JUDGMENT : BHARGAV D. KARIA, J. Heard learned advocate Mr. Hardik Vora for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondent. 3. Having regard to the controversy arising in this petition which is in a narrow compass, with the consent of the learned advocates for the parties, the same is taken up for hearing. 4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 29.03.2022 issued under Section 148A of the INCOME TAX ACT , 1961 (For short “the Act”) for reopening the Assessment Year 2018-19. 5. The brief facts of the case are as under :- 5.1. The petitioner is a partnership firm engaged in business of construction of residential flats and has filed Return of Income for Assessment Year 2018-19 on 30.08.2018 declaring total income at Rs.99,56,280/-. It is the case of the petitioner that during the pendency of the assessment proceedings, in the case of M/s. Ambe Enterprise, M/s. Aakar Enterprise and M/s. Rama Enterprises for the Assessment Year 2016-17, a survey under Section 133A of the Act was carried out at the business premises of these firms on 16.09.2016 and some documents were impounded. During the course of survey, statement of respective partners of the firms were also recorded. 5.2. It is further case of the petitioner that the statement of the partner of the petitioner firm was also recorded and it appeared to the Assessing Officer at the relevant point of time that the petitioner had suppressed investment made in the project and hence in order to examine the actual investment of the project, the matter was referred to District Valuation Officer (DVO). The petitioner during the course of survey made disclosure of undisclosed income of Rs.1,99,44,500/- for the Financial Year 2016-17 relevant to Assessment Year 2017-18. On receipt of report of DVO on 28.06.2019 for valuation of the project which has continued from Assessment Year 2015-16 to Assessment Year 2018-19, the respondent Assessing Officer assumed the jurisdiction for reopening the assessment for the year 2018-19 on the ground that there was a difference in investment shown by the assessee and the investment assessed by the DVO of Rs.57,96,687/-. Accordingly, the respondent Assessing Officer issued the show-cause notice under Section 148A(b) of the Act to show-cause as to why an amount of Rs.57,96,687/- being the difference in the investment as per the books of accounts and valuation as per DVO should not be treated as suppression of closing stock resulting into escapement of the income. 5.3. The petitioner filed reply to the notice dated 21.03.2022 contending that the respondent could not have assumed the jurisdiction on the basis of the report of the DVO more particularly, when the petitioner has made disclosure of an amount of Rs.1.99 crores as contracting business receipts for the period starting from the start of the project till the survey date and that was done just to buy peace with the survey officers. It was further contended by the petitioner that before the project “Raama Shikhar”, the petitioner declared cost of the investment in the property at Rs.13.91 crores from Assessment Year 2014-15 to Assessment Year 2019-20 and during the course of the assessment proceedings for Assessment Year 2016-17, the matter was referred to DVO under Section 142A of the Act to determine the cost of the property as per the valuation norms, which the DVO decided at Rs.16.52 crores and thereafter the case was referred to the independent government approved valuer who after considering the mapping of the project prepared, made valuation of Rs.11.54 crores. It was, therefore, contended that the entire basis of reopening is, therefore, vitiated and the reopening proceedings were required to be dropped. 5.4. The respondent Assessing Officer by an order dated 29.03.2022 passed under Section 148A(d) of the Act rejected the objections filed by the petitioner and arrived at a conclusion that it is a fit case to reopen the assessment on the ground that report of the DVO is not standalone ground for assuming the jurisdiction because the petitioner has disclosed the unaccounted income during the survey proceedings on which reference was made to the DVO and, therefore, the excess investment as per the DVO report is the proof that the assessee was indulging in unaccounted investment in the projects carried out by it and this fact is further reinforced by the findings during the survey. 5.5. Learned advocate Mr. 5.5. Learned advocate Mr. Vora for the petitioner submitted that the respondent could not have referred the matter to the DVO on account of the statements recorded during the course of survey, and the respondent could not have assumed the jurisdiction only on the ground of report of the DVO as the respondent Assessing Officer has not referred to any material verifying of any fact to support the conclusion arrived at by the DVO. 6. In support of his submissions reliance was placed on the decisions of the Hon’ble Apex Court in the case of Assistant Commissioner of Income Tax v. Dhariya Construction Company reported in [2010] 328 ITR 515 (SC) and the decision of this Court in case of Aavkar Infrastructure Company v. Deputy Commissioner of Income-Tax, Circle-9 reported in 238 Taxman 644 (Gujarat). It was, therefore, submitted that the respondent Assessing Officer could not assumed the jurisdiction to reopen the assessment and the notices are liable to be quashed and set aside. 7. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent submitted that the facts of the case are different than the facts which were before this Court in case of Aavkar Infrastructure Company (supra). It was pointed out from the affidavit-in-reply filed on behalf of the respondent that the petitioner has made disclosure of income of Rs. 1.98 crores during the survey on 16.09.2016. It was submitted that the report of the DVO is not the sole basis for reopening assessment as the Assessing Officer has considered the tangible material which was available on record in the form of statement of partner recorded during the survey together with the impounded documents indicating discrepancies in recorded expenditure, voluntary disclosure made by the petitioner and inconsistencies between the declared cost of construction and valuation made by the DVO for multiple years. It was, therefore, submitted that no interference can be called for while exercising extraordinary jurisdiction by this Court under Article 226 of the Constitution of India. 