JUDGMENT Hon’ble Rajes Kumar, J.—By means of the present writ petition, the petitioner is seeking the following reliefs : (i) Issue a writ, order or direction in the nature of certiorari and quash the order dated 1.10.03 passed by the learned Additional Commissioner, Grade-I, Trade Tax, Meerut and all consequential proceedings pursuant thereto (Annexure-5). (ii) Issue a writ, order or direction in the nature of Certiorari and quash reassessment notice dated 10.2.2004 issued by the Dy. Commissioner (Assessment) V,. Meerut Annexure-7) for the A.Y. 1998-99 (UP). (iii) Issue a writ, order of direction in the nature of Prohibition restraining the respondents from proceedings against the petitioner to reassess it for the A.Y. 1998-99 (UP). (iv) Award cost of this petition to the petitioner. (v) Pass such other and further writ, order or direction in favour of the petitioner as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 2. Brief facts giving rise to this writ petition are that the petitioner is a company duly incorporated under the Indian Companies Act, 1956 and is engaged in the manufacture and sale of automobile tyres, tubes and flaps. Its manufacturing unit is situated at Baroda in Gujarat, Cochin in Kerala and Pune in Maharashtra. The petitioner has branch office in the State of Uttar Pradesh at Meerut, which is registered both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act. The branch office receives the goods by way of stock transfer and sells to its customers. For the assessment year 1998-99, the petitioner has been subjected to assessment vide order dated 28.2.2001. During the course of assessment proceedings, it has been disclosed that a sum of Rs. 4,28,27,644/-, towards the loss claim, has been deducted in the bill along with trade discount. The loss claim was under the scheme which provided that if any manufacturing defect was found during the warranty period in the tyre and then on the claim being made by the customers, the valuation of the loss of rubber and quantity of the rubber available in defective tyre were assessed and after taking the value of rubber loss new tyre and tubes were provided to the customers. The complete details were furnished during the course of assessment proceedings. The assessing authority had examined such loss claim with reference to the bill-wise details furnished and, thereafter, allowed the claim. The complete details were furnished during the course of assessment proceedings. The assessing authority had examined such loss claim with reference to the bill-wise details furnished and, thereafter, allowed the claim. Subsequently after the expiry of four years, from the end of the assessment year, the assessing authority was of the view that the loss claim to the extent of Rs. 4,28,27,644/- had been wrongly allowed and the said amount was liable to tax. Accordingly, proposal was sent to the Additional Commissioner for approval under the proviso to Section 21 (2) of the U.P. Trade Tax Act (hereinafter referred to as the “Act”) to initiate proceedings beyond the period of four years. The Additional Commissioner granted approval vide order dated 29.8.2003. The Additional Commissioner was of the view that in accordance to Rule 44(b) of U.P. Trade Tax Rules (hereinafter referred to as the “Rules”), the goods should be returned within six months, while, in the present case, it is not so and, therefore, the claim has been wrongly allowed. In pursuance thereof, notice under Section 21 (1) of the Act was issued by the assessing authority. Both the order under Section 21 (2) of the Act and notice under Section 21 (1) of the Act are being challenged in the present writ petition. 3. Heard Sri S.D. Singh, learned counsel for the petitioner and Sri U.K. Pandey, learned Standing Counsel. 4. Learned counsel for the petitioner submitted that during the course of assessment proceeding, the claim has been examined in detail by the assessing authority and after examining the claim, the same has been allowed. He submitted that in the proposal, sent by the Deputy Commissioner, which is annexure-3 to the writ petition, it has only been expressed that the exemption has been wrongly allowed on the turnover of Rs. 4,28,27,644/- while it is liable to tax in accordance to law. No material has been disclosed in such proposal on the basis of which he has formed opinion that such turnover is liable to tax. He submitted that the Additional Commissioner has wrongly applied Rule 44(b) of the Rules, which is not applicable