KIRAN KUMAR HUF, REWARI v. ITO, WARD- 1, REWARI

ITA 3934/DEL/2017 | 2009-2010
Pronouncement Date: 03-03-2021 | Result: Allowed

Appeal Details

RSA Number 393420114 RSA 2017
Assessee PAN AALHK3682R
Bench Delhi
Appeal Number ITA 3934/DEL/2017
Duration Of Justice 3 year(s) 8 month(s) 16 day(s)
Appellant KIRAN KUMAR HUF, REWARI
Respondent ITO, WARD- 1, REWARI
Appeal Type Income Tax Appeal
Pronouncement Date 03-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 03-03-2021
Last Hearing Date 18-01-2021
First Hearing Date 18-01-2021
Assessment Year 2009-2010
Appeal Filed On 16-06-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER AND SHRI KULDIP SINGH JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.3934/DEL./2017 (ASSESSMENT YEAR : 2009-10) KIRAN KUMAR HUF VS. ITO WARD 1 C/O NARESH SINGH CHAUHAN ADVOCATE REWARI. 1035 P SECTOR 3 PART II NEAR GANESHI LAL DHARMSHALA REWARI 123 401. (PAN : AALHK3682R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI LALIT MOHAN CA REVENUE BY : SHRI SANJAY KUMAR SENIOR DR DATE OF HEARING : 21.01.2021 DATE OF ORDER : 03.03.2021 O R D E R PER KULDIP SINGH JUDICIAL MEMBER : APPELLANT KIRAN KUMAR HUF (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO S ET ASIDE THE IMPUGNED ORDER DATED 13.04.2017 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS) ROHTAK QUA THE ASSESSMENT YEA R 2009-10 ON THE GROUNDS INTER ALIA THAT :- ITA NO.3934/DEL./2017 2 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ROHTAK HAS ERRED BOTH IN LAW AND ON FACT S IN SUSTAINING THE INITIATION OF PROCEEDINGS U/S 147 OF THE ACT AND COMPLETION OF ASSESSMENT U/S 147/143(3) OF THE ACT WHICH WERE WITHOUT JURISDICTION AND DESERVED TO BE QUASHED AS SUCH. 1.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THERE WAS N O TANGIBLE AND RELEVANT MATERIAL ON RECORD ON THE BASIS OF WHI CH IT COULD BE HELD THAT THERE WAS ANY 'REASONS TO BELIEVE' WI TH THE LEARNED INCOME TAX OFFICER THE INCOME OF THE APPELL ANT HAD ESCAPED ASSESSMENT AND IN VIEW THEREOF THE PROCEE DINGS INITIATED WERE ILLEGAL UNTENABLE AND THEREFORE UN SUSTAINABLE. 1.2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACT S IN FAILURE TO APPRECIATE THAT ISSUANCE OF NOTICE U/S 148 MERE LY AMOUNTED TO CHANGE OF OPINION AS ORIGINAL ASSESSMENT WAS COM PLETED U/S 143(3) AND NO TANGIBLE MATERIAL SURFACED AFTER THE COMPLETION OF ASSESSMENT AND THEREFORE NOTICE WAS ILLEGAL AND WITHOUT JURISDICTION. 1.3 THAT THE BASIS ADOPTED IN THE REASONS RECORDED THAT ACTION U/S 148 OF THE ACT IN COMPLIANCE OF ORDER OF HON'BLE TRIBUNAL DATED 26.9.2014 IN ITA NO. 1801/D/2013 IS BASED ON MISINTERPRETATION AND MISCONSTRUCTION OF THE FINDIN GS OF THE HON'BLE TRIBUNAL AND HENCE THE ACTION IS WITHOUT JU RISDICTION. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN SUS TAINING AN ADDITION OF RS.1 38 39 317/- REPRESENTING ALLEGED L ONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND LOCATED A T VILLAGE KAPRIWAS PO DHARUHERA DISTT. REWARI. 