8. It was, therefore, submitted that no interference can be called for while exercising extraordinary jurisdiction by this Court under Article 226 of the Constitution of India. 8. Considering the above submissions made by both the learned advocates and on perusal of the notice issued under Section 148A(b) of the Act, together with the reply filed by the petitioner and the order disposing the objections dated 29.03.2022 passed under Section 148A(d) of the Act, it emerges that the only ground for referring the matter for the DVO report is the survey proceedings on 16.09.2016 where some documents were impounded and during the course of survey, statement of the partner of the petitioner was recorded wherein the petitioner admitted unaccounted income based on the noting in the impounded material for Rs.1,99,45,000/- during Financial Year 2016-17 relevant to Assessment Year 2017-18. 9. The respondent Assessing Officer based on such material has referred the matter to the DVO who submitted the report by assessing the investment of Rs.2,85,10,687/- which is in excess by Rs.57,96,697/- shown by the petitioner in the books of accounts. Referring to such report of DVO, the Assessing Officer issued the notice for reopening by rejecting the objections raised by the petitioner. 10. The Hon’ble Apex Court in the case of Dhariya Construction Company (supra) has held that the opinion of DVO per se is not an information for the purposes of reopening of an assessment under section 147 of the Act and the Assessing Officer has to apply his mind to the information, if any, collected and must form a belief thereon. 11. In the facts of the present case the respondent Assessing Officer has for the purpose of referring the matter to the DVO has relied upon the survey proceedings, but after the receipt of report of DVO therein, the DVO has formed an opinion of excess investment made by the petitioner for the year under consideration, the Assessing Officer has not made any further inquiry which is contemplated under Section 148A(a) of the Act to verify any fact to support such conclusion arrived at by the DVO. The Assessing Officer has also not recorded any satisfaction about the correctness or otherwise of the contents of the report of the DVO. The Assessing Officer has also not recorded any satisfaction about the correctness or otherwise of the contents of the report of the DVO. In such circumstances, and in view of the aforesaid decision of the Hon’ble Apex Court, the Assessing Officer could not have assumed the jurisdiction only on the basis of the report of DVO as the same cannot be considered as per se information for the purpose of reopening of the assessment. 12. This Court in similar facts in case of Aavkar Infrastructure Company (supra) has held as under :- “9. This court in the case of Vinayak Builders v. BD Garsar (or) Successor (supra) had in the facts of that case observed that the sole ground for reopening the assessment was that the Valuation Officer had determined the cost of construction at a higher rate than that shown by the assessee in its books of account. The reasons recorded did not reflect that the Assessing Officer had applied his mind to the facts of the case to ascertain as to whether in fact the assessee had expended more amount towards construction as stated in the valuation report. Reverting to the facts of the present case, the Assessing Officer, except for referring to the profit and loss account, which as noted hereinabove, would not reflect any profit as the assessee had not claimed any profit, and to the balance sheet part of the return of income, the Assessing Officer has made no effort to ascertain as to whether, in fact, the assessee has expended more amount than disclosed in the return of income. In the opinion of this court, while the report of the DVO may form the foundation for reopening the assessment, there must still be some reasons which warrant holding the belief that income chargeable to tax has escaped assessment so as to necessitate issuance of a notice under section 148 of the Act. The facts reveal that the entire basis for reopening the assessment of the petitioner for the year under consideration is the report of the DVO without verification of any facts to support such conclusion. The Assessing Officer has not recorded any satisfaction about the correctness or otherwise of the contents of the report of the DVO. 10. The facts reveal that the entire basis for reopening the assessment of the petitioner for the year under consideration is the report of the DVO without verification of any facts to support such conclusion. The Assessing Officer has not recorded any satisfaction about the correctness or otherwise of the contents of the report of the DVO. 10. In the aforesaid premises, the court is of the view that considering the material before the Assessing Officer and the nature of inquiry made by him, except for the report of the DVO, there was no tangible material for the Assessing Officer to form the belief that income chargeable to tax has escaped assessment. As held by the Supreme Court in the case of Assistant Commissioner of Income Tax v. Dhariya Construction Co. (supra), the opinion of the DVO per se is not an information for the purposes of reopening assessment under section 147 of the Act. The Assessing Officer has to apply his mind to the information, if any, collected and must form a belief thereon.” 13. In light of the above discussion, we are of the opinion that in the impugned order passed under Section 148A(d) of the Act, the respondent Assessing Officer could not come to a conclusion that it is fit case to reopen the assessment on the ground that the income chargeable to tax has escaped the assessment. Under the circumstance, the very assumption of jurisdiction under Section 147 of the Act on the part of the Assessing Officer while issuing the impugned notice under Section 148A of the Act is without authority of law and hence the same cannot be sustained. 14. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order dated 29.03.2022 as well as the order of the even date under Section 148A(d) of the Act are hereby quashed and set aside. Rule is made absolute to the aforesaid extent with no order as to costs.