ORDER : (Ashutosh Shastri, J.) 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the impugned notice dated 21.03.2021 at Annexure-A as well as for setting aside the impugned order dated 25.10.2021. 2. The brief facts leading to rise of present petition is that petitioner is a limited company and all the shareholders are the citizens of India and as such, amenable to the writ jurisdiction of this Court. The petitioner submitted its return of income for Assessment Year 2016-17 on 28.11.2016 declaring total loss of Rs.1206,52,27,424/- under the normal provisions and book profit of Rs.0/-. The return of the petitioner was processed and the case of the petitioner was selected for scrutiny under CASS. On furnishing information, detailed scrutiny was undertaken and later on, on 22.12.2018, the assessment order under Section 143 (3) of the Income Tax Act, (hereinafter referred to as the “Act”) came to be passed assessing total loss of the petitioner at Rs.1181,07,09,327/- for Assessment Year 2016-17. 2.1. It is the case of the petitioner that the respondent issued notice upon the petitioner under Section 148 of the Act on 21.03.2021 calling upon the petitioner to submit return of income for Assessment Year 2016-17 without prejudice, & in due compliance of the said notice and consequently, for reopening has also sought approval obtained under Section 151 of the Act. The said reasons and the approval came to be supplied to the petitioner on 17.05.2021. 2.2. In response to the said reasons, the petitioner filed detailed objections on 16.08.2021 and questioned the validity of the notice issued under Section 148 of the Act. However, according to the petitioner, by brief satisfaction, objections raised by the petitioner came to be turned down on 25.10.2021 and order was supplied to the petitioner. The petitioner on account of such action by the respondent authority aggrieved by the impugned notice dated 21.03.2021 issued under Section 148 of the Act as well as order passed upon the objections of the petitioner dated 25.10.2021, is constrained to approach this Court by way of present petition under Article 226 of the Constitution of India. 3. Pursuant to the notice issued by the co-ordinate Bench of this Court, after pleadings having been completed, the matter is requested to be taken by for hearing and as such, we have heard Mr. 3. Pursuant to the notice issued by the co-ordinate Bench of this Court, after pleadings having been completed, the matter is requested to be taken by for hearing and as such, we have heard Mr. B.S. Soparkar, learned advocate who represented the petitioner and Ms. Maithili Mehta, learned advocate who represented the respondent authority. 4. Mr. B.S. Soparkar, learned advocate appearing for the petitioner has vehemently contended that the impugned notice as well as the order passed by the respondent authority are patently erroneous and in conflict with the fundamental rights of the petitioner under Articles 14, 19(1)(g) of the Constitution of India and hence, same are required to be quashed and set aside. It has been submitted that perusal of the reasons recorded, the main substantial reason is to the effect that income has escaped assessment since claim of CSR expenses made by the petitioner of Rs.4,05,629/- was not allowable and as such, requires to be disallowed and to that extent, the income has escaped assessment and thus, according to learned advocate Mr. Soparkar, is fundamentally erroneous, since expenses are incurred voluntarily, wholly and exclusively for the purposes of business and therefore, there is no question of escapement of income from the assessment. 4.1. Learned advocate Mr. Soparkar has further contended that in view of explanation 2 attached to Section 37 of the Act, any expenditure incurred on the activities relating to corporate social responsibility referred to in Section 135 of the Companies Act, shall not be deemed to be expenditure incurred for the purposes of business. As per Section 135 of the Companies Act, at least two per cent of the average net profit made during three immediately preceding financial years, shall be spent towards corporate social responsibility. According to learned advocate Mr. Soparkar, as matter of fact, the petitioner has made average net loss of Rs.375.85 crores during three immediately preceding financial years and as such, the petitioner was not under an obligation to spend any amount towards the corporate social responsibility by virtue of Section 135 of the Companies Act and as such, the expenditure incurred by the petitioner is not one which requires disallowance under explanation 2 to Section 37(1) of the Act and as such, the plea which has been expressed by the respondent authority is basically erroneous. Hence, notice as well as order impugned deserve to be quashed and set aside. 4.2. Hence, notice as well as order impugned deserve to be quashed and set aside. 4.2. Additionally, learned advocate Mr. Soparkar has submitted that the petitioner has incurred expenditure of Rs.4,05,629/- voluntarily, wholly and exclusively for the purposes of business only and no claim of the petitioner was wrongly allowed or no income has escaped assessment and therefore, it is impermissible for the authority to issue notice under Section 148 of the Act. It has further been submitted that sanctioned as required under Section 151 of the Act is also without application of mind, which is reflecting mechanical exercise of power. It has been submitted that no notice under Section 148 of the Act shall be issued unless the higher authority is satisfied on the reasons recorded by the assessing officer that it is a fit case to issue such notice. A bare reading of the approval would clearly indicate that there is no subjective satisfaction even while granting approval. Hence, that being the situation, the action sought to be initiated is impermissible in law and it is contrary to the settled legal proposition. 