TMI Blog2018 (8) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... led his income nor furnished inaccurate particulars of income. Such factual findings cannot be interfered with in an appeal under Section 260A of the 1961 Act. 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. - T.C. (A) No. 360 of 2018 - - - Dated:- 10-7-2018 - MS. INDIRA BANERJEE, CHIEF JUSTICE AND MS. JUSTICE P. T .ASHA For the Appellant : Mr.T.R.Senthil Kumar Senior Standing Counsel JUDGMENT ( Delivered by Ms.Indira Banerjee, Chief Justice) This appeal filed by the Revenue is against a judgment and order dated 23.9.2016 passed by the Income Tax Appellate Tribunal 'C' Bench, Chennai (hereinafter referred to as the Appellate Tribunal ), allowing the appeal, being I.T.A.No.233/Mds/2016, filed by the respondent assessee in respect of the assessment year 2011-2012. 2. The facts giving rise to the instant appeal are enumerated very briefly hereinafter. The respondent assessee filed his return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/-. 9. On the face of the assessment order, the authorised representative of the respondent assessee had produced a copy of the house property tax to substantiate the claim of the respondent assessee that the settled property was residential property. 10. A copy of the electricity bill connection taken from the website of the Tamil Nadu Electricity Board showed that the electricity connection was commercial from 2009 to 2012. Relying, inter alia, on the aforesaid electricity bill and on other factors, the Assessing Officer negatived the claim of the assessee that the property purchased by him, measuring 6.95 acres at Nallanpillai Petral Village, was residential house and, accordingly, disallowed the claim of exemption under Section 54 of the 1961 Act. The Assessing Officer recomputed the long term capital gain of the assessee at ₹ 3,49,33,220/-. 11. The assessee accepted the order made by the Assessing Officer and paid the tax as computed. However, the initiation of penalty proceedings under Section 271(1)(c) of the 1961 Act has given rise to the instant proceedings. 12. Aggrieved by an order under Section 271(1)(c) of the 1961 Act imposing penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Gem Granites, reported in (2013) 86 CCH 160. 16. Assailing the said order passed by the Appellate Tribunal, the Revenue has filed this appeal under Section 260A of the 1961 Act, which provides: Section 260A. Appeal to High Court. (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 or 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 or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. (b) [***]; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006) 5 SCC 545, the Supreme Court followed Sir Chunilal V. Mehta Sons (supra) and other judgments and summarized the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. 20. The relevant paragraphs of the judgment of the Supreme Court in Hero Vinoth (supra) are set out herein below : 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 , means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, 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 importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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