TMI Blog2019 (3) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal. In this case, the learned Tribunal as also the Appellate Commissioner have concurred in their factual finding with which interference is not warranted under Section 260A of the Income Tax Act, 1961. The judgment relied upon by the learned counsel for the Revenue of the High Court of Punjab and Haryana in Jagwinder Singh vs. Commissioner of Income-tax, Appeals-II, Ludhiana [2014 (4) TMI 1177 - PUNJAB AND HARYANA HIGH COURT is distinguishable on facts. In the aforesaid case, there was no evidence of construction of a new house property. Appeal dismissed. - T. C. (A) No. 293 of 2018 - - - Dated:- 17-7-2018 - Ms. INDIRA BANERJEE, CJ. AND MS. P. T. ASHA. J. For The Appellant : Mr. T. R. Senthil Kumar JUDGMENT (Delivered by Ms.Indira Banerjee, Chief Justice) This appeal is against a judgment and order dated 09.10.2017 of the Income Tax Appellate Tribunal, 'C' Bench, Chennai, disposing of the appeal of the Revenue being I.T.A.No.886/Mds/2017, against an appellate order dated 23.12.2016 passed by the Commissioner of Income Tax (Appeals) 15, allowing the appeal of the assessee, being I.T.A.No.186/CIT(A)-15/2014-15, against an order of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years from the date of receipt of full consideration of the sale of asset, which gave rise to capital gain. After physical inspection, the Inspector submitted a report, the relevant part whereof is extracted hereinbelow: From the road side-the sprawling 1.25 acres of nanja land was fenced with barbed wire and in the balance three sides, compound wall was erected. From the entrance a rough road has been laid. To the right of the road, (facing the plot) a small thatched shed was available in which cement bags were arranged. To the far let hand end of the plot (facing the plot), ther was one building which was under construction. No proper steps were provided. Fixtures like windows and doors were not there and no eletric supply has been provided to the building yet. No flooring and plastering of walls had been carried out. To have a correct view for passing scrutiny order, the entre place was neatly photographed and viideographed, which shows the exact position of the so called residential house property. For the claim of deduction u/s 54F, the construction of confidential house should have been completed by 06.1.2013, the place has been visited on 20.12.2013, beyond 45 days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices of three different contractors to accomplish the construction. 10.The Appellate Commissioner found that there was genuine and bona fide reasons which resulted in the delay in completion of construction of the residential house, which were beyond the control of the respondent assessee. The Appellate Commissioner also took note of certain subsequent developments which indicated that the investment was for construction of a residential house. The residential house was completed on 24.03.2014, as certified by the concerned contractor. The electricity connection which was a temporary connection was later changed to a domestic connection. The relevant portion of findings of the Appellate Commissioner is extracted hereinbelow: 16.During the course of the appellate proceeding on 07/12/2016, the Ld.A.R. was requested to furnish the details of investments towards purchase of land and construction of residential property. The Long Term capital asset was sole by the appellant on 04/11/2010 vide the registered Sale Deed for a consideration of ₹ 2,35,00,000/-. The relevant return of income was filed by the appellant on 22/09/2011 which was within the due date fo filing of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Appellate Tribunal. The learned Tribunal found that on 28.06.2011, the assessee had purchased 1 acre and 25 cents of nanja land. On 22.07.2011, she deposited ₹ 20,20,000/- in a capital gain scheme account, the total investment as on 22.07.2011 was ₹ 2.6 crores. Planning permission had been obtained on 04.07.2012 before the due date for filing return. The Tribunal, considering the report of the inspection, found that the assessee was entitled to deduction under Section 54F of the IT Act. The learned Tribunal, in effect and substance, found that the extent of land appurtenant to a building in a case involving sale of land and buildings was not a determining factor. 12.Under Section 260A of the IT Act, an appeal from an order of the Tribunal lies only on a substantial question of law. An appeal is not automatic. There is no right to appeal except under and to the extent provided by statute. If the right to appeal is limited, the right of a party is debarred from filing an appeal, unless the conditions precedent for an appeal exist. 13. In Sir Chunilal V. Mehta Sons Ltd. vs Century Spg. Mfg. Co. Ltd., reported in AIR 1962 SC 1314, the Supreme Court agreed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ews, 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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