JUDGMENT : HARSHA DEVANI, J. 1. RULE. Mrs. Mauna Bhatt, learned senior standing counsel waives service of notice of rule on behalf of the respondent. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 20.03.2017 issued by the respondent under section 148 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) as well as the assessment order dated 03.10.2017 passed under section 143(3) read with section 147 of the Act for assessment year 2012-13. 3. The petitioner assessee is a public charitable trust registered under the Bombay Public Charitable Trusts Act, 1950. The assessee filed its return of income for assessment year 2012-13 declaring nil income on 26.03.2013. By an order dated 26.03.2015, the assessment came to be framed under section 143(3) of the Act. However, subsequently, by the impugned notice dated 20.03.2017, the respondent has assumed jurisdiction under section 147 of the Act to reassess the income for assessment year 2012-13. In response thereto, the petitioner filed a letter dated 14.04.2017 requesting the respondent to accept the return of income originally filed as return filed under section 148 of the Act. The petitioner also requested for a copy of the reasons recorded for reopening of the assessment. 4. The respondent furnished a copy of the reasons recorded together with a letter dated 03.05.2017. The petitioner raised objections to the reassessment proceedings with detailed submissions. However, instead of disposing of the objections raised by the petitioner, the Assessing Officer passed the impugned order under section 143(3) read with section 147 of the Act making disallowance of adjustment of carry forward deficit amounting to Rs.90,59,665/- and raising demand of Rs.47,03,720/-. Being aggrieved, the petitioner has filed the present petition, seeking the reliefs noted hereinabove. 5. Mr. Hardik Vora, learned advocate for the petitioner, assailed the impugned notice by submitting that the same is based upon a mere change of opinion. Being aggrieved, the petitioner has filed the present petition, seeking the reliefs noted hereinabove. 5. Mr. Hardik Vora, learned advocate for the petitioner, assailed the impugned notice by submitting that the same is based upon a mere change of opinion. Inviting the attention of the court to the reasons recorded by the Assessing Officer for reopening the assessment, it was submitted that the assessment is sought to be reopened on the ground that the deficit of Rs.90,59,665/- of the earlier year for assessment year 2012-13 was required to be disallowed and added to the total income of the petitioner. Reference was made to the order sheet dated 05.03.2015 made during the course of the assessment proceedings a copy whereof has been annexed along with the petition, to submit that during the course of the assessment proceedings under section 143(3) of the Act, the petitioner was specifically requested to show cause why carry forward deficit of the earlier year to the extent of Rs.19,59,665/-, should not be disallowed. In response thereto, the petitioner had given a detailed reply vide letter dated 09.03.2015 and mainly contended that the said issue had been decided in favour of the assessee by five different High Courts as well as the jurisdictional High Court. Accordingly, after considering the reply of the petitioner, the assessment order came to be passed without making any additional/disallowance on that ground. It was submitted that therefore, the reopening of the assessment is merely based upon a change of opinion. 5.1 Next it was submitted that even on merits, the issue on which the assessment is sought to be reopened is also decided in favour of the assessee by a judgment of the jurisdictional High Court. Moreover, the assessment is sought to be reopened on the basis of an audit objection and not pursuant to any formation of belief on the part of the Assessing Officer and therefore, also the reopening of assessment is invalid. 5.2 Next, it was submitted that though pursuant to the receipt of the reasons recorded, the petitioner has raised objections in respect thereto, the Assessing Officer in flagrant disregard of the decision of the Supreme Court in the case of GKN Driveshafts (India) Limited v. Income Tax Officer, [2003] 259 I.T.R. 19, has not disposed of the same by a reasoned order and has proceeded to pass the assessment order. The attention of the court was invited to paragraph No.4.3 of the impugned assessment order, to submit that the Assessing Officer has observed that the objections raised by the assessee are not required to be entertained as the objections against the reopening of the case have been filed after almost 100 days from the receipt of the copy of the reasons recorded, which is in violation of the specific directions/guidelines prescribed by the jurisdictional High Court in the case of Sahkari Khand Udyog Mandal Ltd. v. Assistant Commissioner of Income Tax, [2014] 46 taxmann.com 69 (Gujarat). It was submitted that the Assessing Officer was not justified in not disposing of the objections inasmuch as this court in that decision has nowhere laid down that if the objections are submitted after some delay, the Assessing Officer is not required to comply with the directions issued by the Supreme Court in the case of GKN Driveshafts (India) Limited (supra). 