JUDGMENT : Bhargav D. Karia, J. 1. Heard learned Senior Advocate Mr.Tushar Hemani with learned advocate Ms.Vaibhavi K. Parikh for the petitioner and learned Senior Standing Counsel Mr.Karan Sanghani for learned advocate Mrs.Kalpana K. Raval for the respondent No.1. 2. Rule, returnable forthwith. Learned Senior Standing Counsel Mr.Karan Sanghani waives service of notice of rule for and on behalf of the respondent No.1. 3. Having regard to the controversy involved in narrow compass, with the consent of the learned advocates appearing for the parties, the matter is taken up for hearing. 4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 28.03.2021 issued under Section 148 of the Income Tax Act, 1961 (for short ‘the Act’) for Assessment Year 2016-17. The reasons recorded by the Assessing Officer to re-opening the assessment are as under : “1. Brief details of the assessee : Assessee filed its return of income for AY 2016-17 on 13.07.2016 declaring total income of Rs.56,54,590/- The case was selected for complete scrutiny under CASS and scrutiny assessment u/s.143(3) dated 30.12.2018 determining total income of Rs.12,13,54,590/- after making the addition of Rs.11,57,00,000/- on account of unsecured loans accepted during the year. 2. Brief details of information collected/ received by the A.O. : On perusal of the Audit Report in Form 3CD, as per Annexure ‘L’ of clause 24(a), it is seen that the assessee company had accepted unsecured loan during the year from the following parties Sr. No. Name of the lender or depositor Permanent Account Number(if avallable with the assessee) of the lender or the depositor Amount of loan or deposit taken or accepted 1. Anshul Gems Pvt. Ltd. ААНСА6495Р 31,00,000 2. Jai        Shree Exports AAJF18322M 27,00,000 3. Kaushal diamonds AANFK6735F 15,00,000 4. Kumar Export AWNPC6124E 1,21,25,000 5. Kushal Export 30,00,000 6. Look at me retail Pvt. Ltd. AABCL4224B 2,10,00,000 7. Manhar Impex  Pvt. Ltd. AAFCM9840G 78,00,000 8. Osiaji Exports AACF09282A 49,54,500 9. Piyush Exports BLPPR7848G 1,06,00,000 10. Rajen Vasant Dhruv AACPD2513K 2,00,00,000 11. Rama Exports AAQFR3518] 75,00,000 12. Royal Refinery Pvt. Ltd AAFCR7596E 1,90,00,000 13. Uttam   Gems Pvt. Ltd. AABCU5679H 50,00,000 14. Veena Gems 5,00,000 Total 11,87,79,500 3. Analysis of information collected/received : The assessee company was asked co furnish the following details in respect of unsecured loan acceptéd during the year under consideration: (i) Relevant ledger account of the loan givers. Rama Exports AAQFR3518] 75,00,000 12. Royal Refinery Pvt. Ltd AAFCR7596E 1,90,00,000 13. Uttam   Gems Pvt. Ltd. AABCU5679H 50,00,000 14. Veena Gems 5,00,000 Total 11,87,79,500 3. Analysis of information collected/received : The assessee company was asked co furnish the following details in respect of unsecured loan acceptéd during the year under consideration: (i) Relevant ledger account of the loan givers. (ii) Copies of acknowledgement of ITR and computation of income for the year 2016-17 (iii) Copies of relevant pages of bank statements of the said loan givers. (iv) Details of relationship if any between the said givers of loans and the assessee. 2.1 However, it is seen that assessee had not complied with the terms of notice during the course of original assessment proceedings. Thus, it indicates that the assessee has no material in its possession to establish the genuineness and creditworthiness of the lenders. Since the assessee company had failed to explain the source of unsecured loan received during the year, the amount. so received as unsecured loan was required to be disallowed and added back to the total income of the assessee company by invoking the provision of section 68 of the Act. In view of above facts/material available on records and after analyzing the same, I have reason to believe that income of the assessee to the extent of Rs.11,87,79,500/- has escaped assessment for A.Y.2016-17 within the meaning of section 147 of the I.T. Act.” 5.1. The petitioner filed objections to the aforesaid reasons contending inter-alia that during the course of the regular assessment proceedings under Section 143(3) of the Act, the petitioner has made full disclosure of all the material facts. It was contended that the impugned notice under Section 148 of the Act for alleged escapement of income of Rs.11,87,79,500/- is grossly erroneous as the disputed unsecured loans amounting to Rs.11,57,00,000/- has already been added to the total income in the original assessment order passed on 30th December, 2018 and CIT (Appeals) by order dated 10.02.2020 has deleted the entire addition made in the assessment order. It was further contended by the petitioner that the impugned notice is issued only to re-verify and re-examine the matter which was already considered in the original assessment by the then Assessing Officer. 