M. B. SHAH, N. N. MATHUR, J. ( 1 ) ). By the petition the petitionercompany seeks to challenge the notice issued to it under Section 147 of the Income Tax Act 1961 dated 29-3-1988 in respect of the Assessment Year 1984-1985 wherein it is alleged that the petitioner-Company had escaped assessment within the meaning of Section 147 of the Income tax Act (for short the Act ). The necessary facts leading to the present petition are given as follows: ( 2 ) ). THE petitioner is a partnership firm dealing in cloth. For the Assessment Year 1984-1985 the return of income showing a loss of Rs. 7 777 was filed. In the said return the petitioner had submitted that a syndicate of 5 dealers including the petitioner firm had purchased cloth of Marsdan Monogram Mills jointly and had sold the same and that the profit of that venture was agreed to be shared equally by 5 dealers including the petitioner who constituted this syndicate. According to the petitioner the total profit came to Rs. 93 695 and share of the assessee came to Rs. 18 737 The petitioner included the said amount of Rs. 18 737 in the total income. The Income Tax Officer did not accept the submission for the reason that there was no written agreement amongst the five dealers and the bills of purchase and sales were in the name of the petitioner-firm and that no separate account had been maintained by the petitioner firm and that the account of the other co-sellers had not been separately maintained and that there was no separate capital account of the co-seller. He accordingly added the entire amount to the income of the petitioner instead of 1/5th of the amount. The petitioner against the said order of assessment dated 27 passed by the Income Tax Officer Circle (5) Ward B Ahmedabad preferred an appeal to the Deputy Commissioner Income Tax (Appeals) ARV Ahmedabad. It was submitted by the petitioner that a sum of Rs. 40 0 was deposited as tender standard money to the mills by the petitioner on behalf of the five members of the syndicate and that each syndicate member had contributed Rs. 8 0 and that a separate ledger account had been opened in the books of the petitioner. It was submitted by the petitioner that a sum of Rs. 40 0 was deposited as tender standard money to the mills by the petitioner on behalf of the five members of the syndicate and that each syndicate member had contributed Rs. 8 0 and that a separate ledger account had been opened in the books of the petitioner. It was also submitted that search and seizure operations had taken place in the premises of the petitioner and that the books of accounts were seized. It was further submitted that absence of written agreement amongst the five members of the syndicate could not be of any significance in view of the fact that there were individual loans from the syndicate members indicating their desire to join the syndicate and enter into the transactions. It was pointed out that necessary evidence had been filed by the petitioner. The Deputy Commissioner of Income Tax (Appeals) examined the entire materials on record and found that copies of the accounts indicate that the members of the syndicate had contributed Rs. 8 0 each at the initial stage. He also found that the details of the goods sold and payments made by the members of the syndicate had been recorded in the books of account. He also found that profits earned in the accounts had been declared by each of the syndicate members in their return and the same had been taxed in their hands. In view of the evidence he came to the conclusion that there was a syndicate in existence and that the assessee was one of the five members of the syndicate and that its share was 1/5th of the profits earned by the syndicate could be assessed in the hands of the petitioner. He therefore by judgment dated 14-4-1988 directed the Income Tax Officer to tax only 1/5th of the profit of the syndicate in the hands of the petitioner. He therefore by judgment dated 14-4-1988 directed the Income Tax Officer to tax only 1/5th of the profit of the syndicate in the hands of the petitioner. Before the said appeal was decided by decision dated 14-4-1988 the I. T. O. Circle (V) Ward B Ahmedabad served a memo dated 18-3-1988 stating that he proposes to reopen the assessment made for the Assessment Year 19841985 under Section 147 (a) which reads as under: sirs It has come to my notice that in the previous year relevant to the assessment year 1984- 1985 you had entered into transactions of purchase and sales of cloth manufactured by the Marsdan Mills and the Monogram Mills and in the process earned huge profits. The details of such transactions and the profit therein are as under: @@@ - malsdan Monogram Total Mills Mills - sales 56 94 822 84 42 741 1 41 37 563 purchase 47 46 76 70 71 640 1 18 17 716 -- profit 9 48 746 13 71 101 23 19 847 @@@ ( 3 ) ). On a reference to the return of income filed by you and to the statements accompanying the said return of income. I find that his particular source of income has not been disclosed and in the result income as shown in the preceding paragraph has escaped assessment. 3. I may bring to your attention that the escapement of income as stated above stands duly established in view of the following facts: (1) The documentary evidence showing the business done in the products of the two mills and the profit earned have been recovered from your premises in the course of search. (2) The author of the relevant papers viz. Shri Sugansingh has confirmed these business and the profit derived therefrom. (3) The said accountant has made an attempt to show that some syndicate was constituted to do the business. However it is seen that the entire documentary materials relating to the business was available in your premises. It is also clear that you were in complete control of these particular transactions. There is also nothing to suggest that the payments to other parties alleged to be members of the syndicate were in fact made and therefore it can be presumed that the entire funds remained under your