAINS OF BUSINESS FROM NON-AGRICULTURAL BUSINESS ACTIVITIE S. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD. CIT(A), WHO DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY HOLDING AS UNDER : 4.3.4 FOR REJECTING THE CLAIM OF AGRICULTURAL INC OME MADE BY THE APPELLANT FOR THE ASSESSMENT YEAR UNDER APPE AL, THE ASSESSING OFFICER HAS SOLELY REPLIED ON THE FINDING S. CONCLUSIONS DRAWN IN THE ASSESSMENT YEAR 2004-05 WH ICH HAVE BEEN NOW REVERSED BY THE HONBLE TRIBUNAL IN T HEIR ORDER AS DISCUSSED ABOVE. ON THE SAME ISSUE, THE AP PEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A ) FOR THE A.Y. 2009-10 IN APPELLANTS CASE WAS ALSO DISMISSED BY THE ITAT, PUNE IN ITA NO.2217/PN/2012 DATED 24/12/2013 BY RELYING ON THE DECISION OF THE TRIBUNAL FOR THE A.Y .2004-05. SINCE NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW TH AT THE FACTUAL SITUATION FOR THE ASSESSMENT YEAR UNDER APP EAL DIFFERS FROM THAT EXISTED IN THE A.Y. 2004-05 AND A .Y.2009- 10, I AM CONSTRAINED TO FOLLOW THE DECISION OF THE ITAT ON THE ISSUE. ACCORDINGLY, RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT, PUNE IN APPELLANTS OWN CASE FOR THE A.Y.2004-05 AND A.Y.2009-10, THE ASSESSING 4 ITA NO.2265/PUN/2014 AY.NO.2010-11 OFFICER IS DIRECTED TO TREAT THE INCOME DERIVED FRO M FLORICULTURE AND TISSUE CULTURE AS AGRICULTURAL INC OME AND EXCLUDE THE SAID INCOME FROM TOTAL INCOME UNDER SECTION 10(1) OF THE ACT, FOR THE ASSESSMENT YEAR UNDER APPEAL. GROUND NO. 1 AND 2 OF APPEAL ARE ALLOWED. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APP EAL BEFORE US. 5. BEFORE US, LD.D.R. SUPPORTED THE ORDER OF AO. LD.A.R. ON THE OTHER HAND, REITERATED THE SUBMISSIONS MADE BEFORE A O AND LD. CIT(A) AND FURTHER SUBMITTED THAT AO WHILE DECIDING THE ISSUE AGAINST ASSESSEE AO HAD MAINLY FOLLOWED THE REASONIN G OF THE AO FOR A.Y. 2004-05. HE SUBMITTED THAT WHEN THE MA TTER FOR A.Y. 2004-05 WAS CARRIED BEFORE TRIBUNAL, THE HONBLE TRIBU NAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HE FURTHER SUBMITTED THAT IN A.Y. 2009-10, THE CO-ORDINATE BENCH OF T HE TRIBUNAL, FOLLOWING THE ORDER IN ASSESSEES OWN CASE FOR A.Y . 2007-08 HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HE POINTED TO THE RELEVANT FINDINGS OF THE ORDER THAT ARE PLA CED IN PAPER BOOK. HE THEREFORE SUBMITTED THAT IN SUCH CIRCUM STANCES THE ORDER OF LD. CIT(A) NEEDS TO BE UPHELD. HE THUS SU PPORTED THE ORDER OF LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WHE THER THE INCOME DERIVED FROM THE BUSINESS OF PLANT FLORICULTURE / T ISSUE CULTURE IS EXEMPT U/S 10(1) OF THE ACT. WE FIND THAT IDENT ICAL ISSUE AROSE IN ASSESSEES OWN CASE IN EARLIER YEARS. WHILE 5 ITA NO.2265/PUN/2014 AY.NO.2010-11 DECIDING THE ISSUE IN A.Y. 2009-10, THE CO-ORDINATE BENCH O F THE TRIBUNAL (VIDE ORDER DT.24.12.2013 IN ITA NO.2217/PN/2012) AND FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUN AL IN ASSESSEES OWN CASE FOR A.Y. 2007-08 (IN ITA NO.1110/PN/2011 DT.25.09.2012) HAD DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY HOLDING AS UNDER : 4. WE HAVE HEARD THE PARTIES. WE FIND THAT THIS IS SUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY T HE ITAT, B BENCH, PUNE BEING ITA NO. 146/PN/2008 ORDER DAT ED 26-03-2009. THE SAID DECISION HAS BEEN FOLLOWED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2007-0 8 IN ITA NO. 1110/PN/2011 ORDER DATED 25-09-2012. THE OPERAT IVE PART OF THE SAID DECISION ON THIS ISSUE IS AS UNDER : 3. WE FIND THAT THE TRIBUNAL HAS ALLOWED THE IDENTI CAL CLAIM OF THE ASSESSEE ON THE IDENTICAL SET OF FACTS IN TH E A.Y. 2004-05. THE SAID ORDER OF THE TRIBUNAL IS FOLLOWED IN THE OTHER YEARS ALSO BEING A.YS. 2001-02, 2003-04 AND 2 005- 06 AND 2006-07 BEING ITA NOS. 1274 TO 1278/PN/2010, COMMON ORDER DATED 22.2.2012. THE OPERATIVE PART OF THE ORDER OF THE TRIBUNAL IN ITA NOS. 1274 TO 1278/PN/2 010 DATED 22ND FEBRUARY 2012 IS AS UNDER: 7. WE FIND THAT THE TRIBUNAL IN THE CASE OF ASSESS EE FOR THE A.Y. 2004-05 HAS DISCUSSED AN IDENTICAL ISSUE IN DE TAIL BEFORE DECIDING THE SAME IN FAVOUR OF THE ASSESSEE. THE TRIBUNAL WHILE DECIDING THE ISSUE HAS TAKEN STRENGT H FROM SEVERAL DECISIONS INCLUDING DECISION OF HONBLE SUP REME COURT IN THE CASE OF CIT VS. RAJA BENOY KUMAR SAHAS ROY (SUPRA), HONBLE MADRASH HIGH COURT IN THE CASE OF CIT VS. SOUNDARYA NURSERY, 241 ITR 530(MAD.) AND OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF JUGAL KISHORE A RORA VS. DCIT, 269 ITR 133 (ALLHAD.). THE RELEVANT PARA NOS. 33 TO 40 OF THE DECISION OF THE TRIBUNAL IN THE CASE O F THE ASSESSEE FOR A.Y. 2004-05 (SUPRA) ARE BEING REPRODU CED HEREUNDER FOR A READY REFERENCE : 33. IN OUR CONSIDERED VIEW, THEREFORE, THE OPERATI ONS CARRIED OUT ON THE FACTS OF THE CASE BEFORE US ARE AGRICULTURAL OPERATIONS IN NATURE. THE OBJECTIONS T AKEN BY THE AUTHORITIES BELOW ARE DEVOID OF ANY LEGALLY SUS TAINABLE MERITS/. APPLYING THE RATIO OF THE HONBLE SUPREME COURTS JUDGMENT IN THE CASE OF RAJA BENOY KUMAR SAHAS ROY (SUPRA), THE INCOME FROM THESE OPERATIONS HAS TO BE TREATED AS AGRICULTURAL INCOME. 34. WE WOULD ALSO LIKE TO DEAL WITH HONBLE MADRAS HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. SOUNDARYA N URSERY 6 ITA NO.2265/PUN/2014 AY.NO.2010-11 (SUPRA) AT THIS STAGE. AS FAR AS THE FACTS OF THE C ASE WERE CONCERNED, THEIR LORDSHIPS, INTER ALIA, NOTED AS FO LLOWS: THE TRIBUNAL, AFTER CONSIDERING ALL THE RELEVANT FA CTS, AS ALSO THE APPLICABLE LAW, CONCLUDED THAT THE ASSESSEES ACTIVITIES ARE TO PREPARE SEEDLINGS ON SCIENTIFIC LINES: THAT THE OTHER PLANTS ARE GROWN O N PREPARED BEDS ON LANDS OWNED BY IT AND THE PLANTS ARE THEN GRAFTED OR BUDDED ; THAT THE RESULTING GR AFTS