2.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE ALLEGED LONG TERM CAPITAL GAIN WAS NOT TAXABLE IN THE HANDS OF THE AP PELLANT SINCE ADDITION MADE IN THE HANDS OF THE INDIVIDUAL HAD BE EN THOUGH DELETED BY THE HON'BLE INCOME TAX APPELLATE TRIBUNA L BUT SINCE THE AFORESAID ORDER WAS CHALLENGED IN APPEAL BEFORE THE HON'BLE HIGH COURT BY REVENUE AND AS SUCH IT IS A C ASE OF DOUBLE TAXATION WHICH IS NOT PERMISSIBLE. 2.2 THAT EVEN OTHERWISE THAT SINCE THE LAND SOLD W AS AN AGRICULTURAL LAND NO ADDITION WAS TENABLE IN THE HA NDS OF THE APPELLANT U/S 45 READ WITH SECTION 2(14) OF THE ACT . 3 THAT WITHOUT PREJUDICE TO THE ABOVE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE INCORRECT COMPUT ATION OF ITA NO.3934/DEL./2017 3 LONG TERM CAPITAL GAIN BY RESTRICTING THE INDEXED C OST OF ACQUISITION TO RS.1 25 892/- AS AGAINST CLAIMED IND EXED COST OF ACQUISITION OF RS.1 39 68 698/- AND THUS EVEN OTHER WISE THE ADDITION SUSTAINED IS INVALID. 4 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACT S IN SUSTAINING THE DENIAL OF EXEMPTION CLAIMED U/S 54F/ 54B OF THE ACT. 4.1 THAT VARIOUS ADVERSE FINDINGS AND CONCLUSION R ECORDED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WHILE UPHOLDING THE DENIAL OF EXEMPTION ARE ALSO FACTUALL Y INCORRECT CONTRARY TO RECORD LEGALLY MISCONCEIVED AND UNTENA BLE. 5 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN UPH OLDING THE LEVY OF INTEREST OF RS.25 79 728/- UNDER SECTION 23 4B OF THE ACT WHICH IS NOT LEVIABLE ON THE FACTS AND CIRCUMSTANCE S OF THE CASE OF THE APPELLANT. IT IS THEREFORE PRAYED THAT IT BE HELD THAT ASSES SMENT MADE BY THE LEARNED INCOME TAX OFFICER AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE QUASHED AND FURTHER ADDITION SO UPHELD BY THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) ALONGWITH INTEREST LEVIED BE D ELETED AND APPEAL OF THE APPELLANT BE ALLOWED. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : PURSUANT TO THE ORDER DAT ED 26.09.2014 PASSED BY THE TRIBUNAL IN APPEAL BEARING ITA NO.180 1/DEL/2013 FOR AY 2009-10 IN ASSESSEES CASE IN INDIVIDUAL STA TUS ASSESSEE HAD SUBMITTED BEFORE THE TRIBUNAL THAT THE CAPITAL GAINS ON THE LAND IN QUESTION HAS ALREADY BEEN BROUGHT TO TAX IN THE HANDS OF HUF AND CONSEQUENTLY THE TRIBUNAL HAD DIRECTED THE ITO TO VERIFY THE ISSUE. DURING THE ASSESSMENT PROCEEDINGS U/S 143 ( 3) OF THE INCOME-TAX ACT 1961 (FOR SHORT THE ACT) DATED 14 .12.2011 IN THE ASSESSEES INDIVIDUAL CASE COST OF ACQUISITION WAS TAKEN AT RS.97/- ITA NO.3934/DEL./2017 4 PER MARLA @ RS.15 520/- PER ACRE AS ON 01.04.1981 O N THE BASIS OF SALE INSTANCE AND THE TOTAL COST OF ACQUISITION OF THE LAND I.E. 11 CANAL 3 MARLA (223 MARLA) WAS DETERMINED AT RS.21 6 31/- AND THE INDEXED