JUDGMENT: (Per M.S.Karnik, J.) 1. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner-Sesa Sterlite Ltd. challenges the notice dated 16.07.2014 issued by respondent no.1 - Assistant Commissioner of Income Tax under Section 148 of the Income Tax Act, 1961 (IT Act, for short), to reopen the assessment for the Assessment Year 2009-10 together with the order dated 06.02.2015 dealing with the petitioner's objections. 2. The facts of the case in brief are as under: The petitioner is engaged in the business of manufacture and production of iron ore. It carries on business from its units situated at Amona, Chitradurga and at Codli. These units are export-oriented undertakings and the profits derived from them are eligible for a deduction under Section 10B of the Income Tax Act. 3. The petitioner filed its returns of income for the Assessment Year 2009-10 declaring a total income of Rs.2007.49 crores. This income was arrived at after claiming a deduction for Rs.451.28 crores under Section 10B in respect of the aforesaid three units. The petitioner had along with its return of income filed a computation of income as well as the Auditor's report in Form 56-G certifying the correctness of the deduction as claimed. The petitioner in the original assessment proceedings had filed a detailed explanation dated 22.11.2011 with regard to its claim for a deduction under Section 10B in respect of each of the units. The petitioner furnished further evidence on 07.12.2011 in support of its claim for deduction under Section 10B. A survey under Section 133A was carried out at the petitioner's premises between 23.12.2011 to 26.12.2011 wherein the Authorities sought to ascertain the relevant facts in connection with the claim for deduction under Section 10B. 4. The respondent no.1 addressed the letter to the petitioner on 26.12.2011 wherein it is stated that on the basis of the documents found in the course of the survey and the statements of the employees recorded the three units in respect of which the deduction under Section 10B was claimed had commenced commercial production long ago and the period of ten years had lapsed from the date of commencement of the commercial production and therefore the claim for deduction under Section 10B was proposed to be disallowed. The petitioner filed the reply on 27.12.2011 and made detailed submissions as to why its claim for deduction under Section 10B was correct and the inference that was sought to be drawn by respondent no.1 was not justified. An assessment under Section 143(3) was finalised by respondent no.1 where under the petitioner's claim for deduction under Section 10B was disallowed in its entirety for the reasons given by him in paragraph 6 of the order. 5. The Commissioner of Income Tax (Appeals) [CIT(A), for short] passed an order under Section 263 on 30.03.2012 seeking to revise the assessment framed for the assessment year 2009-10 and directed the Assessing Officer to consider the report filed by the SFIO and the submissions of the appellant thereon in connection with the allegation that the petitioner was under invoicing its exports. 6. The petitioner filed detailed written submissions before the CIT(A) on 11.05.2012, 24.05.2012 and 11.06.2012 in support of its contention that it was entitled to the deduction under Section 10B as claimed. Respondent No.1 filed a Remand Report with the CIT(A) on 15.06.2012 in response to the petitioner's submissions. Further submissions were filed by the petitioner before the CIT(A) on 19.06.2012. Respondent no.1 filed further Remand Report before the CIT(A). The petitioner filed its response to the first Remand Report on 04.07.2012. The petitioner filed its response dated 24.07.2012 to the second Remand Report. The CIT(A) passed an order whereby he upheld the stand of the Assessing Officer and denied the claim for deduction under Section 10B in its entirety. The petitioner preferred an appeal to the Tribunal on 24.09.2012. 7. Respondent No.1 passed an order imposing a penalty under Section 271(1)(c) for concealment of its income. The Tribunal passed an order dated 08.03.2013 disposing of the cross-appeals filed by the petitioner as well as the Revenue against the order of the CIT(A). 8. The Revenue being aggrieved by the order of the Tribunal preferred an appeal to this Court on 16.07.2013. the Revenue filed Misc. Application before the Tribunal on 19.06.2013 seeking rectification of certain errors that crept into the order whilst disposing of the appeal. The Tribunal passed an order dated 19.09.2013 on the Miscellaneous Application dismissing it. The appeal filed by the Revenue against the order of the department was admitted by this Court on 23.09.2013 only on certain limited questions. Application before the Tribunal on 19.06.2013 seeking rectification of certain errors that crept into the order whilst disposing of the appeal. The Tribunal passed an order dated 19.09.2013 on the Miscellaneous Application dismissing it. The appeal filed by the Revenue against the order of the department was admitted by this Court on 23.09.2013 only on certain limited questions. Respondent no.1 passed an order dated 28.03.2013 under Section 143(3) pursuant to the order under Section 263 and accepted that having regard to the supplementary report furnished by the Serious Fraud Investigation Office (SFIO, for short) there was no basis in the allegation that the petitioner was under invoicing its exports. The Revenue filed an application before this Court on 13.12.2013 seeking admission of the appeal on certain further questions. This Court admitted the appeal on 05.03.2014. 9. Another survey was conducted under Section 133A on 20.03.2014 in the course whereof it is the case of respondent no.1 that further information was obtained which demonstrated that the claim for deduction under Section 10B was not in accordance with law. This Court on 01.04.2014 passed an order on the application filed by the Revenue as regards further information stating that the same will be considered at the time of hearing of the appeal. The impugned notice under Section 148 was issued on 16.07.2014 the petitioner filed its return of income in response to the impugned notice on 14.08.2014 and sought for the reasons recorded by respondent no.1 before issuance of the same. 10. A second Miscellaneous Application was filed on 21.08.2014 before the Tribunal purporting to utilise the information gathered in the course of the second survey and alleging that there was a mistake apparent on record in the order of the Tribunal. The DRI addressed a communication dated 23.09.2014 to the Assistant Commissioner of Customs whereby they intimated that the investigation into the case pertaining to the Sesa Group as a follow-up of the report of Justice M.B. Shah Commission was completed and no show cause notice has been issued as no evidence of undervaluation was detected. The Director of Mines and Geology granted a renewal of mining lease to the petitioner on 09.12.2014. 