JUDGMENT : BHARGAV D. KARIA, J. 1. Heard Mr. Tushar Hemani, learned Senior Counsel with Mr. Hardik Vora, learned advocate for the petitioner and Mr. Varun K. Patel, learned Senior Standing Counsel for the respondent. 2. Both these petitions are arising for A.Y. 2016-17 and 2017-18 and Special Civil Application no. 4383 of 2022 be treated as lead matter. 3. Rule returnable forthwith. Mr. Varun K. Patel, learned Senior Standing Counsel waives service of notice of rule on behalf of the respondent. 4. Having regard to the controversy in narrow compass with the consent of the learned advocates for the respective parties, the matter is taken-up for hearing. 5. By these petitions under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 30th March, 2021 issued by the respondent u/s. 148 of the Income Tax Act, 1961 (for short ‘the Act’) for A.Y. 2016-17 and 2017-18. 6. The brief facts of the case are that the petitioner is a public limited company engaged in the business of processing and manufacturing of various edible and non-edible oil and allied products. 6.1 The petitioner company has filed its return of income for A.Y. 2016-17 declaring total income of Rs. Nil on 1st September, 2016. The case of the petitioner was selected for complete scrutiny under CASS. 6.2 The Assessing Officer during the course of regular assessment called-upon the petitioner company to provide details of party wise foreign outward remittances along with nature, purpose and source of foreign remittance vide notice dated 2nd August, 2018. In response to the notice, the petitioner furnished details along with Form 15CA containing the name of the party, amount of foreign remittance, nature and purpose of transaction along with relevant DTAA. 6.3 It is the case of the assessee that on furnishing all the details, the assessment order u/s. 143(3) of the Act was passed on 12th December, 2018. The respondent has issued notice u/s. 148 of the Act after obtaining the necessary satisfaction of Range 2(1), Ahmedabad. 6.4 The petitioner filed return of income in response to the notice and requested for reasons recorded by the respondent Assessing Officer. The respondent has issued notice u/s. 148 of the Act after obtaining the necessary satisfaction of Range 2(1), Ahmedabad. 6.4 The petitioner filed return of income in response to the notice and requested for reasons recorded by the respondent Assessing Officer. By notice u/s. 143(2) dated 21.05.2021, the reasons recorded for reopening of assessment was provided, which reads as under: “Issues as per reasons recorded for reopening: As per the information received from the credible sources that a survey action u/s. 133A of the I.T. Act, 1961 was conducted on J & K bank corporate Headquarter MA Road, Srinagar on 11 June 2019. The survey was limited in nature conducted for collection of information related to third parties. Among the various fields of information data related to inward and outward remittances (above 20 Lakh) was also obtained for the various financial years. Information related to inward remittances for the F.Y. 2012-13 to F.Y. 2016-17 has been analyzed. At the outset it is mentioned that during the analysis of remittances data/information it was observed that the amount reflected in the remittance data (bill IDs) obtained from the bank does not tally with the amounts reflected in the bank statement of the particular assessees. Accordingly clarification was sought from the Forex department of J&K bank, corporate HQ and Srinagar for explaining the differences. The Bank stated that after received the bill from party/customers, bill amount is firstly calculated on notional rate (decided by the bank from time to time), however finally at the time of realization of bill, it is calculated on the actual settlement rate/Exchange rate on that day. The same was explained by the Bank through the following examples: In the case of M/s Aalia Leathers Prop. Kashif Zafar (PAN: AADPZ1640A) it was noted the remittance received has been shown against the bill ID KUM00154012 dated 07/02/2012 for an Rs. 24,57,150. Similarly against the bill ID KUM00185112 dated 16/10/2012 an amount of Rs. 20,73,474/- has been shown. On perusal of bank account statement (account no. 0262010100003557) of M/s Aalia Leathers, Prop. Kashif Zafar, showas that an amount of Rs. 23,99,653/- was credited on 07.02.2012 and on the date 16.10.2012 an amount of Rs. 21,83,292/- was credited against the bill amount of Rs. 20,73,474/- reflected in the above sheet with same bill ID on the same day i.e. 16.10.2012. 0262010100003557) of M/s Aalia Leathers, Prop. Kashif Zafar, showas that an amount of Rs. 23,99,653/- was credited on 07.02.2012 and on the date 16.10.2012 an amount of Rs. 21,83,292/- was credited against the bill amount of Rs. 20,73,474/- reflected in the above sheet with same bill ID on the same day i.e. 16.10.2012. In response to these differences, J&K bank Forex Division submitted its reply vide email dated 10.03.2021, the same is reproduced herewith for proper understanding of the differences: “This has reference to your mail dated March 10, 2021 regarding the observations pointed out by your good office in respect of various entries related to Foreign Outward and Inward Remittances. In this regard we would like to apprise your good self that the difference in the amount of a particular entry captured in Statement of Account and Remittance Sheet is on account of Actual Settlement Rate and Notional Rate respectively applied on the same transaction.” On perusal of information so received, it is noticed that the assessee is one of the beneficiaries who has entered into transaction of Rs. 62,77,93,196/- in the form of inward and outward remittances wherein a survey action was carried out by the investigation Wing of Srinagar, Kashmir. Failure on the part of the assessee to disclose fully and truly all the material facts necessary for the assessment, the income of the assessee has escaped assessment to the tune of Rs. 62,77,93,196/- for the AY 2016-17 within the meaning of Section 147 of the Income-tax Act, 1961. I have, therefore, reason to believe that this is a fit case for reopening the assessment u/s. 147 of the Act and for issue of notice u/s. 148 of the Income-tax Act, 1961.” 