COST OF ACQUISITION OF LAND IN QUESTION WAS DETERMINED AT RS.1 25 892/- (21 631 * 582/100 = 1 25 892) AND THE LONG TERM CAPITAL GAIN WAS CALCULATED AT RS.1 38 39 317/-. A O SOUGHT TO CHARGE THE CAPITAL GAIN IN COMPLIANCE TO THE ORDER PASSED BY THE TRIBUNAL TO TAX IN HUF STATUS OF ASSESSEE BY APPLYI NG THE SAME COST OF ACQUISITION OF THE LAND IN QUESTION. FINDING RE ASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE FROM LONG TERM CAPI TAL GAIN OF RS.1 38 55 806/- AND ANY OTHER INCOME WHICH SUBSEQU ENTLY COMES TO THE NOTICE OF THE AO HAS ESCAPED ASSESSMENT WITH IN THE MEANING OF SECTION 147 OF THE ACT AND THEREBY GIVEN NOTICE U/S 148 TO THE ASSESSEE. AO DISPOSED OFF THE OBJECTIONS FILED BY THE ASSESSEE. IN RESPONSE TO THE NOTICE U/S 148 THE ASSESSEE FILED RETURN OF INCOME ON 27.04.2015 SHOWING CLAIM OF DEDUCTION UNDER SECT IONS 44/44B/54/54B/54D/54EC/54F/54G/54GA AS NIL. AO HEL D THAT CAPITAL GAINS OF RS.1 38 39 317/- CALCULATED AND CH ARGED IN THE INDIVIDUAL CASE BY THE AO MADE CHARGEABLE IN THE HA NDS OF HUF AND THEREBY MADE AN ADDITION OF RS.1 38 39 317/-. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS CONFIRMED THE ADDITION BY DISMISSING THE ITA NO.3934/DEL./2017 5 APPEAL. FEELING AGGRIEVED BY THE ORDER PASSED BY T HE LD. CIT (A) THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. LD. AR FOR THE ASSESSEE CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT WHEN CAPITAL GAIN HAS ALR EADY BEEN ASSESSED IN THE HANDS OF HUF THEN REOPENING BY THE AO IS BAD IN LAW; THAT ASSESSEE HAS TRULY AND FULLY DECLARED THE SALE OF ENTIRE AGRICULTURAL LAND AT THE TIME OF REOPENING OF HUF A SSESSMENT THE AO WAS WELL AWARE THAT IN INDIVIDUAL CAPACITY FAIR MARKET IS TAKEN AS ON 01.04.1981 BY THE THEN AO; THAT AO/CIT (A) HA VE ERRED IN REJECTING THE EXEMPTION U/S 54F OF THE ACT. HOWEVE R ON THE OTHER HAND LD. DR FOR THE REVENUE RELIED UPON THE ORDER PASSED BY THE AO AS WELL AS LD. CIT (A). 6. UNDISPUTEDLY THE LAND IN QUESTION QUA WHICH THE CAPITAL GAINS TO THE TUNE OF RS.1 38 39 317/- HAVE BEEN ASS ESSED AND ADDED TO THE INCOME OF THE ASSESSEE BY THE AO BELONGS TO KIRAN KUMAR HUF. IT IS ALSO NOT IN DISPUTE THAT FIRST TIME ASS ESSMENT WAS REOPENED IN HUF CASE U/S 147/148 OF THE ACT VIDE NO TICE DATED ITA NO.3934/DEL./2017 6 28.03.2013 AFTER ORDER PASSED BY THE LD. CIT (A) WH EREIN IT WAS DECIDED THAT SALE PROCEEDS OF THE AGRICULTURAL LAND BELONGS TO HUF. IT IS ALSO NOT IN DISPUTE THAT SECOND TIME ASSESSME NT HAS BEEN REOPENED BY THE REVENUE DEPARTMENT PURSUANT TO THE ORDER DATED 26.09.2014 PASSED IN ITA NO.1801/DEL/2013 IN ASSESS EES CASE IN INDIVIDUAL STATUS FOR AY 2009-10. 