JUDGMENT : Arindam Sinha, J. 1. By this writ petition, petitioner assessee has impugned notice dated 13th July, 2016 issued under section 148 of Income Tax Act, 1961. Mr. Khaitan, learned senior advocate appears on behalf of assessee and on earlier occasions had submitted, reasons to believe reek of change of opinion. Impugned notice is for reassessment relating to assessment year 2010-11. As it is a change of opinion, no allegation of suppression was made, as it could not be made, to invoke extended period of limitation. He relied on following decisions :- (i) Judgment of Supreme Court in CIT Vs. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC), to paragraph 6 for declaration of law regarding change of opinion. Assessing Officer (AO) was declared to have power to reopen provided there is “tangible material” to come to the conclusion there is escapement of income of assessment. This, Mr. Khaitan submitted, is not available here as full disclosure was made by his client. Hence, on same material, reassessment proceedings initiated is indisputably by reason of change of opinion. (ii) Judgment of Supreme Court in ACIT Vs. ICICI Securities Primary Dealership Ltd. reported in (2012) 348 ITR 299 (SC) by which same view on change of opinion taken by Bombay High Court was affirmed. (iii) Division Bench judgment of Bombay High Court in Titanor Components Limited Vs. ACIT reported in (2012) 343 ITR 183 (Bom.), wherein it was said, it is necessary for AO to first observe whether there is failure to disclose fully and truly all material facts necessary for assessment and having observed that there is such failure, to proceed under section 147. It must follow that where AO does not record such failure he would not be entitled to proceed under section 147. He demonstrated from impugned notice, enclosing the reasons to believe, there was omission in this regard. In assessee’s objection dated 14th September, 2016 this was specifically pointed out. Answer by department’s letter dated 19th September, 2016 did not dispute the omission. (iv) Judgment of a learned Single Judge of this Court in Tantia Construction Co. Ltd. Vs. DCIT reported in (2002) 257 ITR 84 (Cal), for the same view expressed. 2. Md. Nizamuddin learned advocate, since elevated to this Court and thereafter Mr. Bhowmik, learned advocate appeared on behalf of revenue. (iv) Judgment of a learned Single Judge of this Court in Tantia Construction Co. Ltd. Vs. DCIT reported in (2002) 257 ITR 84 (Cal), for the same view expressed. 2. Md. Nizamuddin learned advocate, since elevated to this Court and thereafter Mr. Bhowmik, learned advocate appeared on behalf of revenue. Submissions made were, reasons to believe cannot be scrutinised to be as assessment of escaped income. Re-assessment proceeding must follow. By this writ petition assessee is trying to obstruct the re-assessment, which might even yield nil demand of tax. First proviso to section 147 stands attracted since assessee had not fully or truly disclosed all material facts necessary for assessment in relevant assessment year. Mere production before AO, of account books or other evidence from which material evidence could, with due diligence, have been discovered by AO will not necessarily amount to disclosure within meaning of the proviso as has been said in explanation 1. Reasons to believe for reopening are as in clause (c) of explanation 2. 3. The reasons to believe would appear from extract reproduced below:- “On perusal of assessment folder it revealed that during the previous year relating to the A.Y. 2010-11 the assessee was engaged in the business of Manufacturing and sale of Carbon Black and sale of surplus power generated utilizing off gases Carbon Black manufacturing process. It was also revealed from the Appendix III, clause 14 of Tax Audit Report that the assessee claimed additional depreciation of Rs.19,25,77,970/- for plant and machinery used in Co-generation power plant at Baroda, Durgapur and Mundra which included Rs.11,55,57,195/- in respect of plant and machinery used for a period less than 180 days in the preceding previous year. Section 32 of Income Tax Act, 1961 provides for additional depreciation on new plant and machinery (other than ships and aircrafts), which has been acquired and installed by a company engaged in the business of manufacture or production of any article or thing on or after 31st day of March, 2005. However, the benefit of additional depreciation, conferred u/s 32(1)(iia), was not extended to the plant and machinery used power sector until the Finance Act, 2012. However, the benefit of additional depreciation, conferred u/s 32(1)(iia), was not extended to the plant and machinery used power sector until the Finance Act, 2012. As per Finance Act, 2012, an amendment of Section 32 came into existence which amended the aforesaid clause so as to allow deduction of a further sum equal to 20% of actual cost of a new machinery or plant (other than ships and aircraft) acquired and installed after 31 day of March, 2012, as further depreciation to an assessee engaged in the business of generation or generation and distribution of power. This amendment effected from 1st April, 2013 i.e. in relation to A.Y. 2013-14 and subsequent assessment year.” 4. Assessment order made under section 143(3) was on 21st March, 2013. Assessee could not have claimed additional depreciation of plant and machinery used for power sector, which benefit became available on amendment, by insertion of clause (iia) in subsection (1) of section 32, effective 1st April, 2013 in relation to assessment years 2013-14 onwards. Assessee availed of additional depreciation on plant and machinery used for generation of power, which could only have been availed by it on and from assessment year 2013-14. Assessee having had claimed this benefit for assessment year 2010-11, same amounted to escapement of income chargeable to tax and hence, notice for reassessment which should not be inferred with. 5. Today Mr. Bhowmik relies on order dated 29th July 2011 of Supreme Court in Honda Siel Power Products Ltd. Vs. DCIT reported in (2012) 340 ITR 64 (SC), which is reproduced below:- “In our view, the reopening of assessment is fully justified on the facts and circumstances of the case. However, on the merits of the case, it would be open to the assessee to raise all contentions with regard to the amount of Rs. 98.46 lakhs being offered for tax as well as its contention on section 14A of the Income-tax Act, 1961. Subject to the above, the special leave petition is dismissed.” 