in the present case. He submitted that it is not the case of goods returned. He submitted that while granting approval, no material was available on the basis of which belief could be formed that there was escaped assessment. He submitted that the Additional Commissioner has wrongly applied Rule 44(b) of the Rules, which is not applicable in the present case. He submitted that it is not the case of goods returned. He submitted that while granting approval, no material was available on the basis of which belief could be formed that there was escaped assessment. He submitted that it is a case of mechanical exercise of powers on the part of the Additional Commissioner while granting approval and further it is a case where notice under Section 21 of the Act has been issued merely on account of change of opinion on the same existing material, which was available at the time of original assessment. 5. Learned Standing Counsel submitted that the material has been referred in the order on which the Additional Commissioner has formed the opinion and, therefore, the approval has been rightly granted by the Additional Commissioner and the proceedings under Section 21 of the Act has also been rightly initiated. 6. Having heard learned counsel for the parties, we have gone through the original assessment order; the proposal sent by the Assessing Officer; the order passed under Section 21 (2) of the Act and the notice issued under Section 21 of the Act. 7. From the perusal of the assessment order, it is apparent that the assessing authority had examined the loss claim for Rs. 4,28,27,644/- thoroughly. 7. From the perusal of the assessment order, it is apparent that the assessing authority had examined the loss claim for Rs. 4,28,27,644/- thoroughly. Following observation in this regard in the assessment order is being quoted hereinbelow : Þblds vfrfjDr dEiuh dh uhfr ds vuqlkj Vk;j o V;wCl dh fcdzh ij ;g Hkh lqfoèkk nh tkrh gS fd xkj.Vh vof/k ds igys ;fn fdlh Vk;j V;wc esa fueZk.k esa dksbZ =qfV ikbZ tkrh gS] vkSj mlesa dksbZ [kjkch vk tkrh gS] rks dzsrk dks iz;ksx fd;s x;s Vk;j V;wc dh vuqikfrd izlkoV dks bUthfu;j ls fujh{k.k djkdj mlh :i esa dsoy f?klkoV dh dher ysdj u;k Vk;j V;wc ns fn;k tkrk gS A bl izdkj ls yh x;h dher dh tkap djus ij ;g ik;k x;k fd xzkgdksa ls dj olwy djds tek fd;k tkrk gSA bl dk;Z ls dEiuh dks tks gkfly gksrk gS ] mls Dyse tkap ds le; esa ys[k iqLrdksa esa fn[kk;k x;k gS A laxro"kZ esa bl izdkj ds czkpst ls lEcfU/kr :0 4]28]27]644&00 dk ik;k x;kA tcfd dEiuh us :0 245]48]295&00 dk VªzsM fMLdkmUV tkjh fd;s x;s foyksa esa fn;k gS A Dyse ykal o VªzsM fMLdkmUV dk czkapokj fooj.k izLrqr fd;k x;k gSA ftldk tkap ys[k iqLrdksa ls djus ij dksbZ mYys[k =qfV ugha ikbZ x;hA ;g Hkh ik;k x;k fd Dyse ls tks Vk;j V;wc izkIr gksrk gS ] og fnYyh vkfQl dks Hkstk tkrk gSA tkap fujh{k.k ds mijkUr ;g r; dj fn;k tkrk gS fd eky esa fdl foks"k mRiknu drZk dkjhxj ds le{k esa mDr eSU;qQSDpfjax fMQsDV gS A tkap ij ;g Hkh ik;k x;k fd mDr Vk;j V;wc ls czkaM use dh jfcax djds fnYyh vkfQl }kjk fodz; dj fn;k tkrk gSA fiNys o"kZ dh rqyuk esa O;kikj izxfrkhy gSA O;kikjh dk ys[kk iqLrdksa dh tkap djus ij ;g Hkh ik;k x;k fd O;kikjh us ftl dher ij eky vk;kr fd;k gS] yxHkx mlh dher ij fodzh dh x;h gS ,oa mlds ipkr fMLdkmUV dkVdj fodzh dh dher olwy dh x;h gSA O;kikjh ds fo:) dksbZ lwpuk ;k izfrdwy rF; miyC/k ugha gSAÞ 8. The assessing authority thereafter, has sent the proposal to the Additional Commissioner for approval to initiate proceeding under Section 21 (2) of the Act beyond the period of four years. The assessing authority thereafter, has sent the proposal to the Additional Commissioner for approval to initiate proceeding under Section 21 (2) of the Act beyond the period of four years. The proposal reads as follows : 3- vuqefr ekaxs tkus dk vk/kkj ;g dEiuh bl vf/kdkj {ks= esa iathd`r gS A izkUr ds vUnj dbZ LFkkuksa ij fcdzh fMiks gSaA eksVj okguksa ds Vk;j V;wc rFkk vkVks Vk;j V;wc dk LVkd VªzkUlQj izkUr ds ckgj ls djds izkUrh; fcdzh dh tkrh gS A o"kZ 98&99 dk dj fu/kkZj.k vknsk fnukad 28&2&01 dks fu;e 41¼8½ ds vUrxZr ikfjr fd;k x;k gS] ftlls ogh [kkrksaa dks Lohdkj djrs gq, dj fu/kkZj.k fd;k x;k gS vkSj blesa Dyse ykal :i;s 4]28]27-644@& ij dj djeqfDr iznku dh xbZ gS ] tcfd bl ij fu;ekuqlkj dj nkf;Ro curk gSA 9. On the basis of the aforesaid proposal the Additional Commissioner has granted approval vide order dated 29.3.2003. The approval has been granted on the ground that under Rule 44(b) of the Rules, the goods should be returned within six months while it is not so in the present case and, therefore, the claim has been wrongly allowed. 