JUDGMENT : AKIL KURESHI, J. 1. The petitioner has challenged an order dated 9.3.2017 passed by the Commissioner of Income-tax, Ahmedabad, rejecting the petitioner's revision petition under Section 264 of the Income Tax Act. 2. Brief facts are as under. The petitioner is a partnership firm and is engaged in export of Back Office Operation and computer software. The petitioner had filed the return of income on 30.10.2007 declaring a total income of Rs. 98,360/-. In the return, the petitioner had claimed deduction under section 10B of the Income Tax Act (“the Act” for short). Return was taken in scrutiny by the Assessing Officer. During such scrutiny assessment, he had raised several questions with respect to the petitioner's claim of deduction under section 10B of the Act, in respect to which the petitioner had replied under an undated communication (Annexure-B) as under: “2. Documents relevant with the STPI and Cochin SEZ, Kakkanad, Cochin 1. Complete copy of certificate issued by vide STPI Registration Letter no. STPG/EXIM/ S/GC/HE/LOP-PP/367/5830, dated 8th January 2002 2. SEZ letter No: 9/19/2003.IL/CSEZ/8098, dated 16th December 2003 3. Copy of documents submitted before STPI at the time of registration. 4. Letter of Commencement of Production. 1. Copy of letter of Development Commissioner of CSEZ regarding information of Production started date at CSEZ, Kakkinada, Cochin. According to this letter the Date of production was 01.04.2004 2. Copy of Annual return/submitted before STPI, Gandhinagar where date of Production started mentioned earlier. According to documents the Date of Production was 25.08.2001 6. Clarification regarding sales proceeds received in India after 6 months from the end of previous year in convertible foreign exchange As per the various guidelines issued by DBDT it is very much clear that under section 10A. 10B and 10BA allowed and Assessing Officer amend the order within a period of 4 years from the end of the previous year and allow the deduction. Looking to the above guidelines and facts of our case their was few bills where the payment received after 30th September, 2007 but the said payments were received within the assessment year and verified by you and hence our claim u/s 10A can not be disallowed.” 3. It was after scrutiny that the Assessing Officer passed his order of assessment on 16.12.2009 On the petitioner's claim of deduction under section 10B of the Act, he made a limited disallowance of a sum of Rs. It was after scrutiny that the Assessing Officer passed his order of assessment on 16.12.2009 On the petitioner's claim of deduction under section 10B of the Act, he made a limited disallowance of a sum of Rs. 2,45,418/- to the extent the remission was not made on the export transaction within six months from the end of financial year. This can be gathered from the order of assessment, relevant portion of which reads as under: “8. Deduction Allowable u/s 10-B The assessee has claimed deduction u/s 10B of the Income Tax Act @ 100% of profit on its export turn over. During the assessment proceeding it is noticed that the realized of the some export transaction, having amount of Rs. 2,45,418/- have not received with in the six month from the end of the financial year. Accordingly, the revised working of the allowable deduction is as under:- Export turnover claimed as reduced later Realization by more than six months (i.e. After September) Profit -------/Total turnover 176341082 176586500 – 245418 51341330--------=5,11,71,753 176925454 Rs. 5,12,42,970/- original claim 5,11,71,753 = 71,217/- (Excess amount) Thus the eligible amount for deduction u/s. 10B comes of Rs. 51171753/- instead of the assessee has claimed the amount of Rs. 5,12,42,970/-. 4. To reopen such assessment, the Assessing Officer issued a notice dated 18.3.2014 In order to do so, he had recorded the following reasons: “In this case the assessee filed return of income for the above assessment year on 30.10.2007 declaring total income of Rs. 98,630/- after claiming the deduction u/s. 10B of the Act of Rs. 5,12,42,970/- in respect of its Ahmedabad unit of Rs. 4,67,32,162/- and Cochin unit of Rs. 45,10,808/-. The said return was processed u/s. 143(1) of the Act on 12.02.2009. Order u/s. 143(3) of the Act was passed on 02/06/2010 determining the income of the assessee at Rs. 76,72,050/- which includes the addition made on account of the following:- (i) Addition u/s 36(1)(va) on account of Rs. 14,82,993 employee's contribution to PF and ESI (ii) Disallowance u/s 40(a)(ia) of the Act Rs. 59,19,051 (iii) Disallowance of Surat Flood Victim expenses Rs. 1,00,430 (iv) Excess deduction claimed u/s. 10B Rs. 71,217/- 2. Section 10B of the Income-tax Act, 1961 is a special provisions in respect of newly established hundred per cent export oriented undertakings enables an assessee for a deduction from total income. 