ARE TRANSPLANTED IN SUITABLE CONTAINERS AND ARE REARED IN GREEN HOUSES OR IN SHADE AND AFTER THEY TAKE ROOT, THEY ARE TRANSMITTED TO LARGE CONTAINERS FILED WITH TOP SOIL AND MANURE, ETC, TILL THEY ESTA BLISH THEMSELVES; AND THEREAFTER THOSE PLANTS ARE SOLD AN D THAT THE PRIMARY SOURCE OF THE PLANT IS THE MOTHER PLANT, WHICH IS REARED ON EARTH AND FOR WHICH ACTIVITIES, CERTAINLY CONTRIBUTION OF HUMAN LABOUR AND ENERGY ARE ESSENTIAL. 35. THEIR LORDSHIPS THUS CLEARLY NOTED THE PRIMARY SOURCE OF THE PLANT IN THE ASSESSEES ACTIVITIES WAS THE M OTHER PLANT, WHICH IS REARED ON EARTH AND FOR WHICH CERTA INLY CONTRIBUTION OF HUMAN LABOUR AND ENERGY WAS ESSENTI AL. THESE OBSERVATIONS EQUALLY APPLY TO ASSESSEES CASE AS WELL. 36. IN SOUNDARYA NURSERYS CASE, HONBLE MADRAS HIG H COURT, AFTER TAKING NOTE OF THE LAW LAID DOWN BY TH E HONBLE SUPREME COURT IN THE CASE OF RAJA BENOY KUMAR SAHAS ROY (SUPRA) AND THE FACTS OF THE CASE, OBSERVED AS FOLL OWS: ALL THE PRODUCTS OF THE LAND, WHICH HAVE SOME UTILI TY EITHER FOR CONSUMPTION OR FOR TRADE OR COMMERCE, IF THEY ARE BASED ON LAND, WOULD BE AGRICULTURAL PRODUCTS. HERE, IT IS NOT THE CASE OF THE REVENUE T HAT WITHOUT PERFORMING THE BASIC OPERATIONS, ONLY THE SUBSEQUENT OPERATIONS, AS DESCRIBED IN THE DECISION OF THE APEX COURT HAVE BEEN PERFORMED BY THE ASSESSEE. IF THE PLANTS SOLD BY THE ASSESSEE IN POT S WERE THE RESULT OF THE BASIC OPERATIONS ON THE LAND ON EXPENDING HUMAN SKILL AND LABOUR THEREON AND IT IS ONLY AFTER THE PERFORMANCE OF THE BASIC OPERATIONS ON THE LAND, THE RESULTANT PRODUCT GROWN OR SUCH PART THEREOF AS WAS SUITABLE FOR BEING NURTURED IN A POT , WAS SEPARATED AND PLACED IN A POT AND NURTURED WITH WATER AND BY PLACING THEM IN THE GREEN HOUSE OR IN SHADE AND AFTER PERFORMING SEVERAL OPERATIONS , SUCH AS WEEDING, WATERING, MANURING, ETC., THEY ARE MADE READY FOR SALE AS PLANTS ALL THESE QUESTIONS WOULD BE AGRICULTURAL OPERATIONS ALL THIS INVOLVES HUMAN SKILL AND EFFORT. THUS, THE PLANTS SOLD BY TH E ASSESSEE IN POTS WERE THE RESULT OF PRIMARY AS WELL AS SUBSEQUENT OPERATIONS COMPREHENDED WITHIN THE TERM AGRICULTURE AND THEY ARE CLEARLY THE PRODUCT S OF AGRICULTURE. 7 ITA NO.2265/PUN/2014 AY.NO.2010-11 37. WHEN WE APPLY THE ABOVE TESTS TO THE FACTS OF T HE PRESENT CASE, AND WE BEAR IN MIND OUR FINDINGS THAT BASIC OPERATIONS ARE CARRIED OUT IN THE PRESENT CASE, WHI CH REQUIRE HUMAN SKILL AND LABOUR, AND SUBSEQUENT OPERATIONS, NO MATTER HOW SOPHISTICATED, IF THAT BE USED AGAINST T HE ASSESSEE, ARE ONLY TO FOSTER THE GROWTH AND TO PROT ECT THE PRODUCE, WE FIND THAT THE INCOME FROM THESE OPERATI ONS CAN ONLY BE SAID TO BE AGRICULTURAL INCOME. THEIR LORDS HIPS WERE ALSO DEALING WITH A SITUATION IN WHICH OPERATIONS W ERE CARRIED ON IN A GREENHOUSE. THEREFORE, MERELY BECAU SE A GREENHOUSE IN INVOLVED, THE NATURE