JUDGMENT M.R. Shah, J. 1. By way of this petition under article 226 of the Constitution of India, the petitioner-assessee, Jivraj Tea Co., has prayed for an appropriate writ, direction and order to quash and set aside the impugned notice under section March 30, 2014 (annexure C), issued under section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for the assessment year 2009-10, by which, in exercise of the powers under section 147 of the Act the Assessing Officer has reopened the assessment for the assessment year 2009-10 and the petitioner-assessee is called upon to deliver/file return/revised return in the prescribed format for the assessment year 2009-10. The facts leading to the present special civil application in a nutshell are as under: 1.1. That the petitioner-firm-assessee is engaged in the business of trading of tea, sugar and milk powder, letting out of property on hire and generation of electricity. That the assessee filed the return of income for the assessment year 2009-10 declaring a total income at Rs. 30,75,229. That the case was selected for scrutiny assessment by issuing notice under section 143(2) of the Act. That, thereafter, and after detailed questionnaire, the Assessing Officer finalised the assessment for the assessment year 2009-10 and made the addition of Rs. 2,56,52,410 and assessed the income at Rs. 2,87,27,710. That the Assessing Officer passed the assessment order on December 26, 2011. That, thereafter, and within a period of four years from the date of the relevant assessment year, the Assessing Officer has issued and served the notice under section 148 of the Act dated March 30, 2013, upon the petitioner-assessee whereby the respondent has assumed the jurisdiction on reassessed income for the assessment year 2009-10. That having been served with the notice under section 148 of the Act, the petitioner-assessee, vide communication/letter dated April 3, 2014, asked for/requested for copy of the reasons recorded to reopen the assessment and also requested the respondent to treat the original income as return of income in response to the above notice. That, vide communication dated May 16, 2014, the petitioner-assessee has been served with the copy of reasons recorded for reopening of the assessment for the assessment year 2009-10. 1.2. That the petitioner submitted objections, vide communication/letter dated September 12, 2014, raising objections against reopening of the assessment for the assessment year 2009-10. 1.3. That, vide communication dated May 16, 2014, the petitioner-assessee has been served with the copy of reasons recorded for reopening of the assessment for the assessment year 2009-10. 1.2. That the petitioner submitted objections, vide communication/letter dated September 12, 2014, raising objections against reopening of the assessment for the assessment year 2009-10. 1.3. That by, vide communication/order dated January 2, 2015, the Assessing Officer has overruled the objections raised by the petitioner. 1.4. Hence, at this stage, petitioner has preferred the present special civil application under article 226 of the Constitution of India challenging the impugned notice under section148 of the Act and challenging the reopening of the assessment for the assessment year 2009-10. 2. Shri Hardik Vora, learned advocate for the petitioner, has vehemently submitted that impugned notice under section 148 of the Act and reopening of the assessment for the assessment year 2009-10 is absolutely illegal and contrary to section 147 of the Act. It is vehemently submitted that assumption of jurisdiction by the respondent authority to reopen the concluded and completed assessment for the assessment year 2009-10 is absolutely illegal, arbitrary and contrary to the provision and statute, which cannot be sustained and the same deserves to be quashed and set aside. 2.1. It is vehemently submitted by Shri Vora, learned advocate for the petitioner, that on the reasons recorded to reopen the concluded assessment, reopening of the assessment is not permissible and same cannot be sustained. 2.2. It is vehemently submitted by Shri Vora, the learned advocate for the petitioner, that as such reopening of the assessment for the assessment year 2009-10 is nothing but a change of opinion of the Assessing Officer. It is submitted that a mere change of opinion of the Assessing Officer, reopening of the concluded assessment is not permissible. 2.3. It is submitted that, in the present case, the Assessing Officer passed the original order of assessment after holding due inquiry and after questionnaires which were replied by the petitioner-assessee and, thereafter, the Assessing Officer has made an addition of Rs. 2,56,52,410 and had determined the assessed income at Rs. 2,87,27,710. It is submitted that after the petitioner-assessee filed the return of income the case was selected for scrutiny assessment under section 143(2) of the Act. 2,56,52,410 and had determined the assessed income at Rs. 2,87,27,710. It is submitted that after the petitioner-assessee filed the return of income the case was selected for scrutiny assessment under section 143(2) of the Act. The Assessing Officer, thereafter, and during the scrutiny proceedings, inquired in detail, each and every aspect of the claim, more particularly, the amount advanced to the partners and more particularly, with respect to non charging of the interest by the firm from the partners. It is submitted that while reply dated November 14, 2011, to the notice dated November 28, 2011, the assessee specifically replied, vide point No. 2 and point No. 6. 