TaxTMI 
TaxTMI 
2018 (7) TMI 1413
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the assessee appeared before the Assessing Officer. 3. It appears that questions were raised with regard to profit on sale of land at Thalambur of Rs. 4,75,10,880/- credited to a capital account as at 31.3.2011. While the assessee contended that the land in question was agricultural land, which was not a capital asset, and as such, there was no capital gain, the Assessing Officer found that the assessee was fully engaged in real estate business and the land had been procured for exploitation for real estate purpose. 4. The Assessing Officer relied on the fact that the assessee had in the year of purchase categorized the land as an asset in his business of real estate and not as his personal asset. The return of income of the assessee for the assessment year 2010-2011 was examined, as in the present year, the assessee had a separate profit and loss account and balance sheet in his individual status and a separate profit and loss account and balance sheet for his proprietary real estate business. The Assessing Officer concluded that when the land under consideration was categorized as a business asset or stock-in-trade, the utilization of the same during the previous year for a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and has laid down 13 tests or factors which are required to be considered and upon consideration of which, the question whether the land is an agricultural land or not has to be decided or answered." 9. The learned Tribunal considered, inter alia, the tests whether the land was classified in the revenue records as agricultural; whether the land was subject to payment of land revenue; whether the land was actually or ordinarily used for agricultural purpose at or about the relevant time; whether the user of the land was for a long period or whether it was of a temporary character or by way of a stopgap arrangement; whether the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land and whether the land on the relevant date had ceased to be put to agricultural use. 10. The learned Tribunal referred to the judgment of the Gujarat High Court in Dr.Motibhai D.Patel v. CIT, reported in (1982) 27 CTR (Guj) 238 : (1981) 127 ITR 671 (Guj), where the High Court referring to the Constitution Bench of the Supreme Court stated that if agricultural operations were carried on in the land in question at the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icultural land, the appeal cannot be entertained under Section 260A of the 1961 Act, which provides as follows: "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 of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 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) 55 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 13....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w 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 necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] .) 24.The principles relating to Section 100 CPC relevant for this case may be summarised thus : (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle....