TMI Blog2023 (1) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal by the CIT(A) for non-prosecution, therefore, set-aside the same to his file with a direction to dispose off the same on merits. CIT(A) shall afford a reasonable opportunity of being heard to the assessee in the course of the de- novo appellate proceedings. Additional ground of appeal raised by the assessee are allowed for statistical purpose. - ITA No.104/RPR/2020 - - - Dated:- 24-1-2023 - Shri Ravish Sood, Judicial Member For the Assessee : Shri R.B Doshi, CA For the Revenue : Shri Piyush Tripathi, Sr. DR ORDER PER RAVISH SOOD, JM The present appeal filed by the assessee is directed against the order passed by the CIT(Appeals)-I, Raipur, dated 04.02.2019, which in turn arises from the order passed by the A.O under Sec. 143(3) of the Income-tax Act, 1961 (in short the Act ) dated 23.10.2017 for assessment year 2015-16. The assessee has assailed the impugned order on the following grounds of appeal: 1. In the facts and circumstances of the case and in law, Ld. CIT(A) erred in confirming addition of Rs.50,11,781/- made by the A.O on account of long term capital gain. Ld. CIT(A) erred in not allowing proper opportunity of hearing. The additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,470/-. On being queried as to why the same was not earlier disclosed in its return of income, it was submitted by the assessee, that the same was for the reason that the requisite papers were not available at the time of filing of the return of income. 5. On a perusal of the computation of LTCG of Rs.42,14,470/- (supra), it was observed by the A.O that the same was worked out by the assessee, as under: Particulars Amount Net sale consideration Rs.2,11,36,662/- Less indexed cost of purchases Rs.98,02,095/- Less indexed cost of development Rs.71,20,097/- LTCG Rs.42,14,470/- However, the A.O on the basis of purchase/sale documents and other bills/vouchers pertaining to the development expenses reworked out the LTCG at Rs.50,11,871/-. As the assessee had not disclosed the LTCG on the sale of the aforesaid property in its return of income, therefore, the A.O made an addition of Rs.50,11,871/- to the returned income. 6. Aggrieved, the assessee carried the matter in appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moon [2010] 321 ITR 362 (SC) and CIT v. Laxman Das Khandelwal (2019) 417 ITR 325 (SC). 8.2 Also, it was submitted by the Ld. AR that the A.O who had issued notice u/s.143(2) dated 11.04.2016, i.e., DCIT-1(1), Raipur had no territorial jurisdiction over the case of the assessee. Elaborating on his aforesaid contention, it was the claim of the Ld. AR that the jurisdiction over its case was vested with ITO/ACIT/DCIT, Range-3, Raipur. In order to fortify his aforesaid contention the Ld. AR had taken me to the Notification No.1 of 2014/15, dated 15.11.2014 issued by the Jt. Commissioner of Income Tax, Range-2, Raipur, Page 2-3 of APB. My attention was also drawn by the Ld. AR to the territorial jurisdiction that at the relevant point of time was vested with the ITO-3(1), Raipur, which, inter alia, at Sr. No.1(i) referred to the area where the registered office of the assessee company was situated. On the basis of his aforesaid contention, it was the claim of the Ld. AR that the DCIT-1(1), Raipur who had issued notice u/s.143(2) dated 11.04.2016 was neither vested with territorial jurisdiction nor pecuniary jurisdiction in the case of the assessee. 8.3 The Ld. AR in order to buttr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the said issue had disposed off the appeal by merely referring to the facts, and upheld the view taken by the A.O, observing as under: The only issue in appeal is non inclusion of capital gain income from sale of land by the appellant in its return of income. As per the appellant company the director of the company did not provide sale documents to the AR for including the same in the return of income. What so ever may be the reason the income has escaped assessment. As per the assessment order the sale consideration of Rs.48.53 acres of land was Rs.2,27,16,000/- and after deducting cost of land, cost of development indexing the same to the A.Y.2015-16 the gain has ben worked out at Rs.50,11,871/-. The same is hereby sustained. I am unable to fathom the manner in which the appeal had been disposed off by the CIT(Appeals). On a perusal of the order of the CIT(A), I find that he had summarily dismissed the appeal of the assessee for non-prosecution and had failed to apply his mind to the issues which arose from the impugned order and were assailed by the assessee before him. I am unable to persuade myself to accept the manner in which the appeal of the assessee had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee 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. I, thus, not being able to persuade myself to subscribe to the dismissal of the appeal by the CIT(A) for non-prosecution, therefore, set-aside the same to his file with a direction to dispose off the same on merits. Needless to say, the CIT(A) shall afford a reasonable opportunity of being heard to the assessee in the course of the de- novo appellate proceedings. As the assessee by way of an additional ground of appeal has assailed before me the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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