2.4. It is submitted that the assessment is reopened for the reason that the amount is advanced to the partners and no interest has been charged by the firm from the partners and on the other side, the firm has paid the interest on interest bearing fund available with it. It is submitted that during the scrutiny proceedings, the Assessing Officer has inquired in detail each and every aspect of the said claim. 2.5. It is submitted that, vide reply dated November 14, 2011, to the notice dated October 28, 2011, the assessee has replied, vide point No. 2 as, "in respect of your query as why capital is shown under "application of funds" we would like to submit that since the partner's closing capital balance is in debit, the same has been shown under "Application of funds" in the balance-sheet of the firm". 2.6. It is further submitted that in the same reply, vide point No. 6, the assessee has submitted as, "As desired by your goodself, the copy of ledger account of Jivraj Tea Ltd. appearing in our books of account for the period from the assessment year 2006-07 to the assessment year 2009-10 and also for the assessment years 2010-11 and 2011-12 are enclosed". 2.7. It is further submitted that in the further clarification and to the query of the Assessing Officer, vide reply dated November 17, 2011, the assessee has replied as, "in regard to the non-charging of interest on the negative capital of partners, we have to submit that our deed of partnership dated October 1, 2005, does not contain any enabling clause to charge the interest on the debit balances of the partners. It is submitted that in view of the above fact, it is requested that your goodself proposal for charging interest on the debit balances of the partners be dropped. 2.8. It is submitted that the Assessing Officer has also proposed to disallow interest paid to Jivraj Tea Ltd., vide show-cause notice dated December 5, 2011, point No. 2 as "you have claimed interest expense of Rs. 82,88,631 on account of creditor which is your related concerned Jivraj Tea Ltd. It is submitted that but till date you have not submitted any written agreement for charging of interest by the creditor. It is submitted that payment to the creditor is outstanding since very long and in the any previous year you have not paid any interest on it. It is submitted that then what was the need to pay interest to the creditors on his outstanding payment when you have not paid the interest in any earlier year's outstanding. Therefore, you are requested to show cause why the interest paid to Jivraj Tea Ltd. should not be disallowed. 2.9. It is submitted that, however, after considering the reply of the assessee dated December 16, 2011, the Assessing Officer has accepted the claim of the assessee and decided not to make any disallowance on this count. 2.10. It is submitted that hence on which reassessment is sought for, is already discussed by the same Assessing Officer on the same facts in detail during scrutiny assessment. It is submitted that after specifically asking the number of queries on the issue and after satisfying himself on the genuineness of the claim of the assessee, the Assessing Officer has passed assessment order under section 143(3) without making any addition/disallowance on the same count. 2.11. It is submitted that, therefore, now issuing any notice under section 148 of the Act with an intention to reopen the already concluded assessments would beyond the shadow of any doubt, tantamount to "change of opinion" for which the Assessing Officer is not at all empower to reopen the concluded assessments. It is submitted that, therefore, the assumption of jurisdiction by the Assessing Officer to reopen the concluded assessment for the assessment year 2009-10 while issuing the impugned notice under section 148 of the Act is absolutely illegal and the same shall be wholly without jurisdiction, which deserves to be quashed and set aside. 2.12. It is submitted that, therefore, the assumption of jurisdiction by the Assessing Officer to reopen the concluded assessment for the assessment year 2009-10 while issuing the impugned notice under section 148 of the Act is absolutely illegal and the same shall be wholly without jurisdiction, which deserves to be quashed and set aside. 2.12. In support of his above submissions, Shri Vora, learned advocate for the petitioner, has heavily relied upon the following decisions of this court. 