JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. All these petitions involved the same assessee and substantially similar factual and legal issues. They have been heard together and would be disposed of by this common judgment. 2. All the petitions pertain to notices for reopening, issued by the Assessing Officer. The assessments were previously framed after scrutiny. Special Civil Application No. 86 of 2016 pertains to assessment year 2008-09 and the notice for reopening was issued beyond the period of 4 years from the end of relevant assessment year. Special Civil Application No. 87 of 2016 pertains to the assessment year 2009-10. Here also notice has been issued beyond period of 4 years. Special Civil Application No. 88 of 2016 pertains to the assessment year 2010-11 and the notice for reopening has been issued within a period of 4 years from the end of relevant assessment year. 3. Material facts being identical, they may be noticed from Special Civil Application No. 86 of 2016 which are as under. 4. Petitioner is a company registered under the Companies Act. For the assessment year 2008-09, the petitioner had filed its return of income, declaring total income of Rs. 2.66 crores (rounded off) and had claimed deduction of Rs. 2.93 crores (rounded off) under Section 80IA of the Income Tax Act 1961 ('the Act' for short). The return of the petitioner company was taken in scrutiny. During scrutiny assessment, the Assessing Officer examined various issues, including the claim of the petitioner of deduction, under section 80IA of the Act. Under a communication, dated 22.11.2010, the Assessing Officer called upon, the petitioner to supply various details, which, included the following: "3.8 Please submit the complete note on deduction claimed U/s. 80IA and how your company is satisfying the provisions of section 80IA." 5. In response to such communication, the petitioner replied under letter dated 27.12.2010. With respect to the query No. 3.8 noted above, the petitioner supplied following details: "Point 3.8 Note on deduction claimed u/s. 80IA Detailed calculation of claim u/s. 80IA for generation of power plant division & justification of transfer price to inter-division We give here below the statement showing the computation of profit and loss of power plant. Statement of Computation of Cost of Steam and Power Sr. Particulars 2007-08 A. Quantitative details 1. Total Steam Generation Kgs 154614651 2. Steam to Process Kgs. 107678291 3. Steam Power Plant Kgs. Statement of Computation of Cost of Steam and Power Sr. Particulars 2007-08 A. Quantitative details 1. Total Steam Generation Kgs 154614651 2. Steam to Process Kgs. 107678291 3. Steam Power Plant Kgs. 46936360 4. Fuel Consumed (Lignite) Kgs. 38118207 5. Stem/Fuel Ratio a1/a3 4.06 Total Power Generated Units 14889700 Power Plant Consumption Units 3032648 Power to Process Units 11857052 B. Expenses incurred Total Kg. 1. Lignite & Coal Rs.88141936 0.57 2. Maintenance Expenses Rs.8359355 0.05 3. Salaries & Wages Rs.3730681 0.02 4. Interest Rs.2321120 0.02 5. Depreciation Rs.11149446 0.07 Total Expenses Rs.113702538 0.74 C. Cost per kg of steam Rs. 0.74 D. Steam used in process Rs. 107678291 E. Steam cost charged to process Rs.86142633 0.8 F. Cost of steam used for generating power Rs.27559905 G. Power used in process Units 11857052 H. Cost per unit of power Rs.2.32 I. Power billed to process Rs.48021061 4.05 J. Total amount billed to process Rs.134163693 K. Profit/Loss of Power Plaint Rs.20461155 6. The Assessing Officer framed scrutiny assessment by passing an order dated 31.12.2010, in which, he noted as under: "4. The assessee had claimed that the captive power plant is a separate industrial undertaking in terms of provision of 80IA. He has submitted the separate Balance Sheet and Profit and Lass Account of Power Plant Division along with auditor report in form No. 10CCB for claim of deduction u/s. 80IA. All the accounts of Assessee Company for separate divisions are consolidated and the final balance sheet and P & L Account of the company was submitted along with return of income." 7. In the said order, the Assessing Officer made certain dis-allowances concerning the claim of depreciation of the petitioner on the power plant. He assessed the petitioner's total income at Rs. 3.02 crores and granted the claim of deduction under section 80IA of the Act by providing that the same shall be recalculated after giving cumulative effect from the assessment year 2004-05 and 2005-06. Significantly, he made no dis-allowances on the petitioner's claim of deduction under section 80IA on any count, though he did not record any findings in this respect. 8. To reopen such assessment, the respondent Assessing Officer issued notice dated 20.06.2014. He supplied the reasons recorded by him to issue the notice which read as under: "The assessee has claimed deduction u/s. 80IA of Rs. 2,93,61,164/- in respect of Captive Power Plant of the assessee. 