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TMI Blog2018 (3) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and hence we set aside the orders of the lower authorities and the assessee's appeal is allowed. The learned Tribunal arrived at the factual finding that the land in question sold by the assessee was agricultural land and could not be said to be capital asset. 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. The questions raised in this appeal do not meet the tests laid down by the Supreme Court in Sir Chunilal V. Mehta's case [1962 (3) TMI 77 - SUPREME COURT]for holding that the questions are substantial questions of law. - Decided against revenue - T. C. (A) No. 761 of 2017 - - - Dated:- 23-1-2018 - Ms. Indira Banerjee, Chief Justice And Mr. Justice Abdul Quddhose For the Appellant : Mr. T. Ravikumar Standing Counsel JUDGMENT ( Delivered by the Hon'ble Chief Justice ) This appeal is against an order dated 17.3.2017 of the Income Tax Appellate Tribunal 'A' Bench, Chennai, allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact. Of course, by reason of deeming provisions contained in law, certain principles may have to be applied for determination of whether a plot of land is agricultural land or non agricultural land. 7. There can be no doubt that registration simpliciter of a plot of land as agricultural land would not in itself mean that the land was being used for the purpose of agriculture. 8. The learned Tribunal held Therefore, the ratio of case laws relied upon by the AO as well as Ld.CIT(A) are not applicable in the assessee's case. The Hon'ble Jurisdictional High Court in the case of Mrs.Sakunthala Veachalam Mrs.Vanitha Manickavasagam Vs. ACIT (2014) 369 ITR 558 (Mad) held that merely because of the adjacent land divided into Plots for sale not a reason that the land sold by the assessee were for the purpose of development of land. Records are showing that the lands are agricultural land, classified as dry land for which Kisthu has been paid and falls far exclusion from the definition of capital asset u/s.2(14) of Income Tax Act. The case laws relied upon by the assessee are squarely applicable in the assessee's case. Therefore, we hold that the land in question sold by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which (a) has not been determined by the Appellate Tribunal; or (b)has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. 12. What constitutes a substantial question of law has extensively been discussed and explained by the Supreme Court in Sir Chunilal V. Mehta Sons Ltd. vs Century Spg. Mfg. Co. Ltd. [AIR 1962 SC 1314], where the Supreme Court approved the decision of the Full Bench of this Court in Rimmalapudi Subba Rao vs Noony Veeraju And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR pp. 557-58) The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law . (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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