4.3. Learned advocate Mr. Soparkar has further pointed out that the respondent authority wants to arrive at a different opinion despite the fact that assessment record is consisting of computation of income, Profit and Loss Account and ITR and though scrutiny has been done at length, despite the fact that there is no new material came to the notice of the respondent authority, this action in the absence of any new tangible material is impermissible and as such, on this count alone, notice under Section 148 of the Act requires to be set aside. Further it has been pointed out that this re-opening sought to be initiated is on the basis of the information/objection provided by the audit party which in view of the settled legal position is also impermissible and for canvassing such submission, learned advocate Mr. Soparkar has made a reference to the decisions which are narrated in paragraph 3.7 of the petition and after contending this, a request is made to allow the petition by granting relief as prayed for. 5. As against this, Ms. Soparkar has made a reference to the decisions which are narrated in paragraph 3.7 of the petition and after contending this, a request is made to allow the petition by granting relief as prayed for. 5. As against this, Ms. Maithili Mehta, learned advocate appearing for the respondent has submitted that the action which is sought to be initiated is after due and proper application of mind and after going though the entire record and it is not open for the petitioner to contend that in the absence of any fresh material, no re-opening is permissible. In fact, the petitioner is not remediless since remedy of revision is very much available. It has further been contended that necessary sanction has already been properly obtained from the Additional Commissioner of Income Tax by virtue of Section 151 of the Act and the Additional Commissioner of Income Tax had gone through the request which are recorded by the assessing officer and it is only after perusal of such reasons and the relevant record, permission has been accorded and as such, it cannot be said that the said approval is reflecting a mechanical exercise of power. Learned advocate Ms. Mehta, has submitted that when the authority is of the clear opinion that income is escaped from the assessment, it is always open for the respondent authority to re-open the assessment after of course, following appropriate statutory requirement, which has been undertaken here. It has been submitted that the action which is sought to be initiated is not solely based upon the audit objections, in fact, the information of the relevant circumstances which are to be provided by the audit party can always be considered by the authority and if the authority is satisfied that there is an escapement of income, it is always open to initiate appropriate steps, which has rightly been observed here. Hence, there is no merit in the petition and the same deserves to be dismissed in the respectful submission of learned advocate Ms. Mehta. No further submissions have been made. 6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, few circumstances deserve consideration before arriving at an ultimate conclusion. 6.1. Hence, there is no merit in the petition and the same deserves to be dismissed in the respectful submission of learned advocate Ms. Mehta. No further submissions have been made. 6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, few circumstances deserve consideration before arriving at an ultimate conclusion. 6.1. On the basis of the assertion which has been made by the petitioner at the relevant point of time while issuing notice, the co-ordinate Bench was pleased to grant ad-interim relief in terms of paragraph 7(c) vide order dated 10.01.2022 and since it was identically situated to one another petition, upon request of learned advocate for the petitioner, the present petition is also ordered to be heard along with Special Civil Application No. 18824 of 2021. When the matter is taken up for hearing, it was submitted by the learned counsel appearing for the petitioner that the said petition being Special Civil Application No. 18824 of 2021 came to be decided wherein the action of reopening was found without independent application of mind and as such, the petition came to be allowed, almost on similar situation, which is on hand in the present proceedings. The said order is delivered by the co-ordinate Bench on 20.02.2023 after considering all the relevant circumstances, which were pointed out and following are the observations which are relevant to the issue, we deem it proper to quote hereunder :- “3.1 According to Mr.Soparkar, the two decisions of this Court cover the issue in 2013(37) Taxmann com 158 Vodafone West Ltd V/s Assistant Commissioner of Income Tax, this Court has held that the Assessing Officer, when had no reason to believe that the income had escaped the assessment and on the contrary, when his opinion is that there was inconsistent stand adopted by the audit on the identical ground, there is a notice for reopening at the instance of the Assessing Officer despite his unwillingness, the petition needs to succeed. He has also further argued that wherever audit party raising the objection may provide the information, however, eventually, it is the Assessing Officer who should be satisfied himself. Another decision of this Court in the case of Commissioner of Income-Tax, Ahmedabad-IV V/s Shilp Gravures Ltd, (2013)40 Taxmann.com 309 (Gujarat) is relied on. He has also further argued that wherever audit party raising the objection may provide the information, however, eventually, it is the Assessing Officer who should be satisfied himself. Another decision of this Court in the case of Commissioner of Income-Tax, Ahmedabad-IV V/s Shilp Gravures Ltd, (2013)40 Taxmann.com 309 (Gujarat) is relied on. That was a case where the Assessing Officer had initiated the reassessment proceedings solely at the instance of the audit party by recording of reasons for which he had no conviction. It is further pointed before this Court that these decisions hold the field as reliance is also placed on the decision of the Apex Court in the case of Commissioner of Income-Tax V/s Lucas T.V.S. Ltd. (2001) 117 Taxman 366 (SC). 