8. To reopen such assessment, the respondent Assessing Officer issued notice dated 20.06.2014. He supplied the reasons recorded by him to issue the notice which read as under: "The assessee has claimed deduction u/s. 80IA of Rs. 2,93,61,164/- in respect of Captive Power Plant of the assessee. During the course of assessment proceedings for A.Y. 2011-12 it was noticed that the assessee was claiming deduction u/s. 80IA of the Act in respect of Captive Power Plant of the assessee. It was seen during the assessment proceedings that 78.9% of the total profit derived from Captive Power Plant is in respect of sale of steam rather than generation of electricity. Further, it was seen that the profit from sale of steam was on account of the fact that the sale price of steam was taken arbitrarily. It is an established fact that steam is not a commercial commodity and is not brought to market for sale and purchase. It is not capable of being transported to a distant place because it could lose it's potential heat. Moreover, because of huge requirement of compressor power for transportation and capital cost of equipment like compressor, piping etc. it is uneconomical to transport it to a nearby location as the steam is of low pressure and density. Thus, it is clear that the steam is not marketable commodity and thus does not have any market value. Gujarat State Electricity Regulatory Commission (GERC) is regulatory commission in respect of electricity generated in Gujarat. The tariff for generation and distribution of power in Gujarat is decided by GERC. It was informed by GERC that since steam is not a tradable commodity it cannot be purchased and hence the market price cannot be determined. The assessee is engaged in the business of textile processing. Since assessee cannot purchase steam from outside and steam is one of the raw material for textile process house. The assessee purchases coal/lignite from which steam is generated and is used in process house. Similarly in the case of captive power plant also coal/lignite was bought and was used for production of steam which was being sent to process house. Since assessee cannot purchase steam from outside and steam is one of the raw material for textile process house. The assessee purchases coal/lignite from which steam is generated and is used in process house. Similarly in the case of captive power plant also coal/lignite was bought and was used for production of steam which was being sent to process house. Since the steam cannot be purchased from outside market if the assessee has to use steam he has to generate it thus market rate of steam for the purpose of calculating deduction u/s. 80IA of the Act has to be taken as cost of production of steam by the Captive Power Plant. Even if the Captive Power Plant would not have been there the cost of production of steam would have been same. Scrutiny of records reveal that the cost of generation of steam is Rs. 0.74/Kg. whereas the sale price has been taken as Rs. 0.80/Kg (arbitrarily) thereby derived profit of Rs. 64,60,697/- from sale of steam to process house. The sale price has to be taken as cost of production of steam thereby deriving 'NIL' profit from sale of steam. In view of the detailed reasoning cited above, I have reasons to believe that income of Rs. 64,60,697/- has escaped assessment within the meaning of provisions of sec. 147 of the Act as wrong deduction u/s. 80IA of the Act has been allowed to the assessed." 9. The petitioner under communication dated 05.10.2015 raised objections before the Assessing Officer contending inter alia that the entire claim was accepted by the Assessing Officer after due scrutiny and verification of the claim. He also pointed out that the notice for reopening was issued beyond the period of four years from the end of relevant assessment year. The Assessing Officer however, rejected the objections of the petitioner by the order dated 20.10.2015. Hence, the petition. 10. Shri Divatia, counsel for the petitioner submitted that in all three assessment years, the Assessing Officer has recorded identical reasons for reopening the assessments previously framed after scrutiny. In all cases, the claim of the petitioner for deduction under Section 80IA of the Act was examined during the original assessment. Hence, the petition. 10. Shri Divatia, counsel for the petitioner submitted that in all three assessment years, the Assessing Officer has recorded identical reasons for reopening the assessments previously framed after scrutiny. In all cases, the claim of the petitioner for deduction under Section 80IA of the Act was examined during the original assessment. Additionally, in two cases, the notices have been issued beyond four years from the end of relevant assessment year without there being any element of failure on the part of the assessee to disclose truly and fully all material facts. Counsel relied on the decision of full bench of Delhi High Court in case of Commissioner of Income-tax v. Usha International Ltd., reported in 2012 (348) ITR 485, to contend that once the claim has been examined by the Assessing Officer during the assessment proceedings, merely because in the order of assessment, no discussion is made on such a claim, would not permit the Assessing Officer to reopen the assessment on the same ground since it would amount to a mere change of opinion. 