11. Respondent No.1 furnished the reasons recorded prior to the issuance of the impugned notice on 31.12.2014. The Director of Mines and Geology granted a renewal of mining lease to the petitioner on 09.12.2014. 11. Respondent No.1 furnished the reasons recorded prior to the issuance of the impugned notice on 31.12.2014. As per the same the escapement of the income was on account of the following reasons:- (i) the claim of deduction under section 10B was wrongfully allowed; (ii) under invoicing of exports of iron ore basis the report of justice M.B. Shah, Commission of Enquiry; and (iii) income earned on account of illegal mining to be assessed as "Income from other sources". 12. The Petitioner filed its written reply to the second Miscellaneous Application moved by the Revenue. The Tribunal passed an order on the second Miscellaneous Application and dismissed the same by an order dated 07.01.2015. The Petitioner filed its objections to the reassessment proceedings on 20.01.2015. The Petitioner filed additional objections to the reassessment proceedings on 30.01.2015. Respondent No.1 passed an order dated 06.02.2015 disposing of the petitioner's objections to the assumption of jurisdiction by him. By letter dated 16.02.2015, the petitioner sought a copy of the sanction granted by respondent no.3 before the notice was issued. On 16.02.2018, the petitioner furnished a copy of the judgment of this Court dated 21.4.2014 in Goa Foundation Vs. Union of India and also the second renewal order dated 09.12.2014. 13. This Court by judgment and order dated 07.05.2021 disposed of the appeals filed by the Revenue against the order of the Tribunal dated 08.03.2012, inter alia, allowing the deduction under Section 10B after noting the argument of the Revenue that the Units at Amona and Chitradurga were not new units. 14. Mr Pardiwala, learned Senior Advocate submitted that having regard to the well settled position in law, it would be apparent that respondent no.1 has acted wholly without jurisdiction when he has sought to assume jurisdiction to reassess the petitioner's income so as to once again disallow the claim for deduction under Section 10B. Mr Pardiwala submits that the correctness of the claim under Section 10B was upheld by the Tribunal and thereafter by this Court and in such view of the matter there was no question of respondent no.1 assuming jurisdiction to reassess the petitioner's income. In the submission of Shri Pardiwala, the course adopted by respondent no.1 virtually amounts to sitting in appeal over the decision of this court and the Tribunal. In the submission of Shri Pardiwala, the course adopted by respondent no.1 virtually amounts to sitting in appeal over the decision of this court and the Tribunal. It is submitted that the Tribunal along with the representative of both the parties had physically visited the unit at Amana to satisfy themselves to the correctness of the claims. 15. One of the questions that was raised before this Court in the appeal filed by the Revenue was "whether the deduction was rightly allowed in view of the fact that the units were not new units". It is submitted by the learned Senior Advocate that this Court in its original order admitting the appeal dated 23.09.2013, did not frame this question probably on the basis that it was a finding of fact. In any case, this Court in its judgment dated 07.05.2021 has noted the argument of the learned counsel or the Revenue in paragraph 7 as well as paragraph 17 to the effect that the unit at Amana and Chitradurga were not new units. Learned Senior Advocate submits that in these circumstances, the case of the Revenue that the new material was not the subject matter of the appeal is not in accordance with the scheme of the new Act. Learned Senior advocate urged that there are various other grounds to challenge the assumption of jurisdiction. The argument of the learned Senior Advocate is that respondent no.1 was precluded from reopening the assessment in view of the third proviso contained in Section 147. 16. Ms Susan Linhares appearing for respondents made submissions in support of the impugned order. She submitted that the assessment under section 143(3) was completed disallowing the benefit under Section 10B of the IT Act on the ground that the processing of iron ore does not amount to manufacture within the meaning of section 10B and also Amana and Chitradurga units are not new units. Learned Counsel submitted that the Tribunal vide order dated 08.03.2013 held that the processing of iron ore amounts to manufacture within the meaning of Section 10B and held that Amana and Chitradurga are new units. After the fresh survey was conducted during the pendency of the Tax Appeal in this Court, it was found that the petitioner had suppressed material facts relating to the setting up of the new units at Amana and Chitradurga, which resulted in the escapement of income. After the fresh survey was conducted during the pendency of the Tax Appeal in this Court, it was found that the petitioner had suppressed material facts relating to the setting up of the new units at Amana and Chitradurga, which resulted in the escapement of income. According to the learned counsel, the income chargeable to tax had escaped assessment due to failure on the part of the petitioner to disclose truly and fully all material facts necessary for the assessment. 17. Ms Linhares invited our attention to the materials on record which according to her was suppressed by the petitioner and not considered by the Assessing Officer or the appellate Authorities including the Tribunal. She submits that in view of the new material facts which were revealed during the survey conducted on 20.03.2014, respondent no.1 issued the notice under Section 148 on 16.07.2014 for reassessment of income for the Assessment Year 2009-10 as the Assessing Officer had reasons to believe that the income chargeable to tax has escaped assessment. 18. Ms Linhares submitted that the petitioner was provided with reasons for re-opening the assessment for the Assessment Year 2009-10 vide letter dated 31.12.2014. She submitted that the new materials were found during the course of a survey under Section 133A conducted on 20.03.2014, under- invoicing of the iron export billings and income earned on account of illegal mining is to be held as income from other sources, which is not eligible for deduction under Section 10B. It is submitted that the new materials were detected after completion of the assessment and as these materials were not the subject matter of the proceedings before the Tribunal or this Court, these new material facts have a bearing on the escapement of the income due to failure on the part of the petitioner to disclose truly and fully all material facts necessary for the assessment. It is submitted that under such circumstances, as these new materials were discovered pursuant to the assessment order and during the pendency of the proceedings before this Court, there is no bar on the re- opening of the assessment for taxing income based on new material facts. It is urged that these material facts were not even considered by the Assessing Officer or appellate Authorities as they were not even subject matters of the appeal before this Court. It is urged that these material facts were not even considered by the Assessing Officer or appellate Authorities as they were not even subject matters of the appeal before this Court. Respondents filed an application under Section 254(2) of the IT Act before the ITAT to place on record the new material facts revealed during the survey conducted on 20.03.2014. However, the ITAT vide order dated 07.01.2015 held that these material facts were brought out after the survey held on 20.03.2014 and were not considered in its earlier order dated 08.03.2013 and the same cannot be considered under Section 254(2) in view of Rule 18(6) of the Appellate Tribunal Rules. 