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TMI Blog2017 (8) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to distance from the nearest Municipality/Municipal Corporation/Cantonment Board and in relation to population were also fulfilled. Appellate Tribunal perusing the materials including the copy of the sale deed, copy of the revenue records, the survey report, photographs taken by the DVO during survey, etc., arrived at the finding that the lands in question were agricultural lands within the meaning of Section 2 (14) of the Income-Tax Act and accordingly, dismissed the appeal of the Revenue. As held by the Supreme Court in Sarifabibi Mohmed Ibrahim (1993 (9) TMI 10 - SUPREME Court ), whether a land is an agricultural land or not, is essentially a question of fact. Several tests have been evolved in the decisions of the Supreme Court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The Court has to answer the question on a consideration of all of them a process of evaluation where inference has to be drawn on a cumulative consideration of all the relevant facts. In the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired the lands in between the years 1985 to 1988, but the assessee had not returned any agricultural income from the Assessment years 2006-07 to 2011-12. The Assessing Officer, thus, presumed that the assessee was not carrying on any agricultural activity in the land and concluded that the lands were not agricultural lands. 6.In arriving at the conclusion that the lands sold were not agricultural lands, the Assessing Officer took note of the phenomenal rise in the value of the lands and also the fact that the assessee had sold the lands to a real estate developer. 7.Being aggrieved by the order of assessment, the assessee appealed to the Commissioner of Income-Tax (Appeals), [in short 'CIT(A)'] . The CIT (A) allowed the appeal of the assessee holding that the lands in question transferred by the assessee were agricultural lands and that there was sufficient evidence to prove that the lands were used for agricultural purposes. 8.Being aggrieved by the order of the CIT(A), the Department filed an appeal before the Appellate Tribunal. The appeal of the Department has been dismissed by the order sought to be appealed against. 9.The CIT (A) had concluded that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed. In the context of the ULCAR Act, the Supreme Court found that operating of a 'Bhatta' could not be an agricultural purpose. Even though the land had been entered in the revenue records as agriculture land, such land would vest in the State. 13.Capital Asset has specifically been defined in Section 2 (14) of the Income Tax Act, 1961 to exclude agricultural land. The definition is extracted hereinbelow for convenience: 2. In this Act, unless the context otherwise requires, - (14) capital asset means - (a)property of any kind held by an assessee, whether or not connected with his business or profession; (b)any securities held by a Foreign Institutional Investor which has invested in such securities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992), but does not include (i) ..... (ii) ..... (iii) agricultural landin India, not being land situate (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to re-analyse the evidence or decide whether the evidence on record was sufficient to justify the finding. 17.Right of appeal is not automatic. Right of appeal is conferred by Statute. If the right of appeal conferred by the Statute is limited to cases where there is a substantial question of law, this Court cannot sit in appeal over factual findings by re-weighing and re-analysing the evidence and materials on record. It would be relevant to refer to Section 260-A of the said Act, which provides as hereunder: Appeal to High Court. 260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2)The Principal Chief Commissioner or Chief Commissioner or the Principal Commissioner of Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals under Section 260 A of the Income-Tax Act. Reference may, in this context, be made to the judgment of the Supreme Court in M.Janardhana Rao Vs. Joint Commissioner of Income Tax reported in (2005) 273 ITR 50 (SC). 20.The judgment of the Supreme Court inter alia in Sir Chunilal V.Mehta's case (supra) was followed by the Supreme Court in its subsequent decision in Hero Vinoth Vs. Seshammal [(2006) 5 SCC 545] (para 24), where the Supreme Court summarized the principles and tests for deciding whether the questions involved in the appeal were substantial questions of law. The Supreme Court held : 21. The phrase substantial question of law, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying question of law, meansof having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction withtechnical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importanceas has been done in many other provisions such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 22. In Dy. Commr. v. Rama Krishna Narain [1954 SCR 506 : AIR 1953 SC 521] also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 CPC. 23. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 21.The questions raised in this appeal do not meet the tests laid down by the Supreme Court for holding that the questions are substantial questions of law. We are constrained to hold that there is no question of law, let alone any substantial question of law, involved in this appeal. 22.This Tax Case appeal is, thus, not entertained and the same is dismissed. No costs. T.C. (A) No.429 of 2017 02.08.2017 capital asset means - (c)property of any kind held by an assessee, whether or not connected with his business or profession; (d)any securities helby by a Foreign Institutional Investor which has invested in such securities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992), but does not include (i)any stock-in-trade [other than the securities referred to in sub-clause (b)], consumable stores or raw materials held for the purposes of his business or profession ; (ii)personal effects, that is to say, movable property (including wearing apparel and furniture) held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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