OF OPERATIONS WO ULD NOT CHANGE. LEARNED CIT(A) HAS DISTINGUISHED THIS PRECE DENT ON THE GROUND THAT IN ASSESSEES CASE, BASIC OPERATION S HAVE NOT BEEN CARRIED OUT ON LAND. THAT PREMISES ITSELF, FOR THE DETAILED REASONS SET OUT EARLIER IN THIS ORDER, RES TS ON A UNSUSTAINABLE LEGAL FOUNDATION. THE BASIC OPERATION S HAVE BEEN, AND CAN ONLY BE, CARRIED OUT ON THE LAND. THE FACT THAT THIS LAND IS IN A GREENHOUSE DOES NOT CHANGE THE CH ARACTER OF OPERATIONS. THE DISTINCTION WAS THUS WRONGLY MAD E OUT BY THE CIT(A), IN OUR CONSIDERED VIEW, THE PRINCIPL ES LAID DOWN BY THE HONBLE MADRAS HIGH COURTS JUDGMENT IN THE CASE OF SOUNDARAYA NURSERY (SUPRA) APPLY TO THE FAC TS OF THE CASE BEFORE US AS WELL. 38. WE MAY ALSO REFER TO HONBLE ALLAHABAD HIGH COU RT JUDGMENT IN THE CASE OF JUGAL KISHORE ARORA VS DCIT (269 ITR 133). IN THIS CASE, THEIR LORDSHIPS, AFTER TAKI NG NOTE OF AND ANALYZING THE LANDMARK SUPREME COURT JUDGMENT I N THE CASE OF RAJA BENOY KUMAR SAHAS ROY (SUPRA), ALS O OBSERVED THAT THE NATURE OF PRODUCE RAISED HAS NO RELEVANCE TO THE CHARACTER THAT THE NATURE OF PROD UCE RAISED HAS NO RELEVANCE TO THE CHARACTER OF AGRICUL TURAL OPERATION. IT WAS NOTED THAT CULTIVATION OF FLOWER S OF ARTISTIC AND DECORATIVE VALUE WOULD ALSO BE INCLUDED IN THE SCOPE OF AGRICULTURAL OPERATIONS. THIS OBSERVATION WILL ALSO APPLY TO THE FACTS OF THE PRESENT CASE. 39. WE MAY MENTION THAT OUR ATTENTION WAS ALSO INVI TED TO EXPLANATION (3) TO SECTION 2(1A) OF THE ACT WHICH H AS BEEN INSERTED BY THE FINANCE ACT, 2008. THIS EXPLANATION PROVIDES THAT ANY INCOME DERIVED FROM SAPLINGS OR SEEDLINGS GROWN IN A NURSERY SHALL BE DEEMED TO BE AGRICULTURAL INCOME AND, THEREFORE, IRRESPECTIVE OF WHETHER THE BASIC OPERATIONS HAVE BEEN CARRIED OUT ON LAND, SUCH INCOME WILL BE TREATED AS AGRICULTURAL INCOME QUALI FYING FOR EXEMPTION UNDER SECTION 10(1) OF THE ACT. LEARNED C OUNSEL HAS CONTENDED THAT THIS EXPLANATION IS RETROSPECTIV E IN EFFECT INASMUCH AS IT IS MERELY CLARIFICATORY IN NA TURE. WE ARE TAKEN THROUGH THE BUDGET SPEECH BY THE FINANCE MINISTER, EXPLANATORY MEMORANDUM TO THE FINANCE BIL L AND OTHER DOCUMENTS TO SUPPORT THE CONTENTION THAT THIS AMENDMENT IN LAW WAS MERELY CLARIFICATORY. OUR ATTE NTION WAS THUS INVITED TO SEVERAL JUDICIAL PRECEDENTS IN WHICH IT IS NOTED THAT EVEN WHILE AN AMENDMENT IS STATED TO BE PROSPECTIVE IN APPLICATION, BUT HELD TO BE RETROSPE CTIVE IN EFFECT. ON THE BASIS OF THESE ELABORATE ARGUMENTS, IT WAS SUBMITTED THAT, IN ANY EVENT, BASED ON THIS CLARIFI CATORY 8 ITA NO.2265/PUN/2014 AY.NO.2010-11 AMENDMENT IN LAW, BASIC OPERATIONS HAVING BEEN CARR IED OUT ON LAND IS NO LONGER SINE QUA NON FOR TREATING INCOME AS AGRICULTURAL INCOME. THIS PLEA WAS CLEARLY AN ALTER NATIVE PLEA. SINCE WE HAVE ALLOWED THE BASIC PLEA OF THE A SSESSEE AND WE HAVE HELD THAT THE BASIC OPERATIONS WERE CAR RIED OUT ON LAND, IT IS NOT REALLY NECESSARY TO DEAL WIT H THIS ALTERNATIVE PLEA WHICH IS ONLY ACADEMIC IN THE PRES ENT CONTENT. WE LEAVE IT AT THAT. 40. IN VIEW OF THE ABOVE DISCUSSIONS, AND FOR THE R EASONS SET OUT ABOVE, WE ARE OF THE CONSIDERED VIEW THAT T HE AUTHORITIES BELONG INDEED ERRED IN LAW AND ON FACTS OF THIS CASE IN HOLDING THAT THE IMPUGNED INCOME IS NOT AGR ICULTURAL INCOME. