JUDGMENT : N.J. Jamadar, J. 1. The challenge in this petition is to a notice, dated 18th March 2021 issued under section 148 of the Income Tax Act, 1961 (‘the Act’) and the order dated 3rd September 2021, whereby and whereunder, the objections raised by the petitioner to the proposed re-opening of assessment for the assessment year 2013-14, came to be rejected. 2. The petitioner is a limited company incorporated under the Companies Act, 1956. It is engaged in the business of real estate development. For the assessment year 2013-14, the petitioner filed return of income on 29th November 2013. It was accompanied by a Tax Audit Report under Form No.3CD. A revised return was filed on 27th November 2014. The petitioner’s case was selected for scrutiny assessment. Notices were issued to the petitioner under section 142(1) of the Act. The petitioner was, inter-alia, directed to submit details of unsecured loans in the prescribed format. The petitioner furnished requisite details and gave the information as solicited. The petitioner furnished the documents disclosing the identity, credit worthiness of the creditors as well as genuineness of the loan transactions, including acknowledgment of income tax returns and account statements evidencing the transactions through banking channel. Upon due satisfaction, the Assessing Officer passed an assessment order under section 143(3) of the Act on 26th February 2016. 3. On 23rd January 2018, a search action under section 132 of the Act was carried out qua petitioner and its group concerns. Post search proceedings, again the petitioner was called upon to furnish information/explanation by notices dated 16th February 2018 and 8th March 2018, to which the petitioner gave suitable reply. On 10th September 2018, a notice under section 153A of the Act followed. Eventually, in the proceedings under section 153 of the Act, after consideration of the replies submitted and information furnished by the petitioner, the Assessing Officer passed an assessment order under section 143(3) read with section 153A of the Act on 23rd December 2019 and accepted the submissions of the petitioner. 4. As the proceedings stood thus closed, the respondent No.1 issued the impugned notice on 18th March 2021 under section 148 of the Act asserting that he had a reason to believe that income chargeable to tax has escaped assessment. Upon being requested, vide communication dated 17th June 2021, the respondent No.1 furnished the reasons. 5. 4. As the proceedings stood thus closed, the respondent No.1 issued the impugned notice on 18th March 2021 under section 148 of the Act asserting that he had a reason to believe that income chargeable to tax has escaped assessment. Upon being requested, vide communication dated 17th June 2021, the respondent No.1 furnished the reasons. 5. The substance of reasons which weighed with the respondent No.1 was that M/s. Jineshwar Multitrade Private Limited (‘JMPL’), one of the creditors, from whom the petitioner had availed unsecured loan of Rs.75 lakhs, lacked the creditworthiness to advance the said amount. It was further recorded that non-genuine nature of the loan was suppressed by the assessee and the true nature of the transaction could be disclosed only after thorough investigation by the department. 6. The objections to the reopening filed by the petitioner were rejected by the respondent No.1 by the impugned order dated 3rd September 2021. 7. Being aggrieved, the petitioner has approached this Court. 8. The petitioner takes exception to reopening of the assessment on the ground that the jurisdictional condition to reopen the assessment is not fulfilled as no income escaped assessment on account of failure to make a true and full disclosure of the material relevant for the assessment, on the part of the petitioner. Since, the assessment is proposed to be reopened beyond four years from end of the assessment year 2013-14, in the absence of satisfaction on the part of the Assessing Officer that there was a failure to make such full and true disclosure, assumption of jurisdiction is legally unsustainable. Secondly, as the issue of creditworthiness of the creditors and genuineness of the transaction were squarely considered, during the course of the original assessment, the impugned exercise clearly falls within the realm of change of opinion which is legally impermissible. Third, there is no independent application of mind by the Assessing Officer as the assessment was proposed to be reopened merely on the basis of the information received from Investigation Wing of the department, namely DDIT, Inv. Unit 4(3), Thane. 9. An affidavit-in-reply is filed on behalf of the respondents. The respondents have made an endeavour to support the impugned action on the ground that the income escaped assessment solely on account of the failure of the petitioner to make a full and true disclosure of the material facts. Unit 4(3), Thane. 