JUDGMENT : AKIL KURESHI, J. 1. The petitioner has challenged a notice dated 9.3.2016 issued by respondent no.2 Assessing Officer seeking to reopen the petitioner's assessment for the assessment year 2011-2012. 2. Brief facts are as under. The petitioner is a company registered under the Companies Act and is engaged in the business of manufacturing of electronic appliances and of generating power. During the period relevant to assessment year 2011-2012, the petitioner had installed three windmills and claimed deduction of Rs.36.20 lacs (rounded off) under section 80IA of the Act. The return was taken in scrutiny. The Assessing Officer passed a detailed order in which he examined this particular claim of the petitioner also and restricted the deduction under section 80IA of the Act at Rs.33.12 lacs (rounded off). Thus he made limited disallowance of Rs. 3.8 lacs. To reopen such assessment, impugned notice came to be issued. The Assessing Officer had recorded his reasons stating thus : “2. On verification of records it is noticed that the assessee had claimed deduction u/s. 801A of the IT Act in respect of three Windmills situated at Bogat. The assessee had claimed deduction at Rs.36,20,261/-. While finalizing the assessment the claim of the assessee was disallowed to the extent of Rs. 03,07,793/-. 3. As per sub section (7) of sec. 801A the deduction under 80IA is not admissible unless the accounts of the undertaking relevant to the Assessment Year for which the deduction claimed have been audited by an accountant. Rule 18BBB of the IT Rules further ordains that the assessee shall furnish along with his returns of income, the report of such audit in the prescribed form No. 10CCB duly signed and verified by a Chartered Accountant which shall accompany the profit & loss account and balance sheet of the eligible undertaking as if the undertaking were a distinct entity. In the case of CIT V/s. Shivanand Electronics (209 ITR 63) (Bombay) it was held that no duty is cast on the Assessing Officer to ask an assessee who has failed to file the audit report before rejecting his claim for relief. 4. On verification of the records, it is seen that the assessee has not submitted separate profit & loss accounts and balance sheet of the undertaking relevant to the Assessment Year for which the deduction u/.s 801A has been claimed. 4. On verification of the records, it is seen that the assessee has not submitted separate profit & loss accounts and balance sheet of the undertaking relevant to the Assessment Year for which the deduction u/.s 801A has been claimed. In absence of separate profit & loss account and balance sheet as required under rule 18BBB(2), the claim of deduction, u/s.80IA made by the assessee is not allowable. However, while finalizing the assessment u/s. 143(3) of the I.T. Act, the deduction u/s. 801A of the IT. Act has been allowed to the assessee to the extent of Rs. 33,12,468/- despite failure on the part of the assessee to furnish separate profit & loss account and balance sheet of the undertaking for which deduction has been claimed. Since, the assessee has not furnished separate profit & loss account and balance sheet alongwith audit report in Form No. 10CCB, the claim of the deduction u/s. 801A has been wrongly allowed. This has resulted into under assessment of income to that extent. 5. Without prejudice to the above the claim of the deduction made by the assessee is not fully allowable in view of the following discussion. I. On verification of the details submitted during the course of assessment proceedings, it is seen that the company has shown revenue of Rs. 279.73 crore from Electronic Appliances Division and turnover from windmill division at Rs. 14.48 crores. It is also seen that some of the manufacturing expenses such as insurance charges and maintenance and repair charges have been distributed between both the business while computing the deduction allowable u/s. 801A of the IT Act from the profit of windmill division. However, the expenses such as director’s remuneration, interest expenses, travelling expenses and other establishment / administrative expenses etc have not been distributed between both the business, so as to arrive correct profit of the business of each of the undertaking. II. Since, these expenditure have not been distributed between two business, the profit in windmill division has artificially gone up. Hence, the common expenses in nature of administrative expenses and financial charges need to be allocated between both lines of business in order to arrive at correct profit of each of the business. II. Since, these expenditure have not been distributed between two business, the profit in windmill division has artificially gone up. Hence, the common expenses in nature of administrative expenses and financial charges need to be allocated between both lines of business in order to arrive at correct profit of each of the business. Since, one line of business is of electronic appliances which involve both trading and manufacturing concern the ratio of turnover only cannot be considered owing to the differences in the basic character of both the business. The following common expenses has to be distributed between the two business for the purpose