7.5 Any reassessment proceedings initiated at the instance of the audit party objection, without the Assessing Officer himself having reason to believe that the income chargeable to tax has escaped the assessment must fail and such issue is no longer res integra and requires no further elaboration except by reproducing relevant findings of this Court, in the case of Cadila Health Care Ltd Vs Assistant Commissioner of Income Tax & Anr reported in (2012) 65 DRT (Guj ) 385, wherein it is held that any such initiation of reassessment proceedings solely at the instance of the audit objection would not be maintainable “(i) CIT Vs Lucas T V S Ltd (2001) 168 CTR (SC) 311 : (2001) 249 ITR 306 (SC) in which the apex Court upheld the decision of the High Court in which the High Court had quashed the reopening proceedings wherein apart from the information furnished by the audit party, the ITO had no other information for reopening the assessment. (ii) Agricultural Produce Market Committee vs ITO (2011) 63 DTR (Guj ) 7: (2011) 15 Taxmann com 170 (Guj ) wherein Division Bench of this Court was pleased to quash the notice for reopening where the only basis was the revenue audit objection as regards the eligibility of the assessee for exemption. (iii) Adani Exports Vs Dy CIT (1999) 153 CTR (Guj ) 308: (1999) 240 ITR 224 (Guj ) wherein Division Bench of this Court held as under; “It is true that satisfaction of the AO for the purpose of reopening is subjective in character and the scope of judicial review is limited. (iii) Adani Exports Vs Dy CIT (1999) 153 CTR (Guj ) 308: (1999) 240 ITR 224 (Guj ) wherein Division Bench of this Court held as under; “It is true that satisfaction of the AO for the purpose of reopening is subjective in character and the scope of judicial review is limited. When the reasons recorded show a nexus between the formation of belief and the escapement of income, a further enquiry about the adequacy or sufficiency of the material to reach such belief is not open to be scrutinised. However, it is always open to question existence of such belief on the ground that what has been stated is not correct state of affairs existing on record Undoubtedly, in the face of record, burden lies, and heavily lies, on the petitioner who challenges it. If the petitioner is able to demonstrate that in fact the AO did not have any reason to believe or did not hold such belief in good faith or the belief which is projected in papers is not belief held by him; in fact, the exercise of authority conferred on such person would be ultra vires the provisions of law and would be abuse of such authority. As the aforesaid decision of the Supreme Court indicates that though audit objection may serve as information, the basis of which the ITO can act, ultimate action must depend directly and solely on the formation of belief by the ITO on his own where such information passed on to him by the audit that income has escaped assessment. In the present case, by scrupulously analysing the audit objection in great detail, the AO has demonstrably shown to have held the belief prior to the issuance of notice as well as after the issuance of notice that the original assessment was not erroneous and so far as he was concerned, he did not believe any any time that income has escaped assessment on account of erroneous computation of benefit under Section 80HHC. He has been consistent in his submission of his report to the superior officers. The mere fact that as a subordinate officer he added the suggestion that if his view is not accepted, remedial actions may be taken cannot be said to be belief held by him. He has been consistent in his submission of his report to the superior officers. The mere fact that as a subordinate officer he added the suggestion that if his view is not accepted, remedial actions may be taken cannot be said to be belief held by him. He has no authority to surrender or abdicate his function to his superiors, nor the superiors can arrogate to themselves such authority. It needs hardly to be stated that in such circumstances conclusion is irresistible that the belief that income has escaped assessment was not held at all by the office having jurisdiction to issue notice and recording under the office note on 8th Feb, 1997 that he has reason to believe is a mere pretense to give validity to the exercise of power In other words, it was a colourable exercise of jurisdiction by the AO by recording reasons for holding a belief which in fact demonstrably he did not held that income of assessee has escaped assessment due to erroneous computation of deduction under Section 80HHC, for the reasons stated by the audit. The reason is not far to seek.” 12. Under the circumstances, it clearly emerges from the record that the AO was of the opinion that no part of the income of the assessee has escaped assessment In fact, after the audit party brought the relevant aspects to the notice of the AO, she held correspondence with the assessee. Taking into account the assessee’s explanation regarding non requirement of TDS