IN 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 403 513 major in age. Appellant Versus Income 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, Advocate for Appellant. Ms. Amira Abdul Razaq, Standing Counsel for 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 who appears alongwith Mr. T. Sequeira for Appellant and Ms. A. Razaq, learned Standing Counsel for Respondent. 2. This appeal was admitted on 9th April, 2015 on following substantial question of law:- 2 TXA79-14dt.06.03.2020 Whether in facts and circumstances of case, appropriate assessment year for purpose of assessment of capital gains, arising out of transfer by appellant of property belonging to her, was Assessment Year 2009-2010 in which original sale- deed was executed during previous year 2008-2009, or 2010-2011 since there was Rectification Deed executed in said year, substantially altering original sale deed ? 3. On hearing learned counsel for parties, we find that apart from aforesaid substantial question of law there arises in this appeal question as to whether property which is subject matter of sale deed was agricultural property. If this question is to be answered in favour of Assessee then perhaps, there may arise no liability for payment of any tax. 4. Ms. Razaq however pointed out that though this ground was raised by Assessee before Commissioner (Appeals), same was expressly given up. She points out that this is recorded not only in order dated 28th October, 2013 made by Commissioner (Appeals) but also in order of ITAT dated 4th April, 2014. 5. Though, it is true that there is reference that this ground being withdrawn, in peculiar circumstances of present case, we feel that this point which goes to root of matter, is required to be adjudicated upon. However, Ms. Razaq is quite right in 3 TXA79-14dt.06.03.2020 her submission that this point cannot be adjudicated upon in this appeal. 6. Ultimately, purpose of proceeding under IT Act in particular before Appellate Authority is to determine appropriate amount of tax, if any, which is liable to be paid by Assessee. In peculiar facts of present case, we accept Mr. Lotlikar's contention that Chartered Accountant who appeared before Commissioner (Appeals) perhaps being confident of succeeding on ground No.3 chose not to stress on remaining two grounds which went to root of matter. record indicates that Commissioner (Appeals) in fact, held in favour of Assessee in so far as third ground was concerned. However, ITAT, reversed Commissioner (Appeals) on these three grounds and thereafter did not permit Assessee to urge other two grounds though they went to root of matter. 7. Therefore, in these peculiar facts and circumstances of case only, we set aside impugned order made by ITAT and order dated 28th October, 2013 made by Commissioner (Appeals) as well, and restore Assessee's appeal before 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 Commissioner (Appeals) in accordance with law and on their own merits. 4 TXA79-14dt.06.03.2020 8. Mr. Lotlikar, learned Senior Advocate in fact points out that Assessee's husband's appeal in relation to very same property is stated to be pending before Commissioner (Appeals). If this is so then it is only appropriate that both appeals are taken up together and disposed of by Commissioner (Appeals). This is additional ground for remanding matter to Commissioner (Appeals). 9. substantial question of law framed in this appeal is not answered. Instead, same is left for determination of Commissioner (Appeals) alongwith other two grounds which had in fact been raised before Commissioner (Appeals) i.e. ground Nos.1 and 2. 10. parties to appear before Commissioner (Appeals) on 15th April, 2020 at 11.00 a.m. and file authenticated copy of this order. 11. appeal is disposed of in aforesaid terms. 12. All concerned to act on basis of authenticated copy of this order. SMT. M. S. JAWALKAR, J. M. S. SONAK, J. at Myra Muriel Paul v. Income-tax Officer, Ward-2(2), Panaji, Goa