5.2. It was further contended by the petitioner that the impugned notice is issued only to re-verify and re-examine the matter which was already considered in the original assessment by the then Assessing Officer. 5.2. The respondent-Assessing Officer, however, rejected the objections raised by the petitioner by order dated 09.02.2022 on the ground that there is a difference between what was added in the original assessment and what is found to be in escaped income to the tune of Rs.30,79,500/-. 5.3. Being aggrieved, the petitioner has preferred this petition. 6.1. Learned Senior Advocate Mr.Tushar Hemani for the petitioner submitted that the entire issue for re-opening being the unsecured loans was thoroughly scrutinised during the original assessment proceedings. Learned Senior Advocate Mr.Tushar Hemani invited the attention of the Court to the Assessment Order passed under Section 143(3) of the Act to point out that the Assessing Officer has called for the information with regard to the unsecured loans and thereafter, analyzing the details which is forming part of the reasons recorded, made addition of Rs.11,57,00,000/-. It was also pointed out that by notice dated 11.09.2018 issued under Section 142(1) of the Act, the Assessing Officer has called for the details of the genuineness, identity and creditworthiness of all the parties which were provided by the petitioner in respect of each party from whom the petitioner has obtained the unsecured loan. It was therefore submitted that the reasons recorded by the Assessing Officer are nothing but mere change of opinion and the same are based upon the material which was already available on record. It was therefore submitted that the impugned notice is liable to be quashed and set aside. 6.2. Learned Senior Advocate Mr.Tushar Hemani referred to and relied upon the decision in case of Gujarat Enviro Protection and Infrastructure Limited versus Deputy Commissioner of Income Tax rendered on 19th February, 2018 in Special Civil Application No.16163 of 2017 wherein, in similar situation, this Court has quashed the notice for re-opening. 7.1. 6.2. Learned Senior Advocate Mr.Tushar Hemani referred to and relied upon the decision in case of Gujarat Enviro Protection and Infrastructure Limited versus Deputy Commissioner of Income Tax rendered on 19th February, 2018 in Special Civil Application No.16163 of 2017 wherein, in similar situation, this Court has quashed the notice for re-opening. 7.1. On the other hand, learned Senior Standing Counsel Mr.Karan Sanghani for the respondent No.1 submitted that there is difference between the total unsecured loans in the books of accounts of the petitioner and the addition made by the Assessing Officer in the original assessment being the differential amount of Rs.30,79,500/- which was not considered by the Assessing Officer and therefore, it cannot be said that the Assessing Officer had formed an opinion on this amount. It was submitted that no opinion is formed by the Assessing Officer as the assessee did not furnish the details about one of the parties namely Kushal Export from whom the assessee had obtained the loan of Rs.30 Lakhs and therefore, the respondent was justified in having reason to believe that the income has escaped assessment for the year under consideration. 7.2. In support of his submissions, learned Senior Standing Counsel Mr.Karan Sanghani referred to and relied upon the decision of the Hon’ble Supreme Court in case of Income Tax Officer versus Techspan India Private Limited and Another reported in (2018) 404 ITR Page 10 (SC), more particularly paragraph No.12 thereof, which reads as under : “12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re- assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings.” 7.3. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings.” 7.3. Referring to the above observation of the Hon’ble Apex Court, it was submitted that the Assessing Officer was having the jurisdiction to issue the notice as the Assessment Order does not address the aspect of differential amount of the unsecured loans while making the addition in the Assessment Order. 7.4. It was therefore submitted that no interference is required to be made in the impugned notice while exercising the extra- ordinary jurisdiction by the Court. 