JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Manish Shah for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. Learned advocate Mr. Manish J. Shah has tendered the draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 3. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondent State. 4. Having regard to the controversy involved which is in a narrow compass, with the consent of learned advocates for the respective parties, the petition is taken up for hearing today. 5. 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 2016-2017. 6. Brief facts of the case are that the petitioner is an individual and regularly assessed at PAN:AEZPP9756P under the Act. 7. For the Assessment Year 2016-2017, the petitioner filed the original return of income on 29.03.2017 declaring total income of Rs.34,32,466/-. 8. Thereafter, the case of petitioner was selected for scrutiny assessment, and accordingly, notice under section 143(2) dated 26.09.2017 was issued to the petitioner for limited scrutiny. 9. Thereafter, notice under section 142(1) of the Act dated 13.06.2018 was issued on the petitioner, asking for certain details, which include the details of nature of business, computation of total income and financial statements for Asst. Years 2015-2016 and 2016-2017. Another notice under section 142(1) dated 09.08.2018 was issued on the petitioner, asking him to furnish the details regarding source of investments at point no.1, copy of sale deed of property yielding capital gain at point no.3, details with regard to sale consideration received on sale of property at point no.4 and details with regard to other income from the properties disclosed in the return of income at point no.5. 10. In response to aforesaid notices, the petitioner through his Chartered Accountant, by his letter submitted on 03.08.2018 furnished the information sought for, which included the details with regard to sale of agriculture land at Revenue Survey No.370, Moje Vesu, Surat and purchase of agriculture lands, narrating particulars of land, share of petitioner in land, consideration paid towards purchased of land and corresponding exemption claimed under section 54B of the Act. Thereafter, the petitioner received further notice under section 142(1) dated 10.09.2018 from the then Assessing Officer asking to provide justification and details with regard to claim of deduction made under section 54B of the Act. In response to the said notice, the petitioner through his Chartered Accountant furnished the details called-for vide letter dated 17.09.2018. Subsequently, the petitioner once again received notices under section 142(1) dated 16.10.2018, 17.10.2018 and 18.10.2018 calling for certain further details vide point no.(i) to (iv). The petitioner through his Chartered Accountant furnished copies of 7/12 and 8A extracts of agriculture land situated at Block No.370, Moje Vesu, Surat vide letter submitted on 24.10.2018. Subsequently, in response to notice dated 18.10.2018, the petitioner through his Chartered Accountant by a letter submitted on 21.11.2018 furnished explanation/ details in respect of transaction of sale of land and claim of deduction under section 54B. Thereafter, certain further details have been submitted by the petitioner through his Chartered Accountant by a letter submitted on 24.11.2018, which include the details with regard to purchase of agriculture land. Ultimately, the Assessing Officer, after carrying out thorough examination of transactions of sale of land and deduction under section 54B, framed the assessment by passing assessment order under section 143(3) dated 06.12.2018 , wherein he has accepted the returned income of the petitioner as assessed income. 11. Thereafter, the petitioner received notice under section 148 dated 28.03.2021 stating that income chargeable to tax has escaped assessment in case of the petitioner. In response to the aforesaid notice, the petitioner filed his return of income on 31.05.2021. Thereafter, the petitioner through his Chartered Accountant vide letter dated 01.12.2021 requested to provide copy of reasons recorded, along with the sanction under section 151 of the Act. Thereafter, the reasons for reopening of assessment along with sanction under section 151 of the Act was provided vide letter dated 14.12.2021. 12. The petitioner filed objections on 31.12.2021, which were disposed of by the respondents vide order dated 11.03.2022. 13. Being aggrieved by such action of the respondent, the petitioner has approached this Court. 14. Learned advocate Mr. Manish Shah for the petitioner submitted that during the course of regular assessment, the Assessing Officer has scrutinised the issue of sale of agricultural land situated at Revenue Survey No.370, Moje Vesu, Surat by the assessee for the sale consideration and that the petitioner assessee has received his share of Rs. 14. Learned advocate Mr. Manish Shah for the petitioner submitted that during the course of regular assessment, the Assessing Officer has scrutinised the issue of sale of agricultural land situated at Revenue Survey No.370, Moje Vesu, Surat by the assessee for the sale consideration and that the petitioner assessee has received his share of Rs. 11,27,34,750/- was the subject matter of scrutiny and the order was passed under section 143(3) on 6.12.2018. 