10. Section 21 (1) and (2) of the Act reads as follows : “Section 21. Assessment of tax on the turnover not assessed during the year. (1) If the assessing authority has reason to believe that the whole or any part of the turnover of the dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer or tax according to law : Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment, or full assessment as the case may be. Explanation I : Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment. Explanation I : Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment. Explanation II : For the purpose of this Section and of Section 22, “assessing authority: means the officer or authority who passes the earlier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer. Explanation III : Notwithstanding the issuance of notice under this sub-section, where an order of assessment or re-assessment is in existence from before the issuance of such notice it shall continue to be effective as such, until varied by an order of assessment or re-assessment made under this Section in pursuance of such notice. (2) Except as otherwise provided in this Section, no order of assessment or reassessment under any provision of this Act for any assessment year shall be made after the expiration of three years from the end of such year or March 31, 1996, whichever is later. Provided that if the Commissioner on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do authorises the assessing authority in that behalf, such assessment or reassessment may be made after the expiration of the period aforesaid but not after the expiration of eight years from the end of such year notwithstanding that such assessment or re-assessment may involve a change of opinion: Provided further that the assessment or re-assessment for the assessment year 1987-88 may be made by March 31, 1993 : Provided also that if the eligibility certificate granted under Section 4-A has been amended or cancelled by the Commissioner under sub-section (3) of Section 4-A, the order of assessment or reassessment may be made within one year from the date of receipt by the assessing authority of the copy of the order amending or cancelling the aforesaid certificate or by March 31, 1995, whichever is later. Provided also that the assessment or re-assessment for the assessment year 1989-90 may be made by March 31, 1995.” 11. Section 21 (1) of the U.P. Trade Tax Act contemplates assessment and reassessment is equivalent to Section 147 of the Income Tax Act, 1961. Both the Sections relate to the assessment of the escaped assessment to tax. Provided also that the assessment or re-assessment for the assessment year 1989-90 may be made by March 31, 1995.” 11. Section 21 (1) of the U.P. Trade Tax Act contemplates assessment and reassessment is equivalent to Section 147 of the Income Tax Act, 1961. Both the Sections relate to the assessment of the escaped assessment to tax. In both the Sections the proceeding can be initiated only if the assessing authority “has a reason to believe” that there is escaped assessment. 12. Under Section 21 (1) of the Act the words are “has reason to believe” and not “reason to suspect”. The belief entertained by the Assessing Officer must not be arbitrary or irrational. It must be reasonable and based on reasons, which are relevant. It must be in good faith and not in mere pretence, should have a rational connection and relevant bearing on the formation of the belief, and should not be extraneous or irrelevant. The material should be relating to the particular year for which the assessment is sought to be reopened. It is not any and every material, howsoever vague and indefinite or distant, remote and farfetched, which would warrant the formation of the belief relating to escapement of income. 13. Perusal of Section 21 (2) of the Act reveals that the proceedings can only be initiated if there is reason to believe that there is escaped assessment. The word “reason to believe” came up for consideration before the Apex Court and various High Courts in several decisions. Apex Court held that the belief must be formed on the basis of the material, which has a nexus to the escaped turnover. 14. In Joti Prashad v. State of Haryana, JT 1992 (6) SC 94 the Hon’ble Supreme Court while dealing with the meaning of expression ‘reason to believe’ in Section 26 of the Indian Penal Code held that the reason to believe is not the same as suspicion and a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. 