19. Ms Linhares submitted that the notice under Section 148 dated 16.07.2014 and the order disposing objections dated 06.02.2015 passed by the respondent no.2 is in accordance with law for the following reasons: A. The Order dated 06.02.2015 passed by the CIT disposing the petitioner's objections is a speaking Order and is well reasoned based on the complete analysis of the records. B. The new facts which were revealed during the survey conducted on 20.03.2014 were not considered by any of the authorities including the ITAT as such the 3rd proviso to section is not applicable in the present case as new material was detected by the department during the survey conducted on 20.03.2014. C. Due to the suppression of material facts by the petitioner, income chargeable to tax had escaped assessment due to failure on the part of the petitioner to disclose truly & fully all material facts necessary for the assessment. D. The A.O had reason to believe that income had escaped assessment after new material facts were revealed during the survey conducted on 20.03.2014. E. The Supreme Court in the case of CIT v Kelvinator of India reported 2010(187) Taxman 312 (SC) held that Assessing officer has to re-open provided there is tangible material to come to conclusion that there is escapement of income from assessment, reasons must have a live link with formation of belief. F. The Supreme Court in the case of Raymond Wollen Mills Ltd v. ITO reported 1999(236) ITR 0034 held that the sufficiency or correctness of the material is not a thing to be considered at this stage. The Court cannot strike down the re-opening of the case in the facts of this case. F. The Supreme Court in the case of Raymond Wollen Mills Ltd v. ITO reported 1999(236) ITR 0034 held that the sufficiency or correctness of the material is not a thing to be considered at this stage. The Court cannot strike down the re-opening of the case in the facts of this case. It will be open to the assessee to prove the assumption of facts made in the notice was erroneous. The Assessee may also prove that no new facts came to the knowledge of the ITO after completion of the assessment proceeding. The question of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the Assessing Authority. G. In the case of Sesa Sterlite Ltd Versus ACIT reported in 2019(107) taxman.com.388(Bombay), this Hon'ble High Court held that the Assessing Officer should apply his independent while re­opening assessment. H. The Supreme Court in the case of ACIT v/s Rajesh Jhaveri Brokers (P) Ltd. reported in 2007 (161) Taxman 316 (SC) held in para 16 that the final outcome of the proceeding is not relevant. In order words at the initiation stage what is required is "reason to believe" but not the established fact of escapement of income. At the stage of notice, the only question is whether that was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the A.O. is within the realm of subjective satisfaction. In other words if the A.O. for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to re-open the assessment. I. The Supreme Court in the case of A.L.A Firm v CIT reported in 1991 (55) Taxman 497 (SC) in para no.20, last line held that initiation of reassessment proceeding have to be based on definite material not considered at the time of the original assessment. 20. It is also necessary to refer to the submissions made by Ms Linhares as regards those material facts which according to the Revenue are suppressed by the petitioner and were not subject matter of consideration by the Assessing Authority or the Appellate Authorities including the Tribunal. 20. It is also necessary to refer to the submissions made by Ms Linhares as regards those material facts which according to the Revenue are suppressed by the petitioner and were not subject matter of consideration by the Assessing Authority or the Appellate Authorities including the Tribunal. "I. AMONA UNIT is an amalgamated/reconstructed unit from the existing two dry plants and one wet plant for beneficiation and the limit of 20% old machinery used in the new unit is not applicable to the reconstructed unit u/sec. 10B of the IT Act. The Petitioner claimed that during the period relevant to A.Y. 2003-04 it set up a new unit for processing the iron ore and the old plant and machinery used in this new unit is less than 20% of the total of the plant and machinery. The petitioner claimed 10B benefit for the A.Y. 2009-10 for the first time for the Amona EOU unit and claimed that assessment year 2003-04 was the initial assessment years for this EOU unit The most important material fact that Amana unit is a amalgamated/reconstructed unit from the existing two dry plants and one wet for beneficiation was suppressed by the petitioner before Authorities. During the course of survey u/s 133A conducted on 20.03.2014, the impounded material marked as BB-28 is M/s. Sesa Goa Ltd., capital Expenditure Proposal proves that most of the Amana Plant 2 structures needed replacement due to corrosion & instead of replacing the structures of the existing plant, it was amalgamated into one plant. This fact was suppressed by the petitioner before the authorities. II. The physical inspection of the Amana Unit after the date of survey by the JCIT, Range-1 and Range-2 along with AGM of the petitioner Mr. Benecio, revealed that the earlier two dry plants and one wet plant is amalgamated as one unit. III. The depreciation chart flied by the petitioner for the A.Y. 2003-04 along with return of income mentions the cost of amalgamation of Amona unit. The depreciation chart filed by the petitioner along with return of income is evidence beyond doubt about the amalgamation of the above three units as one unit. As per the depreciation chart filed by the petitioner, the amalgamation of Amona plants is completed in November 2002 cost of amalgamation is shown at Rs.3,94,30,906/- in the depreciation chart. The depreciation chart filed by the petitioner along with return of income is evidence