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TMI Blog2025 (2) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... t the CIT(Appeals) ought to have adverted to the facts involved in the case before him in the backdrop of the grounds based on which the impugned addition was assailed before him and adjudicated the said respective issues vide a speaking order instead of dismissing the same for want of prosecution. CIT(Appeals) had disposed off the appeal for non-prosecution and had failed to apply his mind to the issues which did arise from the impugned order and was assailed by the assessee before him. We are unable to persuade ourselves to accept the manner in which the appeal of the assessee had been disposed off by the CIT(Appeals). In our considered view, once an appeal is preferred before the CIT(Appeals), it becomes obligatory on his part to dispose off the same on merit and it is not open for him to summarily dismiss the appeal on account of non-prosecution of the same by the assessee. In fact, a perusal of Sec.251(1)(a) and (b), as well as the "Explanation" to Sec.251(2) of the Act reveals that the CIT(Appeals) remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per the mandate of law the CIT(Appeals) is not vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct year sold an immovable property for a consideration of Rs. 73,65,000/- but had not filed his return of income, thus, holding a conviction that the income of the assessee chargeable to tax had escaped assessment, initiated proceedings u/s.147 of the Act. Notice u/s.148 of the Act, dated 31.03.2021 was issued to the assessee. As the assessee had failed to file his return of income, therefore, the A.O proceeded with and framed the assessment to the best of his judgment u/s.144 of the Act. 3. During the course of the assessment proceedings, the A.O observed that as per information gathered from the Investigation Wing (TEP) which was flagged by DIT (systems) in insight portal on 23.03.2021, the assessee had sold the subject property for a consideration of Rs. 19.06 lacs, whereas, the market value of the same was Rs. 73.65 lacs. The A.O observed that the difference in the Fair Market Value (FMV) and the sale consideration disclosed in the sale deed amounted to Rs. 54.59 lacs. As the assessee had failed to come forth with any explanation, therefore, the A.O held the entire amount of sale consideration of Rs. 73,65,000/- as his unexplained capital gain income u/s.45 of the Act. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ram Saran Yadav Vs. ITO, ITA No.159/RPR/2017, dated 26.07.2022. Alternatively, the Ld. AR submitted that there was no justification for the lower authorities to have held/sustained the entire sale consideration of Rs. 73,65,000/- as an unexplained capital gain income in the hands of the assessee. 8. Per contra, Dr. Priyanka Patel, Ld. Departmental Representative (for short 'DR') relied on the orders of the lower authorities. 9. Ostensibly, it is a matter of fact borne from record that the A.O based on the information received from the Investigation Wing (TEP) which was flagged by DIT (systems) in insight portal on 23.03.2021, had gathered the impugned difference vis-à-vis FMV of the subject property at Rs. 54.59 lacs. For the sake of clarity, the details as were there before the A.O is culled out as under: 3. Analysis of information collected/received: Perusal of information revealed that during the year under consideration ie. F.Y. 2015-16 relevant to assessment year 2016-17, the assessee has sold the following persons through power of attorney issued in the name of Eshan Bhandari. Further, it is also reported that there is huge difference between sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssailed the impugned addition of undisclosed capital gain u/s. 45 of the Act of Rs. 73,65,000/- for the reason that the A.O had grossly erred in treating the entire amount of sale consideration as his undisclosed capital gain u/s. 45 of the Act. We are of the view that though the assessee had not participated in the appellate proceedings, but the CIT(Appeals) ought to have adverted to the facts involved in the case before him in the backdrop of the grounds based on which the impugned addition was assailed before him and adjudicated the said respective issues vide a speaking order instead of dismissing the same for want of prosecution. 11. As observed by us hereinabove, the CIT(Appeals) had disposed off the appeal for non-prosecution and had failed to apply his mind to the issues which did arise from the impugned order and was assailed by the assessee before him. We are unable to persuade ourselves to accept the manner in which the appeal of the assessee had been disposed off by the CIT(Appeals). In our considered view, once an appeal is preferred before the CIT(Appeals), it becomes obligatory on his part to dispose off the same on merit and it is not open for him to summarily dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the s. 251(1)(a) and (b) and Explanation to Sec. 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act." 12. We, thus, not being able to persuade ourselves to subscribe to the dismissal of the appeal by the CIT(Appeals) for non-prosecution, therefore, set-aside his order with a direction to dispose off the same on merits. Needless to say, the CIT(Appeals) shall in the course of the de-novo appellate proceedings afford a reasonable opportunity of being heard to the assessee who shall remain at a liberty to substantiate his claim on the basis of documentary evidence, if any. Thus, the grounds of appeal raised by the assessee are allowed for statistical purposes in terms of the aforesaid observations. 13. In the result, the appeal filed by the assessee is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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