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO TREAT THE SAID INCOME AS AGRICULTURAL INCOME UNDER SECTIO N 2 (1A)(B)(I) OF THE ACT. AS A COROLLARY TO THIS DIREC TION, THE ASSESSING OFFICER SHALL ALSO EXCLUDE THE SAID INCOM E FROM THE TOTAL INCOME UNDER SECTION 10(1) OF THE ACT. TH E ASSESSEE GETS THE RELIEF ACCORDINGLY. SINCE THE IS SUE RAISED IS FULLY COVERED BY THE DECISION OF PUNE BENCH OF T HE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF FOR THE A.Y . 2004- 2005, UNDER SIMILAR SET OF FACTS, WE DO NOT FIND IN FIRMITY IN THE FIRST APPELLATE ORDER ON THE ISSUE IN FAVOUR OF THE ASSESSEE BASED ON THE SAID ORDER OF THE TRIBUNAL UN DER SIMILAR FACTS DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. THE SAME IS UPHELD. THE GROUNDS INVO LVING THE ISSUE ARE THUS REJECTED. 4. AS THE ISSUE IS IDENTICAL IN THIS YEAR, WE FIND NO REASON TO TAKE DIFFERENT VIEW. WE, THEREFORE, FOLLOWING THE O RDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE REFERRED (SUPRA ), CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISS ALL THE GROUNDS TAKEN BY THE REVENUE. 5. WE, THEREFORE, FOLLOWING THE DECISIONS OF THIS T RIBUNAL IN ASSESSEES OWN CASE, CONFIRM THE ORDER OF THE LD. C IT(A) ON THIS ISSUE. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . PRONOUNCED IN THE OPEN COURT ON 24-12-20 7. BEFORE US, REVENUE HAS NOT PLACED ANY MATERIAL ON RECO RD TO DEMONSTRATE THAT THE AFORESAID DECISION OF THE CO-OR DINATE BENCH OF THE TRIBUNAL HAS BEEN SET ASIDE BY HIGHER JUDICIA L AUTHORITIES NOR HAS POINTED ANY DISTINGUISHING FEATURE IN TH E FACTS OF THE CASE FOR THE YEAR UNDER CONSIDERATION AND T HAT OF EARLIER YEARS. IN VIEW OF THE AFORESAID FACTS AND RESPEC TFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN 9 ITA NO.2265/PUN/2014 AY.NO.2010-11 ASSESSEES OWN CASE IN A.Y. 2009-10 AND FOR SIMILAR REASON S, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS, THE GROUNDS OF REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 30 TH DAY OF MARCH, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE; ! DATED : 30 TH MARCH, 2017. YAMINI ( ) *!+, -,! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. COMMISSIONER OF INCOME TAX-V, PUNE. COMMISSIONER OF INCOME TAX (A) VI, PUNE. #$% &&'(, * '(, / DR, ITAT, A PUNE; %+, - / GUARD FILE. ( / BY ORDER, // TRUE COPY // //TRUE // TRUE COPY// . /012 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.