JUDGMENT : (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr.Manish J.Shah for the petitioner and learned Senior Standing Counsel Mr.Karan Sanghani for Mrs.Kalpana K.Raval for the respondent. 2. Rule returnable forthwith. Learned Senior Standing Counsel Mr.Karan Sanghani waives service of notice of rule for the respondent. 3. Having regard to the controversy in narrow compass, with the consent of learned advocates for the respective 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 27.03.2021, issued under Section 148 of the Income Tax Act, 1961 (for short “the Act”) for reopening of the Assessment for the year 2014-15. 5. The brief facts of the case are that for the Assessment Year 2014-15, the petitioner submitted the return of income on 24.11.2014 computing total income at Rupees NIL. 5.1. The case of the petitioner was selected for scrutiny assessment and notice dated 28.08.2015 under Section 143 of the Act followed by notice dated 08.04.2016 under Section 142(1) of the Act were issued requiring the petitioner to furnish various details stated therein. 5.2. The petitioner was specifically asked to furnish the detailed working of deduction claimed under Chapter VI-A along with justification thereof. 5.3. The petitioner by letter dated 04.05.2016, provided the details called for and after consideration thereof, the Assessing Officer passed an Assessment Order under Section 143(3) of the Act on 13.05.2016. 5.4. The respondent issued a notice under Section 148 of the Act on 27.03.2021 for the year under consideration on the ground that the income has escaped assessment and asked the petitioner to file return. 5.5. In response to the said notice, the petitioner filed return of income on 23.04.2021. 5.6. The respondent provided the reasons recorded for reopening of the assessment along with notice under Section 143(2) of the Act dated 21.05.2021, which reads as under: “2. This Office is in possession of the information from the records available with the Office along with the material. On perusal of the available records it is seen that the assessee had offered income of Rs. Nil after claiming deduction u/s.80P(2) amounting to Rs.24,51,945/- which includes Rs.7,77,224/- earned as Cooperative Bank FD interest and the same was allowed during assessment. This Office is in possession of the information from the records available with the Office along with the material. On perusal of the available records it is seen that the assessee had offered income of Rs. Nil after claiming deduction u/s.80P(2) amounting to Rs.24,51,945/- which includes Rs.7,77,224/- earned as Cooperative Bank FD interest and the same was allowed during assessment. However, on going through the computation of income, it was noticed that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s.80P(2)(d) which was irregular. This has resulted into underassessment of income of Rs. 7,77,224/-. 3. On verification of the available records, it is seen that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s.80P(2)(d) which was irregular. This has resulted into underassessment of income of Rs.7,77,224/-. 4. A perusal and analysis of the information collected /material availableshows that income has escaped assessment and there is no need for further enquiries u/s. 133(6) to establish the same. 5. On perusal of the available records, it is seen that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s.80P(2)(d) which was irregular. This has resulted into underassessment of income of Rs.7,77,224/-.” 6. On the basis of the facts of the case records available with this Office and from the above information, it is prima facie concluded that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s 80P(2) (d) which was irregular. This has resulted into underassessment of income of Rs.7,77,224/-.” 5.7. The petitioner raised detailed objections vide letters dated 02.06.2021 and 02.08.2021 in response to the afoesaid reasons which was disposed of by the respondent vide order dated 11.01.2022 justifying the reopening of the assessment. 5.8. Being aggrieved, the petitioner has filed the present petition. 6. Learned advocate Mr.Manish Shah for the petitioner submitted that there is no information or tangible material apart from the assessment records already available at the time of the scrutiny undertaken so as to form a reason to believe that the income has escaped assessment as per the provision of Section 147 of the Act. 6.1. It was pointed out that the reasons state the source of information as “on verification of available records” and “on perusal of the available records”. It was therefore submitted that there is no failure on the part of the petitioner to truly and fully disclose all the material facts necessary for the assessment. 6.2. 6.1. It was pointed out that the reasons state the source of information as “on verification of available records” and “on perusal of the available records”. It was therefore submitted that there is no failure on the part of the petitioner to truly and fully disclose all the material facts necessary for the assessment. 6.2. It was submitted that during the original assessment proceedings, a specific querry was raised with respect to the issue of deduction under Chapter VI-A of which Section 8oP is a part and in response thereto, the petitioner has duly submitted the details of interest earned from Co-operative Bank which was claimed as deduction thereunder. 