ORDER : Akil Abdul Hamid Kureshi, J. 1. The petitioner has challenged a notice for reopening the assessment previously framed after scrutiny. Brief facts are as under: 2. The petitioner is a company registered under the Companies Act. For the assessment year 2010-2011, the petitioner had filed return of income on 27.9.2010 declaring loss of 11.78 crores (rounded off). Return was taken in scrutiny. Scrutiny assessment was framed on 28.2.2014. To reopen such assessment, the Assessing Officer has issued the said notice. At the request of the petitioner, the Assessing Officer supplied the reasons recorded by her for issuing the notice which read as under: "In this case, the assessee company engaged in the business of operating container handling terminal and container freight station operations, software services and related business filed its return of income declaring loss at Rs. 11,78,38,140/-. The case was selected for scrutiny and the assessment was finalised u/s. 143(3) r.w.s. 144C of the Act on 28.02.2014 determining the income at Rs. (-) 11,43,38,140/-. In the assessment order the assessee was allowed depreciation of Rs. 18,01,30,162/- on "Infrastructure Usage Facility @ 25% on WDV of Rs. 72,05,22,447/- as on 31.03.2010 treating the same as "intangible asset". On perusal of assessment records it is noticed that the assessee has been using "infrastructure" developed by Mundra Port and Special Economic Zone (MPSEZ). As per the depreciation charge submitted by the assessee, the depreciation allowed on "Infrastructure Usage Facility" was not in order on the following grounds: The expenditure incurred by the assessee for usage of infrastructure facility was undoubtedly capital in nature as the assessee is deriving enduring benefits out of it. However, the right of usage of the same is not similar to know-how, patents copyrights, trademarks, licenses, franchises or any other business or commercial rights where the asset is acquired and the payee becomes the owner. Unlike this, in the case of leasing, the lessee does not become the owner of the leased property. Any business or commercial right of similar nature mentioned above covers only "right to use the intangible assets like technical know-how, trade mark, pattern etc. But in this case, the deemed right received is to use a tangible asset i.e. infrastructure. Thus, it is clear that the 'right to use infrastructure facility is not similar to 'intangible assets' stated in section 32 of the Act, and hence not eligible for any depreciation. But in this case, the deemed right received is to use a tangible asset i.e. infrastructure. Thus, it is clear that the 'right to use infrastructure facility is not similar to 'intangible assets' stated in section 32 of the Act, and hence not eligible for any depreciation. The assessee is allowed to use the infrastructure facility only, but he is not the owner of the infrastructure. Ownership is one of the conditions for admissibility of depreciation allowance. The assessee has no business or commercial right on the infrastructure facility since the assessee has no right to transfer this facility to others. Transfer can be made by owner of infrastructure only. In view of the above, I have reasons to believe that the depreciation allowed on the "infrastructure Usage Facility" was not in order. The irregular allowance of depreciation in A.Y. 2010-11 of Rs. 18,01,30,162/- has led to escapement of income on account of failure on the part of assessee to disclose fully and truly all material facts pertaining to A.Y. 2010-11. In view of the above, I am of the opinion that this is a fit case for reassessment by invoking the provisions of section 147 of the Income Tax Act, 1961." 3. The petitioner raised objections to the notice for reopening which were dismissed by the Assessing Officer, hence this petition. 4. Learned counsel Shri Soparkar for the petitioner raised the following contentions: 1) That the Assessing Officer was compelled to issue the notice at the instance of Revenue audit party though she herself was not convinced about the fact that income chargeable to tax had escaped assessment. 2) For the assessment year 2007-2008, this very issue of depreciation on the right to use know-how came up for consideration, at which time, the assessment for the assessment year 2010-2011 was not yet completed which was completed without making additions. According to the counsel, therefore, the Assessing Officer even during the original assessment was convinced that no additions could be made. She had thus formed a belief which cannot now be allowed to be changed. 3) In any case, reasons are self-contradictory. If the Assessing Officer believed that no depreciation on such right to user can be granted, her premise that the expenditure is capital in nature would stand falsified. She had thus formed a belief which cannot now be allowed to be changed. 3) In any case, reasons are self-contradictory. If the Assessing Officer believed that no depreciation on such right to user can be granted, her premise that the expenditure is capital in nature would stand falsified. In other words, if the depreciation is to be denied, he petitioner would be eligible for entire deduction as the expenditure being in the nature of revenue expenditure. 5. Learned counsel Ms. Bhatt for the Revenue opposed the petition. She had made available the original file of assessment to enable us to decide the petitioner's first contention regarding the audit objection. 6. In this respect, we have noticed a letter dated 30.3.2015 written by the Assessing Officer to the Commissioner of Income Tax in which after referring to audit objections regarding 25% depreciation on the infrastructure usage facility, she noted as under: "Comments of the AO 4. The similar issue was raised in A.Y. 2007-08 & 2008-09. This office has submitted detailed replies and stated that the objection is not acceptable. However, the Revenue Audit has not considered the reply. Therefore, in order to settle the audit objection, action u/s. 147 has been initiated and accordingly in A.Y. 2007-08 notice u/s. 148 has been issued on 23.01.2014. The assessee has challenged the impugned notice issued u/s. 148 dated 23.01.2014 for reopening the assessment before the honorable High Court of Gujarat. The Honorable High Court of Gujarat vide order dated 11/12/2014 has quashed the notice u/s. 148 for A.Y. 2007-08 and review petition has been filed. The objection raised by the Revenue Audit Party for the A.Y. 20010-11 is also not acceptable. Since the action getting barred by the limitation by 31.03.2007, as this AY 2010-11 falls in within four years remedial action is being initiated. Therefore, in order to settle the objections, remedial action is being taken. Considering the facts of the case, the most suitable remedial action for the issues would be reopening of assessment u/s. 147 of the IT Act. The approval for the same may kindly be granted." 7. Two things thus immediately become clear. Therefore, in order to settle the objections, remedial action is being taken. Considering the facts of the case, the most suitable remedial action for the issues would be reopening of assessment u/s. 147 of the IT Act. The approval for the same may kindly be granted." 7. Two things thus immediately become clear. If the issue was brought to the notice of the Assessing Officer by the audit party, despite which, the Assessing Officer had applied her mind independently and recorded her independent satisfaction that income chargeable to tax had escaped assessment, we would not have terminated the notice for reopening. However, in the present case, the facts are entirely different and glaring. It emerges from the recorded portion of the noting of the Assessing Officer that she had not accepted the point of view of audit party at all. She in fact, recorded that the objections raised by the Revenue's audit party is not acceptable. However, for some strange reasons, later on proceeded to issue the notice for reopening on the ground that action is getting time barred and that remedial action is being initiated within four years. It is by now well settled for issuing notice for reopening, the Assessing Officer herself ought to have recorded the satisfaction that income chargeable to tax had escaped assessment. Even the revenue's audit party cannot prevail over such opinion of the Assessing Officer. The audit party can bring to the notice of the Assessing Officer an element which might have escaped her notice, nevertheless, once she was convinced that the objection of the revenue party was not valid, her act of issuing notice for reopening was simply not permissible. We may refer to the decision of the Supreme Court in case of Indian and Eastern Newspaper Society v. Commissioner of Income-tax, New Delhi reported in : 119 ITR 996. 8. In the result, petition is allowed. Impugned notice dated 31.3.2015 is quashed. Petition is disposed of.