9. An affidavit-in-reply is filed on behalf of the respondents. The respondents have made an endeavour to support the impugned action on the ground that the income escaped assessment solely on account of the failure of the petitioner to make a full and true disclosure of the material facts. It was incumbent upon the assessee to disclose the identity and creditworthiness of the lender and the genuineness of the transaction. In the case at hand, the lack of creditworthiness, and non-genuine nature of the loan transaction could be ascertained only post search action under section 132 of the Act. Therefore, since under section 153A of the Act the assessment which was completed could not be reopened, in the absence of incriminating material found during the search, the respondent No.1 was justified in recording a belief that income escaped assessment within the meaning of section 147 of the Act due to the failure on the part of the assessee to make a true and full disclosure. Thus, no fault can be found with the impugned action. 10. We have heard Mr. Mistri, the learned Senior Counsel for the petitioner and Mr. Suresh Kumar, the learned counsel for the respondents-revenue, at some length. We have also perused the documents annexed with the petition and the affidavits in reply. 11. Mr. Mistri, the learned Senior Counsel assailed the reopening of the assessment on the ground that the alleged escapement of income premised on the lack of creditworthiness of JMPL and the consequent sham nature of the loan transaction was enquired into by the Assessing Officer on as many as four occasions. The queries were put. Replies were submitted. Assessing Officers were duly satisfied and, thus, no additions were made. In this backdrop, according to Mr. Mistri, the proposed reopening is barred on both the counts, namely failure to fulfill the jurisdictional condition of escapement of income on account of non-disclosure on the part of the assessee and the exercise being an outcome of mere ‘change of opinion’. 12. To lend support to this submission, Mr. Mistri invited the attention of the Court to the correspondence exchanged during the course of the original assessment proceedings. Vide notice under section 142(1) dated 17th May 2015, the petitioner was called upon to furnish the details of the unsecured loans/deposits in the following format : 22. 12. To lend support to this submission, Mr. Mistri invited the attention of the Court to the correspondence exchanged during the course of the original assessment proceedings. Vide notice under section 142(1) dated 17th May 2015, the petitioner was called upon to furnish the details of the unsecured loans/deposits in the following format : 22. Furnish details of unsecured loans/deposits taken during the year including squared up loans in the following format : Name and address of the person Opening Balance Source of loan (Bank particulars) Details of Transactions Closing Balance Rate of Interest Interest paid/ Payable during the year Debit Credit Debit Credit Debit Credit Also submit in each case : (i) Amount and date of loan/deposit taken, when it was first taken. (ii) Mode of transaction (cash/cheque/DD). (iii) PAN and assessment particular of the creditor including details regarding the AO having jurisdiction over him. 13. The aforesaid communication was followed by a questionnaire dated 27th October 2015, whereby the following information, inter-alia, was solicited : (1) Please submit the loan confirmation in respect of all the loans taken & rectified in your Balance Sheet. (2) Please submit evidence in support of genuineness & creditworthiness of loan parties in respect of new loans & additional loans taken from existing loan parties. In case of failure, it is proposed to disallow the amount of new/additional loans taken for want of verification of genuineness and creditworthiness of loan parties. Also submit utilization of loan funds along with supporting documents. 14. In the reply dated 3rd December 2015 (Exh. D to the petition), the petitioner furnished following information : 1. CONFIRMATION OF UNSECURED LOANS : (also at Sr.No.33 of 1st questionnaire, dt. 17-7-15) The Total Unsecured Loans outstanding as on 31-03-2013 are Rs.1,37,63,42,370/-. These are mainly additional loans from existing loans creditors and few additional loans from new creditors. We are enclosing herewith the Confirmation Letters of all the creditors alongwith supporting evidence like their ITR/Bank statement for relevant period. 2. EVIDENCE IN SUPPORT OF NEW AND ADDITIONAL LOAN TAKEN FROM EXISTING LOAN CREDITORS (also at Sr.No.33 of 1st questionnaire, dt.17-7-15) As stated above, we are enclosing herewith Confirmation Letters with supporting evidence as per Annexure attached hereto. We are enclosing herewith the Confirmation Letters of all the creditors alongwith supporting evidence like their ITR/Bank statement for relevant period. 