JUDGMENT : D.N. RAY, J. 1. Heard learned advocate Mr. B.S. Soparkar for the petitioner and learned advocate Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. Having regard to the controversy involved which is in a narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing. 3. Rule returnable forthwith. Learned advocate Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondent. 4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the jurisdiction of the respondent Assessing Officer to issue notice dated 31.03.2021 under section 148 of the Income Tax Act, 1961 (For short “the Act”) for Assessment Year 2017-2018. 5. Brief facts of the case are that the petitioner filed its original return of income for Assessment Year 2017-2018 on 25.10.2017 declaring total income of Rs.80,14,73,480/-. 6. Pursuant to return of income being processed, notice under section 142(1) of the Act was issued upon the petitioner on 19.06.2019 seeking information. 7. The petitioner filed a detailed reply dated 29.08.2019 to the aforesaid notice. 8. The Assessing Officer passed the assessment order under section 143(3) of the Act dated 22.11.2019 wherein no addition was made on the issue of tax deducted at source and cash deposits. 9. Thereafter, notice under section 148 of the Act dated 31.03.2021 was issued upon the petitioner directing the petitioner to furnish the return of income for Assessment Year 2017-2018. 10. The petitioner accordingly filed its return of income in compliance of notice under section 148 on 24.04.2021 and sought for reasons recorded for reopening. 11. Accordingly, the copy of reasons recorded for reopening the assessment were supplied to the petitioner on 27.05.2021. Such reasons recorded read as under: “2. (A) On perusal of assessment records, it is seen from the information furnished by the auditor in column 34(a) of form 3CD that the assessee has failed to deduct TDS/Deducted less TDS than specified rated on payments of Rs. 10,37,748/- As per the provisions of section 40(a)(ia) of the Act, 30% of such amount which comes to Rs. 3,11,324/- should not be allowed as deduction is to be added to the total income of the assessee. By not doing so resulted in underassessment of income of Rs. 3,11,324/-. Thus, there is underassessment of income of Rs. 3,11,324/-. 10,37,748/- As per the provisions of section 40(a)(ia) of the Act, 30% of such amount which comes to Rs. 3,11,324/- should not be allowed as deduction is to be added to the total income of the assessee. By not doing so resulted in underassessment of income of Rs. 3,11,324/-. Thus, there is underassessment of income of Rs. 3,11,324/-. (B) During the year under consideration, the assessee has deposited huge cash deposit and the assessee has not furnished any supporting documents i.e. details of Cash book, Bank Book, unsecured loan, deposit in form of fixed deposits etc during the assessment proceedings, verification to ascertain the source of such cash deposit with respect to their identity, genuineness and creditworthiness and has not satisfactorily proved the genuineness f the deposits by its branch Offices.” 12. The petitioner thereafter filed preliminary objections on 07.06.2021 challenging the validity of the notice issued under section 148 of the Act. It is the case of the petitioner that no order disposing off the objections was received by the petitioner till the time of filing of the petition. 13. It is the case of the petitioner that thereafter notice under section 142(1) of the Act was issued by the respondent no. 2 asking the petitioner to supply the details in relation to the reassessment proceedings without disposing off the objections by way of speaking order. 14. The petitioner therefore, by letter dated 18.01.2022 requested the respondent no. 2 to first dispose off the objections. 15. Being aggrieved by the impugned notice, the petitioner has preferred the present petition challenging the impugned notice. 16. Learned advocate Mr. B.S. Soparkar for the petitioner submitted that the respondent Assessing Officer could not have assumed jurisdiction to reopen the assessment for the Assessment Year 2017-2018 as he has perused the same material which was considered by the Assessing Officer at the time of regular assessment while passing the assessment order under section 143(3) of the Act on 22.11.2019. It was submitted that the queries were raised with regard to furnishing of the audit report as well as the details of Tax Deducted at Source during the course of the regular assessment. 17. Learned advocate Mr. It was submitted that the queries were raised with regard to furnishing of the audit report as well as the details of Tax Deducted at Source during the course of the regular assessment. 