K.S. Paripoornan, J.
1. At the instance of the Revenue, the Income-tax Appellate Tribunal has referred the following two questions of law for the decision of this court:
'1. Whether, on the facts and in the circumstances of the case, was the Tribunal right in law and in fact in holding that rubber replantation subsidy was given for agricultural operations and the same is to be treated as agricultural income and is not the decision against law and the decision of the Kerala High Court in I. T. R. Nos. 352 and 353 of 1982 (CIT v. Malayalam Plantations Ltd. : [1987]168ITR63(Ker) ) ?
2. Whether, on the facts and in the circumstances of the case, was the Tribunal right in law and in fact in holding that the Commissioner of Income-tax (Appeals) was justified in estimating the capital gains at 30% of the total sale value of timber ?'
2. The respondent is a public limited company. We are concerned with the assessment year 1979-80 for which the accounting period ended on March 31, 1979. During the relevant accounting period, the assessee received subsidy from the Rubber Board for rubber replanting. The Income-tax Officer treated the same as a revenue receipt and taxed the same under the head 'Income from other sources'. In appeal, the Commissioner of Income-tax (Appeals) held that the subsidy received by the assessee is not income liable to tax under the Income-tax Act. The Revenue filed an appeal before the Income-tax Appellate Tribunal and contended that the subsidy received by the assessee for rubber replantation is a revenue receipt and fortified the said plea by reference to the decision of this court in C1T v. Malayalam Plantations Ltd. : [1987]168ITR63(Ker) . The Appellate Tribunal held that since the subsidy was given for agricultural operations, it was agricultural income. The assessee had sold some timber in the pepper areas. The Income-tax Officer estimated the capital gains on this at the rate of 50% of the sale value. The Commissioner of Income-tax (Appeals) reduced it to 30% and it was concurred with by the Appellate Tribunal. It is against the said decision of the Appellate Tribunal dated April 30, 1987, that the two questions of law, formulated hereinabove, have been referred for the decision of this court.
3. We heard counsel. When the matter was heard by the Appellate Tribunal, as per the prevailing decision of this court in I. T. R. Nos. 352 and 353 of 1982 (CIT v. Malayalam Plantations Ltd. : [1987]168ITR63(Ker) ), rubber replantation subsidy was considered as a revenue, receipt and liable to be brought to tax under the Income-tax Act. The Appellate Tribunal approached the question from a different angle, which was put forward forthe first time and held that since the subsidy was given for agricultural operations, it was treated as agricultural income. We do not propose to deal with that aspect of the question at this stage, since a Full Bench of this court had, subsequent to the decision of the Appellate Tribunal, held in CIT v. Ruby Rubber Works Ltd. : [1989]178ITR181(Ker) , that rubber replantation subsidy is not a revenue receipt taxable under the Income-tax Act. The ultimate conclusion of the Full Bench that the rubber replantation subsidy is not a revenue receipt and cannot be brought to tax under the Act is sustainable on this basis. But, it is a matter to be examined by the Appellate Tribunal, since it was held that the subsidy given to the assessee is agricultural income. So, while we decline to answer question No. 1 referred to this court, we direct the Appellate Tribunal to restore the appeal to file and decide the said question afresh, bearing in mind the subsequent Full Bench decision of this court in Ruby Rubber Works Ltd.'s case : [1989]178ITR181(Ker) .
4. The only other question is regarding the estimate of the capital gains. The Income-tax Officer estimated the capital gains at 50% of the sale value. The Commissioner of Income-tax (Appeals) reduced it to 30% of the sale value. He has given cogent reasons therefor. The Appellate Tribunal has concurred with the said view. The net result is that the Commissioner of Income-tax (Appeals) as also the Appellate Tribunal have concurrently held that the capital gains is to be estimated at 30% of the total safe value of timber. An estimate is always a matter of variable import. In such a case, where two statutory authorities have concurrently held that 30% of the total sale value of timber represents the estimated capital gains, we are of the view that it is largely a question of fact and no question of law arises on that score. Therefore, we hold that the determination of the percentage of the capital gains is largely a question of fact and that the said question has been concurrently found in this case by the Commissioner of Income-tax (Appeals) and the Appellate Tribunal, at 30% of the total sale of timber.
5. We are of the view that no question of law arises on question No. 2 that had been formulated and forwarded to this court. We answer question No. 2 referred to us in the affirmative, against the Revenue and in favour of the assessee.
6. The income-tax referred case is disposed of as above.
7. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.