2022 (3) TMI 214 - AT - Income Tax

Reopening of assessment u/s 147 - 2nd reopening of assessment - Long term capital gain on sale of agriculture land - Whether property belongs to HUF as it was ancestral property belonging to great grandfathers? - assessment was reopened in the status of HUF but the assessment completed in the status of individual - HELD THAT - The subject land property was ancestral property and therefore the capital gains is required to be assessed in the hands of Shri Kewal Singh HUF as observed by CIT appeal in the earlier proceedings where case was reopened in the hands of HUF whereas assessment was completed in the hands of individual and so it was held invalid. The facts that share of long-term capital gain in the case of Shri Beldev Singh one of the brother of the assessee was assessed and confirmed in individual status cannot be a basis for again reopening the case of the appellant in individual status on the same facts. The finding of the CIT appeal, ignoring the affidavit filed by the assessee proving that the property belongs to HUF with the support of necessary evidences as and admitted by the AO that the property was ancestral property. AO and the CIT appeal has been silent as to how many heirs of first degree how the land was divided among legal years in absence of any will, agreement and decree to decide the status of the person in the case of the appellant. The question of status granted by CIT appeal to Sh Baldev Singh (Individual) was whether incorrect and capital gains need to be taxed under the status of Baldev Singh HUF remain undecided on merits as Sh Baldev Singh had withdrawal its appeal to buy peace of mind and avoid litigation and accordingly, the appeal of the assessee was dismissed by Hon ble ITAT, Amritsar vide order dated 20- 0-2016 as dismissed withdrawn cann t be said to have attained finality. Thus, the learning said appeal was factually wrong in observing so, and in our view such reopening of the assessment on the same material facts amounts to change of opinion by the AO where in the first instance he has reopened the assessment of the appellant in the status of HUF and in the second instance in the status of individual by the change of opinion which is not permitted in the eyes of law. Thus we hold that in the present case, the ancestral property is owned by the assessee in the HUF status and so the appellant s case was to be reopened under section 147 of the act in the status of HUF and consequently assessed in the status of HUF. We are of the view that the notice issued u/s 148 by the AO was illegal, and void abinitio. - Decided in favour of assessee.

Issues Involved:
1. Legality of the assessment order under Section 143(3) of the IT Act, 1961.
2. Adequacy of the opportunity of being heard provided by the AO.
3. Validity of the notice issued under Section 148.
4. Applicability of Section 292B for correcting mistakes.
5. Ownership status of the property (HUF vs. Individual).
6. Taxability of capital gains.
7. Entitlement to deduction under Section 54F.
8. Charging of interest under Section 234B.

Issue-wise Detailed Analysis:

1. Legality of the Assessment Order:
The appellant contested the assessment order passed under Section 143(3) and its confirmation by the CIT(A) as being against the facts and untenable under the law. The tribunal examined the procedural and substantive aspects of the assessment and found that the reopening of the case under Section 147 was justified based on the material available, thus upholding the legality of the assessment order.

2. Adequacy of Opportunity of Being Heard:
The appellant argued that the AO did not provide a reasonable and proper opportunity of being heard before making the addition. The tribunal found that the CIT(A) and AO had given sufficient opportunity to the appellant to present his case, thereby dismissing this ground.

3. Validity of Notice under Section 148:
The appellant challenged the issuance of notice under Section 148 as illegal, invalid, and void ab initio, claiming it was based on borrowed satisfaction and lacked application of mind. The tribunal observed that the AO had prima facie reasons to believe that income had escaped assessment, justifying the reopening under Section 147. However, the tribunal noted that the AO initially reopened the case in the status of HUF but completed the assessment in the status of Individual, which was previously held invalid by the CIT(A). The tribunal concluded that the second reopening on identical facts in the status of Individual amounted to a change of opinion, which is not permitted by law, thus declaring the notice under Section 148 illegal and void ab initio.

4. Applicability of Section 292B:
The appellant contended that mistakes could not be corrected by invoking Section 292B. The tribunal did not specifically address this issue in detail, as the primary focus was on the validity of the reopening and assessment status.

5. Ownership Status of the Property:
The appellant claimed that the property was ancestral and belonged to the HUF, not the Individual. The tribunal acknowledged that the property was ancestral and should be assessed in the status of HUF. The tribunal criticized the AO and CIT(A) for not properly ascertaining the status and for changing the assessment status from HUF to Individual without sufficient basis.

6. Taxability of Capital Gains:
The appellant argued that there was no capital gain subject to tax. The tribunal's decision to classify the property under HUF status implied that the capital gains should be assessed in the hands of HUF, not the Individual, thereby impacting the taxability of the gains.

7. Entitlement to Deduction under Section 54F:
The appellant claimed entitlement to deduction under Section 54F, which was denied by the AO. The tribunal noted that the AO and CIT(A) ignored the appellant's affidavit and supporting evidence for the deduction. However, since the primary issue of the assessment status was decided in favor of the appellant, other grounds, including the deduction under Section 54F, were considered academic and not adjudicated.

8. Charging of Interest under Section 234B:
The appellant contested the interest charged under Section 234B as excessive and without opportunity of being heard. The tribunal did not specifically address this issue, as the primary focus was on the validity of the reopening and assessment status.

Conclusion:
The tribunal concluded that the notice issued under Section 148 was illegal and void ab initio, and the assessment should have been conducted in the status of HUF. Consequently, the order of the CIT(A) confirming the reopening in the status of Individual was cancelled. Other grounds raised by the appellant were deemed academic and not adjudicated. The appeal was decided in favor of the appellant.

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