11. Perusal of the reasons recorded by the Assessing Officer for issuing notice for reopening of the assessment would show that according to the Assessing Officer, substantial profit of the assessee was derived from the sale of steam and not by generation of electricity. In the opinion of the Assessing Officer, the price for sale of steam was taken arbitrarily. The steam not being a traded commodity, its market price cannot be determined. He further recorded that the scrutiny of records shows that the cost of generation of steam was Rs. 0.74/kg whereas, sale price was taken at Rs. 0.80/kg whereby, the assessee derived profit of Rs. 64.60 lacs (rounded off) from sale of steam to its process house. According to the Assessing Officer, the sale price of the steam had to be taken at cost of production and resultantly, the profit from sale of steam should be treated as nil. Therefore, according to him, income of Rs. 64.60 lacs had escaped assessment. 12. For several reasons, we find that the Assessing Officer had no authority to reopen the assessment on the basis of reasons noted above. First and foremost, the entire issue was examined by him during the original assessment proceedings. Therefore, according to him, income of Rs. 64.60 lacs had escaped assessment. 12. For several reasons, we find that the Assessing Officer had no authority to reopen the assessment on the basis of reasons noted above. First and foremost, the entire issue was examined by him during the original assessment proceedings. We may recall, during scrutiny assessment, the Assessing Officer raised several queries calling upon the assessee to satisfy him regarding the same. One direction was to submit complete note on deduction claimed under Section 80IA and to show how the company satisfied the provisions of the said section. In response to such query, the petitioner gave detail work out of its claim of deduction under section 80IA of the Act from generation of power. The assessee also provided the reason for transaction price inter-division since the power was generated for captive consumption. In the details so supplied, the petitioner pointed out that the cost of steam per kg was taken at Rs. 0.74. In the same table, the assessee had also pointed out that cost of steam is charged to the process at Rs. 0.80 per kg. Thus, the assessee in the process of substantiating its claim for deduction under section 80IA of the Act, pointed out the price for transferring generated electricity by one division to another. Such working out included the cost of production of steam and the cost at which it was charged to the consuming unit. 13. It was only after verifying such details that the Assessing Officer in the order of assessment dated 31.10.2012, made no alteration in the petitioner's claim of deduction under section 80-IA of the Act. He disallowed certain part of the petitioner's claim for depreciation, but no disallowance was made on the claim for deduction under section 80IA of the Act. In fact, in the assessment order he noted that the petitioner-assessee had claimed the deduction on such power generation though, the power is captively used by separate industrial undertaking of the assessee company. 14. It can thus, be clearly seen that the entire claim of deduction of the petitioner under section 80-IA was minutely scrutinized by the Assessing Officer in the original assessment proceedings. The Assessing Officer had raised queries and elicited the petitioner's response. Being satisfied about the claim of deduction, final order of assessment was passed. 14. It can thus, be clearly seen that the entire claim of deduction of the petitioner under section 80-IA was minutely scrutinized by the Assessing Officer in the original assessment proceedings. The Assessing Officer had raised queries and elicited the petitioner's response. Being satisfied about the claim of deduction, final order of assessment was passed. It may be that the Assessing Officer did not record his reasons for not making any additions. This however, would not be material. As long as the claim was examined and no additions made, it would not be open for the Assessing Officer to reopen the assessment on the premise that in the original assessment, no reasons were recorded for not disturbing the claim. A Division Bench of this Court in case of Gujarat Power Corporation Ltd. v. Assistant Commissioner of Income-Tax, reported in 350 ITR 266 held and observed as under: "42. Bearing in mind these conflicting interests, if we revert back to central issue in debate, it can hardly be disputed that once the Assessing Officer notices a certain claim made by the assessee in the return filed, has some doubt about eligibility of such a claim and therefore, raises queries, extracts response from the assessee, thereafter in what manner such claim should be treated in the final order of assessment, is an issue on which the assessee would have no control whatsoever. Whether the Assessing Officer allows such a claim, rejects such a claim or partially allows and partially rejects the claim, are all options available with the Assessing Officer, over which the assessee beyond trying to persuade the Assessing Officer, would have no control whatsoever. Therefore, while framing the assessment, allowing the claim fully or partially, in what manner the assessment order should be framed, is totally beyond the control of the assessee. If the Assessing Officer, therefore, after