6.3. Learned advocate Mr.Manish Shah submitted that the reasons clearly state that the assessee had claimed and was allowed deduction of Rs.7,77,224/- under Section 80P(2)(d) of the Act. It was therefore submitted that it is a clear case of re-assessment proposed on a mere change of opinion. 6.4. Learned advocate Mr.Manish Shah submitted that the reasons wrongly state that the issue under consideration was never examined during the course of regular assessment and therefore, the reasons are based on wrong facts. It was pointed out that during the course of regular assessment, the petitioner has provided details of interest earned from the Co-operative Bank for claiming the deduction under Section 80P(2)(d) of the Act. 6.5. It was further submitted that issue of the deduction of interest received from Co-operative Bank under Section 80P(2)(d) of the Act is well settled by this Court as well as the Jurisdictional Ahmedabad Bench of the Income Tax Appellate Tribunal, and as such there is no escapement of income so as to form a reason to believe for reopening of assessment in contradiction to the binding Judgments of the Jurisdictional Courts. 6.6. It was therefore submitted that the sanctioning authority under Section 151 of the Act has overlooked the deficiencies in issuance of the notice under Section 148 of the Act and sanction has been accorded mechanically. 6.7. Learned advocate Mr.Manish Shah further submitted that in the order disposing the objections, the respondent mainly relied on the general legal principles laid down by various Courts without any reference to the facts of the case and merely stated that the decisions relied upon by the assessee are distinguishable on facts and the detailed objections raised by the petitioner are not dealt with. 6.8. 6.8. Learned advocate Mr.Manish Shah therefore submitted that impugned notice under Section 148 of the Act issued beyond the period of four years from the end of the Assessment Year 2014-15 is required to be quashed and set aside as there is no failure on the part of the petitioner to disclose fully and truly all the material facts relevant for the assessment and therefore as per the proviso to Section 147 of the Act, the respondent could not have assumed the jurisdiction to reopen the assessment. 6.9. Learned advocate Mr.Manish Shah referred to and relied upon the decision of this Court in case of Patel Alloys Steel Pvt. Ltd. Vs. ACIT reported in (2014) 225 Taxman 84 (Guj)(Mag.), wherein this Court has quashed the notice on limited ground that it was issued on the basis of the material available on record, which was established by the reasons recorded by the Assessing Officer. 6.10. Reliance was also placed by the learned advocate Mr.Manish Shah on the decision in case of State Bank of India Vs. CIT reported in (2016) 389 ITR 578 (Guj), wherein it is held that reopening with regard to the deduction of interest received from Cooperative Bank is not tenable as there is no escapement of income with respect to the allege claim of deduction under Section 80P(2)(d) of the Act. 6.11. Learned advocate Mr.Manish Shah also relied upon the decision of the Hon’ble Apex Court in case of Calcutta Discount Company Limited Vs Income-Tax Officer reported in 41 ITR 191 for maintainability of the writ petition, so as to prohibit the Assessing Officer from acting without jurisdiction and existence of alternative remedy as appeal and reference to the High Court was not held to be always a sufficient reason for refusing quick relief by Writ or Order restraining an authority from acting without jurisdiction. 7. On the other hand learned Senior Standing Counsel Mr.Karan Sanghani for the respondent submitted that sufficiency or adequacy of the reasons for issuance of the notice for reopening of the assessment need not be gone into at the stage of reopening. Reliance was placed on the decision of this Court in case of Akshat Pramodkumar Chaudhary Vs. ACIT rendered on 05.05.2023 in Special Civil Application No.21938 of 2019. 7.1. Reliance was placed on the decision of this Court in case of Akshat Pramodkumar Chaudhary Vs. ACIT rendered on 05.05.2023 in Special Civil Application No.21938 of 2019. 7.1. It was also submitted that this Court has held that, it can never be said that final outcome of the proceedings has been derived at by authority by issuing a notice for reopening. On the basis of the material before the Assessing Officer as highlighted in the reasons recorded, if the Assessing Officer was satisfied to harbour the reasons to believe that there was escapement of income and if on such basis, he has exercised his powers under Section 148 of the Act, no fault can be found. 7.2. Learned Senior Standing Counsel Mr.Sanghani therefore submitted that in view of various decisions of this Court, a notice issued under Section 148 of the Act cannot be treated as bad in law. 7.3. It was further submitted that the Assessing Officer can start re-assessment proceedings either because of some fresh facts which had come to his knowledge, which were not previously disclosed or some information with regard to the fact previously disclosed comes into his possession which tends to expose untruthfulness of those facts and in such cases, it is not a mere change of opinion or having different inference on such facts as were earlier available but it acts as fresh information. It was therefore submitted that the contentions raised on behalf of the petitioner are not tenable and impugned notice cannot be said to have been issued on the basis of the mere change of opinion. 