TMI Blog2018 (7) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law involved in this appeal much less any substantial question of law. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the Appellate Tribunal. Appeal dismissed. - T. C. (A) No. 149 of 2018 - - - Dated:- 6-6-2018 - MS. INDIRA BANERJEE, CHIEF JUSTICE And MS.JUSTICE P.T.ASHA For the Appellant : Mr. T. Ravi Kumar Standing Counsel For the Respondent : Mr. A. S. Sriraman JUDGMENT ( Delivered by Ms. Indira Banerjee, Chief Justice ) This appeal filed by the Revenue is against a judgment and order dated 17.2.2017 passed by the Income Tax Appellate Tribunal 'B' Bench, Chennai, allowing the appeal of the assessee, A.Vinoth Kumar Reddy, and setting aside the additions made by the Assessing Officer in respect of the assessment year 2011-2012. 2. The assessee filed return of income for the year in question electronically on 25.1.2013 admitting total income of ₹ 28,37,544/-. The income tax return filed by the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes for a reasonable span of time, the Assessing Officer found that the claim of having carried out cultivation was for a short duration of two years and came to the conclusion that the land was intended for non agricultural purposes. The Assessing Officer concluded that income of assessee had been concealed and also the assessee had submitted inaccurate particulars of income warranting penal consequences and directed that penalty proceedings be initiated separately by issue of notice. 7. Being aggrieved, the assessee appealed before the Commissioner of Income Tax (Appeals)-2, Chennai. The Appellate Commissioner upheld the addition made by the Assessing Officer by treating the profit on sale of the lands located at Thalambur as profits from business. 8. The assessee filed a further appeal before the Income Tax Appellate Tribunal 'B' Bench, Chennai, being I.T.A.No.2657/Mad/2016, which has given rise to the order impugned in this appeal. The Tribunal held: 5.6. The expression 'agricultural land' is not defined in the Act, and now, whether it is agricultural land or not has to be determined by using the tests or methods laid down by the Courts from tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue records, but it was also subjected to the payment of land revenue and that it was actually and ordinarily used for agricultural purpose at the relevant time. 12. The learned Tribunal also referred to the judgments in Gopal C.Sharma v. CIT, reported in 209 ITR 946 (Bom) and N.Srinivasa Rao v. Special Court, reported in (2006) 4 SCC 214, to conclude that the land in question was, in fact, agricultural and, accordingly, allowed the appeal of the assessee. 13. Considering the detailed judgment of the Tribunal, it cannot be said that the judgment suffers from the vice of perversity. The judgment is reasoned and is based on evidence. As held by the Supreme Court in Sarifabibi Mohamed Ibrahim v. CIT, reported in (1993) 204 ITR 631, cited by the Assessing Officer, Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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. 15. An appeal lies under Section 260A of the 1961 Act, only when there is a substantial question of law. We find that there is no question of law involved in this appeal much less any substantial question of law. 16. In Sir Chunilal V. Mehta Sons Ltd. vs Century Spg. Mfg. Co. Ltd., reported in AIR 1962 SC 1314, the Supreme Court agreed with and approved a Full Bench Judgment of this Court in Rimmalapudi Subba Rao vs Noony Veeraju And Ors reported in AIR 1951 Mad 969 and laid down the principles for deciding when a question of law becomes a substantial question of law. 17. In Hero Vinoth Vs. Seshammal reported in (2006) 5 SCC 545, the Supreme Court followed Sir Chunilal V. Mehta Sons (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantial 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 this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere 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 entitli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence , it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 19. In M.Janardhana Rao Vs. Joint Commissioner of Income Tax [2005 273 ITR 50 (SC)], the Hon'ble Supreme Court held that the principles contemplated under Section 100 of the Code of Civil P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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