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2022 (3) TMI 214 - AT - Income TaxReopening 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the appeal of the assessee was dismissed by Hon’ble ITAT, Amritsar vide order dated 20-|0-2016 as dismissed withdrawn cann’t be said to have attained finality.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.
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