beyond doubt about the amalgamation of the above three units as one unit. As per the depreciation chart filed by the petitioner, the amalgamation of Amona plants is completed in November 2002 cost of amalgamation is shown at Rs.3,94,30,906/- in the depreciation chart. The petitioner claimed during the assessment proceedings that the new unit has come into existence in November 2002 and it suppressed the fact that the unit is amalgamated unit. The cost claimed by the petitioner towards amalgamation tallies with the proposal copy for F.Y. 2002-03 which was impounded during the course of survey. IV. The Bills raised by the various fabricators also mention that fact that amalgamation of the unit had taken place. V. Letter dated 12.05.2014 was issued to the petitioner requesting the petitioner to file the details of amalgamation of the existing two dry plants and one wet plant as one unit and the minutes of the Board meeting related to approvals granted for capital expenditure proposals for the F.Y. 2002-03 relevant to A.Y. 2003-04. However, the petitioner did not reply to this letter. The petitioner has not denied the fact of amalgamation of the three unit as one unit as per the capital expenditure proposal for the F.Y. 2002-03. The Amalgamation of the existing two dry plants and one wet plant as single unit is a clear case of reconstruction of the already in existence as per provision of section 10B(2)(ii) of the I.T. Act, 1961. Section 10B is not applicable to reconstructed units. Further, the permissible limits of use of the 20% of the machinery in the new unit is not applicable to a reconstructed unit. The explanation under section 10B(2) viz use of 20% old machinery in the new unit of 20% old machinery in the new unit as provided u/s 801 (2) is applicable only to unit mentioned under clause (iii) of sec. 10B(2). This is not applicable to the reconstructed units as mentioned u/s 10B(2)(ii). Therefore, on account of suppression of material facts by the petitioner, the income escaped assessment. Without prejudice to the above, even if the amalgamated Amona Unit is treated as a New Unit, the old machinery used in the new unit exceeds the prescribed limit of 20%. 10B(2). This is not applicable to the reconstructed units as mentioned u/s 10B(2)(ii). Therefore, on account of suppression of material facts by the petitioner, the income escaped assessment. Without prejudice to the above, even if the amalgamated Amona Unit is treated as a New Unit, the old machinery used in the new unit exceeds the prescribed limit of 20%. During the year under consideration, the petitioner claimed capital expenditure under the head amalgamation of Amona plants at Rs.3,9430,906/-. The petitioner furnished wrong details to the CIT(A) & Tribunal that during the year under consideration it has purchased/fabricated new log washer classifier and Hydro cyclones for the new unit. In fact, these machineries related to the old existing wet plant and these are modified by the petitioner and claimed as new machineries. The statements recorded from fabricators post survey enquiries confirmed these facts. These facts are suppressed by the petitioner during the course of assessment proceedings/appellate proceedings which are noticed during the post survey enquiries and statements recorded from the Further, the petitioner also did not consider the old machineries of Generators, control panels and electrical substation in the above value though the same are used. In the new unit, petitioner has not denied the use of these old machineries in the new unit. During assessment year 2003-04, the petitioner purchased only one machinery viz. Banana screen from Schenck Australia Pvt. Ltd. costing Rs.51,51,434/-. The remaining capital expenditure classified under the head amalgamation relates to cost of removal of old machineries of all the three existing units and re-installation of these machineries and modification of the existing machinery by amalgamating the same as single unit as per the new layout. The cost incurred for removal of old machineries and reinstallation of the same and cost incurred on modification of existing machinery cannot be treated as part of the new plant and machinery in computing the 20% permissible value for the use of old machineries in the new unit for the purpose of sec.10B. In the CIT(A)'s order page 41, the petitioner admitted modification of the existing machineries of Apron Feeder, Vibrating grizzly, Primary Jaw crusher, Conveyor belts, Dust Suppression system etc., which are the basic machineries of the unit. The respondents vide letter dated 12.05.2014 requested the petitioner to furnish the name and address of the parties who fabricated the new machineries & who have modified the existing machineries. The respondents vide letter dated 12.05.2014 requested the petitioner to furnish the name and address of the parties who fabricated the new machineries & who have modified the existing machineries. The petitioner did not reply to the above letter. The new machinery introduced during the year under consideration is only Rs.51,51,434/- out of Rs.3.94 crores and the balance amount is used for removal of old machineries and reinstallation of the same as per the new layout for amalgamation purpose and part of the amount is used in modification of the existing machinery and therefore the balance amount incurred on the amalgamation cannot be treated as new machinery. The old machinery used in the new unit in terms original value is Rs.95,29,341/- and WDV value is Rs.26,17,71/- excluding the original WDV values of log washer, Classifier and Hydro Cyclones which are yet to be furnished by the petitioner. Thus, it is clear that the old machinery used is more then 20% of the new unit. Out of the 11 machineries above, the introduction of one new machinery to the old unit does not result into a new unit. Therefore, the petitioner is not eligible for Section 10B claim for Amana Unit. CHITRADURGA UNIT The petitioner claimed 10B benefit for the A.Y. 2009-10 for the first time for the Chitradurga EOU unit and it claimed that assessment year 2006-07, the petitioner set up a new unit at Chitradurga. During the course of the survey and post survey inquires it was noticed that the petitioner purchased "Dust suppression plant" and added the same to the old unit and no new unit has come into existence. The petitioner submitted that old machinery used is only Rs.6,93,596/- in the new unit as against the investment of Rs.94,84,633/- made during the initial assessment year and therefore it is a new unit. The petitioner submitted that old machinery used is only Rs.6,93,596/- in the new unit as against the investment of Rs.94,84,633/- made during the initial assessment year and therefore it is a new unit. The ITAT in page 159 of its Order dated 08.03.2013 held that "otherwise also we have noted that the value of the existing plant was much below the threshold of 20% required for substantial investment for setting