6.5 The assessee filed detailed objections dated 18th October, 2021 to reassessment u/s. 147 of the Act, wherein it was contended that the petitioner assessee has furnished all the requisite details during the regular course of assessment and there is no fresh material available with the respondent to form a reasonable belief that the income has escaped assessment. It was also contended that the respondent has taken the entire value of the transaction to be the escapement of income. Reliance was placed on the various decisions of the Courts in support of the objections that the reassessment procedure is required to be dropped. It was also contended that the respondent has taken the entire value of the transaction to be the escapement of income. Reliance was placed on the various decisions of the Courts in support of the objections that the reassessment procedure is required to be dropped. 6.6 The respondent Assessing Officer by order dated 16th February, 2022 rejected the objections relying upon the provisions of Section 147 of the Act. 6.7 Being aggrieved, the petitioner is before this Court. 7. Mr. Tushar Hemani, learned Senior Counsel for the petitioner submitted that after referring to the documents placed on record by the petitioner company that during the course of the regular assessment, it was submitted that the entire issue with regard to the foreign remittance was scrutinized during the original assessment proceedings. 7.1 It was submitted that on bare perusal of the reasons recorded, there is no escapement of the income as the respondent Assessing Officer taking into consideration the report of the survey conducted in Jammu & Kashmir Bank u/s. 133A of the Act has only because the petitioner assessee has transacted with the said bank made a total of transaction of inward and outward remittances amounting to Rs. 62,77,93,196/- to prima facie coming to the belief that the income has escaped the assessment. 7.2. It was submitted that the survey report of Jammu & Kashmir Bank cannot be treated as tangible material showing or bearing on the computation of the total income as in the said survey report, it was clearly explained by the Jammu & Kashmir Bank in the reply that after receiving the bill from the party/customers, bill amount is firstly calculated on the notional rate (decided by the bank from time to time) and finally at the time of realization of bill, it is calculated on the actual settlement rate/exchange rate on that day. It was submitted that the respondent Assessing Officer in spite of recording the above explanation of the Jammu & Kashmir Bank in the reasons recorded, as well as, the example given in the reply by the Jammu & Kashmir Bank, without application of mind has issued the impugned notice only because the petitioner has entered into transaction with the Jammu & Kashmir Bank. It was submitted that as per the accounting standard, when the bill discounting amount is first calculated for foreign remittance the notional rate is applied and when the actual amount is received then on realization of bill it is calculated on the actual settlement rate or exchange rate on that day. It was submitted that the petitioner has made entries in its books of accounts on the basis of the bank statement and reconciliation statement is also produced during the course of the regular assessment and the Assessing Officer while passing the order u/s. 143(3) of the Act has not raised any objections and return of income is accepted. 8. On the other hand, Mr. Varun K. Patel, learned Senior Standing Counsel for the respondent submitted that the reopening of the assessment is within four years and therefore, proviso to Section 147 would not apply. It was pointed-out that the respondent Assessing Officer has fresh material in form of Survey report of the Jammu & Kashmir Bank and on the basis of which it was found that there was a mismatch of the remittance amount as the bank has calculated two remittance amount one on the notional basis and other on the actual realization basis and it is not known as to which amount is taken for accounting purpose by the assessee and therefore, the respondent Assessing Officer has formed the reason to believe to reopen the assessment. It was submitted that only because amount of entire transaction is taken into consideration, that cannot be taken as that the Assessing Officer has not applied his mind. It was submitted that on perusal of the reasons recorded, it is clear that on the basis of the survey report and the reply of Jammu & Kashmir Bank, the Assessing Officer on the fresh material available on record has prima facie come to the conclusion that there is escapement of income and onus is on the assessee to prove that the remittance amount reflected in the remittance bill match with the amount reflected in the bank statement, which can be considered during the course of the reassessment proceedings only. It was therefore, submitted that the remittance amount claimed by the assessee is required to be matched with the remittance in the bank account and this mismatch amount remittance with the bank account is to be considered as assessee’s unexplained income, which is the escaped income. 