15. Learned advocate Mr. Shah invited the attention of the Court to various notices issued under section 142(1) of the Act by the Assessing Officer requesting the petitioner to furnish the information with regard to value of consideration for computation of capital gain as well as the details of deduction claimed under section 54B of the Act from time to time. 16. He submitted that five notices were issued from time to time by the respondent Assessing Officer and the reply was filed by the petitioner in detail giving computation of capital gain along with the particulars of sale transactions entered by the assessee for agricultural land, copy of balance sheet as at 31.03.2016, copies of purchase and sale of the land and the letter received by the petitioner from Revenue department on 17.09.2018 giving particulars of land purchased against sale of solitary land. It was pointed out that the petitioner also furnished the copies of revenue record with regard to the land in question. It was submitted that after considering all the documents submitted by the petitioner during the regular course of assessment, order under section 143(3) of the Act was passed accepting the return income and computation of capital gain furnished by the petitioner. It was therefore, submitted that the impugned notice issued by the respondent Assessing Officer is nothing but a change of opinion on his part to tax the transaction of sale of land as income from profit and gains. 17. It was therefore, submitted that the respondent Assessing Officer as per the settled legal position has no jurisdiction to issue the impugned notice. 18. On the other hand, learned Senior Standing Counsel Mr Karan Sanghani submitted that the petitioner has an alternative efficacious remedy if the addition is made in reassessment proceedings by preferring an appeal before the CIT(Appeals) and therefore, this petition should not be entertained. 19. 18. On the other hand, learned Senior Standing Counsel Mr Karan Sanghani submitted that the petitioner has an alternative efficacious remedy if the addition is made in reassessment proceedings by preferring an appeal before the CIT(Appeals) and therefore, this petition should not be entertained. 19. It was further submitted that property in question was sold by the assessee as a non agricultural land after obtaining permission under section 63AA of the Bombay Land Revenue Code, 1879 and hence, the petitioner was also not entitled to claim the capital gain under the provisions of the Act by claiming deduction under section 54B of the Act. 20. It was submitted that on perusal of the income offered by the petitioner for the past three years, it was evident that there was no agricultural income of the petitioner and therefore, the status of the petitioner as an agriculturist is also wrongly considered by the Assessing Officer during the course of regular assessment. 21. Learned advocate Mr. Sanghani in support of his submission relied upon the decision of Hon’ble Apex Court in case of G. Venkataswami Naidu and Co. v. CIT reported in (1959) 35 ITR 394(SC) wherein it is held that a single transaction can be termed as adventure in the nature of trade and it was therefore, submitted that as per section 2(13) of the Act, when the assessee has purchased a piece of land and shortly after purchasing land, it was divided into four plots and sold individually, the difference between the sale value of assessee was considered as an adventure in nature of trade in decision in case of Smt. Indramani Bai v. Additional Commissioner of Income Tax reported in (1993) 70 taxman 67 (SC). 22. It was therefore, submitted that merely because there was a single transaction, it can be treated as adventure in nature of trade whereas in facts of the case, there are series of transactions undertaken by the assessee as stated in the reasons recorded and therefore, the Assessing Officer has rightly arrived at a prima facie view to form a reasonable belief that income has escaped assessment. 23. 23. Having heard the learned advocates for the respective parties and having taken into consideration the facts of the case as well as the reasons recorded, it is not in dispute that the very same transaction which is the subject matter of the reasons recorded i.e sale of agricultural land situated at Revenue Survey No.370, Moje Vesu, Surat for consideration being share of the petitioner being Rs. 11,27,34,750/- is the subject matter of scrutiny during the regular assessment by the Assessing Officer and the entire details have been placed on record by the assessee during the course of the regular assessment. Merely because the impugned notice is issued within a period of four years of the date of assessment order, it cannot be said that the respondent can assume jurisdiction on the same facts having different opinion and therefore, in facts of the case, it is apparent that there is a mere change of opinion on part of the respondent Assessing Officer to reopen the assessment which is not tenable in law as held by the Apex Court in case of Commissioner of Income tax v. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC) 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? xxxx 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. 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…..” 24. In view of the foregoing reasons, the impugned notice dated 28.03.2021 issued under section 148 of the Act is hereby quashed and set aside. 25. Petition is disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.