59,19,051 (iii) Disallowance of Surat Flood Victim expenses Rs. 1,00,430 (iv) Excess deduction claimed u/s. 10B Rs. 71,217/- 2. Section 10B of the Income-tax Act, 1961 is a special provisions in respect of newly established hundred per cent export oriented undertakings enables an assessee for a deduction from total income. For the AY 2007-08, the assessee claimed the deduction u/s 10B of the Act for an amount of Rs. 5,12,42,970/- as a newly established hundred per cent export oriented undertaking. Clause (iv) of Explanation 2 for the purpose of section 10B of the Act states as to hundred per cent export oriented undertaking as under:- "(iv) Hundred per cent export-oriented undertaking’ means an undertaking which has been approved as a hundred per cent export-oriented undertaking by the Board appointed in this behalf by the Central Government in exercise of powers conferred by section 14 of the Industries (Development and Regulation) Act, 1951 (65 of 1951) and the rules made under that Act." 3. The undertaking of the assessee has not been approved as a hundred per cent export oriented undertaking by the Board appointed in this behalf by the Central Government in exercise of the powers conferred by section 1 4 of the Industries (Development and Regulation) Act, 1951 (65 of 1951), and the rules made under that Act. Therefore, the assessee is not qualified for deduction under the provisions of section 10B of the Act as this provisions is applicable to newly established hundred per cent export oriented undertakings approved by the Board as stated above. Hence the deduction as claimed by the assessee u/s. 10B of the Act of Rs. 5,12,42,970/- is not allowable as not eligible. 4. I have therefore reason to believe that the income of the assessee of at-least Rs. 5,12,42,970/- has escaped assessment within the meaning of section 147 of the Income-tax Act, 1961 for the AY 2007-08.” 5. The petitioner raised objections to the notice of reopening of assessment, but eventually submitted to the jurisdiction of the Assessing Officer and participated in the reassessment proceedings during which also the assessee raised serious dispute about the very jurisdiction of the Assessing Officer to carry out reassessment. The assessee also raised additional grounds on merits of the claim. The petitioner raised objections to the notice of reopening of assessment, but eventually submitted to the jurisdiction of the Assessing Officer and participated in the reassessment proceedings during which also the assessee raised serious dispute about the very jurisdiction of the Assessing Officer to carry out reassessment. The assessee also raised additional grounds on merits of the claim. Ignoring such objections of the petitioner, the Assessing Officer passed a fresh order of assessment on 25.3.2015 disallowing the petitioner's claim of deduction under section 10B of the Act on the ground that the assessee had not fulfilled the requirement of being a 100% export-oriented undertaking since it did not enjoy the approval by the Board appointed by the Central Government under the Industries (Development and Regulation) Act, 1961. 6. The petitioner challenged the order of assessment before the Commissioner in a revision petition filed under section 264 of the Act. The Revision petition came to be dismissed by the Commissioner by the impugned order dated 9.3.2017 Before the Commissioner also, the assessee had argued that reopening of the assessment itself was bad in law. This was in addition to the assessee's contention that even otherwise deduction under section 10B of the Act could not have been disallowed. 7. Learned counsel for the petitioner raised the following contentions. The notice for reopening was issued beyond a period of four years from the end of relevant assessment year. There was no failure on part of the assessee to disclose truly and fully all material facts. The Assessing Officer had no additional or external material to enable him to reopen the assessment. Notice of reopening which was issued beyond a period of four years from the end of relevant assessment year was therefore, bad in law. During the original scrutiny assessment, the entire claim of deduction under section 10B of the Act was examined by the Assessing Officer at length. The assessee had pointed out that the assessee enjoyed certification under the Software Technology Parks Scheme issued by Software Technology Park of India (“STPI” for short). Supporting documents were produced. The assessee had also pointed out that he had received letter of commencement of production from the Development Commissioner. The assessee had pointed out that the assessee enjoyed certification under the Software Technology Parks Scheme issued by Software Technology Park of India (“STPI” for short). Supporting documents were produced. The assessee had also pointed out that he had received letter of commencement of production from the Development Commissioner. The assessee had also satisfied other requirements of the said section including having received the sale proceeds from the foreign buyers in convertible foreign exchange within a period of six months from the end of financial year. It was after such scrutiny that the Assessing Officer passed the order of assessment on 16.12.2009 under which he made a limited disallowance in the claim of deduction under section 10B of the Act to the extent the assessee failed to receive foreign exchange remittance within the prescribed period. It was thereafter not open for the Assessing