15. 15. It is settled principle of law that in a writ jurisdiction under Article 226 of the Constitution of India, this Court can not look into the sufficiency of the material on the basis of which a believe has been formed and notice under Section 21 of the Act has been issued. This Court can only examine whether there was any material and whether the material is relevant to form the believe of escaped income. (Vide Income Tax Officer v. Lakhani Mewal Dutt, (1976) 103 ITR 437, Indra Prastha Chemicals Pvt. Ltd. v. Commissioner of Income Tax, 2005 UPTC, 53). 16. In the case of Commissioner of Income Tax, Gujarat II v. Kurban Hussain Ibrahimji Mithiborwala, (1971) 82 ITR 821, the Apex Court has held that it is well settled that the Income Tax Officer’s jurisdiction to reopen an assessment under Section 34 of the Income tax Act, 1922, depends upon the issuance of a valid notice. If the notice issued by him is invalid for any reason the entire proceedings taken by him would become void for want of jurisdiction. 17. In the case of Johri Lal (HUF) v. Commissioner of Income-tax, U.P., (1973) 88 ITR 439 (SC), the Apex Court has held as follows : “The formation of required belief by the Income Tax Officer before proceedings can be validly initiated under Section 34 (1) (a) is a condition precedent: The fulfillment of this condition is not a mere formality, it is mandatory, and failure to fulfill that condition would vitiate the entire proceedings. Further, the formation of the required belief is not the only requirement: The officer is further required to record his reasons for taking action under Section 34 (1) (a) and obtain the sanction of the Central Board or the Commissioner, as the case may be.” 18. In Income Tax Officer v. Lakhani Mewal Dutt, (1976) 103 ITR 437, 1976 UPTC 809 (SC), the Hon’ble Supreme Court held that the reasons for the formation of the belief contemplated by reopening of an assessment must have a rational connection or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of his belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of his belief. The Hon’ble Supreme Court further observed that though it is true that the Court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income Tax Officer on the point as to whether action should be initiated for reopening the assessment yet at the same time we have to bear in mind that it is not any and every material, however, vague and indefinite or distant, remote and farfetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. 19. The question whether the Assessing Officer had reasons to believe is a question of jurisdiction, a vital thing, which can always be investigated by the Court under Article 226 of the Constitution as held in Daykatran Rawatmal v. Income Tax Officer, (1960) 38 ITR 301 (Cal); Jamna Lal Kabra v. Income Tax Officer, (1968) 69 ITR 461 (All); Calcutta Discount Co. Ltd. v. Income Tax Officer, (1961) 41 ITR 191 (SC); C.M. Rajgharia v. Income Tax Officer, (1975) 98 ITR 486 (Pat) and Madhya Pradesh Industries Ltd. v. Income Tax Officer, (1965) 57 ITR 637 (SC). 20. If there is no rational and intelligible nexus between the reasons and the belief, so that, on such reasons, no one properly instructed on facts and law could reasonable entertain the belief, the conclusion would be inescapable that the Assessing Officer could not have reason to belief. In such a case, the notice issued by him would be liable to be struck down as invalid as held in the case of Ganga Saran and Sons P. Ltd. v. Income Tax Officer, (1981) 130 ITR 1 (SC). 21. In the case of Indra Prastha Chemicals Pvt. Ltd. v. Commissioner of Income tax, 2005 UPTC, 53, this Court held as follows : “Thus, it is well settled that the ‘reason to believe’ under Section 147 must be held in good faith and should have a rational connection and relevant bearing on the formation of the belief and should not be extraneous or irrelevant. Further this Court in proceedings under Article 226 of the Constitution of India can scrutinize the reasons recorded by the Assessing Officer for initiating the proceedings under Section 147/148 of the Act. The sufficiency of the material cannot be gone into but relevancy certainly be gone into.” 22. In the case of M/s Royal Trading Co. Saharanpur v. Trade Tax Officer, Saharanpur, 2000 NTN (Vol.16), 290, the Division Bench of this Court while considering the Section 21 of U.P. Trade Tax Act held as follows : “Therefore, action