up of a new unit for the purpose of section 10B" However, during the course of survey conducted on 20.03.2014, it was noticed that the petitioner suppressed material fact relating to the use of the old plant & machinery in the new unit and suppressed the taking of the values of several old machineries in the above value which resulted into the above decision. No new machinery purchased during the year relevant to A.Y. 2006-07 other then the Dust Suppression Machine/plant costing Rs.54,69,839/-. All other machineries which are essential for running the unit were used by the petitioner in the A.Y 2006-07 & also in subsequent assessment years. These machineries were neither scrapped nor sold as claimed by the petitioner before the ITAT, mere addition of the "Dust Suppression Plant" to the old unit does not result into new unit. The old machinery used in the Chitradurga unit is less than 20% of the total value of plant & machinery of the new unit. In view of the suppression of material facts by the petitioner the ITAT concluded that Amona & Chitradurga are new units. The findings of survey conducted on 20.03.2014 revealed that the share of the old plant & machinery transferred from old undertaking to new plant & machinery is very much higher that 20%. Thus there was violation of clauses 10B(2) and Explanation 2 to section 801A(3)(iii). The assessment for A.Y 2009-10 was sought to be re-opened for the base year i.e. 1st year of claiming deduction u/sec.10B on profit & gain on such undertakings which is reconstructed and set up from old plants & machinery." CONSIDERATIONS: 21. Heard learned Counsel. We have perused the memo of the petition, the pleadings and the annexures on record. 22. The assessment for A.Y 2009-10 was sought to be re-opened for the base year i.e. 1st year of claiming deduction u/sec.10B on profit & gain on such undertakings which is reconstructed and set up from old plants & machinery." CONSIDERATIONS: 21. Heard learned Counsel. We have perused the memo of the petition, the pleadings and the annexures on record. 22. The claim is that the petitioner is eligible for deduction under Section 10B as it is engaged in the business of manufacture and production of iron ore from its units situated at Amana, Chitradurga and Codli which are export oriented undertakings and the profits derived from them are eligible for a deduction under Section 10B. Section 10B(l) reads thus: 10B(1). Subject to the provisions of this section, a deduction of such profits and gains as are derived by a hundred per cent. export-oriented undertaking from the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce articles or things or computer software, as the case may be, shall be allowed from the total income of the assessee. 23. Section 10B(2) provides that Section 10B applies to any undertaking which fulfils all the conditions therein. Suffice it to observe that the petitioner filed its return of income after claiming a deduction under Section 10B in respect of the aforesaid three units. A survey under Section 133A was carried out at the petitioner's premises in connection with the claim for deduction under Section 10B. The assessment order under Section 143(3) was finalised by respondent no.1 on 30.12.2011 whereunder the petitioner's claim for deduction under Section 10B was disallowed in its entirety for the reasons given by the Assessing Officer in para 6 of the order. According to the Assessing Officer, the petitioner's units were not engaged in the business of manufacture and production of any article or thing. He further held that the petitioner had not produced satisfactory evidence with regard to the date of commencement of production. He also held that the approval granted by the Development Commissioner for the Codli unit is not ratified by the Board. He further held that the petitioner had not produced satisfactory evidence with regard to the date of commencement of production. He also held that the approval granted by the Development Commissioner for the Codli unit is not ratified by the Board. Another reason given was that the profits of the units was determined without taking into consideration the cost of the wastage from other Units which was utilised in the alleged production that was carried out in the unit under reference. He also held that the units at Amona and Chitradurga were not new units and the setting up of the Units in the old mines which were operated by the petitioner cannot be regarded as new units. He further held that the petitioner had not maintained separate books of accounts for the EOU unit. 24. The CIT(A) passed an order under Section 263 seeking to revise the assessment originally framed for the assessment year 2009-10 and directed the Assessing Officer to consider the report flied by the SFIO and submissions of the petitioner thereon. The CIT(A) felt that the petitioner was under invoicing its exports. After considering the response of the petitioner, the CIT(A) passed an order on 31.08.2012 upholding the stand of the Assessing Officer and denying the claim for deduction under Section 10B in its entirety. In the cross-appeals flied by the petitioner as well as Revenue against the order of the CIT(A), the Tribunal passed its order disposing of the cross-appeals on 08.03.2013. Before the order was passed, the members of the Tribunal along with the representative of both partners had physically visited the Unit at Amona to satisfy themselves as to the correctness of the claims. In so far as the claim for deduction under Section 10B is concerned, the same was dealt with by the Tribunal in paragraph 36 onwards of its order. The Tribunal also noticed its earlier order passed in the case of Chowgule & Co. and considered the question whether the issue ought to be referred to a Special Bench. However, after a detailed analysis of the facts prevailing in the case of the petitioner, the Tribunal held that the petitioner was engaged in the business of manufacture and production of iron ore and, hence, the deduction as claimed ought to be allowed. and considered the question whether the issue ought to be referred to a Special Bench. However, after a detailed analysis of the facts prevailing in the case of the petitioner, the Tribunal held that the petitioner was engaged in the business of manufacture and production of iron ore and, hence, the deduction as claimed ought to be allowed. The Tribunal also dealt with the other reasons given by the CIT(A) and Assessing Officer whilst rejecting the petitioner's claim and found no merit in the same specifically as regards the allegation of the units at Amana and Chitradurga being the old units. 25. The Revenue filed a Tax Appeal before this Court against the order of the CIT(A). This Court admitted the appeal filed by the Revenue against the order of the Tribunal. On 28.03.2013, respondent no.1 passed an order under Section 143(3) pursuant to the order under Section 263 and accepted that having regard to the supplementary report submitted by SFIO there was no allegation that the petitioner was under invoicing its exports. 