control. It is also clear that you were in complete control of these particular transactions. There is also nothing to suggest that the payments to other parties alleged to be members of the syndicate were in fact made and therefore it can be presumed that the entire funds remained under your control. (4) From the facts stated above it is clear that the inter connection interlacing inter dependence and unity of this business with the other business reflected in the books of accounts stands established on account of common Management and administration common funds and common place of business. The Supreme Court decision in the case of Prithvi Insurance. Co. Ltd. (63 ITR 632) is a case in point. On similar facts the decision of Supreme Court in the case (sic.) Production Exchange Corporation Ltd. (77 ITR 759) and the Gujarat High Court decision in the case of Alembic Glass Industries (103 IRT 715) are also applicable to the facts obtaining in your case. ( 4 ) IN view of the discussion in the forgoing paragraphs I propose to reopen the assessment made for A. Y. 1984-1985 under Section 147 (a) and to bring to tax not only the shares shown in your name but the entire profit of Rs. 23 19 847 which has not been disclosed by you and has escaped assessment You are hereby given an opportunity to state your objections if any against the proposed action. 5. Your reply in the matter should reach this office latest by 28-3-1988 yours faithfully (Sd/) (K. C. Thakkar) ito Cir. V. Wd. B Abad. The petitioner replied the above letter wide communication dated 28-3-1988 wherein it was pointed out that the goods from which the syndicate of five members earned the profit of Rs. 93 695 were purchased in the name of the petitioner. The petitioner gave the entire details of purchase and sale account of the said goods in the books of the petitioner. It was further pointed out that since the petitioner had purchased the goods along with many others the charts seized were found at the place of the petitioner. It was also pointed out that the syndicate led by the petitioner earned only Rs. It was further pointed out that since the petitioner had purchased the goods along with many others the charts seized were found at the place of the petitioner. It was also pointed out that the syndicate led by the petitioner earned only Rs. 93 695 and the other parties earned the profit shown against their names and that aspect was discussed by the Assessing authority before passing the order under Section 143 (3) of the Assessment Year 1984-1985. The petitioner says that the said reply was personally handed over to the Income Tax Officer on 29-3-1988 and on the same day the Income Tax Officer served upon the petitioner the impugned notice dated 29-3-1988. ( 4 ) ). Mr. J. P. Shah learned Counsel appearing for the petitioner contends that the impugned notice on the well known and well settled law that the change of opinion on the same facts and on same evidence cannot be a ground to reopen the assessment is wholly without jurisdiction He submits that this is no more different than that of an attempt by succeeding officer to look into the same case and the same material over again because his opinion is different than that of the appellate authority viz. Deputy Commissioner (Appeals ). ( 5 ) ). The respondent has not filed the reply to the petition. However Mr. B. J. Shelat learned Counsel for the Revenue has raised objection that the writ petition is liable to be dismissed on the ground that the petitioner could take all available objections or grounds by submitting the reply to the notice. Learned Counsel placed reliance on a recent judgment of the Bombay High Court reported in (1993) 207 ITR 929 wherein the Court took the view that if there are in fact some reasonable grounds for the Income Tax Officer to believe that there had been any non-disclosure as regards to any fact which could have material bearing on the question of under assessment that would he sufficient to give jurisdiction to the Income Tax Officer to issue notice under Section 147 of the Income Tax Act 1961 The question whether these grounds are adequate or not is not a matter for the High Court to investigate in a petition under Article 226 of the Constitution. ( 6 ) ). Mr. ( 6 ) ). Mr. J. P. Shah learned Counsel on the other hand contends that the assessee has placed primary facts in the original prceedings. After the consideration of the primary facts the Deputy Commissioner (Appeals) by judgment dated 14 directed the Income Tax Officer to tax only 1/5th of the profit of the syndicate in the hands of the petitioner. The assessment has attended the finality in original proceedings. It is further pointed out that the department had taken an appeal against the order of the Deputy Commissioner (Appeals) dated 14-4- 1988 to the Income Tax Tribunal Ahmedabad. The Tribunal has also upheld the judgment of the Deputy Commissioner by order dated 1-5-1991. Thus the impugned notice for reassessent merely on the change of hands because of change of Income Tax Officer is wholly without jurisdiction and it is settled position of law that the High Court in exercise of powers under Article 226 of the Constitution will have jurisdiction to interfere with the issuance of notice of such reassessment on change of opinion being without jurisdiction. ( 7 ) ). It is in this context that the present case to be determined prima facie as to whether the impugned notice issued by the Income Tax Officer is passed on mere change of opinion and as such the order passed is without jurisdiction or not. Though in the notice no reasons had been stated however the reasons are given in memo dated 18 Firstly it is stated that in the year 1984 the petitioner firm had entered into transaction of purchase and sale of cloth manufactured by the Marsdan and Monogram Mills and in the process earned huge profit of Rs. 23 19 847 which has not been disclosed and as such escaped assessment. During the original assessment proceedings an explanation as regards the goods purchased