JUDGMENT : [Bhargav D. Karia, J.] 1. Heard learned Senior Advocate Mr. Tushar Hemani with Ms. Vaibhavi K. Parikh for the petitioner and learned advocate Mr. Varun K. Patel for the respondent. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 27.03.2018 issued under section 148 of the Income Tax Act, 1961 (For short “the Act”) for reopening of the assessment proceedings for the Assessment Year 2011-2012 and also prayed to stay the further proceedings for the Assessment Year 2011-2012. 3. Brief facts of the case are as under : 3.1) The petitioner-assessee is a Director in Ratnaveer Stainless Products Pvt. Ltd., situated at GIDC Savli, Manjusar, Vadodara. 3.2) It is the case of the petitioner that during the Assessment Year 2011-2012, the petitioner received certain funds from Prraneta Industries Ltd. (Now known as Aadhar Venture India Ltd) and the same were repaid during before the end of the year under consideration which included a sum aggregating to Rs. 2,10,00,000/- received through Real Time Gross Settlement (RTGS) on 02.02.2011. 3.3) The petitioner filed original return of income for the year under consideration on 25.08.2011 declaring total income at Rs.19,03,430/-. 3.4) It is the case of the petitioner that after a period of four years from the end of relevant assessment year, the respondent issued the impugned notice dated 27.03.2018 under section 148 for reopening the assessment for the year under consideration. 3.5) The petitioner filed return of income for the year under consideration on 25.04.2018 and submitted copy of such return of income to the respondent vide letter dated 26.04.2018 and requested the respondent to supply the copy of reasons recorded for reopening. 3.6) Accordingly, the respondents supplied the copy of reasons recorded for reopening of the assessment dated 18.07.2018 for the Assessment Year 2011-2012. The reasons recorded by the Assessing Officer for reopening the assessment under section 147 of the Act read as under : “1. The assessee is an individual having present residential address at 20, Vijay Society-1, New Khanderao Road, Vadodara, Gujarat - 390004. He is director in Ratanveer Stainless Products Private Limited, GIDC Savli, Manjusar, Vadodara. He has filed his return of income in ITR-2 on 25.08.2011 at total income of Rs. The assessee is an individual having present residential address at 20, Vijay Society-1, New Khanderao Road, Vadodara, Gujarat - 390004. He is director in Ratanveer Stainless Products Private Limited, GIDC Savli, Manjusar, Vadodara. He has filed his return of income in ITR-2 on 25.08.2011 at total income of Rs. 19,03,430/- (after deduction of Rs one lakh under chapter VI-A) which includes salary income of Rs 12 lakh, short term capital gain of Rs 7,66,586/- and income from other sources of Rs. 36,845/-. 2. The information from the DCIT Central Circle 2(2), Mumbai has been received on 26.03.2018 through letter dated 19.03.2018 of the DCIT, Circle 2(1)(1), Vadodara. As per the information, Shri Vijay R. Sanghvi, has obtained three accommodation entries of Rs. 70 lakh each (total 2.1 Cr) all on 02.02.2011 which were credited in CITI Bank NA, Vadodara in the bank account of shri Vijay R. Sanghvi. The said debits were made from bank account of Prraneta Industries Ltd. now known as Aadhar Venture India Ltd. 3. All three entries of Rs 70 lakh each totaling to Rs 2.1 Cr were obtained by shri Vijay R. Sanghvi on a single day on 2.2.2011 are not commensurate with the return filed by the assessee in ITR-2 for the A.Y. 2011-12. In return filed, bank account details are not mentioned. Besides salary income and other income shown, short term capital gain shown in the return is Rs 7,66,586/- only. Such huge amount of Rs 2.1 Cr received in case of an individual whose main source of income is salary income as director of a company prima facie show the transaction as non genuine transaction. 4. As per ITS data, assessee had entered in to sale/purchase of shares for total amount of transactions being of Rs 8,11,00,174/- in 161 transactions of such sales and purchases. Further, it was observed that out of 161 such transactions, 159 transactions are related to transactions in shares of Chandni Textile Engineering Ind. Ltd. during two months of January, 2011 and February, 2011 only. It is pertinent to mention that three entries of Rs 70 lakh each totaling to Rs 2.1 Cr was received by the assessee on 2.2.2011. Therefore, said accommodation entries might be related to such transactions. Other two transactions are of 4.94 lakh only. Ltd. during two months of January, 2011 and February, 2011 only. It is pertinent to mention that three entries of Rs 70 lakh each totaling to Rs 2.1 Cr was received by the assessee on 2.2.2011. Therefore, said accommodation entries might be related to such transactions. Other two transactions are of 4.94 lakh only. Salary of Rs 12 lakh is reflected as received from Ratanveer Stainless Products Pvt. Ltd. No bank detail is shown in ITS data for the A.Y. 2011-12 while as per transaction details, bank account has to there. Information received also establishes bank account of the assessee. 