1. Sarla Rajkumar Varma v. Asst. CIT reported in [2014] 43 taxmann.com 372 (Guj) :[2015] 4 ITR-OL 95 (Guj). 2. Reckitt Benckiser Healthcare India Ltd. v. Asst. CIT (OCD) reported in [2013] 35 taxmann.com 539 (Guj) : [2014] 360 ITR 427 (Guj). 3. Cliantha Research Ltd. v. Deputy CIT reported in [2013] 35 taxmann.com 61 (Guj). Making the above submissions and relying upon the above decisions, it is requested to allow the present special civil application and quash and set aside the impugned notice under section 148 of the Act and, consequently, to quash and set aside the impugned reopening of the assessment for the assessment year 2009-10. 3. The present petition is opposed by Shri Sudhir Mehta, learned advocate for the Revenue. An affidavit-in-reply is filed opposing the present special civil application. 3.1. It is vehemently submitted that the impugned notice under section 148 of the Act--reopening of the assessment for the assessment year 2009-10--is absolutely just and proper and in consonance with the provision of the statute, more particularly, section 147 of the Act. It is submitted that the impugned notice under section 148 of the Act--reopening of the assessment for the assessment year 2009-10--and the assumption of jurisdiction by the Assessing Officer to reopen the assessment for the assessment year 2009-10 is neither illegal nor without jurisdiction as sought to be contended on behalf of the petitioner. It is vehemently submitted that the reopening of the assessment for the assessment year 2009-10 is not on a mere change of opinion by and of the Assessing Officer as sought to be contended on behalf of the petitioner. 3.2. It is vehemently submitted that the reopening of the assessment for the assessment year 2009-10 is not on a mere change of opinion by and of the Assessing Officer as sought to be contended on behalf of the petitioner. 3.2. It is submitted that as income chargeable to tax has been escaped from assessment for the assessment year 2009-10 and, thereafter, after recording the reasons as required and after obtaining the requisite approval from the appropriate authority and having satisfied with the reasons recorded the income chargeable to tax has escaped assessment, the Assessing Officer has rightly issued the impugned notice under section 148 of the Act. 3.3. It is further submitted by Shri Mehta, learned advocate for the Revenue, that the issue and the reasons recorded while reopening of the assessment there was no application of mind by the Assessing Officer at all while passing the original order of assessment. It is. submitted that during the original assessment/scrutiny assessment proceedings there were no queries by the Assessing Officer with respect to the amount advanced to the partners and non-charging of the interest on the said advances, by the assessee from the said partners. 3.4. It is submitted that while issuing the impugned notice under section 148 of the Act the Assessing Officer has observed and noticed that during the assessment year 2009-10, the assessee had paid interest at the rate of 12 per cent to the tune of Rs. 62,82,192 and the assessee had paid interest bearing funds for non-business purposes by giving interest-free loans to its partners. It is submitted that it is also observed by the Assessing Officer that on one hand, the credit balance of M/s. Jivraj Tea Ltd. is increasing and on the other hand, the amount advanced to the partners is also increasing every year. It is submitted that in fact the debit balance in the capital amount is also increasing continuously. It is submitted that prima facie the sundry credit balance shown in the name of Jivraj Tea Ltd. is actually an interest bearing loan, which has been reflected in the books under the guise of sundry credit balance. It is submitted that the said loan has been diverted to the partners for their personal purpose. Hence, the interest borrowing fund have been utilised for non-business purpose. It is submitted that the said loan has been diverted to the partners for their personal purpose. Hence, the interest borrowing fund have been utilised for non-business purpose. It is submitted that moreover, the partners of the assessee-firm are shareholders of M/s. Jivraj Tea Ltd. and they could not have taken loans from the company directly as that would have attracted the provisions of section 2(22)(e), i.e., deemed dividend. It is submitted that to circumvent such legal complications, arrangement had been made to route the funds from the company to the directors through the assessee-firm. It is submitted that, therefore, having satisfied on the aforesaid, the income chargeable to tax has escaped assessment for the assessment year 2009-10, the Assessing Officer/respondent has rightly issue the notice under section 148 of the Act. 3.5. It is submitted that, thereafter, the questions were asked by the Assessing Officer while holding the inquiry during the original assessment proceedings, the same were with respect to interest paid to the Jivraj Tea