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2021 (9) TMI 610 - HC - Income TaxReopening proceedings u/s 147/148 - event of tracing out new tangible material or information - change of opinion - non-disclosure on the part of the assessee proved or not? - reopening beyond period of four years - deduction u/s 54F was sought for. Long term capital gain - reasons of reopening reveals that as per sub-section (2) of Section 54F, the assessee should not acquire another asset other than the new asset within two years - HELD THAT:- Here, the petitioner had acquired two more houses on the same date. The exemption under Section 54F is required to be withdrawn for violation of condition under sub-section (2) of Section 54F. Thus, it is apparently clear that for the purpose of withdrawal of the exemption granted under Section 54F, the assessment is reopened. Such a reopening cannot be construed as based on new tangible material. If at all any lapse committed during the original assessment proceedings or erroneous consideration based on the opinion formed by the Assessing Officer during the relevant point of time, the other possible opinion if at all raised for reopening of assessment is to be construed as change of opinion and cannot be considered as new materials for the purpose of reopening of assessment. In the present case, admittedly the assessee had submitted all the documents pertaining to the purchase of the three properties and all those documents were placed before the Assessing Officer and the Assessing Officer considered all those three documents and formed an opinion that, the petitioner / assessee is eligible to grant exemption under Section 54F of the Income Tax Act only in respect of one property. Exemption under Section 54F is required to be withdrawn for violation of condition under sub-section (2) of Section 54F - AO during the relevant point of time, when this issue was considered was very much aware of the fact regarding the implication of sub-section (2) of Section 54F and by considering all those aspects, he granted exemption for only one property alone. This being the factum, the Assessing Officer clearly formed an opinion for the purpose of grant of exemption under Section 54F while passing the original assessment order and now the reasons furnished for reopening of assessment would reveal that they are taking a different opinion on the same set of facts. Thus, the said reasons furnished for reopening the proceedings dated 06.04.2016 amounts to change of opinion beyond any pale of doubt. - Decided in favour of assessee.
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