Major In Age v. Income Tax Officer, Ward-2 (2

1 IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 79 OF 2014 Smt. Myra Muriel Paul,Resident of House No.647,Ponsulem, Colvale,Bardez Goa 403 513major in age. ... AppellantVersusIncome Tax Officer, Ward-2 (2),“Ayakar Bhavan”, Plot No.5, EDC Complex,Patto, Panaji Goa. ... Respondent Mr. S. D. Lotlikar, Senior Advocate with Mr. T. Sequeira, Advocatefor the Appellant. Ms. Amira Abdul Razaq, Standing Counsel for the Respondent. Coram:- M. S. SONAK & SMT. M. S. JAWALKAR, JJ.Date:- 6th March, 2020 Oral Judgment( Per M. S. Sonak,J) Heard Mr. S. D. Lotlikar, learned Senior Advocate whoappears alongwith Mr. T. Sequeira for the Appellant and Ms. A.Razaq, learned Standing Counsel for the Respondent. 2. This appeal was admitted on 9th April, 2015 on thefollowing substantial question of law:- “Whether in the facts and circumstances of the case, theappropriate assessment year for the purpose of assessmentof the capital gains, arising out of the transfer by theappellant of the property belonging to her, wasAssessment Year 2009-2010 in which the original sale-deed was executed during the previous year 2008-2009,or 2010-2011 since there was a Rectification Deedexecuted in the said year, substantially altering theoriginal sale deed ? 3. On hearing the learned counsel for the parties, we findthat apart from the aforesaid substantial question of law there arises inthis appeal a question as to whether the property which is subjectmatter of the sale deed was an agricultural property. If this question isto be answered in favour of the Assessee then perhaps, there may ariseno liability for payment of any tax. 4. Ms. Razaq however pointed out that though this groundwas raised by the Assessee before the Commissioner (Appeals), thesame was expressly given up. She points out that this is recorded notonly in the order dated 28th October, 2013 made by theCommissioner (Appeals) but also in the order of the ITAT dated 4thApril, 2014. 5. Though, it is true that there is a reference that thisground being withdrawn, in the peculiar circumstances of the presentcase, we feel that this point which goes to the root of the matter, isrequired to be adjudicated upon. However, Ms. Razaq is quite right in her submission that this point cannot be adjudicated upon in thisappeal. 6. Ultimately, the purpose of proceeding under the IT Actin particular before the Appellate Authority is to determineappropriate amount of tax, if any, which is liable to be paid by theAssessee. In the peculiar facts of the present case, we acceptMr. Lotlikar's contention that the Chartered Accountant whoappeared before the Commissioner (Appeals) perhaps being confidentof succeeding on ground No.3 chose not to stress on the remainingtwo grounds which went to the root of the matter. The recordindicates that the Commissioner (Appeals) in fact, held in favour ofthe Assessee in so far as the third ground was concerned. However,ITAT, reversed the Commissioner (Appeals) on these three groundsand thereafter did not permit the Assessee to urge other two groundsthough they went to the root of the matter. 7. Therefore, in these peculiar facts and circumstances of thecase only, we set aside the impugned order made by the ITAT and theorder dated 28th October, 2013 made by the Commissioner (Appeals)as well, and restore the Assessee's appeal before the Commissioner(Appeals) for fresh adjudication on all grounds. We make it clear thatall contentions of all parties are left open to be adjudicated by theCommissioner (Appeals) in accordance with law and on their ownmerits. 4 8.Mr. Lotlikar, learned Senior Advocate in fact points outthat the Assessee's husband's appeal in relation to the very sameproperty is stated to be pending before the Commissioner (Appeals).If this is so then it is only appropriate that both the appeals are takenup together and disposed of by the Commissioner (Appeals). This isan additional ground for remanding the matter to the Commissioner(Appeals). 4 8.Mr. Lotlikar, learned Senior Advocate in fact points outthat the Assessee's husband's appeal in relation to the very sameproperty is stated to be pending before the Commissioner (Appeals).If this is so then it is only appropriate that both the appeals are takenup together and disposed of by the Commissioner (Appeals). This isan additional ground for remanding the matter to the Commissioner(Appeals). 9. The substantial question of law framed in this appeal isnot answered. Instead, the same is left for the determination of theCommissioner (Appeals) alongwith other two grounds which had infact been raised before the Commissioner (Appeals) i.e. ground Nos.1and 2. 10. The parties to appear before the Commissioner (Appeals)on 15th April, 2020 at 11.00 a.m. and file an authenticated copy ofthis order. 11. The appeal is disposed of in the aforesaid terms. 12. All concerned to act on the basis of the authenticatedcopy of this order. SMT. M. S. JAWALKAR, J. M. S. SONAK, J. at*