collection and ultimately accepted the explanation concluding that in view of the Board’s circular, tax was not required to be deducted at source. No income had therefore escaped assessment. Despite such opinion of the AO, when ultimately the impugned notice came to be issued the only conclusion we can reach is that the AO had acted at the behest of and on the insistence of the audit party. It is well-settled that it is only the AO whose opinion with respect to the income escaping assessment would be relevant for the purpose of reopening of closed assessment. It is well-settled that it is only the AO whose opinion with respect to the income escaping assessment would be relevant for the purpose of reopening of closed assessment. It is, of-course true, as held by the decisions of the apex Court in the case of P V S Beedies (p) Ltd (Supra) and Indian & Eastern Newspaper Society (Supra), if the audit party brings certain aspects to the notice of the AO and thereupon, the AO form his own belief, it may still be a valid basis for reopening assessment. However, in the other line of judgment noted by us, it has clearly been held that mere opinion of the audit party cannot form the basis for the AO to reopen the closed assessment that too beyond four years from the end of relevant assessment year.” 8. As is amply made clear in the instant case from the discussion herein-above that the subjective satisfaction of the Assessing Officer for the purpose of reopening of the assessment is lacking in the instant case and, therefore, the Officer having the jurisdiction to issue notice on the belief that the income has escaped the assessment in fact had no belief while issuing notice and, therefore, as held in the case of Adani Exports Vs Dy CIT (supra) it was a colourable exercise of jurisdiction by the Assessing Officer by recording the reasons for which he obviously had no conviction, had initiated the reassessment proceedings solely at the instance of the audit party which cannot be sustained.” 6.2. Further Mr. Soparkar has contended that by virtue of explanation 2 to Section 37 of the Act, any expenditure incurred on the activities relating to corporate social responsibility, referred in Section 135 of the Companies Act, 2013, is not to be treated as expenditure incurred for the purposes of business. 7. In the backdrop of the aforesaid circumstance, we perused the objections submitted by the petitioner vide communication dated 16.08.2021 on page 62 wherein, it has been categorically asserted and explained not only provisions, but details with regard to Profit and Loss and subsequently after narrating, a contention is reiterated that reassessment notice based upon such factual details deserves to be dropped. 8. 8. Further, in the affidavit-in-rejoinder submitted by the petitioner, it was clearly pointed out that with respect to Assessment Year 2017-18, yet another petition also came to be disposed of being Special Civil Application No. 347 of 2022 and this has been specifically pointed out which has not been controverted that on the very same issue, claim of CSR expenses/objections so raised for both the years by the very same person who hold the office of JCIT (Audit) for both assessment years 2016-17 and 2017-18 and the very same officer has recorded reasons for re-opening of both assessment years on 16.03.2021 and later on, the very same authority issued notice under Section 148 of the Act for both years on 21.02.2021. These circumstances have revealed from the information which has been provided to the petitioner under the Right to Information Act and from the details which are provided it has been emerged that the assessing officer (ACIT) circle 1(1) (1) has objected to the audit objections raised by the JCIT (Audit) on the issue of claim of CSR expenses for Assessment Year 2017-18 recording of reasons for Assessment Year 2016-17 for the same issue does not amount to application of an independent mind and therefore, also it cannot be said that any independent application of mind reflects in recording of reasons for Assessment Year 2016-17 when reasons for Assessment Year 2017-18 are held to be invalid by order of this Court in Special Civil Application No. 347 of 2022 as indicated above and the said reasons were recorded on the very same day and this itself is a circumstance which indicates that in a routine manner re-opening is sought by the authority which is impermissible. In paragraphs 6 and 7 of affidavit-in-rejoinder, this clear stand stand has been taken and same having not been controverted, we deem it proper to hold the action of issuance of notice under Section 148 of the Act in the background of present facts as erroneous, reflects no subjective satisfaction nor any application of mind. Hence, this would be one of the relevant circumstance to arrive at a conclusion that a case is made out by the petitioner to call for interference. 9. Hence, this would be one of the relevant circumstance to arrive at a conclusion that a case is made out by the petitioner to call for interference. 9. In view of the aforementioned background and in view of the proposition which is made in the order of co-ordinate Bench dated 20.02.2023 in Adani Power Rajasthan Limited (supra) and in view of the conclusion which is arrived at in Special Civil Application No. 347 of 2022, we hold that very exercise of jurisdiction by the authority gets vitiated. As a result of this, notice issued for re-opening of assessment as well as order passed by the authority rejecting objections deserves to be interfered with. 10. Hence, impugned notice dated 21.03.2021 at Annexure-A as well as impugned order dated 25.10.2021 at Annexure-G respectively are hereby quashed and set aside. Accordingly, petition stands allowed.