TaxTMI 
TaxTMI 
1985 (10) TMI 115
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the asst. yrs. 1977-78 to 1979-80, being I. T. A. Nos. 766 to 768 (Asr)/1984. The AAC in his combined order for the three years in the case of the assessee has given detailed reasons for his conclusion and the view taken in this case has been followed in the other two connected cases. In para 8 of his order, the AAC has noted that the lessee in the assessee's case had taken land not only from the assessee but also from the other two parties namely, Shri Bajrang Dass and Smt. Mohini Devi and the wording of the agreements executed in all three cases was identical. Further in the case of all the three assessee fresh lease deeds executed after the expiry o the first term of two years were also in identical terms. The assessee's counsel. Sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppeals for the asst. yrs. 1977-78 and 1978-79 were set-aside on same basis. The AAC, however, disposed of five other appeal involving the same point in the case of Shri Bajrang Dass, relating to asst. yrs. 1976-77, 1978-79, 1979-80, 1980-81 and 1982-83. In the case of Smt. Mohini Devi also he dsiposed of another appeal for the asst. yrs. 1979-80. the Revenue in the case of set-aside appeals of three assessee has taken a ground that "The ld. AAC erred in not giving an opportunity of hearing to the ITO through specifically directed to do so by the IT Tribunal." This common ground taken in the case of three assessee for the relevant assessment year is factually incorrect as the Tribunal had not specifically directed the AAC to give an opportun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that order is quoted below: "5. I have considered the submissions of the ld. counsel of the appellant and do not find any force in them. Royalties paid by the licensee for the right to take away earch to be used for brick-making or extracting saltpetre are income; the fact that removal of the soil itself is involved doesnot make the case any different from cases of royalties on underground coal and quarries. The fact that the land was under agricultural operations before it was leased out and that it was still subjected to land Revenue does not make any difference. With utmost respect to their Lordships of the Gujarat High Court, in my opinion the case of the appellant is covered be the judgments reported (1937) 5 ITR 42 (Janki Kaur vs. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e currency of the lease, the lessee would be entitled to excavate each from this land for moulding Kacha Bricks for his brick kiln but he shall not dig the earch beyond 6 ft. depth. Clause 3 provides that the assessee would not use the land for any purpose other then the busienss of running brick kiln. Form the wording of the agreement it is quite clear that the predominant purpose for which the lease had been executed was to allow use of the land to excavate earch for the manufacture of Kacha Bricks. The learned counsel argues that the total land in question was 19 kanal 13 marls. The brick kiln proper does not occupy more than 4 kanal or at the most 1 acre. Lessee had taken land not only from the assessee but also from two other parties n....