Vinod Chandran, J.

The Revenue is in appeal raising substantial questions of law against the order of the Income Tax Appellate Tribunal, which affirmed the order of the first appellate authority finding the sale of the assessee's land to be not assessable as capital gains under Section 45 of the Income Tax Act, 1961 ('Act', for short). The questions of law framed are the following, as seen from the memorandum :

“(i) Is not the decision of the Tribunal to treat the transferred property as agricultural land against law and facts as there is no conclusive evidence to prove that agricultural operations were being carried on in the transferred asset during the two years prior to the date of its transfer?

(ii) whether the Tribunal is justified in holding that agricultural operations were carried on in the transferred land relying on the certificate issued by the Village Officer, in view of the decision of the Hon'ble High Court of Kerala in the case of Smt. Asha George vs. Income Tax Officer [(2013) 351 ITR 123]?

(iii) Was the Tribunal justified in holding that the transferred asset was an agricultural land in spite of the fact that there were four buildings therein?”

2. The learned Standing Counsel for the Revenue submitted that the assessee is a partner in various firms and has also substantial land holdings. The assessment as carried out for the year 2010-2011 was with respect to sale of a property having an extent of 2.42 acres in Survey No.485 and Re-survey No.146/2 of Chelembra Amsam. The property was sold for a total consideration of Rs.3,38,63,200/-. The said property was purchased in the year 1981 by the father of the assessee and devolved on the assessee on the death of his father. The property was purchased, from the assesee, by the owners of a newspaper, who have later made constructions thereon wherein the offices and press of their Calicut edition is now located.

3. The assessee had not declared any capital gains in the return of income filed for the year, and on scrutiny under Section 143 of the Act, the specific sale was sought to be assessed as capital gains. The only evidence produced by the assessee to prove that the land was agricultural land, was a certificate issued by the Village Officer, which was found to be not reliable. The learned Standing Counsel relies on (2013) 351 ITR 123 (Ker) [Smt. Asha George v. Income Tax Officer] to contend that such certificates issued long after the sale cannot be the basis of a conclusion as to whether the property was agricultural land or not. The learned Standing Counsel has also relied on (1993) 204 ITR 631 (SC) [Sarifabibi Mohmed Ibrahim and Others v. Commissioner of Income Tax] in which certain tests were laid down, which were specifically looked into by the Assessing Officer (AO), to negative the claim of the assessee.

4. The learned counsel for the respondent-assessee would also rely on Sarifabibi ( supra) to point out that what is urged before this Court are essentially questions of facts which this Court cannot go into in a revision wherein only substantial questions of law are to be considered. The learned counsel would take us to clause (iii) of Section 2(14) of the Act and contend that only those lands which come under (a) and (b) of clause (iii), can be included as 'capital asset'. Profits and gains arising from sale of such property alone can be taken for assessment as income. The learned counsel would also refer to Annexure-R1(a) to Annexure-R1(d) produced subsequently before this Court, to contend that this evidences the fact that the land is an agricultural land. The assessment order is read over to point out that the test as prescribed in Sarifabibi (supra) has been applied wrongly to the facts of the case. The AO proceeded on the premise that there was a building constructed in the said property subsequent to the purchase, which is not relevant for considering whether the land is exempted from the definition of “capital Gains” as an agricultural land. A D