JUDGMENT : Bhargav D. Karia, J. 1. Heard Mr. Hardik Vora, learned advocate for the petitioner and Mr.Varun Patel, learned Senior Standing Counsel for the respondent. 2. Having regard to the controversy involved, which is in narrow compass, with the consent of learned advocates for the respective parties, the matter is taken up for final hearing. 3. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 27th March, 2021 issued by the respondent -Assessing Officer under Section 148 of the Income Tax Act, 1961 (for short “the Act”) for the Assessment Year 2016-17. 4.1 The petitioner is a limited liability partnership firm. The petitioner firm filed its return of income for Assessment Year 2016-17 declaring total income of Rs.46,05,780/- on 30th September, 2016. 4.2 The case of the petitioner was selected for scrutiny and notice under Section 142(1) of the Act was issued on 10.10.2018. The petitioner was called upon to furnish the details of loan outstanding at the beginning of the year, the loans taken during the year including the squared up loans in the prescribed format. 4.3 The petitioner submitted the reply on 10.12.2018 providing the details of the unsecured loan. The petitioner filed the another reply along with the confirmation statement and acknowledgment of income returns of the parties who have advanced the loan. The petitioner by letter dated 12.12.2018 also submitted the cross account of Shreenathji Corporation, confirmation account of Rahulkumar Babulal Doshi and bank statement of Phoolchand Exports Pvt. Ltd. before the Assessing Officer. 4.4 The Assessing Officer after considering the replies filed by the petitioner passed an Assessment Order under Section 143(3) of the Act accepting the return of income on 12.12.2018. 4.5 The respondent issued the notice under Section 148 of the Act recording the following reasons:- “1. Brief details of the assessee:In this case, the assessee had filed its return of income for AY 2016-17 on 30.09.2016 declaring total income of Rs.46,05,780/-. Thereafter, the case was selected for scrutiny and assessment u/s.143(3) of the Income- Tax Act for A.Y. 2016-17 was finalized on 12.12.2018 accepting the returned income as assessed income. 2. Brief details of Information collected/received by the AO:On perusal of assessment records, it is noticed that assessee has introduced unsecured loan of Rs.5,14,00,000/- from unrelated business concern, Phulchand Export Pvt. Ltd. with a lesser rate of interest. 2. Brief details of Information collected/received by the AO:On perusal of assessment records, it is noticed that assessee has introduced unsecured loan of Rs.5,14,00,000/- from unrelated business concern, Phulchand Export Pvt. Ltd. with a lesser rate of interest. In support of the loan, assessee submitted bank statement and ITR of the loan giver. It was noticed from ITR that gross total income of Phulchand Exports Pvt. Ltd. was NIL with current year loss of Rs. 14,19,11,427/-. It was also noticed from the bank statement of loan giver that huge amount of cash was accepted before and after issue of cheque to assessee. Thus, creditworthiness and genuineness of the unsecured loan, such as having sufficient surplus saving and funds backed by capital assets to provide loan to assessee, was not established. Therefore, the said loan should be treated as unexplained u/s.68 of the Income tax Act and should be added to income of the assessee.” 4.6 The petitioner filed the objections to the notice of reopening on 31.07.2021 contending inter alia that the reasons recorded clearly shows that there is mere change of opinion of the respondent Assessing Officer, as the issue pertaining to the unsecured loan from Phulchand Export Pvt. Ltd. was considered during the original assessment proceedings by the Assessing Officer and the petitioner has made full and true disclosure of all material facts relevant for the assessment including the confirmation statement, acknowledgment of the ITR and bank statement of the said parties before the Assessing Officer. 4.7. The respondent-Assessing Officer by order dated 23rd March, 2024 disposed of the objections filed by the petitioner. Being aggrieved, the petitioner has preferred this petition. 5. Mr. Hardik Vora, learned advocate for the petitioner submitted that when the verification of the unsecured loan transactions from Phulchand Export Pvt. Ltd. was carried out by the Assessing Officer during the course of regular assessment proceedings, the respondent -Assessing Officer could not have assumed the jurisdiction to reopen the assessment on the same facts which were already disclosed in absence of any new material brought on record subsequent to the completion of the original assessment proceedings under Section 143(3) of the Act more particularly, when the issue was thoroughly examined during the regular assessment proceedings. 5.1 It was further submitted that on perusal of the reasons recorded, it is clear that the respondent-authority has reopened their assessment on the ground to verify the unsecured loan from Phulchand Export Pvt. Ltd. as it has shown lost in the ITR during the year under consideration and therefore, the creditworthiness and genuineness of the unsecured loans was doubted. It was submitted that the petitioner has proved the genuineness by submitting ITR, confirmation and bank statement from the said party and the petitioner is not required to prove the source of the source and accordingly, the reopening only with a view to verify the source of source is not permissible as it would amount to mere change of opinion in the facts of the case. It was therefore, submitted that the impugned notice is liable to be quashed and set aside, as the same is without jurisdiction. 