5.3 In conclusion, it was submitted that the reopening of the assessment based upon a mere change of opinion deserves to be quashed and set aside and consequentially, the assessment order passed pursuant thereto, which is also in breach of the decision of the Supreme Court in the case of GKN Driveshafts (India) Limited (supra), deserves to be quashed and set aside. 6. On the other hand, Mr. M.R. Bhatt, Senior Advocate, learned counsel for the respondent, reiterated the contents of the affidavit in reply filed on behalf of the respondent and submitted that in this case, the objections had been submitted almost 100 days after receipt of the reasons recorded. It was submitted that the petitioner did not file objections within the time limit framed by this court in the case of Sahkari Khand Udyog Mandal Ltd. (supra) and had delayed the reassessment proceedings without any genuine reason, which led to the passing of the impugned assessment order as only three months' were available with the Assessing Officer before the last date of time barring assessment. It was, accordingly, urged that the petition being devoid of merits, deserves to be dismissed. 7. This court has considered the submissions advanced on behalf of the learned advocates for the respective parties and has perused the record of the case. 8. It was, accordingly, urged that the petition being devoid of merits, deserves to be dismissed. 7. This court has considered the submissions advanced on behalf of the learned advocates for the respective parties and has perused the record of the case. 8. At the outset, reference may be made to the reasons recorded by the Assessing Officer for reopening the assessment which read as under: “Reasons recorded for reopening the assessment u/s 147 of the I.T. Act in the case of above mentioned assessee. ------------------------------------------------------------------------------- In this case, the assessment u/s. 143(3) of the I.T. Act was completed on 26.03.2015, determining income at Rs. Nil. The assessee trust is a public charitable trust registered under the Bombay Public Charitable Trust 1950, the is also registered u/s. 12A vide register No.CITII/ SRT/Tech/104/S22/ 2007-08, dated 22.04.2008 and is having approval exemptions u/s. 80G(5) of the IT Act. However, on verification of the record it is noticed that after allowing the deficit of earlier years of Rs.90,59,665/- for A.Y. 2012-13 which require to be disallowed and added to the total income of the assessee. In view of the above, scrutiny of assessment and the computation sheet revealed that the assessee had adjusted brought forward deficit of Rs.90,59,665/- from the receipt of the year and arrive at the taxable income at Nil. The income of the trust is not computed on the principal of business income which contains the provisions of carry forwarded of loss of earlier years and setoff such losses against income of the current year. Therefore, I have reason to believe that (in this case the income adjusted brought forward deficit of Rs.90,59,665). Thus, there is escapement of income of Rs.90,59,665/- for A.Y. 2012-13. Accordingly, this is a fit case for reopening of the assessment u/s. 147 of the I.T. Act. 2. In view of the above facts, I have reason believe that the income of the assessee has escaped assessment within the meaning of section 147 of the I.T. Act, 1961.” 9. Thus, there is escapement of income of Rs.90,59,665/- for A.Y. 2012-13. Accordingly, this is a fit case for reopening of the assessment u/s. 147 of the I.T. Act. 2. In view of the above facts, I have reason believe that the income of the assessee has escaped assessment within the meaning of section 147 of the I.T. Act, 1961.” 