JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice under section 148 of the Income Tax Act, 1961 (For short “the Act”) dated 04.05.2020 issued by the respondent for the Assessment Year 2015- 2016. 3. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondent. 4. Having regard to the controversy involved which is in narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing. 5. Brief facts of the case are that the petitioner which is a partnership firm is engaged in the business of stone quarry and filed return of income for the year under consideration on 18.09.2015 declaring total income at Rs. 82,14,560/-. 5.1 The survey action under section 133A of the Act was carried out on 09.02.2016 and certain material was impounded as per which, total cash sale for the year under consideration was brought out at Rs. 2,16,15,655/- against which, cash sale reflected in the books aggregated to Rs. 1,37,21,441/-. 5.2 The petitioner therefore made disclosure of the difference between the total cash sales and the cash sales reflected in the books of Rs. 78,94,214/- (Rs.2,16,15,655-Rs.1,37,21,441) in respect of unaccounted cash sales. The petitioner thereafter filed revised return of income on 27.03.2016 declaring total income at Rs. 1,61,08,860/- including the disclosure of Rs. 78,94,214/-. 5.3 Thereafter the case of the petitioner was selected for scrutiny. Notice under section 142(1) of the Act dated 12.12.2017 was issued calling upon the petitioner to furnish various details and information including the details as to how the transactions appearing in the impounded documents have been reflected in the books of accounts and complete details and comments in respect of each and every paper impounded during survey proceedings. 5.4 The petitioner, by letter dated 26.12.2017, gave detailed explanation in relation to disclosure of Rs. 78.94 lakh made during the survey in respect of unaccounted cash sales and also furnished copy of revised return of income as well as computation of income evidencing the fact, such disclosure has been offered as income. 5.4 The petitioner, by letter dated 26.12.2017, gave detailed explanation in relation to disclosure of Rs. 78.94 lakh made during the survey in respect of unaccounted cash sales and also furnished copy of revised return of income as well as computation of income evidencing the fact, such disclosure has been offered as income. 5.5 The Assessing Officer thereafter, during the course of hearing on 26.12.2017, called upon the petitioner to furnish explanation in relation to totaling error in impounded material which was provided by the petitioner vide letter dated 27.12.2017. It was contended by the petitioner that the figures reflected in the impounded material vis- a-vis unaccounted sales are duly disclosed. The petitioner also brought on record certain facts in relation to events which occurred during the course of survey and the manner, in which, the disclosure was made. 5.6 The Assessing Officer after considering the reply of the petitioner, framed the assessment vide order dated 29.12.2017 under section 143(3) of the Act without making any addition and accepting the disclosure of unaccounted cash sales. 5.7 The petitioner thereafter received the impugned notice dated 04.05.2020 under section 148 of the Act seeking to reopen the case for the year under consideration. The petitioner in response to the impugned notice, filed return of income on 04.06.2020 and further requested the respondent to supply copy of reasons recorded for reopening. 5.8 The respondent supplied the copy of reasons for reopening vide letter dated 17.06.2020 which reveals that case of the petitioner has been reopened merely on the count that the certain cash sales remained to be considered during the course of survey proceedings as well as the assessment proceedings, as during the course of assessment proceedings for the subsequent year i.e. the assessment year 2016-17 it came to the notice that there was some error in computing unaccounted sales based on the impounded material and hence, certain cash sales remained to be considered during survey proceedings which in turn, were considered at the assessment stage as well as addition was made in respect of the same. On the basis of such discrepancy for A.Y. 2016-17, material impounded during the survey relevant to the year under consideration was considered and it was found that total cash sales for the year under consideration as per the impounded material was Rs. 2,41,26,875/- as against which, cash sales of Rs. On the basis of such discrepancy for A.Y. 2016-17, material impounded during the survey relevant to the year under consideration was considered and it was found that total cash sales for the year under consideration as per the impounded material was Rs. 2,41,26,875/- as against which, cash sales of Rs. 2,16,15,655/- only was considered during the survey proceedings as well as assessment proceedings due to the totaling error and accordingly, in account, cash sales of Rs. 25,11,220/- was considered as the income which has escaped assessment for the year under consideration. 