26. In the course of the survey conducted on 20.03.2014 under Section 143A, further information was obtained by respondent no.1 which demonstrated that the claim for deduction under Section 10B was not in accordance with law. These new materials were placed before this Court by the Revenue by way of Miscellaneous Applications. This Court on 01.04.2014 passed an order stating that the same will be considered at the time of the hearing of the appeal. The impugned notice under Section 148 was issued under Section 16.01.2014. 27. Miscellaneous Application was filed before the Tribunal by the Revenue on 21.08.2014 purporting to utilise the information gathered in the course of the second survey and alleging that there was a mistake apparent on record in the order of the Tribunal. Respondent no.1 vide communication dated 31.12.2014 furnished reasons recorded prior to the issuance of the notice indicating the escapement of income. The Tribunal dismissed the Miscellaneous Applications filed and even this Court in the Tax Appeal filed by the Revenue passed an order that the applications will be considered at the time of the final hearing. Thus the claim of the Revenue about the new materials found during the fresh survey conducted pursuant to the passing of the assessment order was placed before the Tribunal as well as this Court. 28. Thus the claim of the Revenue about the new materials found during the fresh survey conducted pursuant to the passing of the assessment order was placed before the Tribunal as well as this Court. 28. It is in these facts that the rival claims which fall for our determination need to be considered. Shri Pardiwala, learned Senior Advocate relied on the third proviso of Section 147 to support his submissions. Section 147 reads thus: 147. If any income chargeable to tax, in the case of an assessee, has escaped assessment for any assessment year, the Assessing Officer may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for such assessment year (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year). Provided that where an assessment under sub­ section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year: Provided also that the Assessing Officer "may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. (emphasis supplied) 29. It is important to bear in mind that the Assessing Officer had disallowed the benefit to the petitioner under Section 10B on the ground that the processing of iron ore does not amount to the manufacture within the meaning of Section 10B and also the Amona and Chitradurga units are not new units. (emphasis supplied) 29. It is important to bear in mind that the Assessing Officer had disallowed the benefit to the petitioner under Section 10B on the ground that the processing of iron ore does not amount to the manufacture within the meaning of Section 10B and also the Amona and Chitradurga units are not new units. The Assessment order was passed after a proper survey was conducted. The order passed by the CIT(A) was the subject matter of challenge before the Tribunal. The Tribunal held in favour of the petitioner. This Court admitted the Tax Appeal filed by the Revenue on limited grounds. It was at this stage that a fresh survey was conducted during the course of which the Revenue claims to have found new materials allegedly suppressed by the petitioner which justifies the action of the Revenue in reopening the assessment. It is the stand of the Revenue that these new materials found during the survey conducted indicate that there has been material suppression on the part of the petitioner while claiming the benefit under Section 10B of the Income Tax Act. 30. It is in view of the materials which we have referred to hereinbefore which form part of the submissions made by Ms Linhares, learned counsel for the Revenue, that the notice under Section 148 was issued on 16.07.2014 for reassessment of the income and the consequent reasons for opening the reassessment were supplied. The reasons for reassessment essentially are that the deduction under Section 10B was claimed by suppressing material facts which are found during the course of the survey under Section 133A conducted on 20.03.2014 under invoicing of the iron export billing and income earned on account of illegal mining which is to be held as income from other sources. 31. The Assessing Officer before he validly assumes jurisdiction to reassess the income of an assessee has to comply with certain jurisdictional preconditions, the fulfilment of which is mandatory. 31. The Assessing Officer before he validly assumes jurisdiction to reassess the income of an assessee has to comply with certain jurisdictional preconditions, the fulfilment of which is mandatory. These jurisdictional preconditions are: (i) the Assessing Officer must have reason to believe that the income had escaped assessment; (ii) if the re-opening is proposed after a period of four years from the end of the relevant assessment year and the assessment as originally framed was under section 143(3), then, an additional condition should be fulfilled, viz., that the escapement of income was on account of a failure on the part of the assessee to disclose fully and truly all material facts; (iii) the reopening is not based on a change of opinion on the part of the Assessing Officer who issues the notice as compared to the opinion that was formulated in the course of the original assessment proceedings; (iv) a valid sanction of the specified authority to the issuance of the notice has to be obtained; (v) the notice has to be validly issued and served. There are certain other conditions which are required to be fulfilled but the same are not being elucidated here. 32. If any Authority is necessary to demonstrate that these are the jurisdictional conditions, we may refer to the celebrated decisions of the Supreme Court in Calcutta Discount Company Limited V/s. Income-Tax Officer, Companies, 1961(41) ITR 191 and M/s. Indian Oil Corporation V/s. The Income Tax Officer, Central Circle Versus Calcutta and Ors., 1987 AIR SC 1897 33. It is also well settled that the burden is on the Assessing Officer to establish that the aforesaid conditions are fulfilled and that the fulfilment of the conditions has to be established on the basis of reasons recorded in terms of Section 148(2) of the Income Tax Act. 34. We find that the reasons recorded prior to the issuance of the notice as set out herein before proceed on the footing that the reassessment proceedings are initiated on account of three circumstances. The first two circumstances viz. the allegation of under invoicing exports as well as the allegation that the mining activities carried out by the petitioner are illegal came up for consideration in several Writ Petitions some of which were disposed of by this Court by three separate judgments. The first judgment