5. The credit of Rs 2.1 Cr in bank account of shri Vijay R. Sanghvi on a single day from 2.2.2011.from account of a company is neither commensurate with income of shown in return filed by shri Vijay R. Sanghvi in ITR-2. The return filed in ITR-2 by an individual assessee do not reflect such huge amount of fund received and thus escapement of income on account of such accommodation entries by the assessee is evident. 6. As per the information available on records, three entries of Rs 70 lakh each totaling to Rs 2.1 Cr received on 2.2.2011 through an established entry provider entity and also that returned income by assessee is not commensurate with said transaction as mentioned supra. I am satisfied that entry of Rs 2.1 Cr obtained by assessee was unaccounted money routed through accommodation entries in his bank account. In view of this, I have reasons to believe that income chargeable to tax has escaped assessment for the A.Y. 2011-12 within the meaning of section 147 of the I.T. Act, 1961. Therefore, I am satisfied that this is the fit case for initiation of proceedings u/s 147 of the Act.. 7. In this case a return of income was filed for the year under consideration but no scrutiny assessment u/s. 143(3) of the Act was made. Accordingly, in this case, the only requirement to initiate proceedings u/s. 147 is reason to believe which has been recorded above in paragraph 6. It is pertinent to mention here that in this case the assessee has filed return of income for the year under consideration but no assessment as stipulated u/s. 2(40) of the Act was made and the return of income was only processed u/s. 143(1) of the Act. It is pertinent to mention here that in this case the assessee has filed return of income for the year under consideration but no assessment as stipulated u/s. 2(40) of the Act was made and the return of income was only processed u/s. 143(1) of the Act. In view of the above, provisions of clause (b) of explanation 2 to 147 are applicable to facts of this case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment. In this case more than four years have lapsed from the end of assessment year under consideration. Hence necessary sanction to issue notice u/s. 148 has been obtained separately from the Pr. CIT as per the provisions of section 151 of the Act.” 3.7) The petitioner filed objections dated 31.08.2018 against the issuance of notice for reopening. 3.8) Respondent vide order dated 17.10.2018 rejected the objections raised by the petitioner against reopening the assessment. 3.9) Being aggrieved by the action of the respondent, the petitioner has preferred this petition. 4. Learned Senior Advocate Mr. Tushar Hemani for the petitioner submitted that the impugned order is patently bad, illegal, contrary to law and in gross violation of the fundamental rights guaranteed to the petitioner under Article 14 of the Constitution of India. 4.1) Learned Senior Advocate Mr.Hemani submitted that as per the Scheme of the Act, an Assessing Officer can reopen the case of an assessee within the prescribed time limit provided he has reason to believe that income chargeable to tax has escaped assessment in the hands of the assessee. Thus pre-requisite for the purpose of reopening an case is that there must be reason to believe that income chargeable to tax has escaped assessment and such reason to believe must be based on some tangible material and must prima facie establish that there is escapement of income chargeable to tax. It was submitted that in case of the petitioner, the Assessing Officer was of the view that funds aggregating to Rs. 2,10,00,000/- received from Prraneta Industries Ltd. are nothing but accommodation entries and therefore, this is a fit case for reopening. However, the respondent has failed to appreciate that the petitioner assessee having received funds from a particular person cannot be a ground to have reason to believe that the same represents the income of the petitioner which has escaped assessment. 