Officer to examine the claim which would be based on mere change of opinion. Counsel submitted that deduction under section 10B of the Act is available for successive ten years from the commencement of the activity. Assessment year 2007-2008 was not the first year of commencement. The assessee had raised such claim continuously from inception from the year 2003 onwards. All such claims were granted without disturbing the initial order of assessment. It was not open for the Assessing Officer to disturb the claim in the later year. 8. On the other hand, learned counsel Shri Nitin Mehta for the department opposed the petition contending that the assessee did not disclose during the original assessment proceedings that he did not enjoy approval of the Board appointed by the Government of India. Certification by STPI was not a substitute for such approval. Assessing Officer during the original assessment had not examined this aspect. Reopening of the assessment was therefore, valid. The Commissioner did not commit any error in rejecting the revision petition of the petitioner. 9. In the present petition, the petitioner having participated in the assessment proceedings and thereafter having challenged the order of assessment before the Commissioner in revision petition under section 264 of the Act, has filed the present petition. Nevertheless, the central issue is with respect to the validity of the reopening of the assessment by the Assessing Officer. In this context relevant facts are that the assessment for the assessment year 2007-2008 was completed after scrutiny. Nevertheless, the central issue is with respect to the validity of the reopening of the assessment by the Assessing Officer. In this context relevant facts are that the assessment for the assessment year 2007-2008 was completed after scrutiny. The notice for reopening of such assessment came to be issued beyond a period of four years from the end of assessment year in question. 10. In this context we have noticed that the Assessing Officer in the original assessment proceedings had examined the assessee's claim of deduction under section 10B of the Act. It is not as if such claim went unnoticed or un-scrutinized. He wanted to be specific about the assessee's claim for deduction and therefore, he raised queries in respect to the same in response to which the assessee, as noted, placed number of documents and materials on record. Principally, the assessee pointed out that it has been granted certification by STPI under the Software Technology Parks Scheme. The assessee also supported the claim on merits pointing out that the Development Commissioner had granted certificate of commencement and that foreign exchange remittances were made within six months from the end of the financial year. After such scrutiny, the Assessing Officer passed the original order of assessment in which he did not reject the claim of deduction under section 10B of the Act. In fact, he accepted the claim substantially making minor disallowance to the extent the assessee had not received foreign exchange payment within the prescribed period. 11. It can thus be seen that the assessee's claim of deduction under section 10B of the Act was examined minutely by the Assessing Officer. The assessee pointed out that it enjoyed certification under STPI. If the Assessing Officer was of the opinion that such certification was inadequate and did not substitute for the requirement of approval by the Board appointed by the Government of India, under the Industries (Development and Regulation) Act, 1961, it was always open for the Assessing Officer to examine this issue further or to reject the assessee's claim in its entirety. He however, accepted the claim accepting the assessee's certification as sufficient compliance with the statutory requirements. There was no failure on part of the assessee to disclose necessary facts. He however, accepted the claim accepting the assessee's certification as sufficient compliance with the statutory requirements. There was no failure on part of the assessee to disclose necessary facts. Both on the ground of the non failure of assessee to disclose necessary facts and on the ground of scrutiny during original assessment proceedings, notice of reopening on this issue was not permissible. The Assessing Officer as well as the Commissioner both failed to appreciate this legal lacuna in the notice of reopening. 12. Learned counsel Shri. Mehta for the department had pointed out that the return of the assessee for the earlier assessment years were accepted under section 143(1) of the Act without scrutiny. We have therefore, not based our conclusion on the third contention of the petitioner's counsel that being a continuous claim, same could not have been disturbed for the later year without withdrawing the benefits of the initial years of assessment. We leave this question open to be examined in appropriate proceedings, if need so arises. 13. In the result, impugned order dated 9.3.2017 passed by the Commissioner confirming the reassessment order dated 25.3.2015 is set aside, Consequently, the order of reopening also stands invalidated. 14. Petition is allowed and disposed of.