7. IN THE BACKDROP OF THE AFORESAID UNDISPUTED FACT THE ONLY QUESTION ARISES FOR DETERMINATION IN THIS CASE IS : - AS TO WHETHER CAPITAL GAINS QUA THE LAND IN QUESTI ON HAVE BEEN TAXED IN THE HANDS OF HUF VIDE ASSESSMENT ORDER DAT ED 26.03.2014 AS CONTENDED BY THE LD. AR FOR THE ASSES SEE? 8. BARE PERUSAL OF THE ORDER DATED 26.09.2014 PASS ED BY THE TRIBUNAL IN ITA NO.1801/DEL/2013 IN ITO VS. KIRAN K UMAR SHOWS THAT THE TRIBUNAL HELD THAT :- WHILE SETTING ASIDE THE ORDER OF THE LD. CIT (A) RE MITTED THE MATTER BACK TO THE FILE OF AO AND DIRECTED HIM TO V ERIFY WHETHER THE HUF HAS BEEN TAXED ON THE CAPITAL GAIN QUA THE LAND IN QUESTION AND IF SO THE ADDITION MADE ON THE INDIVI DUAL ASSESSEE NEEDS TO BE DELETED. 9. TO COMPLY WITH THE ORDER PASSED BY THE TRIBUNAL (SUPRA) THE FIRST STEP FOR THE AO TO TAKE IN THIS CASE WAS TO V ERIFY WHETHER CAPITAL GAIN QUA THE LAND IN QUESTION HAS BEEN TAXE D IN THE NAME OF KIRAN KUMAR HUF AND IF SO THE ADDITION MADE IN THE NAME OF KIRAN KUMAR IN THE INDIVIDUAL STATUS NEEDS TO BE DE LETED. ITA NO.3934/DEL./2017 7 10. AO HAS REOPENED THE ASSESSMENT SECOND TIME IN T HIS CASE PURSUANT TO THE ORDER DATED 26.09.2014 PASSED BY THE TRIBUNAL IN ITA NO.1801/DEL/2013 IN ITO VS. KIRAN KUMAR BY RECORDING REASONS U/S 148 (2) OF THE ACT AS UNDER :- ASSESSMENT U/S 147/143(3) OF THE ACT WAS MADE VIDE ORDER DATED 26.03.2014 AT AN INCOME OF RS.26 840/- + AGRI CULTURE INCOME OF RS.5 000/- WHEREIN THE CAPITAL LOSS ON SA LE OF LAND WAS DETERMINED AT RS.16 489/- BY ADOPTING THE COST OF ACQUISITION OF LAND AT RS.24 00 120/- AS ON 01.04.1 981 AS PER CALCULATION GIVEN BELOW :- SALE CONSIDERATION OF AGRICULTURE LAND SOLD ON 23.07.2008 RS.1 39 52 209 LESS INDEXED COST OF ACQUISITION 24 00 120/100*582= RS.1 39 68 698 CAPITAL LOSS = RS.(-)16 489/- 11 BARE PERUSAL OF THE ORDER PASSED BY THE TRIBUNA L DATED 26.09.2014 (SUPRA) ON THE BASIS OF WHICH ASSESSMENT HAS BEEN REOPENED SECOND TIME GOES TO PROVE THAT THE TRIBUNA L HAS MERELY DIRECTED THE AO TO VERIFY THE CLAIM OF THE ASSESSEE THAT CAPITAL GAINS QUA THE LAND IN QUESTION HAVE ALREADY BEEN BR OUGHT TO TAX IN THE HANDS OF HUF. INSTEAD OF VERIFYING THE FACTS THE AO HAS JUMPED TO THE CONCLUSION TO REOPEN THE ASSESSMENT W HICH IS BAD IN LAW. 12. WE HAVE PERUSED THE ASSESSMENT ORDER DATED 26.0 3.2014 PASSED IN CASE OF KIRAN KUMAR HUF U/S 143 (3)/148 O F THE ACT FOR AY 2009-10 WHEREIN CAPITAL GAINS OF RS.16 489/- HAS BEEN CLAIMED AND ACCEPTED BY THE REVENUE. IT IS STRANGE THAT IN STEAD OF VERIFYING ITA NO.3934/DEL./2017 8 THE FACTS IF CAPITAL GAINS HAVE ALREADY BEEN BROUGH T TO TAX IN THIS CASE VIDE ASSESSMENT ORDER DATED 26.03.2014 AO AGA IN REOPENED THE ASSESSMENT SECOND TIME. 13. IDENTICAL ISSUE IN CASE OF NARAYAN SINGH HUF REPORTED IN (2020) 82 ITR (TRIB) 0018 (DELHI) HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF THE TRIBUNAL IN FAVOUR OF T HE ASSESSEE WHICH IS QUA THE LAND IN QUESTION WHEREIN IT IS HE LD THAT WHEN CAPITAL GAINS HAVE ALREADY BEEN BROUGHT TO TAX IN T HE HANDS OF KIRAN KUMAR HUF WHILE FRAMING THE ASSESSMENT