JUDGMENT : 1. Admit. 2. This writ petition has been filed to quash notice issued under Section 148 of the Income Tax Act, 1961, the Act for short, on the ground that the notice initiating re-assessment proceedings is ex-facie bad in law and further prayer is made to restrain the respondents from passing order of reassessment for the assessment year 2008-09. 3. The factual background of the matter is as follows:- The case of the petitioner is that on 01.10.2010 a notice under Section 142(1) of the Act was issued by the respondents to the petitioner along with a detailed questionnaire seeking details on various aspects on the tax liability of the petitioner (Annexure P/2, page 41 of the typeset of papers). On 25.10.2010, petitioner filed response to the aforesaid notice (Annexure-P/3, page 43 of the typeset of the papers). Thereafter, it is stated by the petitioner that on 09.12.2010 an order in terms of Section 143(3) of the Act was passed by the respondents after considering the Return of Income filed and the submissions made at the time of hearing. In the proceedings dated 09.12.2010 the authority held as follows:- ".......During the course of the assessment proceedings, nothing adverse has been noticed, as such the return of income filed by the assessee is accepted.." On 04.08.2011 an objection was raised by the audit party that transaction of sale of agricultural land effected by the petitioner was not duly enquired and investigated by the respondents during the course of proceedings under Section 143(3) of the Act (Annexure P/5, page 47 of the typeset of papers). The said audit objection had been brought to the attention of the petitioner and a detailed reply was filed on 19.12.2011 explaining that the objection raised was not factually and legally correct (Annexure P/6, page 50 of the typeset of papers). The reply given by the petitioner was not to the satisfaction of the department and therefore, on 12.03.2013 the impugned notice under Section 148 of the Act was issued for reopening of assessment proceedings, which stood already concluded in terms of Section 143 of the Act. The reasons that are required to be furnished for re-opening of the assessment proceedings were not served. The reasons that are required to be furnished for re-opening of the assessment proceedings were not served. The said notice is annexure P/7, page 135 of the typeset of papers and it reads thus:- "GOVERNMENT OF INDIA INCOME TAX DEPARTMENT OFFICE OF THE INCOME TAX OFFICER WARD-3(3) SRINAGAR SHAH HOUSE, RAJ BAGH, SRINAGAR- 190001 NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 Dated Sgr. The: 12.03.2013 To Smt. Shivani Koul Partap Villa Lal Mandi Srinagar (at present) 39-Rajpur Road New Delhi. Whereas I have reason to believe that your income/income of in respect of which you are assessable, chargeable to tax for the assessment year 2008-09 has escaped assessment within the meaning of Section 147 of the Income Tax Act, 1961. I, therefore, propose to assess/re-assess the income for the said assessment year and hereby require you to deliver to me within 15 days from the date of service of this notice, a return in the prescribed form of your income/income of..........in respect of which you are assessable for the said assessment year. SEAL Sdl- (Manzoor A. Shah) Income Tax Officer Ward 3(3) Srinagar" In response to the same on 01.04.2013, a letter was filed stating that the return originally filed for the assessment year 2008-09 be treated as return filed in response to the notice under Section 148 of the Act. The petitioner further stated that no basis/ground or the reason to believe that the income chargeable tax for the assessment year 2008-09 has escaped assessment have been disclosed in the notice issued under Section 148 of the Act. A request was made by the petitioner to intimate the basis, grounds or reasons for the proceedings, initiated in terms of notice issued under Section 148 of the Act (Annexure P/8, page 136 of the typeset of papers). According to the department, there was no reply/response by the petitioner, therefore, letter dated 26.07.2013 (Annexure P/9, page 137 of the typeset of papers) was issued to the-petitioner and that was replied on 30.07.2013 (Annexure-P/10, page 139 of the typeset of papers) requesting the authority to provide reasons for re-opening of the assessment so as to enable the petitioner to file objections against the assumption of jurisdiction, placing reliance to the Apex Court judgment in the case of GKN Driveshaft (India) Ltd. v. ITO, 259 ITR 19 (SC). The department responded on 04.09.2013 (Annexure P-11, page 141 of the typeset of papers) enclosing the reasons for re-opening of the assessment, this is relevant for disposal of the present case and it reads as follows:- “Reasons for the belief that the income has escaped assessment Original assessment in this case was made vide order under Section 143(3) on a total income of Rs. 60,340.00. While assessing income of the assessee it was found that during the year under reference the assessee has sold a piece of land in co-ownership with her husband justice Sanjay K. Koul for a total consideration of Rs. 8,94,93,750.00 and out of which assessee received an amount of Rs. 4,47,46,875.00 during the year under consideration. Thestated land comprising of 3 acres 1 Kanal and 2 marlas situated at Moja Sivana Tehsil Badshahpur Distt. Gurgaon has been purchased in the year 1994 by the assessee and sold to M/s Ansal SEZ Projects Pvt. Ltd., with registered office at KG Marg, New Delhi. Since the land has been sold to one of the famous builders i.e., M/S Ansal SEZ Projects Pvt. Ltd., it is evident that the land has been sold for non agricultural purposes and it is one of the important factors for determining the status of land within the meaning of Sections 2(14) of the Income Tax Act, 1961. It is also seen that assessee has not declared any agricultural income in its return of income. I have, therefore, reason to believe that the LTCG on the sale transaction on the sale of this land, otherwise chargeable to tax has escaped assessment within the meaning of Section 148 of the Income Tax Act, 1961”. On 04.09.2013 the department issued another