under Section 21 of the Act cannot be taken on the whims of the assessing officer by resorting to conjecture of imagination. He has to have before him the facts which are germane to the issue and on the basis of which a rational man can have reason to believe that the whole or any part of the turnover has escaped assessment or has been underassessed. In Income Tax Officer v. Madnani Engineering Works Ltd., (1979) 118 ITR 1 the Hon’ble Supeme Court while dealing with some what similar provision under Section 147 of the Income Tax Act, 1961 held that the existence of reason to believe on the part of the ITO was a justificable issue and it was for the Court to be satisfied whether in fact the ITO had reason to believe that income had escaped assessment. In Joti Parshad v. State of Haryana, JT 1992 (6) SC 94 the Hon’ble Supreme Court while dealing with the meaning of expression ‘reason to believe’ in Section 26 of the Indian Penal Code held that the reason to believe is not the same as suspicion and a person must have reason to believe if the circumstances are such that a reasonable man would, by probabale reasoning conclude or infer regarding the nature of the thing concerned. In Income Tax Officer v. Lakhmani Mewal Das, (1976) 103 ITR 437 the Hon’ble Supreme Court held that the reasons for the formation of the belief contemplated by Section 147 (a) of the Income Tax Act, 1961, for the reopening of an assessment must have a rational connection or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of this belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of this belief. The Hon’ble Supreme Court further observed that though it is true that the Court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income Tax Officer on the point as to whether action should be initiated for reopening the assessment yet at the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and farfetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. This view was reiterated by the Hon’ble Supreme Court while dealing with the provisions of Section 21 of the U.P. Trade Tax Act in Commissioner of Sales Tax v. Bhagwan Industries (P) Ltd., (1973) 31 STC 293 in which it was held that reasonable grounds necessarily postulate that they must be germane to the formation of the belief regarding escaped assessment. If the grounds are of an extraneous character, the same would not warrant initiation of proceedings under this Section. If however, the grounds are relevant and have a nexus with the formation of belief regarding escaped assessment, the assessing authority would be clothed with jurisdiction to take action under this Section.” 23. It is settled principle of law that the notice under Section 21 of the Act cannot be issued on account of change of opinion on the basis of material available on record. 24. In the case of Kalpana Kala Kendra, Kanpur v. Sales Tax Officer, Circle 20, Kanpur, 1989 UPTC 597, the Division Bench held as follows : “Section 21 of the Act is based upon the theory that the taxes must be collected by the statutory machinery. The escapement from assessment whether it results on account of a concealment practised or fraud played by the assessee or as a result of negligence or ignorance of the assessing authority, in our opinion, is of no consequence, provided the action to reopen the assessment is otherwise justified and the assessing officer is not acting arbitrarily or in a capricious manner. The escapement of assessment contemplated under that Section may be due to various reasons. The escapement of assessment contemplated under that Section may be due to various reasons. The term ‘turnover has escaped assessment to tax’ which includes under assessment, may as well be result of lack of care on the part of the assessing officer or by reason of his inadvertence on his part. Section 21 does not prohibit obtaining of information from investigation of material on record of the original assessment. The scope of that Section is not circumscribed by a rider like the one that exists in Section 147 (a) of the Income Tax Act, 1961, namely the Income Tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that year, income chargeable to tax has escaped assessment for that year. The escapement envisaged by Section 21 of the Act for the purposes of reassessment need not necessarily spring from a source, extraneous to the original record. However, a second thought or a mere change of opinion, by the assessing authority on the same set of facts and material