Ltd. and even in the communication/notice dated December 5, 2011, the petitioner-assessee was called upon to show cause as to why the interest paid to Jivraj Tea Ltd. should not be disallowed. It is submitted that as such no question was asked at all with respect to the interest-free loan paid to the partners and in fact there was no application of mind by the Assessing Officer with respect to the issues/reasons recorded while reopening of the assessment for the assessment year 2009-10. It is submitted that, therefore, as such it cannot be said that there was any formation of opinion by the Assessing Officer at the time of the original assessment and, therefore, reassessment is merely a change of opinion of the Assessing Officer. It is submitted that none of the decisions which have been relied upon by the learned advocate for the petitioner shall be applicable to the facts of the case on hand. 4. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that what is challenged in the present special civil application under article 226 of the Constitution of India is the notice issued by the respondent under section 148 of the Act to reopen the assessment for the assessment year 2009-10. 4. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that what is challenged in the present special civil application under article 226 of the Constitution of India is the notice issued by the respondent under section 148 of the Act to reopen the assessment for the assessment year 2009-10. The reasons recorded to reopen the assessment for the assessment year 2009-10, reads as under: "In this case, the assessee filed its return of income for the assessment year 2009-10 declaring a total income at Rs. 30,75,299 on August 31, 2009. Assessment under section 143(3) of the Act was completed on December 26, 2011, and the income was determined at Rs. 2,87,27,709. The assessee-firm was engaged in the business of trading, blending, packing and selling of tea and generation of electricity through wind mills. During the assessment proceedings for the assessment year 2009-10, it was noticed that the assessee was advanced total sums to the tune of Rs. 2.93 crores to two partners, viz., Shri Vijay S. Shah and Viren S. Shah which had increased from Rs. 1.85 crores as on March 31, 2009. The assessee had paid interest at 12 per cent amounting to Rs. 82,28,679 to M/s. Jivraj Tea Ltd. its sister concern on the credit balance of Rs. 7,02,45,077. It was noticed that the assessee is having huge credit balance against M/s. Jivraj Tea Ltd. on continuous basis for a number of years and interest is paid at 12 per cent per annum as given below: FY Capital Credit balance of Jivraj Tea Ltd. As on 31 st March Interest paid Amount advanced to partners as on 31 st March Cumulative debit balance in capital account as on 31 st March 2007-08 18,594,986 4,66,55,621 0 2,59,80,020 1,85,94,986 2008-09 29,365,542 7,02,45,077 82,28,679 3,87,23,180 2,93,65,542 2009-10 44,019,886 7,78,99,328 78,33,765 5,12,06,512 4,40,19,866 It was observed that at one hand, the credit balance of M/s. Jivraj Tea Ltd. is increasing and on the other hand, the amount advanced to partners is also increasing every year. In fact, the debit balance in the capital account is also increasing continuously. Prima facie the sundry credit balance shown in the name of Jivraj Tea Ltd. is actually and interest bearing loan, which has been reflected in the books under the guise of the sundry credit balance. In fact, the debit balance in the capital account is also increasing continuously. Prima facie the sundry credit balance shown in the name of Jivraj Tea Ltd. is actually and interest bearing loan, which has been reflected in the books under the guise of the sundry credit balance. This loan has been diverted to partners for their personal purpose. Moreover, the partners of the assessee-firm are shareholders of M/s. Jivraj Tea Ltd. and they could not have taken loans from the company directly for avoiding legal complications. To circumvent such legal requirements, arrangement has been made to route the funds from the company to the directors through the assessee-firm. Further, a perusal of the balance-sheet revealed that the assessee was not having any interest-free fund at all and part of the interest bearing funds have been utilised for making loan to partners, i.e., for non-business purposes. Significantly, this issue was examined for the assessment year 2010-11 and an addition of Rs. 52,52,215 was made on account of disallowance of interest expenses incurred for non-business purposes. In the light of the above facts, the interest on the amount advanced to partners, is required to be disallowed at 12 per cent per annum, as shown below: Name of the partner Opening balance on 1-4-2008 Closing balance as on 31-3-2009 Rate of interest Amount of interest Shri Viren S. Shah 62,73,975 2,38,54,760 12% 42,07,724 Shri Vijay S. Shah 1,97,06,045 1,48,68,428 12% 20,74,468 Total 62,82,192 In view of the above, I have reason to believe that the assessee