is in the case of Sesa Sterlite Limited and others Vs. the allegation of under invoicing exports as well as the allegation that the mining activities carried out by the petitioner are illegal came up for consideration in several Writ Petitions some of which were disposed of by this Court by three separate judgments. The first judgment is in the case of Sesa Sterlite Limited and others Vs. ACIT, 417 ITR 774. This Court held that the Assessing Officer could never have reason to believe that the income of the assesses therein had escaped assessment on account of the observations made in the third report of Justice M.B. Shah Commission as well as on account of the declaration by the Supreme Court in its judgment dated 21.04.2014 in the case of Goa Foundation Vs. Union of India, WP No.435 of 2012 that the mining activities that were carried out post 2007 after the expiry of the mining leases were illegal. This Court reiterated this view in its subsequent judgment dated 19.01.2024 in the case of Sociadade de Formento Industrial Co. Ltd. Vs. ACIT, WP No.233 of 2015 and judgment dated 26.04.2024 in the case of Balaji Mining and Minerals Private Limited & Ors. Vs. ACIT Circle 1, WP No.262 of 2016. This aspect of the matter has been dealt with from paras 52 to 59 of the judgment. For the same reason, in the present case also, the reopening in so far as this circumstance is concerned is not sustainable in law. So far as the allegation of under invoicing of exports is concerned, we find that by an order dated 30.03.2012, the CIT(A) had passed an order under Section 263 revising the assessment originally framed and directing the Assessing Officer to consider the report filed by the SFIO and submissions of the petitioner thereon. Thereafter, the Assessing Officer has passed an order under Section 143(3) on 20.03.2013 accepting that having regard to the supplementary report furnished by SFIO there was no basis in the allegation that the petitioner was under invoicing its exports. The Assessing Officer has also found that the petitioner has not under invoiced its exports on the basis of the allegations made in the Shah Commission report. This circumstance also is not in support of the Revenue. 35. The Assessing Officer has also found that the petitioner has not under invoiced its exports on the basis of the allegations made in the Shah Commission report. This circumstance also is not in support of the Revenue. 35. Let us now consider the reasons of the Assessing Officer that the petitioner's claim for deduction under Section 10B cannot be countenanced on the basis of the information found in the course of a survey conducted on 20.03.2014. The petitioner had claimed a deduction under Section 10B in the return of income that it had filed on 29.09.2009 in a sum of 451.28 crores in respect of the profits derived from its export oriented undertakings situated at Amona, Chitradurga and Codli. As noted earlier, on the basis of the documents found in the course of a survey conducted on 23.12.2011, respondent No.1 denied the claim of the deduction under Section 10B in its entirety. The said claim was denied on the premise that the units at Amona and Chitradurga were not new units and the setting up of the same by making some investments on plant and machinery would not justify a claim for deduction under Section 10B. The CIT(A) upheld the denial of the claim of deduction under Section 10B by respondent no.1. However, the Tribunal by an order dated 08.03.2013 upheld the claim of the petitioner for deduction under Section 10B. The Tribunal dealt with all the reasons given by the Assessing Officer. The Tribunal, from paragraph 45.11 onwards of its order, specifically dealt with the argument that the units at Amona and Chitradurga were not new units but were merely a reconstruction of the existing units. Thus, it is apparent that the subject matter of appeal both before the CIT(A) as well as before the Tribunal was whether the petitioner was entitled to a deduction under Section 10B as claimed. 36. The question whether the petitioner can claim deduction under Section 10B was decided by the Tribunal. The tax appeal of the Revenue was pending in this Court. The Assessing Officer as well as the CIT(A) had already taken a view that the petitioner is not entitled to deduction under Section 10B. During the pendency of the tax appeal before this Court, a fresh survey was conducted and on the basis of the materials which were found during the survey in 2014. The Assessing Officer as well as the CIT(A) had already taken a view that the petitioner is not entitled to deduction under Section 10B. During the pendency of the tax appeal before this Court, a fresh survey was conducted and on the basis of the materials which were found during the survey in 2014. The re-assessment is sought to be justified for the purpose of denying the claim of the petitioner for deduction under Section 10B. Thus, the reasons of the Assessing Officer in support of his finding may be several but what is relevant is the subject matter of the tax appeal. It is here that according to us the third proviso to Section 147 will spring into effect. The third proviso says that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. 37. Let us examine if the third proviso comes in the way of reassessment. The reassessment proceedings are obviously initiated as the income chargeable to tax has escaped assessment. The claim of the assessee for deduction under Section 10B after the initial survey was negatived by the Assessing Officer as well as the CIT(A). When the fresh survey was conducted during the pendency of the proceedings before this Court, the new materials found by the Assessing Officer were sought to be placed before the Tribunal and this Court. The issue under consideration before the Tribunal as well as this Court was whether the assessee is entitled to claim deduction under Section 10B. Assuming that the reassessment proceedings is allowed to continue on the basis of the new materials during the pendency of the proceedings before the Tribunal and thereafter in this Court, a situation may arise that this Court finds the petitioner is entitled to claim deduction under Section 10B; whereas in the reassessment proceedings, the Assessing Officer on the basis of the new materials may come to a conclusion that the petitioner is not entitled to claim deduction under Section 10B. In our opinion, it is obviously to get over such an anomalous situation that the third proviso to Section 147 is meant to cover. 38. In our opinion, it is obviously to get over such an anomalous situation that the third proviso to Section 147 is meant to cover. 