17. Learned advocate Mr. B.S. Soparkar invited the attention of the Court to the notice issued under section 142(1) of the Act dated 19.06.2019 wherein the details were called for by the Assessing Officer pertaining to the interest paid and tax deducted. 18. It was further submitted that the petitioner by reply dated 29.08.2019 furnishing the details about the TDS deducted etc. and after considering the same, the assessment order was passed. 19. It was further submitted that the auditor has reported less deduction of tax and therefore, as per the provisions of section 40(a)(ia) of the Act, the interest expenses cannot be disallowed for the same. It was therefore, submitted that the impugned notice issued by the respondent is nothing but a mere change of opinion only with a view to make a fishing and roving inquiry which is not permissible. 20. In support of his submission that reassessment is nothing but merely a change of opinion, reliance was placed on the following decisions: (i) In case of Premium Finance (P) Ltd. (2016) 73 taxmann.com 369 (ii) In case of Gujarat State Board of School Textbooks, (2016) 75 taxmann.com 281 21. In support of his submission that reassessment proceedings cannot be permitted with a view to have a fishing and roving inquiry, reliance was placed on the following decisions: (i) In case of Maheshwari Devi, (2023) 146 taxmann.com550 (Jharkhand) (ii) In case of Indo Arab Air Services, (2015) 64 taxmann.com 257 (Delhi) (iii) In case of Pushpak Bullion, 71 taxmann.com 326 (Guj.) 22. In support of his submission that order disposing objection is sine qua non before proceeding in assessment, reliance was placed on the following decisions: (i) In case of Ashish Bohra, (2021) 129 taxmann.com 52 (Gujarat) (ii) In case of Bharatmaiya Memorial Foundation, (2018) 91 taxmann.com 25 (iii) In case of Simaben Vinodrai Ravani, (2017) 394 ITR 778 (iv) In case of Sagar Developers, (2016) 72 taxmann.com, 321 (Gujarat) 23. It was further submitted that on perusal of the reasons, there is no escapement of income. 24. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent placed on record the order disposing off the objections to reassessment dated 12.06.2023. It was further submitted that on perusal of the reasons, there is no escapement of income. 24. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent placed on record the order disposing off the objections to reassessment dated 12.06.2023. The same is ordered to be taken on record. 25. In view of the above order, the contention raised by the petitioner of not disposing of the objections would not be tenable. 26. Learned Senior Standing Counsel Mr. Sanghani submitted that the reopening is within the period of four years and therefore, the respondent Assessing Officer was justified to consider the material available on record to form a reasonable belief that the income has escaped assessment. It was pointed out that the respondent Assessing Officer has rightly observed that in view of the reporting made by the auditor of less deduction of tax, there would be disallowance under section 40(a)(ia) of the Act. 27. Considering the above submissions, it is not in dispute that the petitioner has filed reply to the notice issued under section 142(1) of the Act during the regular course of assessment and after considering the same, the assessment order dated 22.11.2019 was passed under section 143(3) of the Act. 28. On a bare perusal of the reasons recorded, it is apparent that the respondent Assessing Officer has assumed jurisdiction on perusal of the assessment record, in absence of any fresh tangible material which was not considered during the course of regular assessment proceedings which would amount to mere change of opinion. Therefore, as held by the Hon’ble Apex Court in case of Commissioner of Income Tax v. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC), the Assessing Officer could not have assumed the jurisdiction to reopen the assessment. The Hon’ble Apex Court in case of Kelvinator of India Ltd. (supra) 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? 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? xxx xxx xxx 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 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......” 29. In view of above settled legal position, the petition succeeds and is accordingly allowed. Impugned notice dated 31.03.2021 issued under section 148 of the Act is hereby quashed and set aside. Consequently order dated 12.06.2023 disposing off the objections raised by the petitioner for reassessment, also would not survive and is accordingly quashed and set aside. 30. Petition is disposed of. Rule is made absolute to the aforesaid extent with no order as to costs.