When does the principle of swap investment apply to an assessee?

IN THE INCOME TAX APPELLATE TRIBUNAL
 HYDERABAD BENCHES : BENCH “A” HYDERABAD

(Through Video Conference)

BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER
AND
SHRI L.P. SAHU, ACCOUNTANT MEMBER

I.T.A. No. 317/Hyd./2017
A.Y : 2009-10

M/s Vibha Agrotech Ltd. 
Hyderabad
[PAN: AAACV8157A]

vs. 

Dy.CIT , Circle 17(2)
Hyderabad 

 I.T.A. No. 591/Hyd./2017
A.Y : 2009-10

Dy.CIT, Circle 17(2) 
Hyderabad

vs. 

M/s Vibha Agrotech Ltd.
Hyderabad 

I.T.A. No. 1900/Hyd./2019
A.Y : 2010-11

M/s Vibha Agrotech Ltd. 
Hyderabad 

vs. 

Dy.CIT, Circle 17(2)
Hyderabad

I.T.A. No. 318/Hyd./2017
A.Y : 2012-13

M/s Vibha Agrotech Ltd. 
Hyderabad

vs. 

Dy.CIT, Circle 17(2)
 Hyderabad

 I.T.A. No. 592/Hyd./2017
A.Y : 2012-13

Dy.CIT, Circle 17(2) 
Hyderabad
(Appellant)

vs. 

M/s Vibha Agrotech Ltd.
Hyderabad  
(Respondent)
 
For Assessee: Shri P. Murali Mohana Rao, C.A.
For Department: Sri Ashok Kardana, D.R.

Date of Hearing : 03/06/2021
Date of Pronouncement : 12/07/2021 

O R D E R

PER S.S. GODARA, J.M.

The instant batch of 5 appeals pertains to a single assessee M/s Vibha Agrotech Limited. The first and foremost AY 2009-10 involves assessee’s and Revenue’s cross appeals ITA 317 & 591/Hyd/2017 arising against the CIT(A)-5 Hyderabad’s order dated 30th January, 2017 in case no. 291/2015-16. The taxpayer’s appeal ITA 1900/Hyd/19 for AY 2010-11 is directed against the CIT(A)-1 Hyderabad’s order dated 11.10.2019 passed in case no.325/2016-17. Last AY 2012-13 contains assessee’s and Revenue’s cross appeals ITA 318 & 592/Hyd/2017 against the CIT(A)-5 Hyderabad’s order dated 30th January, 2017 passed in case nos.54/2015-16 Relevant proceedings are u/s 143(3) r.w.s. 254, sec.144 r.w.s. 254 and sec143(3) of the Income Tax Act, 1961 [for short ‘the Act’]; assessment year wise respectively. Heard both the parties. Case files perused.

2. It emerges at the outset that all the five appeals raise identical issue(s) of assessee’s sec.10(1) agricultural income, exemption claim(s) of Rs.56,27,97,619/-, 79,44,01,327/- and 85,03,66,869/- along with sec. 35(2AB) weighted deduction(s) of Rs.18,19,42,296/-, 27,58,38,297/- and 23,85,72,556/- (assessment year wise) respectively.

2.1. We notice with able assistance of both the parties this is the second round of proceedings qua the instant twin issues in former two AYs AY 2009-10 and 2010-11. This tribunal’s coordinate bench order dated 28.5.2014 in assessee’s appeal for AY 2009-10 ITA 1799/Hyd/2012 had restored the same back to the Assessing Officer as under.

“27. However, since this issue has been raised for the first time by the assessee before us, the AO has no occasion to examined this ground of the assessee. Being so, in view of this, it is appropriate to remit the issue to the file of the AO to see whether the assessee taken land on lease from farmers, engaged the services of farmers for production of hybrid seed, took entire produce from the farmers, reimbursed the entire expenses of cultivation to the farmers and if the farmers are not given for the produce except reimbursement of the entire charges incurred by them and repayment of labour charges then only the assessee could be considered as it has carried on agricultural operations itself so as to treat income of the assessee as agricultural income. Accordingly, the AO is directed to examine afresh the case of the assessee in the light of the order of the Tribunal in the case of Advanta India Ltd. (supra) since the assessee has pleaded that the assessee's case is similar to the case of M/s. Advanta India Ltd. and the AO shall give adequate opportunity of hearing to the assessee and he shall not be prejudiced by the earlier order of the Tribunal in assessee’s own case.”

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