38. It is significant to note that an application was preferred by the Revenue even in this Court during the pendency of the Tax Appeal for considering the new materials on record found during the fresh survey. In fact, Miscellaneous Application was moved before the Tribunal also for bringing these facts on record pursuant to the passing of the order by the Tribunal, which was not entertained. The Miscellaneous Application filed by the Revenue in this Court for bringing the new materials on record was directed to be heard at the time of final hearing. Despite placing all these facts on record, this Court upheld the order of the Tribunal thereby granting the claim of the assessee under Section 10B. It may be that this Court decided the Tax Appeal on the basis of the materials on record without adverting to the new materials which the Revenue claims to have found during the course of the fresh survey conducted in 2014. This Court, though conscious of the new materials and the reassessment proceedings, upheld the order of the Tribunal. The effect of the order passed by this Court in the tax appeal filed by the Revenue is that the assessee's claim for deduction under Section 10B has been upheld. According to us, in such a situation, if the reassessment proceedings are allowed to continue, the same would virtually amount to having an effect of sitting in appeal over the orders passed by this Court as well as the Tribunal. This cannot be countenanced. Though it is the allegation that fresh evidence was unearthed during the course of fresh survey in March 2014, it indicates that the new units were in fact not new units but an amalgamation of the existing units. The exercise really is to rely on these materials in support of the findings earlier recorded by the Assessing Officer which was already subject matter of challenge before the competent forum. 39. In Poonam Builders Vs. ACIT, 162 Taxmann 238, the assessee therein had claimed a deduction under Section 81B(10) which was denied to it in the course of an assessment framed under Section 153A read with 153C of the Act. 39. In Poonam Builders Vs. ACIT, 162 Taxmann 238, the assessee therein had claimed a deduction under Section 81B(10) which was denied to it in the course of an assessment framed under Section 153A read with 153C of the Act. This denial was challenged by the assessee therein before the CIT(A) on two grounds, viz., that such denial could not be done in the course of an assessment framed under section 153A read with section 153C of the Act in the absence of any incriminating material found in the course of the search and, in any event, all the conditions required to be complied with for being entitled to a deduction under Section 81B(10) were fulfilled. The CIT(A) passed an order accepting the first contention and, therefore, did not deal with the second contention. Thereafter, a notice under Section 148 was issued proposing to reassess the assessee's income on the ground that the deduction under Section 81B(10) was wrongly allowed in the original assessment. This Court held that the proviso is a dear bar to the exercise of jurisdiction to reopen where any income which is the subject matter of appeal is alleged to have escaped assessment. This Court held that albeit the CIT(A) has not decided the issue with regard to the entitlement of the assessee to claim a deduction under Section 81B(10), nevertheless, the entitlement of the assessee therein to the deduction was certainly a subject matter of appeal and, accordingly, the reopening could not be sustained. Similar such view has been taken by the Delhi High Court, Gujarat High Court, Kerala High Court, Madras High Court as well as this Court in the following decisions: (i) M/s Alcatel Lucent France & Anr. Vs. Assistant Director of Income-tax, 384 ITR 113; (ii) CIT Vs. Flothern Engineers Private Limited, 45 Taxmann 546; (iii) ICICI Bank Limited Vs. Dy. CIT Circle 3(1), 16 Taxmann 250 (iv) Jhankit Chandulal Prajapati Vs. Dy. CIT Central Circle (1)(2), 106 Taxmann 312; (v) Metro Auto Corporation Vs. ITO, 286 ITR 618; (vi) S.S.Landmarks Vs. ITO, 117 Taxmann 825; (vii) PCIT Vs. Kerala State Electricity Board, 439 ITR 323; and (viii) Yogeshbhai R. Dhanak Vs. ACIT, 41 Taxmann 183. 40. A brief reference to the Tax Appeal filed by the Revenue in this Court challenging the decision of the Tribunal is necessary. As indicated earlier, the Tribunal allowed the claim for deduction under Section 10B. ITO, 117 Taxmann 825; (vii) PCIT Vs. Kerala State Electricity Board, 439 ITR 323; and (viii) Yogeshbhai R. Dhanak Vs. ACIT, 41 Taxmann 183. 40. A brief reference to the Tax Appeal filed by the Revenue in this Court challenging the decision of the Tribunal is necessary. As indicated earlier, the Tribunal allowed the claim for deduction under Section 10B. One of the questions that was raised in the Tax Appeal was whether the deduction was rightly allowed in view of the fact that the units were not new units. This Court in its order admitting the appeal vide order dated 23.09.2013 did not formulate this question. However, this Court in its judgment dated 07.05.2021 has noted the argument of the learned counsel for the Revenue in para 7 as well as in para 17 to the effect that the Amona and Chitradurga units were not new units. The subject matter of Tax Appeal was the entitlement of the petitioner to a claim for deduction under Section 10B of the profits that are derived from its export oriented undertakings situated at Amona, Chitradurga and Codli. It is this claim which was adjudicated by the appellate authorities in the original assessment proceedings. Respondent no.1 wants to reassess this claim by relying on certain additional evidence found in the course of the survey which according to him supports its case that the deduction under Section 10B could not be allowed. According to us, such a course of action cannot be countenanced as it would be in the teeth of the third proviso to Section 147. 41. For the reasons stated above, in our opinion, respondent no.1 has acted wholly without jurisdiction when he has sought to assume jurisdiction to reassess the petitioner's income so as to once again disallow a claim for deduction under Section 10B. 42. Learned Senior Advocate submitted that the petitioner has raised various other grounds to challenge the assumption of jurisdiction. Since we are satisfied that the petition deserves to succeed for the reasons indicated hereinbefore, we have not considered the other grounds raised in the petition to challenge the assumption of jurisdiction. 43. 42. Learned Senior Advocate submitted that the petitioner has raised various other grounds to challenge the assumption of jurisdiction. Since we are satisfied that the petition deserves to succeed for the reasons indicated hereinbefore, we have not considered the other grounds raised in the petition to challenge the assumption of jurisdiction. 43. The petition, therefore, succeeds and is accordingly allowed in terms of prayer clause A. The impugned notice dated 16.07.2014 issued by respondent no.1 under Section 148 of the Act to reopen the assessment for the Assessment Year 2009-10 together with the order dated 06.02.2015 dealing with the petitioner's objections is quashed and set aside. No costs.