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TMI Blog2011 (8) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before the Tribunal for the four years on this basic common issue. 3. The brief facts as have been brought on record are that the assessee filed its returns for the impugned assessment years which were subjected to proceedings under section 147/148 when a survey operation was carried out on 6-3-2009 when a visit at the farm house resulted in a statement taken on oath by the Assessing Officer and the Assessing Officer considered denial of exemption of income being agricultural income returned by the assessee as non-agriculture. Practically a common assessment order (except figures) has been passed for all the four years which have resulted in a common order of the learned CIT(A) on the solitary issue raised by the assessee before him that the case laws relied upon by the Assessing Officer has been misinterpreted insofar as the facts of the assessee's case are distinguishable to the extent which the learned CIT(A) negated by trying to import the literal meaning of "agricultural operation" to be carried out but by borrowing the meaning thereof from plethora of judgments which suited him to decide that having rooted the sapling or plant and replanting it at the assessee's agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, which is reproduced as under : "This distinction is not so important in cases where the agriculturist performs these operations as a part of his integrated activity in cultivation of the land. Where, however, the products of the land are of spontaneous growth, unassisted by human skill and labour, and human skill and labour are spent merely in fostering the growth, preservation and regeneration of such products of land, the question falls to be considered whether these subsequent operations performed by the agriculturist are agricultural operations and enjoy the characteristic of agricultural operations. It is agreed on all hands that products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived therefrom is not agricultural income. There is no process of agriculture involved in the raising of these products from the land. There are no agricultural operations performed by the assessee in respect of the same, and the only work which the assessee performs here is that of collecting the produce and consuming and marketing the same. No agricultural operations have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered by the ITAT, Delhi Bench in the case of Sudisha Farm Nursery v. ITO [2004] 88 ITD 638 (Delhi), on identical facts and circumstances was pleased to hold that the computation of agricultural income has to be understood in the manner that the agricultural operation was carried out and not misconstrue as computed by the authorities below playing the role of an agriculturist. 5. The learned DR supported the orders of the learned CIT(A) by submitting that the learned Counsel for the assessee's contention that the Finance Act, 2008 intended by insertion of Explanation 3 to sub-section (ii) of section 2A indicating any income derived from sapling and seedling in a nursery shall be deemed to be agricultural income only suggests that the same has to be considered as agricultural income w.e.f. the assessment year 2008-09 which was is not in appeal by the assessee, therefore settles the issue in favour of the Revenue. 6. We have heard the rival contentions and perused the material available on record. On our careful consideration of the facts, we are inclined to hold that the agricultural operation are carried out by the assessee even after the plants are shifted and matured, culture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on which primary and basic operation of agriculture is carried insofar as in order to make the biological change in it, it had to make eligible continue to live within a limited area. This clearly indicates that the trees/plant uprooted from soil and taken to farm in pot or polythene bags filled with soil for sale or transportation will not affect or change the nature of agricultural operations. Bonsai plants have been prepared on the land by the assessee and there are several agricultural operations, as explained in brief and observed in the order of the authorities below, that transplanting in a suitable container including pots and kept at the proper place i.e., green house or in the shed and after performing several operations, such as weeding, watering, manuring etc., they are made ready for sale as bonsai plant. It was not necessary to plough the land which is a must for implanting a seed. The very nature of the plant ultimately nurtured, is such that it has to be taken care of independently. Once the plants are able to live or out grow the basic agricultural operation carried out and they are ready for sale insofar as the bonsai is to live the life of the original tree whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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