2,10,00,000/- received from Prraneta Industries Ltd. are nothing but accommodation entries and therefore, this is a fit case for reopening. However, the respondent has failed to appreciate that the petitioner assessee having received funds from a particular person cannot be a ground to have reason to believe that the same represents the income of the petitioner which has escaped assessment. It was submitted that each and every receipt need not be income of the assessee. It was submitted that the Assessing Officer has not pointed out how such funds can be said to be the income of the assessee and unless it is stated that the underlying transaction has resulted into income which has escaped assessment, the reassessment proceedings cannot be initiated. It was submitted that the petitioner had already mentioned about the bank details in the statement of the total income and therefore, the Assessing Officer is not correct in holding that bank details are not mentioned in the return of income and the allegation that the funds in question are accommodation entries is without any basis. 4.2) Learned Senior Advocate Mr. Hemani submitted that the petitioner had repaid the funds during the year under consideration itself and that too within a short span of time and therefore, had it been the case that the petitioner availed accommodation entries from Prraneta Industries Ltd. then the petitioner would not have repaid the same. It was therefore, submitted that on this score also, the reopening under section 147 of the Act was not justified in the eye of law. 4.3) It was submitted that a person may receive funds temporarily from any person and repay it later and therefore, whatever may be the magnitude of such transaction, the Act does not provide that receipt of funds should be commensurate with the income. 4.4) Learned Senior Advocate Mr.Hemani submitted that reopening is not permissible for carrying out roving and/or fishing inquiry or investigation without there being a specific finding as to escapement of income. It was submitted that the Assessing Officer has reopened the assessment on suspicion as to escapement of some income chargeable to tax at the hands of the assessee and has not carried out further investigation. It was submitted that the Assessing Officer has reopened the assessment on suspicion as to escapement of some income chargeable to tax at the hands of the assessee and has not carried out further investigation. It was submitted that merely because some further investigations have not been carried out, which if made, could have led to detection of escapement of income, cannot be reason enough to hold a view that the income has escaped assessment and therefore, reopening of assessment is not tenable in eye of law. In support of his submission, reliance was placed on decision in case of Krupesh Ghanshyambhai Thakkar v. DCIT reported in (2017) 77 taxmann.com 293 (Gujarat). 4.5) Learned Senior Advocate thereafter relying upon the judgment in case of ITO v. Lakhmani Mewal Das reported in (1976) 103 ITR 437 , tried to distinguished between ‘factors which indicate an income escaping assessment’ and ‘factors which indicate a suspicion about income escaping assessment’. It was submitted that the former category consists of facts which, if established to be correct, will have a cause and effect relationship within income escaping assessment. The latter category consists of facts which, if established to be correct, could legitimately lead to further inquiries which may lead to detection of income which has escaped assessment. It was therefore, submitted that there has to be some kind of cause and effect relationship between ‘reasons recorded’ and ‘income escaping assessment. 4.6) Learned Senior Advocate Mr. Hemani submitted that notice under section 148 of the Act can be issued if and only if an Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment. It was submitted that an Assessing Officer himself must be satisfied that some income chargeable to tax has escaped assessment and such satisfaction must be of the Assessing Officer himself. However, in facts of the present case, the Assessing Officer has relied upon the information received from DCIT Central Circle 2(2), Mumbai for the purpose of reopening the assessment and the Assessing Officer has not applied mind independently so as to reach to a conclusion that income has escaped assessment. It was submitted that in absence of such an exercise, it becomes clear that the assessment has been reopened merely based on borrowed sanctification as against the statutory requirement of independent satisfaction. It was submitted that in absence of such an exercise, it becomes clear that the assessment has been reopened merely based on borrowed sanctification as against the statutory requirement of independent satisfaction. 4.7) It was therefore, submitted that reopening beyond a period of four years from the end of the relevant assessment year is nothing but a mere change of opinion and therefore, the impugned assessment order is required to be quashed and set aside. 