on record would not clothe the assessing authority with a valid jurisdiction. We are not impressed by the argument that the instant case is a case of change of opinion. The change of opinion necessarily postulates that the assessing authority had an occasion to consider the material earlier, and on the same set of facts another opinion was sought to be formed. The question of change of opinion cannot arise where there has been no previous proceeding of assessment in respect of a turnover in dispute. As pointed out by the Caluctta High Court in Income Tax Officer v. Mahadev Lal Tulayan, (1978) 111 ITR 25 , a change of opinion by the Assessing Officer contemplated, formation of two different opinions or to make two different inferences at two stages on the same set of primary facts. The distinction between an inadvertent mistake or omission and change of opinion was pointed out by one of us after reviewing a large number of decided cases, both by this Court and by the Supreme Court, in Commissioner of Sales Tax, U.P. v. Madhu Chemical Works, Bareilly, 1998 UPTC 230. The distinction between an inadvertent mistake or omission and change of opinion was pointed out by one of us after reviewing a large number of decided cases, both by this Court and by the Supreme Court, in Commissioner of Sales Tax, U.P. v. Madhu Chemical Works, Bareilly, 1998 UPTC 230. It was held that in a case where a particular point has been considered on merits, and a view is taken, it would not be a case of inadvertent mistake or omission, if it is found that the view taken earlier was wrong. It would be a case of change of opinion, but if it is not so, then it would be a case of nonapplication of mind and an action would be justified under Section 21 of the Act.” 25. In the case of Commissioner of Sales Tax v. M/s Gopalji Varanasi, 1974 UPTC, 277, Sales Tax Officer got second thought about the applicability or effect of the survey and hence notice under Section 21 was issued. It was held that this would not constitute reason to believe within the meaning of Section 21 of the said Act. Hence notice under Section 21 was held invalid. 26. In the case of M/s Palco Lining Co. v. State of U.P. and others, 1983 UPTC 1116. In this case assessment order recorded that the assessing authority has after elaborately considering the evidence taken the view what was being sold by the petitioner was nothing but collar lining and its turnover of sale was held exempt from the Sales Tax Act. Under a notification the assessing authority, however, issued notice under Section 21 of the said Act for reassessing the same matter, hence it was held notice under Section 21 to be invalid. 27. In the case of Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan and others, AIR 1980 SC 1552 , the Apex Court held as follows : “It does not permit reassessment of turnover which after the due consideration, had been found exigible to tax merely because the assessing authority subsequently comes to take different view of the matter.” 28. Ltd. v. State of Rajasthan and others, AIR 1980 SC 1552 , the Apex Court held as follows : “It does not permit reassessment of turnover which after the due consideration, had been found exigible to tax merely because the assessing authority subsequently comes to take different view of the matter.” 28. To the similar effect is another decision where we find under Section 34 of the Income Tax Act, 1922 which is similar to the provision of Section 21 of the U.P. Sales Tax Act, after considering the provision of Section 34 of the said Act the following observation has been made by the Apex Court in the case of Commissioner of Income Tax v. Bhanji Lavji, (1971) 79 ITR 582, which is quoted as under : “When the primary facts necessary for assessment are fully and truly disclosed to the Income Tax Officer at the stage of original assessment proceedings, he is not entitled, on a change of opinion, to commence proceedings for reassessment under Section 34 (1) (a).” 29. To the similar effect is also the decision inCommissioner of Income Tax v. Dinesh Chandra H. Shah and others, (1971) 82 ITR 367, wherein it is held that : “It appears that the Income Tax Officer clearly sought to justify the reopening of the assessment under Section 34 (1) (b) merely on the ground of change of opinion. It is well settled by now, and Mr. Desai quite rightly does not dispute the proposition, that mere change of opinion could not be a valid ground for reopening the assessment under Section 34 (1)(b) of the Act. We would accordingly uphold the answer returned by the High Court on the short ground that the reassessment for the year in question was sought to be reopened for the reason that the successor of the Income Tax Officer who had made the original assessment had changed his opinion which did not furnish a justifiable reason for taking action under Section 34 (1)(b).” 