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2018 (3) TMI 797 - HC - Income TaxNature of sale of land - whether plot of land is agricultural land or non agricultural land - maintainability of appeal - Held that:- The question of whether a plot of land is in effect and in substance agricultural land or non agricultural land is a matter of 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. 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. 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 the assessee was agricultural land and cannot be held as capital asset and no capital gains are chargeable 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
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