6. On the other-hand, learned Senior Standing Counsel Mr. Varun Patel for the respondent submitted that the ingredients required to issue a notice under Section 148 of the Act is forming reason to believe and the Assessing Officer has formed the reason to believe by recording the reasons to the effect that the unsecured loans availed by the petitioner from Phulchand Pvt. Ltd. is required to be reconsidered, in view of the fact that the said firm has shown loss in the return of income and therefore, the creditworthiness and genuineness and the capacity to advance loan was not inquired into during the course of the original assessment. 6.1 The reliance was placed on the following averments made in the affidavit-in-reply filed on behalf of the respondent in support of his submission. “4. It is submitted that the main ingredient required to issue notice u/s 148 of the Income Tax Act, 1961 is to form reason to believe'. At the stage of issue of notice u/s. 148, the only question is whether there was relevant material on which reasonable person could have form the requisite belief as to whether an income chargeable to tax has escaped assessment. The expression 'reason to believe' cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. Whether material would conclusively prove escapement of income is not the concern at the stage of issue of notice. The expression 'reason to believe' cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. Whether material would conclusively prove escapement of income is not the concern at the stage of issue of notice. It only means that the Assessing Officer forms a belief from the examination of facts, from any information the Assessing Officer receives. If the Assessing Officer discovers or finds or satisfies that the taxable income has escaped assessment, it would amount to saying that the Assessing Officer had reason to believe that such income has escaped assessment. The justification of Assessing Officer's belief is not to be judged from the standards of proof required for coming to a final decision. A belief though justified for the purpose of initiation of the proceedings u/s. 147 may ultimately stand altered after the hearing and while reaching the final conclusion on the basis of the intervening enquiry. At the stage where Assessing Officer finds a cause or justification to believe that such income has escaped assessment, the Assessing Officer is not required to base his belief on any final adjudication of the matter. The Assessing Officer had applied his mind and examined the information received and then recorded his reasons to believe that the income of assessee had escaped assessment for the year under consideration. 5. It is further submitted that the assessee’s contention that no new tangible material is available to the Assessing Officer is erroneous and untenable in law and facts. It is further categorically denied the contention of the petitioner regarding change of opinion by the assessing officer while issuing the impugned notice. It is submitted that this Hon'ble Court in the case of Gruh Finance Ltd. Vs. Jt. CIT (2000) 161 CTR (Guj) 100: (2000) 243 ITR 482 (Guj) has held that if no conscious consideration of the material available on record is made and a mistake has been committed, it will not prevent the competent officer to exercise powers under section 147 of the Act. The Court observed: "We have also seriously considered the entire case law from which aforesaid paragraphs are relied on. The Court observed: "We have also seriously considered the entire case law from which aforesaid paragraphs are relied on. Insofar as the expressions reason to believe" and "change of opinion" are concerned, we are of the view that though the material was available on record, at the time of first assessment, when no conscious consideration of the material is made and a mistake has been committed, it would not, in any case, create an embargo or a ban on the competent officer to exercise powers under the amended s. 147 of the IT Act, 1961, as prima facie, there could not be "change of opinion" in that factual scenario. It has also not been shown to us on behalf of assessee. If conscious application of mind is made to the relevant facts and material available or existing at the relevant point of time while * making assessment and again a different or divergent hew is sought, it would tantamount to "change of opinion", whereas, in the case of existing material, no conscious attempt has been made, it would tantamount to mistake in not considering the relevant point or proposition and it would not be a "change of opinion". The principle that a mere change of opinion cannot be a basis for reopening completed assessments would be applicable only to situations where the AO has applied his mind and taken a conscious decision on a particular matter in issue. It will have no application where the order of assessment does not address itself to the aspect which is the basis for reopening of the assessment, as is the position in the present case. It is in that view inconsequential whether or not the matenal necessary for taking a decision was available to the AO either generally or in the form of a reply to the questionnaire served upon the assessee What is important is whether the AO had based on the material available to him taken a view. If he had not done so, the proposed reopening cannot be assailed on the ground that the same is based only on a change of opinion. It is further submitted that in case of Bawabhai Singh Vs. If he had not done so, the proposed reopening cannot be assailed on the ground that the same is based only on a change of opinion. It is further submitted that in case of Bawabhai Singh Vs. DCIT, 253 ITR 83 the Delhi High Court has observed that :- "there must be some material which can be regarded as information, on the basis of which the Assessing Officer can have reason to believe that action under Section 