JUDGMENT : M.R. Shah, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner- assessee has prayed for writ or order, quashing and setting aside the impugned Notice dated 30th March 2016 issued under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") by which the Assessing Officer has sought to reopen the assessment for Assessment Year 2009-2010 which, as such, is beyond the period of four years from the date of the relevant assessment year. 2. Facts leading to the present Special Civil Application in nutshell are reproduced as under:- 2.1 The petitioner filed return of income for A.Y. 2009-2010 declaring total income at Rs. 11,44,114/-. It is the case on behalf of the petitioner-assessee that assessee earned income from salary, house property, capital gain and income from other sources during the year under consideration and that the assessee did not earn any business income. That, the Assessing Officer accepted the return and processed the same under Section 143(1) of the Act. That thereafter, the petitioner has been served with the impugned Notice under Section 148 of the Act, which as such is issued beyond of the period of four years, by which the assessment for AY 2009-2010 is sought to be reopened on the allegation that income chargeable to tax as escaped assessment within the meaning of Section 147 of the Act. At the request of the assessee, the Assessing Officer has furnished the reasons recorded to reopen the assessment for AY 2009-2010, which read as under: "2. In this connection, the reasons for reopening as per file are as under: In this case, return of income declaring total income of Rs. 11,44,110/- was filed on 31.07.2009. The return of income was processed u/s. 143 (1) of the Act. Subsequently, the case was selected for security through CASS and order u/s. 143 (3) was passed on 09.11.2011 at returned income shown by the assessee. On verification of case records, it is found that the assessee had made investment of Rs. 6,66,36,487/- (71435074 - 4798587) as on 31.03.2009 and incurred interest expenses of Rs. 21,69,130/- simultaneously earned exempt income of Rs. 7,35,122/- which is claimed as exempted income u/s. 10 (34)/10 (35) of the I.T Act. On verification of case records, it is found that the assessee had made investment of Rs. 6,66,36,487/- (71435074 - 4798587) as on 31.03.2009 and incurred interest expenses of Rs. 21,69,130/- simultaneously earned exempt income of Rs. 7,35,122/- which is claimed as exempted income u/s. 10 (34)/10 (35) of the I.T Act. However, it is seen that the assessee had not made disallowance u/s. 14A read with Rule 8D even though he enjoyed exempted income. Hence, provision u/s. 14A r.w. 8D is applicable to assessee. However, the assessee failed to comply with provisions of Section 14A r.w. Rule 8D of the I.T Act, 1961. The amount of such disallowance is worked out at Rs. 15,62,757/-. In view of the above facts, I have reason to believe that by reason of failure on the part of assessee to disclose fully and truly all material facts necessary for his assessment, an amount of Rs. 15,62,757/- has escaped assessment. Accordingly, I am satisfied that the income chargeable to tax has escaped assessment and hence, it is a fit case for reopening the assessment within the meaning of Section 147 of the Act." 2.2 That, on receipt of the reasons recorded to reopen the assessment, the assessee raised objection vide communication dated 3rd August 2016 and requested the Assessing Officer to drop the re-assessment proceeding by submitting that as such the assessment is sought to be reopened beyond the period of four years and as there is no allegation that there was any failure on the part of the assessee not to disclose true and correct facts, and therefore, assumption of jurisdiction by the Assessing Officer is bad in law and/or contrary to the provisions of Section 147 of the Act. It was further submitted that in fact, the assessee did not made a claim of Rs. 21.59 lacs as deductible expenditure and therefore, it was submitted that the reasons recorded by the Assessing Officer for issuing impugned notice lack validity. 2.3 That thereafter, the Assessing Officer disposed of the said objections vide communication dated 10th August 2016 and has not agreed with the objections raised by the assessee by further submitting that the facts stated by the assessee warrant verification for which re-assessment shall have to be continued. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India challenging the impugned re-assessment proceedings. 3. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India challenging the impugned re-assessment proceedings. 3. Shri Tushar P. Hemani, learned counsel for the petitioner has vehemently submitted that the impugned notice under Section 148 of the Act is bad in law and contrary to the provisions of Section 147 of the Act. 3.1 It is vehemently submitted by Shri Hemani, learned counsel for the petitioner that in the present case, the assessment for A.Y. 2009-2010 is sought to be reopened beyond the period of four years, and therefore, unless and until there is any failure on the part of the assessee in disclosing true and correct facts necessary for assessment, the Assessing Officer has no jurisdiction to reopen the assessment. 3.2 It is further submitted by Shri Hemani, learned counsel for the petitioner that the petitioner disclosed interest expenses of Rs. 21,59,130/- in the Profit & Loss account and disclosed investment of Rs. 7,14,35,074/- in the Balance-sheet. It is submitted that even the exempt income of Rs. 7,35,122/- has been duly disclosed in the return of income. It is submitted that the details of investments were also furnished at the original assessment stage vide letter dated 17th December 2011. It is submitted that thereafter, the Assessing Officer framed scrutiny assessment under Section 143 (3) of the Act. It is submitted that therefore there was no failure on the part of the petitioner to disclose fully and truly all material facts necessary for assessment for the year under consideration. 