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2018 (1) TMI 1514 - AT - Income TaxDeduction u/s. 54B - absence of sufficient documentary evidence indicating that the agricultural land was used for agricultural purpose by the assessee or his parents, in the two years immediately preceding the date of transfer of asset - HELD THAT:- A perusal of observation made by Commissioner of Income Tax (Appeal) with regard to ‘pictographic representation’ of land indicate that reference was made to the said site plan to indicate that the different Survey Nos. are contiguous pieces of land. This fact is evident from the site map which is at page 121 of the paper book. DR has not controverted that the said site plan at page 121 of the paper book was furnished before the Assessing Officer. Thus, objection raised by the Department alleging violation of Rule 46A is without any substance. In so far as objection raised by the Revenue that assessee in his return of income has not disclosed agricultural income, it has been contented that agricultural produce from the land was mainly used for self consumption and as the income from sale of agricultural produce was less than ₹ 5000/-, therefore, the same was not reflected in the return of income. A perusal of 7/12 extract shows that during financial year 2009- 10, out of total land admeasuring 7H 44R, only 40R was under cultivation and in financial year 2010-11, only 1H 80R was cultivated. The assessee had cultivated groundnut and brinjal on the land. The assessee is having 1/4th share in total undivided land. We find merit in the submission of assessee. The income from agricultural activities may not be substantial so as to be considered for the rate purpose under the provision of the Act. The Hon'ble Bombay High Court in the case of CIT Vs. Smt. Debbie Alemao [2010 (9) TMI 560 - Bombay High Court] has held that if an agricultural operation does not result in generation of surplus, it cannot be a ground to say that the land was not used for the agricultural purpose. Thus, in view of the above, we do not find any infirmity in the order of Commissioner of Income Tax (Appeal) and accordingly, the same is upheld and appeal of Revenue is dismissed being devoid of any merit.
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