9. At this juncture, reference may be made to the order sheet dated 05.03.2015 made during the course of the original assessment proceedings under section 143(3) of the Act, wherein the Assessing Officer has recorded thus: “It is seen from the computation of income that carry forward of deficit of earlier year to the extent of Rs.90,59,665/-, which is not allowable as per the provisions of the Act, the assessee has mentioned the case law of Sri. Plot Swetamber Murtipujak Jain Mandal, (1995) 211 I.T.R. (Guj). But in case of Pushpawati Singhania Research Institute for Liver, Renal & Digestive Disease Vs. Deputy Director of Income Tax (Exemption), [2009] 29 SOT 36 (Delhi) while discussing the above case law has not allowed carry forward of deficit of earlier year.” On a perusal of the order sheet, it is apparent that during the course of the scrutiny proceedings this very issue of carry forward of deficit of the earlier year to the extent of Rs.90,59,665/- had been gone into by the Assessing Officer and the same had been allowed. Thus, the Assessing Officer having applied his mind to the issue and thereafter, having allowed the assessee to carry forward the deficit of earlier year, it is evident that the reopening on the very same issue is based upon a mere change of opinion, which renders the impugned notice unsustainable. 10. In the light of the fact that the impugned notice is rendered unsustainable on the ground of it being based on mere change of opinion, it is not necessary to enter into other contentions as regards the notice being based upon audit objections as well as regarding the issue being covered by the decisions of the different High Courts as well as of the jurisdictional High Court. 11. However, a disturbing aspect of the matter is that in this case the assessee had filed objections in response to the reasons recorded by the Assessing Officer. 11. However, a disturbing aspect of the matter is that in this case the assessee had filed objections in response to the reasons recorded by the Assessing Officer. While it is true that such objections were filed belatedly after a considerable time, however, the same had been filed before the assessment order came to be framed. Once the objections had been submitted by the petitioner, in view of the decision of the Supreme Court in the case of GKN Driveshafts (India) Limited (supra), the Assessing Officer was duty bound to decide the same by a reasoned order. In the present case, the Assessing Officer has placed reliance upon the decision of Sahkari Khand Udyog Mandal Ltd. (supra) while holding that the objections raised by the assessee at a belated stage beyond the time framed stipulated by the court in the above decision need not to be entertained. In this regard it may be germane to refer to the following observations made by the court in the above referred decision, the relevant portion whereof reads as under: “4. This is being done in order to ensure that sufficient time is available with the Assessing Officer to frame the assessment after carrying out proper scrutiny. The requirement and the timeframe for supplying the reasons without being demanded by the assessee would be applicable only if the assessee files his return of income within the period permitted in the notice for reopening. Likewise the time frame for the Assessing Officer to dispose of the objections would apply only if the assessee raises objections within the time provided hereinabove. This, however, would not mean that if in either case, the assessee misses the time limit, the procedure provided by the Supreme Court in the case of GKN Driveshafts (India) Limited (supra) would not apply in such cases.” 12. Thus, it is clear that the court has set out a time line for submission of objections and deciding the same. However, at the same time, the court has also clarified that it would not mean that if in either case, the assessee misses the time limit, the procedure provided by the Supreme Court in the case of GKN Driveshafts (India) Limited (supra) would not apply. It only means that the time frame provided therein would not apply in such cases. However, at the same time, the court has also clarified that it would not mean that if in either case, the assessee misses the time limit, the procedure provided by the Supreme Court in the case of GKN Driveshafts (India) Limited (supra) would not apply. It only means that the time frame provided therein would not apply in such cases. Thus, in case where the objections are submitted by the assessee belatedly the time prescribed by the court would not apply, however, this does not absolve the Assessing Officer from deciding the objections in the light of the decision of the Supreme Court in the case of GKN Driveshafts (India) Limited (supra). Therefore, the Assessing Officer was not justified in proceeding to pass the impugned order without deciding the objections raised by the petitioner. In any case, since the notice, which is the foundation for the assessment order, itself is held to be unsustainable, the assessment order would also be rendered unsustainable. 13. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned notice dated 20.03.2017 issued by the respondent under section 148 of the Act as well as the assessment order dated 03.10.2017 passed under section 143(3) read with section 147 of the Act in relation to assessment year 2012-13, are hereby quashed and set aside. RULE is made absolute accordingly with no order as to costs.