30. While considering Section 147 of the said Act in the case of the Income Tax Officer v. Nawab Mir Barkat Ali Khan Bahadur, AIR 1975 SC 703 , the same view has been taken. Having second thought on the same material does not warrant initiation of proceedings under Section 147 of the Income Tax Act. 31. While considering Section 147 of the said Act in the case of the Income Tax Officer v. Nawab Mir Barkat Ali Khan Bahadur, AIR 1975 SC 703 , the same view has been taken. Having second thought on the same material does not warrant initiation of proceedings under Section 147 of the Income Tax Act. 31. In the case of M/s Harbans Lal Malhotra v. Assistant Commissioner of Sales Tax, Ghaziabad, 1994 UPTC, 1041, the Division Bench of this Court held that the authority cannot issue any notice on account of change of opinion nor in the absence of any material for the year in question. It has been further held that in the original assessment order all the documents of the petitioner including the agreement in question the transfer of the goods has been held as stock transfer. The notice under Section 21 of the Act has been held amounts to reexamining the same matter again and to make fresh enquiry in the same matter, which is not permissible. 32. In the case of Ratan Industries Pvt. Ltd. Agra v. Additional Commissioner of Trade Tax, Agra and another, 2004 NTN (24) 384, the Division Bench of this Court in paragraph 22 observed that “ it is well settled principle of law that the question which has been examined in detail in the original assessment proceeding and thereafter the assessment order has passed, then the said assessment order cannot be reopened under Section 21 of the Act on mere change of opinion”. 33. In the case of F.S. Investment Manager v. I.T.O., (2007) 209 CTR 1 Bom, the Bombay High Court held that the proceeding cannot be reopened merely because the Assessing Authority is of the view that the depreciation has been wrongly allowed merely on change of opinion. 34. In the case of Anil Kumar Bhandari v. Joint Commissioner of Income Tax, (2007) 294 ITR, 222 (Ca), the deduction was allowed under Section 80HHC the case has been reopened on the ground that the deduction has been wrongly allowed. The Division Bench of the Calcutta High Court held that the initiation of reassessment proceeding by the Assessing Authority purported to reopen the assessment upon the change of opinion, the same fact is not justified. 35. The Division Bench of the Calcutta High Court held that the initiation of reassessment proceeding by the Assessing Authority purported to reopen the assessment upon the change of opinion, the same fact is not justified. 35. On the facts and circumstances of the case, referred hereinabove, we are of the view that it is the case of change of opinion of the assessing officer on the same material which was in existence at the time of original assessment. The proposal does not reveal any fresh material on the basis of which believe was formed that the claim has been wrongly allowed and the same is liable to tax. The order under Section 21 (2) of the Act also does not reveal that there was any fresh material on the basis of which believe has been formed. It appears that the Additional Commissioner has wrongly applied Rule 44(b) of the Rules. It is doubtful that the present is the case of goods returned, but it is the case of return of the used tyres during the warranty period wherein the loss of rubber and the value of rubber available on the used tyres had been assessed and new tyres were supplied after taking the value of loss of rubber on which tax was admitted and paid. 36. In the facts and circumstances, we are of the view that the order passed under Section 21 (2) of the Act is not sustainable and is liable to be set aside, inasmuch the notice under Section 21 of the Act is based on no material. 37. In the result, the writ petition is allowed. The order dated 1.10.2003 passed by Additional Commissioner, Gr-I, Meerut, annexure-5 to the writ petition and the notice dated 10.2.2004, issued by the Deputy Commissioner (Assessment) V, Meerut, are hereby quashed. ————