ORDER DATED 26.03.2014 (SUPRA) SUBSEQUENT REOPENING IS NOT SUSTAINABLE AN D WAS ACCORDINGLY QUASHED BY RETURNING FOLLOWING FINDINGS :- 5. IT APPEARS THAT THE ASSESSING OFFICER TOTALLY MISINTERPRETED THE DIRECTIONS OF THE TRIBUNAL. NOTICE ISSUED ONCE AGAIN U/S 148 OF THE ACT AND REASONS FOR ISSUANCE OF NOTICE ARE AS U NDER: 'ASSESSMENT U/S 147/143(3) OF THE ACT WAS MADE VIDE ORDER DATED 26.03.2014 AT AN INCOME OF RS. 3 13 660/- WHE REIN THE CAPITAL LOSS ON SALE OF LAND WAS DETERMINED AT RS 4 2 918/- BY ADOPTING THE COST OF ACQUISITION OF LAND AT RS 33 8 4 880/-AS ON 01.04.1981 AS PER CALCULATION GIVEN BELOW SALE CONSIDERATION OF LAND RS. 1 96 57 084/- LESS: INDEXED COST OF ACQUISITION AS ON 01.04.1981 33 84 880/100*582 = RS.1.97 00 002/- CAPITAL LOSS = RS. (-) 42 918/- LATER ON PERUSAL OF THE HON'BLE I.T.A.T NEW DELHI 'S ORDER DATED 26.09.2014 IN APPEAL NO. ITA NO. 1802/DEL/201 3 IN ASSESSEE'S CASE IN INDIVIDUAL STATUS FOR A.Y. 2009- 2010 IT IS REVEALED THAT THE ASSESSEE HAS SUBMITTED BEFORE THE I.T.A.T THAT THE CAPITAL GAINS ON THE LAND IN QUESTION HAS BEEN BROUGHT TO TAX IN THE HANDS OF HUF AND THE HON'BLE ITAT HAS DIRECTED THE UNDERSIGNED TO VERIFY THE ISSUE. T HE ASSESSEE HAS NOT CHALLENGED THE COST OF ACQUISITION OF THE ITA NO.3934/DEL./2017 9 LAND IN QUESTION AS ON 01.04.1981 AND CALCULATION O F CAPITAL GAINS AT RS 1 94 86 593/- IN INDIVIDUAL STATUS BEFO RE THE HON'BLE ITAT. DURING ASSESSMENT PROCEEDINGS U/S 143 (3) DATED 14.12.2011 IN THE ASSESSEE'S INDIVIDUAL CASE THE COST OF ACQUISITION WAS DETERMINED AT RS 97/- PER MARLA AT THE RATE OF RS 15 520/- PER ACRE AS ON 01 04.1981 ON THE BAS IS OF SALE INSTANCE AND THE TOTAL COST OF ACQUISITION OF THE L AND 15 KANAL 2 MARLA (302 MARLA ) WAS DETERMINED AT RS 29 294/- (302*97/-) AND THE INDEXED COST OF ACQUISITION OF T HE LAND IN QUESTION WAS DETERMINED AT RS 1 70 491/- (29294*582 /100= 1 70 491/-). THE LONG-TERM CAPITAL GAIN WAS WORKED OUT AT RS. 1 94 86 593/-(1 96 57 084/- 1 70 494/- =1 94 86 593/-). THEREFORE IN COMPLIANCE OF HON'BLE ITAT'S ORDER TH E CAPITAL GAINS IS TO BE CHARGED TO TAX IN HUF STATUS OF THE ASSESSEE BY APPLYING THE SAME COST OF ACQUISITION O F THE LAND IN QUESTION AS DETERMINED IN THE CASE OF INDIVIDUAL STATUS FOR THE SAME ASSESSMENT YEAR. THUS BY TAKING THE C OST OF ACQUISITION OF THE LAND AS ON 01.04.1981 AS THAT D ETERMINED IN THE INDIVIDUAL STATUS OF THE ASSESSEE VIDE ORDER U/S 143(3) DATED 19.12.2011 THE LONG-TERM CAPITAL GAINS IN HU SALE CONSIDERATION OF LAND 15 KANAL 2 MARIA (302 MARLA) RS. 1 96 57 084/- LESS: COST OF ACQUISITION 29294/-(30297=29294/-) INDEXED COST = 170491/- (29294*582/100=170491/-) RS. 1 70 491/- LONG TERM CAPITAL GAINS RS.1 94 86 593/- AS THE LONG-TERM CAPITAL GAIN HAS BEEN SHOWN AT CAP ITAL LOSS OF RS 42 918/- THEREFORE LONG-TERM CAPITAL GAIN TO THE EXTENT OF RS. 1 95 29 511/- (1 94 86 593 + 42 9 18/-= 1 95 29 511/-) HAS ESCAPED ASSESSMENT. I THEREFORE HAVE REASON TO BELIEVE THAT INCOME OF THE ASSESSEE FROM LONG TERM CAPITAL GAIN TO THE EXTENT OF RS.1 95 29 511/- AS DISCUSSED ABOVE AND ANY OTHER I NCOME WHICH SUBSEQUENTLY COMES TO THE NOTICE OF THE UNDER SIGNED HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTIO N 147 OF THE I.T. ACT 1961.' 