scrutinizing the claim minutely during the assessment proceedings, does not reject such a claim, but chooses not to give any reasons for such a course of action that he adopts, it can hardly be stated that he did not form an opinion on such a claim. It is not unknown that assessments of larger corporations in the modern day, involve large number of complex claims, voluminous material, numerous exemptions and deductions. It is not unknown that assessments of larger corporations in the modern day, involve large number of complex claims, voluminous material, numerous exemptions and deductions. If the Assessing Officer is burdened with the responsibility of giving reasons for several claims so made and accepted by him, it would even otherwise cast an unreasonable expectation which within the short frame of time available under law would be too much to expect him to carry. Irrespective of this, in a given case, if the Assessing Officer on his own for reasons best known to him, chooses not to assign reasons for not rejecting the claim of an assessee after thorough scrutiny, it can hardly be stated by the revenue that the Assessing Officer can not be seen to have formed any opinion on such a claim. Such a contention, in our opinion, would be devoid of merits. If a claim made by the assessee in the return is not rejected, it stands allowed. If such a claim is scrutinized by the Assessing Officer during assessment, it means he was convinced about the validity of the claim. His formation of opinion is thus complete. Merely because he chooses not to assign his reasons in the assessment order would not alter this position. It may be a non-reasoned order but not of acceptance of a claim without formation of opinion. Any other view would give arbitrary powers to the Assessing Officer. 43. We are, therefore, of the opinion that in a situation where the Assessing Officer during scrutiny assessment, notices a claim of exemption, deduction or such like made by the assessee, having some prima facie doubt raises queries, asking the assessee to satisfy him with respect to such a claim and thereafter, does not make any addition in the final order of assessment, he can be stated to have formed an opinion whether or not in the final order he gives his reasons for not making the addition." 15. Likewise, full bench of Delhi High Court in case of Commissioner of Income-tax v. Usha International Ltd., reported in 348 ITR 485 through majority of opinion held and observed as under: "39. In view of the above observations we must add one caveat. Likewise, full bench of Delhi High Court in case of Commissioner of Income-tax v. Usha International Ltd., reported in 348 ITR 485 through majority of opinion held and observed as under: "39. In view of the above observations we must add one caveat. There may be cases where the Assessing Officer does not and may not raise any written query but still the Assessing Officer in the first round/original proceedings may have examined the subject matter, claim etc, because the aspect or question may be too apparent and obvious. To hold that the assessing officer in the first round did not examine the question or subject matter and form an opinion, would be contrary and opposed to normal human conduct. Such cases have to be examined individually. Some matters may require examination of the assessment order or queries raised by the Assessing Officer and answers given by the assessee but in others cases, a deeper scrutiny or examination may be necessary. The stand of the Revenue and the assessee would be relevant. Several aspects including papers filed and submitted with the return and during the original proceedings are relevant and material. Sometimes application of mind and formation of opinion can be ascertained and gathered even when no specific question or query in writing had been raised by the Assessing Officer. The aspects and questions examined during the course of assessment ITA 2026/2010 (FB) Page 28 of 48 proceedings itself may indicate that the Assessing Officer must have applied his mind on the entry, claim or deduction etc. It may be apparent and obvious to hold that the Assessing Officer would not have gone into the said question or applied his mind. However, this would depend upon the facts and circumstances of each case." 16. Under the circumstances, we find that the Assessing Officer had no authority to reopen the assessment. Additionally in two cases when the notices were issued beyond the period of four years, from the end of relevant assessment years, neither from the reasons nor otherwise it is possible to discern that the income chargeable to tax had escaped assessment due to the reason of the assessee failing to disclose truly and fully all material facts. In fact, closer scrutiny of the reasons recorded by the Assessing Officer would show that all his observations, remarks and tentative conclusions were based on materials already on record. 17. In fact, closer scrutiny of the reasons recorded by the Assessing Officer would show that all his observations, remarks and tentative conclusions were based on materials already on record. 17. In the result, all petitions are allowed. Respective impugned notices for reassessment are quashed. Petitions disposed of.