7.4. It was submitted that reliance placed on the decision of this Court in case of State Bank of India (Supra) is not applicable in the facts of the case as in the said case, the matter was restored back to the file of Assessing Officer for verification in respect of allege claim under Section 80P(2)(d) of the Act, and hence, the issue was decided in favour of the Revenue. It was submitted that in case of Totgars Co-operative Sales Society Ltd. Vs. ITO reported in [2010] 322 ITR 283 (SC), the Hon’ble Apex Court has held that the income from utilisation of the surplus funds was taxable under the head “Income from Other Sources” and therefore not eligible for deduction under Section 80P of the Act. 7.5. It was submitted that in case of Totgars Co-operative Sales Society Ltd. Vs. ITO reported in [2010] 322 ITR 283 (SC), the Hon’ble Apex Court has held that the income from utilisation of the surplus funds was taxable under the head “Income from Other Sources” and therefore not eligible for deduction under Section 80P of the Act. 7.5. It was therefore submitted that the Assessing Officer has exhaustively discussed all such issues in the order dated 11.01.2022 whereby the objections raised by the petitioner are disposed of justifying reopening of the assessment. 7.6. It was submitted that assessee has option to represent its case on factual as well as legal position before CIT (Appeals) and thereafter before the Tribunal and hence instead of exercising remedy available under the Act, the petitioner could not have challenged the proceedings by invoking the extraordinary jurisdiction of the Writ Court as the petitioner has alternative remedy available and the Writ filed by the petitioner is not maintainable. Reliance was placed on the decision of the Hon’ble Apex Court in case of Commissioner of Income Tax and Ors Vs. Chhabil Das Agarwal reported in (2014) 1 SCC 603 . 8. Having heard learned advocates for the respective parties and considering the facts of the case, it is not in dispute that during the course of original assessment proceedings, the Assessing Officer has scrutinized the issue of deduction under Section 80P of the Act by raising specific query in the notice issued under Section 142(1) of the Act which was replied by assessee and thereafter the assessment order under Section 143(3) of the Act was passed. Therefore, there is no failure on the part of the petitioner to disclose fully and truly all the material facts relevant for the assessment for the year under consideration. 9. Therefore the respondent Assessing Officer could not have assumed the jurisdiction to issue the impugned notice beyond four years from the end of the Assessment Year under Section 148 of the Act in view of the proviso to Section 147 of the Act. 9. Therefore the respondent Assessing Officer could not have assumed the jurisdiction to issue the impugned notice beyond four years from the end of the Assessment Year under Section 148 of the Act in view of the proviso to Section 147 of the Act. Moreover, there is no new tangible material available with the Assessing Officer as the information of claim under Section 80P(2)(d) of the Act was deduced from the records available along with material and as such, it cannot be said that there is escapement of income amounting to Rs.7,77,224/- which was claimed by the petitioner assessee under Section 85(2)(d) of the Act. Reliance placed by the learned advocate for the respondent on the decision of the Hon’ble Apex Court in case of Totgars Co- operative Sales Society Ltd. (Supra) would not be applicable in the facts of the case as the petitioner has claimed deduction under Section 85(2)(d) of the Act from the interest earned from the Co-operative Bank which are infact Co-operative Societies and as such, there is a mere change of opinion on the part of the Assessing Officer while issuing impugned notice under Section 148 of the Act. 10. It is well settled by the decision of the Hon’ble Apex Court in case of Commissioner of Income Tax Vs. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC), wherein it is held that even after the amendment under Section 147, the concept of Assessing Officer having tangible material to form a belief that the income chargeable to tax has escaped assessment is not done away with and in this context, the principle of change of opinion would squarely apply. The Hon’ble Apex Court in case of Kelvinator of India Ltd. (Supra) has held as under: “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 reopen 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 reopen. 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 reassess. But re-assessment has to be based on fulfillment of certain precondition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of reopening 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…..” 11. In view of the foregoing reasons and above dictum of law, the petition succeeds and is accordingly allowed. The impugned notice dated 27.03.2021 issued under Section 148 of the Act is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.