2. EVIDENCE IN SUPPORT OF NEW AND ADDITIONAL LOAN TAKEN FROM EXISTING LOAN CREDITORS (also at Sr.No.33 of 1st questionnaire, dt.17-7-15) As stated above, we are enclosing herewith Confirmation Letters with supporting evidence as per Annexure attached hereto. These evidences are in respect of New Loans taken during the year i.e., (IT Acknowledgement, and Bank Statement) and in respect of additional loan taken from existing creditors only IT acknowledgement of creditor is enclosed). 15. A copy of the confirmation of accounts by the assessee in favour of the creditor-JMPL was annexed to the said reply. It is imperative to note that in the assessment order, dated 26th February 2016 passed under section 143(3) of the Act, the Assessing Officer recorded in clear and explicit terms that notices were issued on 17th May 2015, 27th October 2015 and 24th November 2015 and the assessee submitted the required details. Post consideration, the assessment order was passed on 26th February 2016. 16. Post-search, initially, the assessee offered an explanation on 15th March 2018, wherein the seizure of documents pertaining to unsecured loan was sought to be explained. In annexure A to the said reply, a specific reference was made to the loan of Rs.75 Lakh availed from JMPL, which was stated to have been repaid on 18th December 2013. On 8th March 2018, the assessee was again asked to explain the documents showing the unsecured loans of Rs.75 Lakh availed from JMPL, which were seized. In the reply dated 16th March 2018, the assessee informed that those loans were accepted and repaid through banking channels by 2014. On 31st May 2019, the assessee was again called upon to furnish information on the points or matters specified in Annexure A which include the said loan of Rs.75 lakhs availed from JMPL. A reply was addressed by the assessee on 14th June 2019 wherein the facts that the loans were availed in the A.Y. 2012-2013, to A.Y. 2014-2015 and all the documents were furnished during the course of the assessment proceedings for the respective years and assessment orders under section 143(3) were passed, were reiterated. 17. In the backdrop of the aforesaid material, especially the information solicited by the Assessing Officer during the course of scrutiny assessment under section 143 of the Act, Mr. 17. In the backdrop of the aforesaid material, especially the information solicited by the Assessing Officer during the course of scrutiny assessment under section 143 of the Act, Mr. Mistri would urge, there is no room to allege that the income escaped assessment on account of the failure on the part of the assessee to disclose truly and fully all the relevant material. 18. We are persuaded to hold that, in the facts of the case, the submission appears impeccable. Indisputably, the petitioner had disclosed the unsecured loan transaction of Rs.75 Lakhs availed from JMPL. The petitioner had availed loan from multiple entities. This propelled the Assessing Officer to seek details of unsecured loans/deposits in a prescribed format. Not only the information was furnished by the petitioner but all the supporting documents were submitted. It can hardly be gainsaid that all the primary facts were placed before the Assessing Officer by the petitioner. 19. Mr. Suresh Kumar, the learned counsel for the respondents made an endeavour to draw home the point that through the information and documents were furnished, yet the petitioner did not disclose all the relevant information. The genuineness of the transaction and the creditworthiness of the creditor could not be ascertained at that point of time, on account of non-disclosure of the relevant facts. 20. We are afraid to accede to the submission of Mr. Suresh Kumar. In the questionnaire annexed to the letter dated 27th October 2015, under item (1), copies of the loan confirmation were sought and, under item (2), the petitioner was asked to submit evidence in support of genuineness and creditworthiness of the loan parties (extracted above). These questions imply that the Assessing Officer was fully alive to the issues of genuineness of the loan transaction and creditworthiness of the creditors of the assessee. Thus, the assessee was called upon to submit requisite information and evidence in support of the said claim. 21. The submission of Mr. Suresh Kumar that the information and documents so furnished did not equip the Assessing Officer to draw inference about the non-genuineness of the transaction and question the creditworthiness of he creditor, cuts the revenue’s case in two ways. First, it implies an admission that all the primary facts were placed before the Assessing Officer. Second, the revenue’s stand becomes vulnerable to the charge of change of opinion. 22. First, it implies an admission that all the primary facts were placed before the Assessing Officer. Second, the revenue’s stand becomes vulnerable to the charge of change of opinion. 22. The fact that in the assessment order under section 143(3), the Assessing Officer did not explicitly advert to the questions of non-genuineness of the transaction and the creditworthiness of the creditor does not carry the case of the revenue any further. What matters is the consideration of the issues at that point of time. Once the queries were raised and information solicited, an inference follows that the Assessing Officer considered those issues. 23. In the case of Aroni Commercials Limited Vs. The Dy. Commissioner of Income Tax-2(1), [2014] 44 taxman.com 304 (Bombay), a Division Bench of the Court adverted to this aspect of the matter and ruled that absence of reference and/or discussion in the assessment order is not of material significance. It was, inter-alia, observed as under :- “(14) …………. It is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of query raised. If an Assessing Officer has to record the consideration bestowed by him on all issues raised by him during the assessment proceeding even where he is satisfied then it would be impossible for the Assessing Officer to complete all the assessments which are required to be scrutinized by him under Section 143(3) of the Act. Moreover, one must not forget that the manner in which an assessment order is to be drafted is the sole domain of the Assessing Officer and it is not open to an assessee to insist that the assessment order must record all the question raised and the satisfaction in respect thereof of the Assessing Officer. The only requirement is that the Assessing Officer ought to have considered the objection now raised in the grounds for issuing notice under Section 148 of the Act, during the original assessment proceeding. ………….” 24. The next submission on behalf of the petitioner that proposed reopening of the assessment suffers from the vice of ‘change of opinion’ also appears well founded. Evidently, the search action under section 132 of the Act, did not reveal any tangible material qua the transaction of unsecured loan from JMPL. ………….” 24. The next submission on behalf of the petitioner that proposed reopening of the assessment suffers from the vice of ‘change of opinion’ also appears well founded. Evidently, the search action under section 132 of the Act, did not reveal any tangible material qua the transaction of unsecured loan from JMPL. In fact, the petitioner was called upon to explain the very transaction, in respect of which, during the course of scrutiny assessment, the then Assessing Officer had already solicited information and documents. Eventually, during the course of scrutiny assessment, the Assessing Officer having been satisfied with the explanation furnished by the petitioner, did not make any addition. In the course of the proceedings under section 153A also, the revenue did not claim that any incriminating material was found qua the transaction with JMPL. In this view of the matter, the reopening of the assessment on the premise that the creditor lacked the creditworthiness and thus the loan transaction was sham, is nothing but a change of opinion. 25. It would suffice to make reference to a Division Bench judgment of this Court in the case of Ananta Landmark Pvt. Ltd. Vs. Deputy Commissioner of Income Tax, Central Circle 5(3) and 2 Ors., (2021) 439 ITR 168 (Bombay) wherein the following observations were made : 16. ………….The Assessing Officer had all materials facts before him when he made the original assessment. When the primary facts necessary for assessment are fully and truly disclosed, the Assessing Officer is not entitled on change of opinion to commence proceedings for reassessment. Even if the Assessing Officer, who passed the assessment order, may have raised too may legal inferences from the facts disclosed, on that account the Assessing Officer, who has decided to reopen assessment, is not competent to reopen assessment proceedings. Where on consideration of material on record, one view is conclusively taken by the Assessing Officer, it would not be open to reopen the assessment based on the very same material with a view to take another view………….” 26. The conspectus of the aforesaid consideration is that the jurisdictional condition to reopen the assessment is not made out. In any event, the exercise falls in the realm of ‘change of opinion’ with regard to the very same material. The petition, thus, deserves to be allowed. 27. The conspectus of the aforesaid consideration is that the jurisdictional condition to reopen the assessment is not made out. In any event, the exercise falls in the realm of ‘change of opinion’ with regard to the very same material. The petition, thus, deserves to be allowed. 27. Hence, the following order : ORDER The petition stands allowed in terms of the prayer clause (a), which reads as under : “(a) that this Hon’ble Court be pleased to issue a Writ of Certiorari or any other writ order or direction under Articles 226 or 227 of the Constitution of India calling for the records of the case leading to the issue of the impugned notice and passing of the impugned order and after going through the same and examining the question of legality thereof quash, cancel and set aside the impugned notice (Exhibit-P) dated 18th March, 2021 and impugned order (Exhibit-W) dated 3rd September, 2021.” No costs.