5.9 The petitioner by letter dated 09.10.2020 raised objections against the reopening with a request to drop the proceedings. 5.10 The respondent, by notice dated 29.12.2021, provided copy of order disposing of the objections wherein it was held that reopening is justified. Being aggrieved, the petitioner has preferred this petition challenging the impugned notice under section 148 of the Act. 6. Learned Senior Advocate Mr. Hemani for the petitioner submitted that the impugned notice dated 04.05.2020 is issued beyond the period of four years and there is no failure on the part of the petitioner to make full and true disclosure of all material facts relevant for the assessment. It was submitted that during the course of the regular assessment proceedings, the information which is relied upon by the respondent for issuance of the impugned notice as reflected in the reasons recorded were considered by issuing notices dated 12.12.2017 and 26.12.2017 which were replied by the petitioner giving explanation as to the computation of undisclosed income declared as income in the revised return of income. 6.1 It was further submitted that the petitioner also by letter dated 27.12.2017 provided explanation for the error in computation in the unaccounted cash sales as per the impounded documents during the course of survey under section 133A of the Act. 6.2 It was therefore submitted that no new tangible material has come in possession for the respondent after framing of the assessment and the respondent has merely relied upon the material already available on record for reopening the case of the petitioner which is not permissible in the eye of law as it would amount to change of opinion. 6.2 It was therefore submitted that no new tangible material has come in possession for the respondent after framing of the assessment and the respondent has merely relied upon the material already available on record for reopening the case of the petitioner which is not permissible in the eye of law as it would amount to change of opinion. 6.3 It was therefore, submitted that the respondent cannot take any action under section 147 of the Act merely because he happens to change his opinion or hold an opinion different from that of his predecessor on the same set of facts. 6.4 Learned Senior Advocate Mr. Hemani further submitted that the issue has already been scrutinized at the original assessment stage and therefore, the respondent cannot resort to reopening merely to examine another facet of the very same claim. It was pointed out that the Assessing Officer had duly examined the issue on hand at the original assessment stage. It was therefore, submitted that the respondent is now looking forward to examine very same issue from another facet which is not permissible in the eye of law and the impugned notice is liable to be quashed and set aside. 6.5 It was submitted that even on merits, the proposed addition is not justified in view of the explanation given by the petitioner in the objections filed against the reopening as the respondent has not commented anything adverse in relation to such objection while passing order disposing of the objections. It was submitted that the reopening is based upon the audit objection and it is a settled law that the reopening based on the audit objection is not permissible in the eye of law. 7. On the other hand, learned Senior Standing Counsel Mr Karan Sanghani for the respondent submitted that the impugned notice under section 148 of the Act is issued on the basis of the information found in the impounded documents during the course of survey under section 133A of the Act for A.Y. 2015-16 after getting the approval from the competent authority. It was submitted that the case of the petitioner is reopened within a period of four years from the end of the assessment year after taking approval from the competent authority as per section 151 of the Act. It was submitted that the case of the petitioner is reopened within a period of four years from the end of the assessment year after taking approval from the competent authority as per section 151 of the Act. It was submitted that the impugned notice was issued on 04.05.2020 within the extended period in view of the Covid-19 as per TOLA-2020 and the petitioner has furnished the return on 04.06.2020 and consequently, the notice was also issued under section 143(2) of the Act on 24.09.2020 and thereafter, case of the petitioner was centralized and notice under section 129 of the Act was issued. It was therefore submitted that there was a proper sanction under section 151 of the Act within a period of four years. 