3.3 It is further submitted by Shri Tushar Hemani, learned counsel appearing on behalf of the petitioner that even otherwise, the Assessing Officer has sought to reopen the assessment on the ground that assessee had not made disallowance under Section 14A read with Rule 8D, even though he enjoyed exempt income, and therefore, disallowances worked out at Rs. 15,62,757/- has escaped the assessment. It is submitted that as such the petitioner had incurred interest expenses of Rs. 21,59,130/- no deduction was claimed in respect of the same while filing the return of income. It is submitted the Section 14A of the Act provides that no deduction shall be allowed in respect of the expenses incurred by an assessee in relation to income which does not form part of the total income under the Act. 21,59,130/- no deduction was claimed in respect of the same while filing the return of income. It is submitted the Section 14A of the Act provides that no deduction shall be allowed in respect of the expenses incurred by an assessee in relation to income which does not form part of the total income under the Act. It is submitted that therefore, if such expenses are incurred but no deduction is claimed in respect of the same, the question of making disallowance under Section 14A of the Act does not arise at all. It is submitted that therefore, assumption of jurisdiction by the Assessing Officer to reopen the assessment on the aforesaid ground is unjustified. It is submitted that therefore, the impugned notice under Section 148 of the Act deserves to be quashed and set aside. 3.4 Shri Tushar Hemani, learned counsel for the petitioner has also further submitted that the in fact, the impugned notice for reopening the assessment is nothing but a change of opinion by the subsequent Assessing Officer. It is submitted that originally the petitioner's case was selected for scrutiny and various details were called for by the then Assessing Officer; including the details in respect of investments made during the year under consideration. It is submitted that the petitioner vide letter 19th July 2011 duly furnished requisite information; including the details in respect of investment made in mutual funds. It is submitted that those details in respect of investment were exempt by the then Assessing Officer. At this stage, it was open for him to make disallowances under Section 14A of the Act. The Assessing Officer consciously chose not to make any such disallowance, while framing the assessment under Section 143 (3) of the Act. It is submitted that on the aforesaid ground also, the impugned notice and the reopening of the assessment deserves to be quashed and set-aside. 3.5 Making the above submissions and relying upon decision of Division Bench of this Court in the case of Mitul Gems vs. Assistant Commissioner of Income-tax, (2015) 62 Taxmann.com 66 (Gujarat), it is requested to allow the present petition. 4. The present petition is vehemently opposed by Shri Manish R. Bhatt, learned senior advocate appearing on behalf of the Revenue. 3.5 Making the above submissions and relying upon decision of Division Bench of this Court in the case of Mitul Gems vs. Assistant Commissioner of Income-tax, (2015) 62 Taxmann.com 66 (Gujarat), it is requested to allow the present petition. 4. The present petition is vehemently opposed by Shri Manish R. Bhatt, learned senior advocate appearing on behalf of the Revenue. It is vehemently submitted by Shri Bhatt, learned counsel for the Revenue that the impugned notice under Section 148 of the Act is absolutely in consonance with the provisions of Section 147 of the Act. It is submitted that when it has been found that the assessee had shown investment of Rs. 7.14 Crores, out of which interest expenses of Rs. 21.59 lakhs and thus, the assessee incurred expenditure to earn income and the said expenses were to be disallowed under Section 14A of the Act read with Rule 8D. It is submitted that the assessee failed to disclose these facts. Thus, it can be said that there was failure on the part of the assessee in not disclosing true and correct facts, and therefore, the impugned notice issued under Section 148 of the Act is legal and valid. 4.1 Making the above submissions, it is requested to dismiss the present petition. 5. Heard learned advocates appearing on behalf of the respective parties at length. 6. At the outset, it is required to be noted that in the present case, the assessment for A.Y. 2009-2010 is sought to be reopened beyond the period of four years. Therefore, unless and until the condition precedent to assume jurisdiction to reopen the assessment beyond the period of four years, as per the provisions of Section 147 of the Act are satisfied, it is not open for the Assessing Officer to reopen the assessment. As per the proviso to Section 147 of the Act, unless and until it is found that there was any failure on the part of the assessee in disclosing true and correct facts necessary for the assessment, it is not open for the Assessing Officer to assume jurisdiction to reopen the assessment beyond the period of four years. In the present case, at the time of original assessment, which was a scrutiny assessment under Section 143 (3) of the Act, the assessee disclosed interest expenses of Rs. 21,59,130/- in the Profit & Loss Account and investment of Rs. In the present case, at the time of original assessment, which was a scrutiny assessment under Section 143 (3) of the Act, the assessee disclosed interest expenses of Rs. 21,59,130/- in the Profit & Loss Account and investment of Rs. 7.14 Crores in the Balance-sheet. The assessee also disclosed in the return of income, the exempt income of Rs. 7,31,122/-. The assessee also furnished details of investment at the original assessment stage. Despite the above, the Assessing Officer, while framing scrutiny assessment under Section 143 (3) of the Act did not make any disallowances under Section 14A of the Act. Under the circumstances, it cannot be said that there was any failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. Under the circumstances, the assumption of jurisdiction to reopen the assessment beyond the period of four years is without jurisdiction and contrary to the provisions of Section 147 of the Act. Under the circumstances, on the aforesaid ground alone, the impugned notice and reopening of assessment deserves to be quashed and set-aside. 7. In view of the above and for the reasons aforestated, this petition succeeds. Impugned notice dated 30th March 2016 issued under Section 148 of the Income-tax Act, 1961 and the reopening of the assessment for A.Y. 2009-2010 is hereby quashed and set-aside. Rule nisi made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. .