of Marsdan and Monogram Mills was submitted along with the relevant materials. It was pointed out that there were certain parties in the market including the petitioner who were interested in purchasing the goods of Marsdan and Monogram Mills both from lying in the custody of the High Court as well as lying with certain persons and accordingly the interested persons/buyers purchased the goods of the said mills. It was pointed out that there were certain parties in the market including the petitioner who were interested in purchasing the goods of Marsdan and Monogram Mills both from lying in the custody of the High Court as well as lying with certain persons and accordingly the interested persons/buyers purchased the goods of the said mills. As the buyers were together only in respect of purchasing the goods of Marsdan and Monogram Mills the parties decided as to how to trade in the particular goods which might render profit to all the parties. In the meetings charts used to be prepared of estimated profit. All such charts of estimated profits or estimation were produced in the original assessment proceedings. The other papers seized during the search and seizure including the statement of Sugansingh were on record during the original assessment proceedings. The Deputy Commissioner (Appeals) after considering the entire material arrived at the positive conclusion that there existed a syndicate and the profit was earned by the syndicate and the petitioner-firm was only having 1/5th share therein and the ballance has been taxed in the hands of the respective members of the syndicate. The learned Counsel for. the petitioner has also placed before us the judgment of the Income Tax Tribunal dated 1-5-1991 rejecting the appeal filed by the Assistant Commissioner Income Tax Circle (V) Ahmedabad against the judgment of the Deputy Commissioner (Appeals) dated 14-4-1988. It was contended by the Revenue before the Tribunal that since the tender was in the name of the assessee and since these transactions were in the name of the assessee it should be presumed that it was the assessee who had dealt with the transaction in question and as such the entire profit has been rightly assessed in the hands of the assessee. The Tribunal after considering the submission and the entire record ? arrived at the conclusion that a syndicate was constituted the tender was fixed in the name of the assessee and as such obviously the transaction was required to be carried on in one name. Consequently the fact that the assessee gave his name for this transaction would not mean that the transaction had been entered into by the assessee on its own. Consequently the fact that the assessee gave his name for this transaction would not mean that the transaction had been entered into by the assessee on its own. It was further held that the assessee firm represented all the members of the syndicate in entering into transaction with the Monogram and Marsdan Mills for purchase of the lots of cloth. The Tribunal after perusing the letters of the syndicate held that each member had 20 share in the profit out of the transaction in question. It was also noticed by the Tribunal that each member of the syndicate has shown his share of profit in the return filed by him and the profit is assessed in his hands. Thus it is apparent that the profit shown as Rs. 23 19 847 belongs to others with whom his syndicate was not directly or indirectly concerned. The charts were produced in original proceedings. The profit earned by other co-purchasers whose name appear in the chart which was produced along with the communication dated 1-10-1987- Annexure J before the order of assessment in original proceedings. ( 8 ) ). In para 3 of the communication dated 18-3-1988 certain reasons have been given to substantiate the allegations of escapement of the income. The first reason given is that the recovery of certain documentary evidence from the premises of the petitioner-firm during the course of search. This document was very much available during the original proceedings. The second reason given is that the statement of Sugansingh. This statement was also in existence during the original proceedings. The third reason is with respect to the constitution of syndicate. It is evident from the above discussion that this aspect was throughly discussed and a positive conclusion was arrived by the Deputy Commissioner (Appeals ). The fourth ground given is the account of common management. All these aspects have been considered in the original proceedings and now there is nothing but change of opinion because of change of Income Tax Officer. In fact even the earlier Income Tax officer had not agreed with the contention of the petitioner-firm with respect to the constitution of syndicate but this view was not upheld -and the order of assessment was set aside by the higher authority namely the Deputy Commissioner (Appeals ). In fact even the earlier Income Tax officer had not agreed with the contention of the petitioner-firm with respect to the constitution of syndicate but this view was not upheld -and the order of assessment was set aside by the higher authority namely the Deputy Commissioner (Appeals ). But now the other Income Tax Officer wants to stick to the view taken by the earlier Income Tax Officer which has been set aside by the higher authority. It may further be pointed out that as already stated the Tribunal has also affirmed the view taken by the Deputy Commissioner (Appeals ). ( 9 ) ). In view of the aforesaid discussion the re-opening of the assessment on face is based on mere change of opinion. ( 10 ) ). In view of the settled position of law that the revision of assessment based on change of opinion is not permitted under Section 147 of the Act the impugned notice is without jurisdiction. ( 11 ) ). In the result this writ petition succeeds and the impugned notice dated 29-3-1988 issued under Section 147 of the Act with respect to the Assessment Year 1984-1985 is hereby quashed. Rule made absolute accordingly. .