Myra Muriel Paul. Vs Income Tax Officer, WARD-2 (2).

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TXA79-14dt.06.03.2020

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1

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IN THE HIGH COURT OF BOMBAY AT GOA

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TAX APPEAL NO. 79 OF 2014

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Smt. Myra Muriel Paul,
Resident of House No.647,
Ponsulem, Colvale,
Bardez Goa 403 513
major in age. ... Appellant
Versus
Income Tax Officer, Ward-2 (2),
“Ayakar Bhavan”,
Plot No.5, EDC Complex,
Patto, Panaji Goa. ... Respondent

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Mr. S. D. Lotlikar, Senior Advocate with Mr. T. Sequeira, Advocate
for the Appellant.

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Ms. Amira Abdul Razaq, Standing Counsel for the Respondent.

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Coram:- M. S. SONAK &
 SMT. M. S. JAWALKAR, JJ.
Date:- 6th March, 2020

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Oral Judgment( Per M. S. Sonak,J)

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Heard Mr. S. D. Lotlikar, learned Senior Advocate who
appears alongwith Mr. T. Sequeira for the Appellant and Ms. A.
Razaq, learned Standing Counsel for the Respondent.

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2. This appeal was admitted on 9th April, 2015 on the
following substantial question of law:-

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2 TXA79-14dt.06.03.2020

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“Whether in the facts and circumstances of the case, the
appropriate assessment year for the purpose of assessment
of the capital gains, arising out of the transfer by the
appellant of the property belonging to her, was
Assessment 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 Deed
executed in the said year, substantially altering the
original sale deed ?

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3. On hearing the learned counsel for the parties, we find
that apart from the aforesaid substantial question of law there arises in
this appeal a question as to whether the property which is subject
matter of the sale deed was an agricultural property. If this question is
to be answered in favour of the Assessee then perhaps, there may arise
no liability for payment of any tax.

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4. Ms. Razaq however pointed out that though this ground
was raised by the Assessee before the Commissioner (Appeals), the
same was expressly given up. She points out that this is recorded not
only in the order dated 28th October, 2013 made by the
Commissioner (Appeals) but also in the order of the ITAT dated 4th
April, 2014.

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5. Though, it is true that there is a reference that this
ground being withdrawn, in the peculiar circumstances of the present
case, we feel that this point which goes to the root of the matter, is
required to be adjudicated upon. However, Ms. Razaq is quite right in

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3 TXA79-14dt.06.03.2020

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her submission that this point cannot be adjudicated upon in this
appeal.

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6. Ultimately, the purpose of proceeding under the IT Act
in particular before the Appellate Authority is to determine
appropriate amount of tax, if any, which is liable to be paid by the
Assessee. In the peculiar facts of the present case, we accept
Mr. Lotlikar's contention that the Chartered Accountant who
appeared before the Commissioner (Appeals) perhaps being confident
of succeeding on ground No.3 chose not to stress on the remaining
two grounds which went to the root of the matter. The record
indicates that the Commissioner (Appeals) in fact, held in favour of
the Assessee in so far as the third ground was concerned. However,
ITAT, reversed the Commissioner (Appeals) on these three grounds
and thereafter did not permit the Assessee to urge other two grounds
though they went to the root of the matter.

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7. Therefore, in these peculiar facts and circumstances of the
case only, we set aside the impugned order made by the ITAT and the
order 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 that
all contentions of all parties are left open to be adjudicated by the
Commissioner (Appeals) in accordance with law and on their own
merits.

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4 TXA79-14dt.06.03.2020

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8.Mr. Lotlikar, learned Senior Advocate in fact points out
that the Assessee's husband's appeal in relation to the very same
property is stated to be pending before the Commissioner (Appeals).
If this is so then it is only appropriate that both the appeals are taken
up together and disposed of by the Commissioner (Appeals). This is
an additional ground for remanding the matter to the Commissioner
(Appeals).

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9. The substantial question of law framed in this appeal is
not answered. Instead, the same is left for the determination of the
Commissioner (Appeals) alongwith other two grounds which had in
fact been raised before the Commissioner (Appeals) i.e. ground Nos.1
and 2.

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10. The parties to appear before the Commissioner (Appeals)
on 15th April, 2020 at 11.00 a.m. and file an authenticated copy of
this order.

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11. The appeal is disposed of in the aforesaid terms.

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12. All concerned to act on the basis of the authenticated
copy of this order.

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SMT. M. S. JAWALKAR, J. M. S. SONAK, J.

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at*

Myra Muriel Paul. v. Income Tax Officer, WARD-2 (2).

Case brief

What is this about?

What did the court decide?

Myra Muriel Paul. v. Income Tax Officer, WARD-2 (2).

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Parties & counsel

Coram

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