6. Mr. Bhowmik submits, there should be no interference on requirement of reassessment. He relies on two judgments of Supreme Court. Firstly, in Raj Kumar Shivhare Vs. 98.46 lakhs being offered for tax as well as its contention on section 14A of the Income-tax Act, 1961. Subject to the above, the special leave petition is dismissed.” 6. Mr. Bhowmik submits, there should be no interference on requirement of reassessment. He relies on two judgments of Supreme Court. Firstly, in Raj Kumar Shivhare Vs. Directorate of Enforcement reported in (2010) 4 SCC 722, to paragraph 31, which is reproduced below:- “When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.” 7. Secondly, on CIT Gujarat Vs. Vijaybhai N. Chandrani reported in (2013) 14 SCC 661, to paragraphs 12 to 14, of which paragraph 14 is reproduced below:- “14. In the present case, the assessee has invoked the writ jurisdiction of the High Court at the first instance without first exhausting the alternate remedies provided under the Act. In our considered opinion, at the said stage of proceedings, the High Court ought not have entertained the writ petition and instead should have directed the assessee to file reply to the said notices and upon receipt of a decision from the assessing authority, if for any reason it is aggreived by the said decision, to question the same before the forum provided under the Act.” 8. He submits further, notice under section 148 is similar to that issued under section 153C. Vijaybhai N Chandrani(supra) squarely covers the case. In any event, petitioner, on reassessment made, will have remedy of statutory appeal as provided in clause (b) in sub-section (1) of section 246A. He submits, there should not be interference. 9. In reply Mr. Khaitan submits, Supreme Court in Jeans Knit Private Ltd. Vs. DCIT reported in (2017) 390 ITR 10 (SC) had reiterated view taken by it in Calcutta Discount Company Limited Vs ITO reported in (1961) 41 ITR 191 (SC). He submits, there should not be interference. 9. In reply Mr. Khaitan submits, Supreme Court in Jeans Knit Private Ltd. Vs. DCIT reported in (2017) 390 ITR 10 (SC) had reiterated view taken by it in Calcutta Discount Company Limited Vs ITO reported in (1961) 41 ITR 191 (SC). He submits, though in Calcutta Discount (supra) there were dissenting views but, that both conditions being (i) ITO having reason to believe there has been under assessment and (ii) he having reason to believe that such under assessment has resulted from non-disclosure of material facts, must co-exist before ITO has jurisdiction to start proceedings after expiry of four years, was law declared by the Bench. 10. On contention regarding assessee having availed benefit subsequently made available by amendment, Mr.Khaitan submits, his client is engaged in business of manufacture of carbon black. His client is not engaged in business of generation or generation and distribution of power. In being engaged in business of manufacture of carbon black, his client uses power as captivitly generated. Surplus is sold. This has nothing to do with amendment by Finance Act, 2012 causing insertion in clause (iia) under sub-section (1) in section 32. Explanation was obtained by AO in the assessment made under section 143(3). That is why his client’s contention against revenue, of seeking to embark on reassessment on change of opinion had. 11. Court obtained satisfaction from assessee regarding information sought by revenue under cover of letter dated 13th February, 2013, before assessment under section 143(3) was made for assessment year 2010-11. The letter is disclosed at page 196, and serial nos.10 and 12 therein are respectively as follows:- “10. Please furnish the detail of asset(plant & machinery) its use in your business on which depreciation & 80% in claimed. Why the claim of depreciation should not be restricted to 15% only. 12. Please explain the allow ability of additional depreciation claimed in detail.” 12. Assessee by communication dated 22nd February, 2013 answered regarding allowability of additional depreciation. By subsequent communication dated 4th March, 2013 further details were provided by assessee. In assessment order dated 21st March, 2013 of the assessment made under section 143(3), AO had said, inter alia, as follows:- “The assessee company is engaged in the business of manufacture and sale of Carbon Black and sale of surplus power generated from off gases from Carbon Black manufacturing process…………”. 13. In assessment order dated 21st March, 2013 of the assessment made under section 143(3), AO had said, inter alia, as follows:- “The assessee company is engaged in the business of manufacture and sale of Carbon Black and sale of surplus power generated from off gases from Carbon Black manufacturing process…………”. 13. Facts recorded in last preceding paragraph make contention of assessee regarding reasons to believe based on availing a benefit subsequently made available by amendment, acceptable as against revenue. AO had found as a fact, that which has been extracted above in the assessment made under section 143(3). Subsequently, revenue cannot have reason to believe, on those facts, that petitioner is engaged in generation or generation and distribution of power and has claimed additional depreciation on plant and machinery for use of it in a period prior to said insertion by amendment. Once there is finding that reasons to believe are not good reasons, jurisdiction is not derived to compel assessee to submit to reassessment. Submissions made on behalf of revenue regarding non-disclosure also cannot be accepted in the facts and circumstances, Court having noticed there is no such statement to that effect in the reasons to believe. 14. Writ petition succeeds. Impugned notice is set aside and quashed. Since impugned notice stand quashed, no further order need be made on GA 216 of 2018, which also stands disposed of.