5. On the other hand, learned advocate Mr. Varun Patel for the respondent submitted that the present petition under Article 226 of the Constitution of India challenging the impugned notice under section 148 of the Act does not deserve to be entertained since the petitioner has failed to disclose violation of any legal or statutory right of the petitioner which can be enforced by way of this petition. 5.1) It was submitted that the Assessing Officer received the information from the DCIT Central Circle-2(2) Mumbai to the effect that the assessee had obtained three accommodation entries of Rs. 70 lakhs each, aggregating to Rs. 2.1 Crore on a single day on 2.02.2011 which were credited in Citi Bank account of the petitioner assessee from the established entry provider entity namely, Prraneta Industries Ltd. It was submitted that such a huge credit of Rs. 2.1 Crore received by the assessee on a single day does not commensurate with the return filed by the assessee for the assessment year under consideration. It was submitted that the Assessing Officer finding that the transaction of credits of Rs. 2.1 Crore are not genuine transaction arrived at satisfaction/reason to believe that income to the tune of Rs. 2.1 Crore has escaped assessment and therefore, the Assessing Officer issued the impugned notice under section 148 for reopening the assessment of the petitioner for the Assessment Year 2011- 2012. It was submitted that the Assessing Officer has categorically observed in the reasons for reopening that no scrutiny assessment under section 143(3) of the Act has been made in case of the petitioner and that provisions of clause(b) of explanation 2 to section 147 is applicable to the facts of the case of the petitioner and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment. 5.2) Learned advocate Mr. 5.2) Learned advocate Mr. Patel submitted that the petitioner had raised objections against the impugned notice which are duly considered by the Assessing Officer before rejecting such objections and therefore, the order disposing the objections of the petitioner is just, proper and legal. 5.3) It was submitted that this Court in case of Yogendrakumar Gupta v. Income tax Officer reported in (2014) 366 ITR 186 and in case of Jayant Security and Finance Ltd. v. Assistant Commissioner of Income-tax, officer Circle 1(1) reported in (2018) 254 taxmann 81, after relying on various decisions of the Apex Court have dismissed the petitions challenging the identical notice of reopening issued under section1 48 of the Act. It was submitted that the SLP being Special Leave to Appeal (Civil) No. 15381 of 2014 challenging the decision of this Court in case of Yogendrakumar Gupta has also been dismissed by the Apex Court by order dated 26.09.2014. 5.4) Learned advocate Mr. Patel submitted that the Assessing Officer on the basis of information received from DCIT, Central Circle-2(2), Mumbai recorded the satisfaction to the effect that income to the tune of Rs. 2.1 Crore chargeable to tax has escaped assessment and therefore, it cannot be said that reopening in the present case is without any basis and for carrying out roving and fishing inquiry. 5.5) Relying upon the judgment of the Apex Court in case of Kalyanji Mavji & Co. v. CIT reported in 102 ITR 287 (SC), it was submitted that the expression “has reason to believe” is wider than expression “is satisfied” and information for reopening may come from external sources or even from materials already on record or which may be derived from the discovery of new and important matter or fresh facts. 5.6) Relying upon the judgment in case of Raymond Wollen Mills Ltd. v. ITO reported in 236 ITR 34, learned advocate Mr. Patel submitted that sufficiency or correctness of the material is not a thing to be considered at this stage. The only thing to be considered at this stage is whether there was prima facie some material on the basis of which the department could reopen the case and the Assessing Officer has prima facie come to the conclusion that there are tangible material pointing to escapement of income. 5.7) Learned advocate Mr. The only thing to be considered at this stage is whether there was prima facie some material on the basis of which the department could reopen the case and the Assessing Officer has prima facie come to the conclusion that there are tangible material pointing to escapement of income. 5.7) Learned advocate Mr. Patel submitted that the issues agitated in this proceeding will be decided during the reassessment proceedings after conducting due inquiries and after giving the assessee an opportunity of being heard. The assessee can place its objections and contentions on merits of the case during the reassessment proceedings and therefore, this Court may not interfere at the notice stage. 