7.1 Learned Senior Standing Counsel Mr. Sanghani submitted that even if the reopening is considered to be beyond the period of four years, then the contention that the petitioner has disclosed fully and truly all material facts necessary for assessment is also not correct. It was submitted that the petitioner has not disclosed complete figures of unaccounted cash sales and unaccounted income to the Assessing Officer during the course of assessment proceedings and such failure on the part of the petitioner in disclosing the correct figure of the unaccounted sale/income resulted into under assessment for which, the notice under section 148 of the Act was issued. 7.2 It was submitted that on perusal of the reasons recorded it is clear that during the assessment proceedings for subsequent year i.e. 2016-17 when impounded material was verified, it came to light that total cash sales of the assessee for the period A.Y. 2016-17 was Rs. 4,78,32,480/- as against Rs. 4,52,47,956/- resulting into under assessment of Rs. 25,84,524/-. 7.3 In order to check the correctness of the figure of cash sales declared by the assessee, the impounded material for A.Y. 2015-16 was also verified and for the A.Y. 2015-16 correct figure of cash sales was Rs. 2,41,26,875/- as against the figure considered in the assessment year of Rs. 2,16,15,655/- resulting into under assessment of Rs. 25,11,220/-. 25,84,524/-. 7.3 In order to check the correctness of the figure of cash sales declared by the assessee, the impounded material for A.Y. 2015-16 was also verified and for the A.Y. 2015-16 correct figure of cash sales was Rs. 2,41,26,875/- as against the figure considered in the assessment year of Rs. 2,16,15,655/- resulting into under assessment of Rs. 25,11,220/-. 7.4 It was therefore submitted that there was material failure on the part of the petitioner in disclosing the true and full facts to the Assessing Officer at the time of assessment as also in considering the correct figure of cash sales in revised return of income filed after disclosure made in the survey proceedings. 7.5 It was therefore submitted that no interference may be made while exercising extraordinary jurisdiction under Article 226 of the Constitution of India in view of the subsequent information made available to the Assessing Officer on verification of the impounded material for the year under consideration. 7.6 It was also therefore pointed out that there is no change of opinion as alleged by the petitioner as the reopening is based on the material failure on the part of the assessee to disclose truly and fully material facts to the Assessing Officer in view of the error of totaling made for unaccounted cash sale on the basis of the impounded material. 8. Considering the submissions made by both the learned advocates for the parties, it appears that the Assessing Officer has issued the impugned notice for reopening by recording the reasons as under: “1.The assessee is engaged in the business of stone quarry at Village- Alipore, Vansda Road, Taluka: Chikhli, District-Navsari. The assessee filed its return of income for A.Y. 2015-16 on 18.09.2015 declaring total income at Rs.82,14,560/-. The return of income was revised on 27.03.2016 declaring total income at Rs. 1,61,08,860/- thereby including the unaccounted income of Rs. 78,94,214/-disclosed during the course of survey action carried out on 09.02.2016 u/s. 133A of the Act. The case was selected for scrutiny and order u/s 143(3) of the Act was passed on 29.12.2017 after making addition of Rs.1,59,15,085/-on account of carting expenses paid to persons covered u/.40A(2)(b) of the Act and of Rs.99,63,517/-on account of disallowance of claim of additional depreciation. 2. During the course of assessment proceedings for A.Y. 2016-17, materials Impounded during the survey action were verified. 2. During the course of assessment proceedings for A.Y. 2016-17, materials Impounded during the survey action were verified. On verification, it came to notice that the total cash sales of the assessee for the year under consideration was at Rs. 4,78,32,480/-as against cash sales considered in the assessment order for A.Y.2016-17 at Rs. 4,52,47,956/-. Therefore, additional income to the tune of Rs. 25,84,524/- on account of unaccounted cash sales remained to be considered at the time of survey proceedings which was added to the total income of the assessee in the assessment order for A.Y. 2016-17. 3. On the basis of discrepancy noticed for the previous year relevant year A.Y. 2016-17, the impounded material relevant to F.Y. 2014-15 were also verified. On verification, of the impounded material contained in BF-1 to BF-14 and BF-15, for the year under reference, the total cash sale was worked out at Rs. 2,41,26,875/. During the course of Survey Action, the total cash sales for the F.Y 2014-15 as per impounded materials was computed at 2,16,15,655/- as against cash sales of Rs. 2,41,26,875/- due to totaling error. In its Books of account, the assessee had accounted total cash sales for the F.Y.2014-15 at Rs. 1,37,21,441/-. Accordingly, while recording the statement, disclosure on account of unaccounted cash sales were made to tune of Rs.78,94,214/- by the assessee and were offered in the revised income tax return filed on 27.03.2016. 