9. Reliance was placed on the decisions in case of Assistant CIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 291 ITR 500 and Raymond Wollen Mills Ltd. vs. ITO, (1999) 236 ITR 34 . 10. Having heard the learned advocates for the respective parties and considering the material on record and on perusal of the reasons recorded by the respondent Assessing Officer, it is clear that the Assessing Officer has issued the impugned notice on the basis of survey action u/s. 133A of the Act on Jammu & Kashmir Bank corporate headquarter at Srinagar on 11th June, 2019, which was after the date of assessment order dated 12th December, 2018 passed u/s. 143(3) of the Act in case of the petitioner assessee. 11. On perusal of the reasons recorded, the Jammu & Kashmir Bank has also given explanation and clarification from the Forex Department to the effect that the bank after receiving the bill from the party/customer, bill amount is firstly calculated on notional rate decided by the bank from time to time and finally at the time of realization of the bill, it is calculated on actual settlement rate/exchange rate on that day. By giving an example of some other party, it was stated by the bank that the difference in the amount of the particular entry captured in the statement of account and remittance sheet is on account of the actual statement rate and the notional rate respectively applied on the same transaction. This has led to the respondent Assessing Officer to form a reason to believe that the transaction undertaken by the petitioner with the respondent bank has resulted into escapement of income to the tune of Rs. 62,77,93,196/- in form of inward and outward remittances. This has led to the respondent Assessing Officer to form a reason to believe that the transaction undertaken by the petitioner with the respondent bank has resulted into escapement of income to the tune of Rs. 62,77,93,196/- in form of inward and outward remittances. In view of such facts, when the Jammu & Kashmir Bank has clearly stated in the reply that there are two different entries captured in the statement of account and remittance sheet have two different types of rate one is notional and one is actually realized and statement of account submitted to the petitioner, the same is duly recorded in the books of accounts reflecting the actual realized rate of foreign exchange. In such circumstances, on application of the basic accounting principles, when the petitioner has produced all the material before the assessing officer during the course of the regular assessment, the respondent Assessing Officer could not have formed a prima facie belief that there is escapement of income in view of the material available on record in form of details of bank accounts along with the bank statement for the month of March-2016 of the Jammu & Kashmir Bank, details of exchange, difference/ net loss in foreign exchange transaction and translations along with the copies of the ledger account of the exchange difference, details of expenditure in foreign currency, copy of Form-15CA filed by the petitioner-company, wherein all details of foreign remittance are reflected. When such record was already available with the respondent Assessing Officer, which was produced by the petitioner assessee during the original assessment proceedings, he ought to have considered the same and applied his mind with regard to the material made available by the survey action u/s. 133 of the Act, which was conducted on Jammu & Kashmir Bank coupled with the explanation tendered by the Jammu & Kashmir Bank reflected in the reasons recorded. 12. In such circumstances, the impugned notice issued u/s. 148 of the Act is nothing but amounts to change of opinion on the part of the respondent assessing officer and he has issued the impugned notice only on the borrowed satisfaction without there being any fresh tangible material to come to the prima facie conclusion that the income has escaped assessment. 13. The contention of Mr. 13. The contention of Mr. Varun K. Patel, learned Senior Standing Counsel for the respondent cannot be accepted as in the facts of the case, the case would be squarely covered by the decision of Hon’ble Apex Court in case of Commissioner of Income Tax vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC), which in turn affirm the decision of the Delhi High Court which was also reopening within four years, wherein the Hon’ble Apex Court held as under: Para-6 thereof reads thus: “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? 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 efiect 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 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......” 14. In view of above foregoing reasons, the present petitions succeeds and is accordingly allowed. The impugned show cause notices u/s. 148 of the Act are hereby quashed and set aside. One must treat the concept of “change of opinion” as an in-built test to check abuse of power by the Assessing Officer......” 14. In view of above foregoing reasons, the present petitions succeeds and is accordingly allowed. The impugned show cause notices u/s. 148 of the Act are hereby quashed and set aside. Rule is made absolute. No order as to cost.