6. AS MENTIONED ELSEWHERE EARLIER ALSO A NOTICE U/S 148 WAS ISSUED AND SERVED UPON THE ASSESSEE AND ASSESSMENT WAS COMPLETED VIDE ORDER DATED 26.03.2014. THE ORDER OF THE TRIBU NAL IS 26.09.2014 AND THE DIRECTIONS OF THE TRIBUNAL ARE VERY CLEAR T HAT THE ASSESSING OFFICER HAD TO VERIFY WHETHER THE CAPITAL GAINS HAV E BEEN TAXED IN THE HANDS OF THE HUF OR NOT AND ASSESSMENT ORDER DA TED 26 03 2014 CLEARLY SHOWS THAT ASSESSMENT HAS BEEN COMPLETED IN THE HANDS OF THE HUF. 7. IN OUR CONSIDERED OPINION ONCE ASSESSMENT HAS BEEN REOPENED TO TAX CAPITAL GAIN IN THE HANDS OF THE HU F TO AVOID ITA NO.3934/DEL./2017 10 DOUBLE TAXATION THE TRIBUNAL IN THE HANDS OF THE IN DIVIDUAL HAS SIMPLY DIRECTED THE ASSESSING OFFICER TO VERY WHETH ER THE HUF HAS BEEN ASSESSED OR NOT. THE TRIBUNAL NOWHERE DIRECTED THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT AND MAKE THE IMPUG NED ADDITIONS. IN OUR HUMBLE OPINION THE ASSESSING OFFICER HAS TO TALLY MISINTERPRETED THE DIRECTIONS OF THE TRIBUNAL AND G ROSSLY ERRED IN ONCE AGAIN REOPENING THE ASSESSMENT ON THE SAME SET OF FACTS WHICH HAVE ALREADY BEEN CONSIDERED WHILE FRAMING ASSESSME NT ORDER DATED 26.03.2014 IN THE HANDS OF THE HUF. THEREFORE WE H AVE NO HESITATION TO SET ASIDE THE NOTICE U/S 148 OF THE A CT THEREBY QUASHING THE ASSESSMENT ORDER FRAMED PURSUANT TO TH E SAID NOTICE. ACCORDINGLY GROUND NOS. 1 TO 1.3 TAKEN TOGETHER AR E ALLOWED. 14. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE WE AR E OF THE CONSIDERED VIEW THAT IT IS A CASE OF COMPLETELY MIS UNDERSTANDING THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.1801/DEL /2013 (SUPRA) ON THE BASIS OF WHICH ASSESSMENT HAS BEEN REOPENED SECOND TIME WITHOUT VERIFYING THE FACTS IF CAPITAL GAINS QUA TH E LAND IN QUESTION HAVE ALREADY BEEN BROUGHT TO TAX IN THE HANDS OF HU F. 15. CONSEQUENTLY REOPENING IN THIS CASE BY WAY OF ISSUANCE OF NOTICE ISSUED U/S 148 OF THE ACT IS NOT SUSTAINABLE AND IS LIABLE TO BE QUASHED. HENCE QUESTION FRAMED IN THIS CASE IS AN SWERED IN AFFIRMATIVE. ACCORDINGLY ASSESSMENT FRAMED IN THIS CASE IS ORDERED TO BE QUASHED WITHOUT GOING INTO THE MERITS OF THE CASE AND THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 3 RD DAY OF MARCH 2021. SD/- SD/- (ANIL CHATURVEDI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 3 RD DAY OF MARCH 2021/TS ITA NO.3934/DEL./2017 11 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A) ROHTAK. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.