communication enclosing notice under Section 143(2) of the Act for compliance (Annexure P/12, page 145 of the typeset of papers). This was responded by the petitioner stating that petitioner needs some time to file objections and thereafter on 23.09.2013 petitioner filed detailed objections (Annexure P/14, page 148 of the typeset of papers) citing various provisions of the Act and the judgments of the Court to contend that the assumption of jurisdiction under Section 148 of the Act is not correct and that the notice should be withdrawn. On 26.11.2013, the petitioner invited the authority to pass an order disposing of the objections in terms of the decision of the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd., 259 ITR 19 SC before proceeding with the assessment proceedings (Annexure- P/15, page 169 of the typeset of papers). The relevant portion of the judgment reads thus:- ".........However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the notice is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order before proceeding with the assessment in respect of the abovesaid five assessment years..." Since the objections filed by the petitioner on 23.09.2013 challenging assumption of jurisdiction have not been disposed of by the respondents and fearing that the authority will pass an order of re-assessment without following the procedure prescribed, the petitioner has come before this Court. 3. The case was moved before this Court on 20.02.2014 and on that day notice was issued and the counsel for the respondent took notice on behalf of the department. Copy of the petition along with annexures was provided by the counsel for the petitioner and the case was directed to be listed on 10.03.2014 and in the meanwhile, the department was restrained from proceeding further pursuant to the notice issued under Section 148 of the Act. At the request of the department the matter was adjourned on 14.03.2014, then it was listed on 19.03.2014. On 27.03.2014 counsel for the department sought another opportunity for filing response/objections and therefore, it was adjourned to week commencing 21.04.2014, thereafter the matter was listed on 24.04.2014 and objections were not filed on that date. At the request of the department the matter was adjourned on 14.03.2014, then it was listed on 19.03.2014. On 27.03.2014 counsel for the department sought another opportunity for filing response/objections and therefore, it was adjourned to week commencing 21.04.2014, thereafter the matter was listed on 24.04.2014 and objections were not filed on that date. Then on 07.05.2014 also objections were not filed and on 27.11.2014 it was recorded that objections have not been filed and four weeks time was granted to the respondents for filing objections, thereafter it was listed on 05.02.2015 and on that day two weeks' time was granted for filing reply by the department and it was recorded by the 1st Bench in its order dated 05.02.2015 as follows:- "Two weeks' time is granted for filing the reply. Learned counsel for the petitioner produced photocopy of judgment dated 07.04.2014 passed by Commissioner of Income Tax (Appeals) Jammu. Copy of the same has been furnished to the counsel for the respondent. In light of the said judgment, learned counsel for the respondent wants time so as to seek instructions, same is granted." The photocopy of the judgment dated 07.04.2014 passed by the Commissioner of Income Tax (Appeals) is in relation to the assessment proceedings of the spouse of the petitioner, which was held in favour of the spouse of the petitioner. The matter was listed on 20.04.2015 and on that date at the request of the department it was adjourned. On 08.05.2015, Mr. Kotwal, learned counsel for the department sought two weeks' time to file reply with advance copy to the counsel for the petitioner and it was recorded in that order that in the event reply is not filed, right to file the same shall stand forfeited and the matter will be taken up for consideration in absence of the reply. On 06.08.2015 the matter was adjourned due to the reason that lawyers have abstained from work. Thereafter on 23.11.2015 due to paucity of time, the 1st Bench did not take up the matter. Similarly on 17.12.2015, the 1st Bench did not take up the matter due to paucity of time, then on 17.03.2016 the matter was adjourned to 20.04.2016 by the 1st Bench and thereafter the matter came before this Bench on 20.04.2016. Thereafter on 23.11.2015 due to paucity of time, the 1st Bench did not take up the matter. Similarly on 17.12.2015, the 1st Bench did not take up the matter due to paucity of time, then on 17.03.2016 the matter was adjourned to 20.04.2016 by the 1st Bench and thereafter the matter came before this Bench on 20.04.2016. The respondents' counsel was put on notice about the earlier orders passed by this Court seeking its response in relation to the order passed by the Commissioner of Income Tax (Appeals), Jammu dated 07.04.2014, which petitioner relies upon with emphasis. Further two weeks' time was granted to file counter, even then, no counter has been filed and no records have been produced. Learned counsel for the writ petitioner as well as counsel for the department, however, argued the matter at length on merits. 4. On the plea of change of opinion and also on the plea that in respect of the same transaction the department had finally accepted transaction in respect of the spouse of the petitioner, as is evident from the Commissioner of Income Tax (Appeals)'s order, has taken a different view in respect of the petitioner. This justifies the admission of this writ petition. 