6. Considering the submissions made by the learned advocates on both the sides, it appears that the impugned notice under section 148 of the Act, 1961 is issued only on the ground that as per the information received, three entries of Rs. 70 lakh each totalling to Rs. 2.1 Crore received on 2.02.2011 by the assessee was alleged unaccounted money routed through accommodation entries in the bank account and the returned income by assessee did not commensurate with the said transaction and therefore, there was escapement of income chargeable to tax at the hands of the assessee. 7. On perusal of the record, it appears that the petitioner had already mentioned bank details in the statement of total income during the original assessment proceedings and even bank interest income from the Savings Bank Account has been declared in the said return of income. It also appears from the record that the funds that the petitioner had received were also repaid during the year under consideration. 8. We are therefore, of the opinion that to confer jurisdiction to the Assessing Officer to reopen the assessment under section 147 of the Act, the two conditions must be satisfied namely, that the Assessing Officer must have reason to believe that the income chargeable to tax has escaped assessment and that the same was occasioned on account of either failure on part of the assessee to make a return of his income for that assessment year or to disclose fully and truly all material facts necessary for that assessment year. In the present case, based upon the information received from DCIT, Central Circle-2(2), Mumbai about the three accommodation entries of Rs. In the present case, based upon the information received from DCIT, Central Circle-2(2), Mumbai about the three accommodation entries of Rs. 70 Lakh each credited in the petitioner’s account, the Assessing Officer came to the conclusion that such transaction is not a genuine transaction. However, the petitioner assessee had disclosed all relevant facts necessary for assessment which included details of bank statement and even bank interest income from Saving bank account and therefore, all the requisite details were disclosed which were facts necessary for assessment. 9. On perusal of the reasons recorded, the assessment is sought to be reopened for verification of the facts which are already on record as to whether the amount of Rs. 2.1 crore received by the assessee and reflected in the regular books of accounts pertains to any accommodation entry or not. It is not in dispute that the assessee returned that amount within a short span of two months. Therefore, it appears that under the guise of reopening the assessment, the Assessing Officer wants to have a roving inquiry. Under the circumstances, it cannot be said that Assessing Officer had any tangible material to form an opinion that the income chargeable to tax has escaped the assessment. 10. In case of Inductotherm (India) (P.) Ltd. v. M. Gopalan, Deputy CIT reported in (2013) 356 ITR 481, the Division Bench of this Court observed that for a mere verification of the claim, the power of reopening of assessment could not be exercised and the Assessing Officer cannot seek to undertake a fishing or a roving inquiry and seek to verify the facts which are already on record, as if it were a scrutiny assessment. Similar view was expressed by the Division Bench in case of Deep Recycling Industries v Dy.CIT (judgment dated 2.08.2016 passed in Special Civil Application No.3611/2013) as well as in case of Krupesh Ghanshyambhai Thakkar (supra). Applying the above decision to the facts of the present case as well as the reasons recorded to reopen the assessment, we are of the opinion that under the guise of reopening the assessment, the Assessing Officer wants to have a roving inquiry. Applying the above decision to the facts of the present case as well as the reasons recorded to reopen the assessment, we are of the opinion that under the guise of reopening the assessment, the Assessing Officer wants to have a roving inquiry. Under the circumstances, in absence of any tangible material to form an opinion that the income chargeable to tax has escaped assessment and in absence of any satisfaction recorded by the Assessing Officer by merely relying upon the information received from the Office of DCIT Central Circle 2(2), Mumbai, the impugned action of reopening the assessment while exercising power under section 148 of the Act cannot be sustained. 11. In view of foregoing reasons, considering the facts of the case, the impugned notice under section 148 of the Act, 1961 is not tenable in law and is accordingly quashed and set aside and consequential orders are also quashed and set aside. 12. Rule is made absolute to the aforesaid extent. No order as to costs.