of computing correct profit of the business of windmill and correct deduction u/s. 801A of the IT Act. Schedule Head Amount (Rs.) Note 24 Auditor remuneration 600,000 Consultancy Fee 109,100 Legal and Professional Charges 5,261,800 Legal & Documentation charges 233,195 Rates and Taxes 2,085,708 Medical reimbursement expenses 309,593 Post Courier & Telephone 2,220,432 Stationery expenses 2,595,129 Vehicle Fuel 1,8832,258 Other administrative expenses 4,954,289 Note 22 Director Remuneration 5,52,00,000 Note 24 Travelling expenses 3,13,39,655 Note 23 Financial Charges 2,52,63,086 14,89,94,133 The aforementioned common cost should have been taken at average of following : * Profit ratio of these divisions. * Gross asset ratio of these divisions. A. Calculation of profit ratio : Total Business Income Income from windmills % windmills income to total business income 6020.56 lacs 815.03 lacs 13.52% B. Calculation of gross asset ratio : Total assets value Windmills assets value % windmills assets to total assets 232,61,05,853 12,33,45,11,424 53.07% C. Average A and B above (33.296%) D. Hence the administrative and financial expenses, to be allocated to wind power division is 148994133/-x 33.296/100 = 4,96,09,086/-. E. The proportionate share of windmills (eligible units) in ratio of their turnover is : (Turnover of eligible windmills Rs. 47,76,797/- and total turnover of windmill division is Rs.14,48,14,478/- 4,96,09,086 x 47,76,797/-/ 14.48,14,478/-= 16,36,387/- In view of the above discussion and calculation a further expenses of Rs.16,36,387/- should have been attributed to the windmill division for the purpose of correct working of deduction u/s. 80IA of the IT. Act. Therefore, excess deduction u/s. 801A of the IT. Act has been allowed to the extent of Rs. 16,36,387/- 6. Act. Therefore, excess deduction u/s. 801A of the IT. Act has been allowed to the extent of Rs. 16,36,387/- 6. In view of the above discussion, I have reasons to believe that income chargeable to tax has escaped assessment for the abovementioned assessment year within the meaning of Sec. 147 of the IT. Act. Therefore, this is a fit case for issue for notice u/s. 148 of the IT. Act.” 3. In such elaborate reasons, the Assessing Officer had raised two issues. One was of the failure on part of the assessee to furnish separate Profit and Loss account and balance sheet of the undertaking for the year under consideration. In his opinion in absence of such documents, the deduction under section 80IA of the Act could not have been allowed. His alternative contention was that an expense of Rs.16.36 lacs should have been attributed to windmill division which would suppress the profit from such division and resultantly, deduction under section 80IA of the Act had to be adjusted accordingly. 4. The petitioner raised detailed objections to the notice of reopening under communication dated 14.7.2016. Such objections were however rejected by order dated 21.7.2016. Hence this petition. 5. Learned counsel for the petitioners raised the following four contentions : (1) The entire issue of deduction under section 80IA of the Act was scrutinized during the original assessment. Any attempt on part of the Assessing Officer to disallow the claim would be based on change of opinion. (2) To the extent the Assessing Officer had disallowed the claim, the assessee had carried the matter in appeal before the Commissioner. This was thus a case of merger. (3) In the past similar claims were allowed. The principle of consistency therefore, required that the Revenue cannot be allowed to deviate from such consistent practise. (4) The entire issue was raised by the audit party. The Assessing Officer thus acted on audit objection which was not permissible. 6. Learned counsel Shri Bhatt countered these arguments and submitted that the Assessing Officer has recorded satisfactory reasons. Notice has been issued within a period of four years from the end of relevant assessment and reassessment therefore, is permissible. 7. The Assessing Officer thus acted on audit objection which was not permissible. 6. Learned counsel Shri Bhatt countered these arguments and submitted that the Assessing Officer has recorded satisfactory reasons. Notice has been issued within a period of four years from the end of relevant assessment and reassessment therefore, is permissible. 7. Having heard the learned counsel for the parties and having perused the documents on record, it becomes clear that the assessee's claim for deduction under section 80IA of the Act was examined by the Assessing Officer minutely during the scrutiny assessment proceedings. He has given detailed reasons for reducing the claim by Rs. 3.8 lacs and accepting the rest of the claim. Any attempt now on part of the Assessing Officer to modify this position would be based on change of opinion. May be that an angle or an element of the claim may not have been directly addressed by the Assessing Officer during the original assessment to the satisfaction of the present Assessing Officer, nevertheless, same cannot be a ground for reopening of the assessment which was previously framed after scrutiny. 8. Under the circumstances, notice dated 9.3.2016 is set aside. Petition is allowed and disposed of accordingly.