147is called for. Information means the communication or reception of knowledge or intelligence. It includes knowledge obtained from investigation study or The reasons which may weigh with the A.O. may be result of his own investigation and may come from any source that he considers reliable." Further, this Hon'ble High Court in the case of Hemjay Construction Co. Pvt Ltd through Deenaben Yogeshbhai Shah Vs. ITO, Ward-2(2) in R/SCA No. 19392 of 2018, has held that “merely because certain materials which is otherwise tangible and enables and Assessing Officer to form belief that the income chargeable to tax has escaped assessment, formed part of the original assessment record, per se would not bar the Assessing Officer from reopening the assessment on the basis of such material. The expression "tangible material" does not mean the material alien to the original record. "The Hon'ble Court has also held that "it is not necessary that the Income Tax Officer should hold a quasi- judicial inquiry before acting under Section 147. It is enough if he on the information received believes in good faith that the assessee's profits have escaped assessment or have been assessed at a low rate." It is further submitted that the reasons recorded or the material available on record must have nexus to the subjective opinion formed by the A.O. regarding the escapement of the income but then, while recording the reasons for the belief formed, the A.O. is not required to finally ascertain the factum of escapement of the tax and it is sufficient that the A.O had cause or justification to know or suppose that the income had escaped assessment [CIT v. Rajesh JhaveriStock Brokers (P) Ltd. [2007] 161 Taxman 216 (SC)). It is also well settled that the sufficiency and adequacy of the reasons which have led to the formation of a belief by the Assessing Officer that the income has escaped the assessment cannot be examined by the court In view of the above ruling of Hon’ble jurisdictional High Court, the objection raised by the assessee does not sustain hence requires to be rejected. It is therefore submitted that in view of above, the contention of the assessee regarding change of opinion does not deserve to be entertained by this Hon'ble Court. At this juncture, it is worthwhile to point out here that the only requirement for reopening the assessment is that the AO has reasonable belief of escaped assessment. As stated in the reason recorded and also detailed discussion made above, it is apparent that the AO has information in his possession about the escapement of income as discussed in foregoing paras. At the time of recording the reasons for reopening the assessment, it not necessary for the AO to bring all the Revidences of concealed income of the assessee but it is ASIA NAGAR, sufficient that the AO on the material available with him has HD DIST escapement of income. 6. It is submitted that the contention of the petitioner that it has proved the genuineness of the unsecured loan by submitting ITR, confirmation and bank statement and hence it is not required to prove the source of source, is contention on merit which is premature at this stage and the same is required to be decided by AO during the assessment proceedings based on evidence on record. 7. Referring to the above averments made by the respondent in the affidavit-in-reply, it was submitted that no interference be called for in the impugned while exercising the extra ordinary jurisdiction under Article 226 of the Constitution of India. 8. Considering the submissions made by learned advocates appearing for the respective parties, it is not in dispute that the issue of availing unsecured loan from Phulchand Export Pvt. Ltd. was scrutinized during the regular assessment proceedings by the then the Assessing Officer as the petitioner was called upon to furnish the details which was provided by the petitioner containing the confirmation letter, ITR and the bank statement of the said party from whom the unsecured loans was availed by the petitioner. 8.1 The Assessing Officer having been satisfied from the details provided by the petitioner, it cannot be said that there is any failure on the part of the petitioner to disclose fully and truly all material facts. 8.2 It was further revealed from the facts of the case that merely because Phulchand Export Pvt. Ltd has incurred loss for the year under consideration, it cannot be the ground to reopen the assessment doubting the creditworthiness and genuineness of the unsecured loan such as having sufficient surplus savings and funds booked by capital assets to provide loan to the assessee. 9. The law is well settled with regard to the facts of the case . Once the issue is already scrutinized during the regular course of assessment, the same issue cannot be considered for assumption of the jurisdiction to reopen the assessment as it would amount to mere change of opinion 10. The Hon’ble Apex Court in case of Commissioner of Income tax v. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC) 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 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. 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…..” 11. In view of the above dictum of law and considering the facts of the case, this is a classic case of mere change of opinion by the Assessing Officer for reopening of the assessment and therefore, the impugned notice is held to be issued without jurisdiction. 12. In view of the forgoing reasons, this petition succeeds and accordingly allowed. The impugned notice dated 27.03.2021 issued under section 148 of the Act for the Assessment Year 2016-17 is accordingly quashed and set aside. The order dated 23rd March, 2024 disposing of the objections is also quashed and set aside. Rule is made absolute. No order as to costs.