had used interest bearing funds for non-business purpose by giving interest-free loans to its partners. Therefore, the interest expenses corresponding to the interest chargeable on the amount so diverted to the partners of the assessee-firm for non-business purposes amounting to Rs. 62,82,192 has escaped assessment in the hands of the assessee-firm within the meaning of section 147 of the Income-tax Act. I am satisfied that the case of the assessee is a fit case for action under section 147 of the Act." 4.1. It is the case on behalf of the petitioner that reopening of the assessment for the assessment year 2009-10 is nothing but a change of opinion by/or the Assessing Officer and, therefore, reopening of the assessment for the assessment year 2009-10 is not permissible. It is the case on behalf of the petitioner that reopening of the assessment for the assessment year 2009-10 is nothing but a change of opinion by/or the Assessing Officer and, therefore, reopening of the assessment for the assessment year 2009-10 is not permissible. It is the case on behalf of the petitioner that after the original return of income was filed, the case was selected for scrutiny and notice under section 143(2) of the Act and, thereafter, inquiry was held by the Assessing Officer with respect to the claim made by the assessee and after specific queries and questionnaires, the Assessing Officer passed the order of assessment and assessed the income at Rs. 2,87,27,710 after making addition of Rs. 2,56,52,410. 4.2. However, from the document/material on record, more particularly, the question/questionnaire/notice sent by the Assessing Officer during the course of the original assessment proceedings, it cannot be said that reopening of the assessment for the assessment year 2009-10 is a mere change of opinion of the Assessing Officer, as sought to be contended on behalf of the petitioner. Considering the reasons recorded for reopening of the assessment for the assessment year 2009-10, it appears that assessment for the assessment year 2009-10 is reopened with respect to interest-free loan to the partners who were also partners of Gujarat Tea Ltd. From the material on record and even the show-cause notice/queries/questionnaires and the reply of the assessee, it appears that as such there was no inquiry and/or application of mind by the Assessing Officer with respect to the interest-free loan to the partners and/or any query with respect to the interest on the amount advance to the partners, more particularly, with respect to the reasons recorded while reopening of the assessment. Whatever the question that was with respect to interest paid to Jivraj Tea Ltd. and the petitioner-assessee was requested to show cause as to why the interest paid to Jivraj Tea Ltd. disallowed and even the assessee also replied to the same. The Assessing Officer at the time of framing the original assessment did not address himself with respect to the interest-free loan paid to the partners and with respect to the case on the disallowance to the interest at the rate of 12 per cent per annum on the amount advance to the partners. The Assessing Officer at the time of framing the original assessment did not address himself with respect to the interest-free loan paid to the partners and with respect to the case on the disallowance to the interest at the rate of 12 per cent per annum on the amount advance to the partners. Under the circumstances, it cannot be said that the reopening of the assessment for the assessment year 2009-10 is a mere change of opinion of the Assessing Officer. It is required to be noted that the reopening of the assessment is within the period of four years. Having reasons to believe that the assessee had used interest bearing funds for non-business purpose by giving interest-free loans to its partners and, therefore, the interest expenses corresponding to the interest chargeable on the amount so diverted to the partners of the assessee-firm for non-business purposes amounting to Rs. 62,82,192 has escaped assessment in the hands of the assessee-firm within the meaning of section 147 of the Act and having so satisfied when the impugned notice under section 148 of the Act has been issued, it cannot be said that the Assessing Officer has committed any error and/or illegality and/or the assumption of jurisdiction by the Assessing Officer to reopen the assessment for the assessment year 2009-10, is invalid and/or not justified. 5. In view of the above, the decisions which has been relied upon by the learned advocate for the petitioner referred to hereinabove, shall not be applicable to the facts of the case on hand, as observed hereinabove, it cannot be said the reopening of the assessment is on a mere change of opinion of the Assessing Officer. In view of the above and for the reasons stated above, the petition fails and the same deserves to be dismissed and is, accordingly, dismissed. Notice discharged. Ad interim relief granted earlier, if any, stands vacated forthwith.