5. On the merit of challenge the following points emerges. (i) The reasons recorded by the officer for initiating proceedings under Section 148 of the Act, as has already been recorded earlier, relates to sale of agricultural land held by the petitioner as co-owner with her spouse, which land was sold by both of them in a single transaction. Consequent to the sale in relation to assessment year 2008-09 in respect of the petitioner, the department accepted the same in the original assessment proceedings, which has already been referred to earlier. It is the audit party that has raised the objection. On the contrary, in the case of the spouse, it is on records that the Commissioner of Income Tax (Appeals) has finally held that the property sold should be treated only as agricultural land and rejected the department's contention. Despite repeated opportunities having been given, no records were produced and the department has not filed objections stating that the said order of the Commissioner of Income Tax (Appeals) has been modified or reversed. Despite repeated opportunities having been given, no records were produced and the department has not filed objections stating that the said order of the Commissioner of Income Tax (Appeals) has been modified or reversed. In other words, it is apparent that the department has accepted the sale of the agricultural land insofar as spouse of the petitioner is concerned and the transaction is common to both the spouses. There cannot be two yardsticks in respect of common transaction of sale, treating one component of the sale as agricultural land and the other component of the sale for non-agricultural purposes. On this first issue the audit objection and consequential notice under challenge is to be faulted. (ii) The second substantial plea taken is that the impugned notice is based on a change of opinion because the assessment has already been concluded under Section 143(3) of the Act, all material including that of the property in question has been declared and the assessing authority while passing order under Section 143(3) of the Act has clearly recorded that nothing adverse is found and return filed by the assessee is accepted. There is also specific mention to the sale of the land. It is, therefore, pleaded that mere on change of opinion that the land was sold to 'A' or 'B' party, the assessment cannot be faulted. Reliance has been placed on a decision of the Supreme Court in Commissioner of Income Tax v. Kelvinator of India Ltd., (2010) 320 ITR 561 SC] and Full Bench Decision of Delhi High Court in Commissioner of Income Tax v. Usha International Ltd. (2012) 348 ITR 485(FB)]. From the reading of the reasons for initiating proceeding under Section 148 of the Act, it is evident that merely because the land was sold to a particular person, the authority has taken a view that the land has been sold for non-agricultural purposes, in our opinion, that reason appears to be a fallacy. What is the nature of the land at the time it was sold will be relevant. Future use is not the concern of the petitioner having sold the property. It will be useful to record the view of the Full Bench of Delhi High Court, which reads thus:- "(1) Reassessment proceedings can be validly initiated in case return of income is processed under Section 143(1) and no scrutiny assessment is undertaken. Future use is not the concern of the petitioner having sold the property. It will be useful to record the view of the Full Bench of Delhi High Court, which reads thus:- "(1) Reassessment proceedings can be validly initiated in case return of income is processed under Section 143(1) and no scrutiny assessment is undertaken. In such cases there is no change of opinion; (2) Reassessment proceedings will be invalid in case the assessment order itself records that the issue was raised and is decided in favour of the assessee. Reassessment proceedings in the said cases will be hit by principle of-change of opinion. (3) Reassessment proceedings will be invalid in case an issue or query is raised and answered by the assessee in original assessment proceedings but thereafter the Assessing Officer does not make any addition in the assessment order. In such situations it should be accepted that the issue was examined but the Assessing Officer did not find any ground or reason to make addition or reject the stand of the assessee. He forms an opinion. The reassessment will be invalid because the Assessing Officer had formed an opinion in the original assessment, though he had not recorded his reasons." The expression "change of opinion" postulates formation of opinion and then a change thereof. In the context of reassessment proceedings, it means formulation of belief by an Assessing Officer resulting from what he thinks on a particular question. It is a result of understanding, experience and reflection. The principle of possible future use other than for agricultural purposes is of no concern for the petitioner, nevertheless that is not the valid consideration for change of opinion for issuing the impugned notice, What is relevant will be the nature of land at the time of transfer, as has been held by a Constitution Bench of the Apex Court in Commissioner of Wealth Tax, Andhra Pradesh v. Officer-in-charge (Court of Wards), Paigah, (1976) 3 SCC 864 and Kerala High Court in Kalpetta Estates Ltd. v. Commission of Income Tax (1990) 185 ITR 318 (Ker)]. On this premise, it can be safely inferred that the department has proceeded on a wrong premise that the business being carried on by the purchaser of the land would be relevant in deciding the nature of the land sold. In our opinion, such a view is perverse and totally untenable in law. 6. On this premise, it can be safely inferred that the department has proceeded on a wrong premise that the business being carried on by the purchaser of the land would be relevant in deciding the nature of the land sold. In our opinion, such a view is perverse and totally untenable in law. 6. The audit objection does not appear to be based on any tangible material requiring case for reassessment. On the contrary, it appears to be a mere change of opinion. Despite detailed objections having been submitted, the authority has not chosen to pass a speaking order. Initiation of reassessment proceedings on the basis of audit objection is also to be faulted without there being any fresh or tangible material placed on records to suggest that income has escaped assessment. 7. For the above said reasons, the impugned notice is quashed as also the consequential proceedings. 8. In view of the relief granted above, alternative prayers for mandamus and for prohibition become redundant. The writ petition is allowed in the above terms. No costs.