8. Having heard the learned advocates for the respective parties and considering the facts of the case, it is not in dispute that the Assessing Officer while passing the Assessment Order under Section 143(3) of the Act has specifically called for the information of the unsecured loans. The assessee has furnished the requisite details pertaining to the unsecured loans. On perusal of the Assessment Order, more particularly ground of addition of bogus unsecured loans as narrated by the Assessing Officer reads as under : “6. Ground of Addition: Bogus Unsecured Loans 6.1 From the perusal of the form 3CD it was found that assessee has received unsecured loan worth Rs.11,57,00,000/- during the year under consideration and majority of the loans were squared off during the year. These unsecured loans were allegedly received from a total of 13 parties as mentioned below: Sr. No. Name   of the lender or depositor Address of the lender or depositor Permanent Account Number (if available with            the assessee) of Amount            of loan      or deposit taken    or accepted Squared off? Maximum amount outstanding in            the account at any time during 1. Anshul Gens Prt Ltd. 6/1335, 303, Adinath Apt., Ja AAHCA649 3100000 Yes 3100000 2. Jai        Shree Exports 3-M,    Ambika Darshan, Moti AAJFJ8322 2700000 Yes 2700000 3. Kaushal diamonds 3-M,    Ambica Darshan, Moti AANFK673 1500000 Yes 1500000 4. Kumar Export 103, Sant Krupa App., Haw AWNPC612 12125000 Yes 12125000 5. Kushal Export Surat 3000000 Yes 3000000 6. Look at me Retail Pvt. Ltd. 115, New DTC, Hathfalia, Ha AABCL4224 21000000 Yes 21000000 7. Manhar Impex Pvt. Ltd. 6/1335, Office No.303, 3rd F AAFCM984 7800000 Yes 7800000 8. Kaushal diamonds 3-M,    Ambica Darshan, Moti AANFK673 1500000 Yes 1500000 4. Kumar Export 103, Sant Krupa App., Haw AWNPC612 12125000 Yes 12125000 5. Kushal Export Surat 3000000 Yes 3000000 6. Look at me Retail Pvt. Ltd. 115, New DTC, Hathfalia, Ha AABCL4224 21000000 Yes 21000000 7. Manhar Impex Pvt. Ltd. 6/1335, Office No.303, 3rd F AAFCM984 7800000 Yes 7800000 8. Osiaji Exports 303,     3rd Floor, Nandkishor A AACF0928 4954500 Yes 4954500 9. Piyush Exports 103,     Sant Krupa Appt., Haw BLPPR7848 10600000 Yes 10600000 10. Rajen Vasant Dhruv Flat No.901,Vastu Pali, Aer AACPD2513 20000000 No 20000000 11. Rama Exports 104, Jai Shree Harikrishna C AAQFR351 7500000 Yes 7500000 12. Royal Refinery Pvt. Ltd. 3-E, Trishla Premises Co-op AAFCR7596 19000000 Yes 19000000 13. Uttam Gems Pvt. Ltd. Office no.15, Upper Ground AABCU567 5000000 Yes 5000000 14. Veena Gems Surat 500000 Yes 500000 6.2 On yet further examination of the details filed, in this respect, it was noticed that out of the 14 alleged lenders, PAN number for two entities are hot even quoted in the report. Further, except in one case of Shri Rajen Vasant Dhruv in all other cases loans are squared off by the end of the year. Further from the addresses mentioned it is seen that there are multiple entities operating from same office address. In case of M/S Kushal Export and M/S Veena Gems no addresses are given in the report. Further, no interest is charged by these parties. Assesse has received interest free loans from these parties.” 9. From the above details, it is clear that the contention of learned Senior Standing Counsel Mr.Karan Sanghani that the re-opening is made for details of unsecured loans obtained by the petitioner in respect from Kushal Export for Rs.30 Lakhs is not tenable as the said party and the amount is duly reflected in the above details which comprises of total of Rs.11,57,00,000/- which is already added during the course of the original assessment proceedings. 10. Therefore, merely because there is a difference between the amount of unsecured loans in the books of the account of the petitioner and the addition made by the Assessing Officer in the original assessment, it cannot be said that the income has escaped assessment as the Assessing Officer while framing the assessment has considered the entire issue during the course of the assessment. The reliance placed by the learned Senior Standing Counsel Mr.Karan Sanghani on the decision in case of Income Tax Officer versus Techspan India Private Limited and Another is also not applicable in the facts of the case as the issue of unsecured loans was considered by the Assessing Officer during the course of regular assessment proceedings, more over, on perusal of the reasons recorded, it is clear that the contention raised by the learned advocate for the respondent is not found to be mentioned in the reasons recorded because as per the reasons recorded, entire amount of Rs.11,87,79,500/- is presumed to be the income which has escaped the assessment. 11. From the above facts, it is clear that there is a mere change of opinion on part of the respondent while issuing the impugned notice under Section 148 of the Act. 12. Considering the above facts, we are of the opinion that the respondent could not have assumed the jurisdiction to issue the impugned notice under Section 148 of the Act. It is also pertinent to note that the addition made during the regular course of assessment was challenged before the Commissioner (Appeals) by the petitioner who has allowed the appeal of the assessee and therefore, the issue of unsecured loans based upon which the impugned notice is issued has already merged into the order of the appellate authority. 13. In view of the above foregoing reasons, the petition succeeds and accordingly, allowed. The impugned notice issued under Section 148 of the Act is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No orders as to cost.