4. In the assessment order for A.Y.2015-16, the cash sales were considered at Rs. 2,16,15,655/-only. Accordingly, cash sales to the tune of Rs. 25,11,220/- remained to considered at the time of survey proceedings as well as in the assessment order passed u/s. 143(3) of the Act. Thus the unaccounted cash sale to the tune of Rs. 25,11,220/-(2,41,26,875- 2,16,15,655) has escaped assessment in the hands of assessee within the meaning of section 147 of the IT Act. I am satisfied that the case of the assessee is a fit case or invoking the provisions of section 147 of the Income tax Act and issue of notice under section 148 of the Income Tax Act.” 9. On perusal of the above reasons, it is apparent that the reopening is made only on the basis of the discrepancy noticed from the impounded material relevant to the year under consideration. On perusal of the above reasons, it is apparent that the reopening is made only on the basis of the discrepancy noticed from the impounded material relevant to the year under consideration. However, from the material placed on record it is not in dispute that the Assessing Officer during the course of the regular assessment has verified the very same impounded material and issued the notice under section 142 (1) of the Act dated 12.12.2017 calling upon the petitioner to show as to how the transaction appearing in the impounded documents have been reflected in the books of accounts and thereafter, during the course of the assessment proceedings on 26.12.2017, further details was also called for with regard to the impounded material found during the course of survey which took place on 09.02.2016 relevant to Assessment Year 2016-17 explaining in detail regarding total difference in sum total in day wise and amount as mentioned at page No. 60 of BF-15. 10. Hence, during the course of regular assessment, the very issue of totaling difference in the impounded material was considered. Therefore, it cannot be said that the impugned notice is issued on the basis of any new tangible material having live nexus with the escaped income. The Assessing Officer during the course of the regular assessment was having access to the impounded material and once the same is processed by accepting revised return filed by the petitioner subsequently, on the same issue, impugned notice for reopening is not tenable as it would amount that to change of opinion on the part of the respondent Assessing Officer. 11. It is also pertinent to note that the impugned notice is issued beyond the period of four years on 04.05.2020 and therefore, there is no failure on part of the petitioner to make fully and true disclosure of all material facts as the petitioner has made disclosure of Rs. 78.94 Lakhs on the basis of the impounded material and later on, when the respondent has found that there was a total difference of the impounded material, the same cannot be considered as failure on the part of the petitioner to make full and true disclosure. The Assessing Officer during the course of the regular assessment has accepted the revised return filed by the petitioner disclosing the unaccounted cash sales of Rs. The Assessing Officer during the course of the regular assessment has accepted the revised return filed by the petitioner disclosing the unaccounted cash sales of Rs. 78.94 Lakhs and while framing the assessment under section 143(3) of the Act. 12. The Hon’ble Apex Court in case of Commissioner of Income tax v. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC) in such circumstances has held as under: “2. A short question which arises for determination in this batch of civil appeals is, whether the concept of "change of opinion" stands obliterated with effect from 1st April, 1989, i.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987? xxxxxxxx 6. …………prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider, However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer…..” 13. Therefore as held by the Hon’ble Apex Court in case of Kelvinator(supra) impugned notice is not sustainable. 14. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer…..” 13. Therefore as held by the Hon’ble Apex Court in case of Kelvinator(supra) impugned notice is not sustainable. 14. In view of the above dictum of law, the impugned notice dated 04.05.2020 issued under section 148 of the Act is hereby quashed and set aside and consequent order disposing of the objection is also quashed. Rule is made absolute to the aforesaid extent. No order as to costs.