JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 21.07.2022 issued under section 148 of the INCOME TAX ACT , 1961 [for short ‘the Act’] for A.Y. 2016-17. 3. The petitioner is engaged in the business of manufacturing grey cloth under the name and style of M/s. Pratiman Traders- a proprietary concern. The petitioner incurred interest expenses of Rs. 7,08,390/- and Rs. 2,56,715/- against interest income on fixed deposits of Rs. 14,25,294/- and other interest income of Rs. 18,13,321/- respectively. 4. Case of the petitioner was selected for limited scrutiny. By the show-cause notice dated 31.10.2018, petitioner was called upon to show cause as to why various additions proposed therein should not be made in the hands of the petitioner and including the proposed disallowance of interest expenses as stated here-in-above. 5. The petitioner, by reply dated 01.11.2018, provided the information along with ledger of interest income received on the bank FDR, ledger account of the interest expenses, bank overdraft statement and details of overdraft expenses, confirmation of lender, ITR and bank statement of lender. 6. The Assessing Officer passed assessment order dated 13.11.2018 under section 143(3) of the Act accepting the returned income. 7. The respondent issued the show-cause notice under section 148 read with Taxation and other Laws [Relaxation and Amendment of Certain Provisions] Act on 31.03.2021 for the Assessment Year 2016- 17. However, the same was considered as notice under section 148A(b) of the Act as per the directions issued by the Hon’ble Supreme Court in case of Union of India vs. Ashish Agrawal reported in [2022] 138 taxmann.com 64 and thereafter, the petitioner was provided the details relied upon by the respondent on 27.05.2022. The petitioner filed explanation and reply dated 10.06.2022 and thereafter, the notice under section 148 of the Act dated 21.07.2022 and impugned order dated 21.07.2022 under section 148A(d) of the Act were issued. Therefore, as per the decision of the Hon’ble Apex Court in case of Union of India vs. Rajeev Bansal reported in 469 ITR 46 (SC) , the impugned notice is within the surviving time. 8. Learned Senior Advocate Mr. Therefore, as per the decision of the Hon’ble Apex Court in case of Union of India vs. Rajeev Bansal reported in 469 ITR 46 (SC) , the impugned notice is within the surviving time. 8. Learned Senior Advocate Mr. Tushar Hemani for the petitioner submitted that impugned order as well as the notice is without jurisdiction as the same were issued on mere change of opinion as the very issue of disallowance of interest was considered by the Assessing Officer during regular course of assessment. In support of his submissions, reliance was placed on the decision of Rasna (P.) Ltd vs. Deputy Commissioner of Income Tax reported in [2025] 174 taxmann.com 930 (Gujarat) wherein, in similar facts, it was held by this Court as under: “29. Therefore, even when the notice under section 148 is issued after 01.04.2021, “the respondent Assessing Officer could not have assumed the jurisdiction to reopen the assessment on mere change of opinion, while exercising power to reopen the assessment by the respondent Assessing Officer under section 147 of the Act, subject to the provision of sections 148 to 153 of the Act. 30. On perusal of the provisions of section 147 of the Act, assessment or reassessment can be undertaken by the Assessing Officer if there is escapement of taxable income and for that purpose, the proviso to section 148 provides that no notice shall be issued if information leading to escapement of income is not available with the Assessing Officer but converse is not true that all information available with the Assessing Officer would lead to issuance of notice for reopening more particularly, when the issue which is already considered during the assessment proceedings and thereafter, assessment order is passed under the provisions of section 143(3) of the Act. Any information subsequent thereto which may be resulting into escapement of income would amount to reviewing the assessment order. 31. The Hon'ble Apex Court in case of Kelvinator of India Ltd (320 ITR 561) has categorically held that reopening is not equivalent to review of the assessment order. 32. The Hon'ble Bombay High Court in case of Hexaware Technologies Limited v. Assistant Commissioner of Income Tax and others reported in (2024) 464 ITR 430 (BOM) has held as under: "43 In Siemens Financial Services (P.) Ltd. [(2023) 457 ITR 647(Bom)] in paragraphs 35 to 39 the Court held as under : 35. 32. The Hon'ble Bombay High Court in case of Hexaware Technologies Limited v. Assistant Commissioner of Income Tax and others reported in (2024) 464 ITR 430 (BOM) has held as under: "43 In Siemens Financial Services (P.) Ltd. [(2023) 457 ITR 647(Bom)] in paragraphs 35 to 39 the Court held as under : 35. During the course of assessment proceedings, notice had been issued to petitioner. In reply to the notice under Section 143(2), petitioner had by its letter dated 6th December 2018 recorded, "..... based upon our discussion during the course of the hearing....". The transaction wise summary of the software consumable was made available. This was considered during the assessment proceedings and the assessment order accepting revised return came to be passed. 36. We would agree with the submissions of Mr. Pardiwalla that if change of opinion concept is given a go by, that would result in giving arbitrary powers to the Assessing Officer to reopen the assessments. It would in effect be giving power to review which he does not possess. The Assessing Officer has only power to reassess not to review. If the concept of change of opinion is removed as contended on behalf of the Revenue, then in the garb of re- opening the assessment, review would take place. The concept of change of opinion is an in-built test to check abuse of power by the Assessing Officer. As held in Dr. Mathew Cherian (2023) 450 ITR 568(Mad), whether under old or new regime of reassessment, it is settled position that the issues decided categorically should not be revisited in the guise of reassessment. That would include issues where query have been raised during the assessment and query have been answered and accepted by the Assessing Officer while passing the assessment order. As held in Aroni Commercials (2014) 362 ITR 403 (BOM) even if assessment order has not specifically dealt with that issue, once the query is raised it is deemed to have been considered and the explanation accepted by the Assessing officer. It is not necessary that an assessment order should contain reference and/or discussion to disclose his satisfaction in respect of the query raised.… 37. It is not necessary that an assessment order should contain reference and/or discussion to disclose his satisfaction in respect of the query raised.… 37. The Assessing Officer does not have any power to review his own assessment when during the original assessment petitioner provided all the relevant information which was considered by him before passing the assessment order under section 143(3) of the Act dated 23 rd December 2018. Petitioner had debited an amount of Rs.6,41,87,931/- on account of software consumables in the profit and loss account and a detailed break-up of the said expenses were submitted before the Assessing Officer during the course of assessment proceedings vide a letter dated 6 th December 2018. It is settled law that proceedings under section 148 cannot be initiated to review the earlier stand adopted by the Assessing Officer. The Assessing Officer cannot initiate reassessment proceedings to have a relook at the documents that were filed and considered by him in the original assessment proceedings as the power to reassess cannot be exercised to review an assessment. In petitioner's case the Assessing Officer having allowed the amount of software consumables as a revenue expenditure now seeks to treat the same as capital expenditure which is a clear change of opinion. Various judicial precedents have held that reassessment proceedings initiated on the basis of a mere change of opinion are invalid and without jurisdiction. 38. The Apex Court in Kelvinator of India Ltd.(320 ITR 561) emphasised on the difference between a power to review and the power to reassess. The Apex Court held that the Assessing Officer has no power to review but has only the power to reassess. The concept of 'change of opinion' must be treated as an in- built test to check abuse of power by the Assessing Officer. The relevant extract of the judgment is reproduced as under :- ".......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 reopen. 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. 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 reassessment 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. Hence, after 1-4-1989 , Assessing Officer has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987 , Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in section 147 of the Act. However, on receipt of representations from the Companies against omission of the words "reason to believe", Parliament re- introduced the said expression and deleted the word "opinion" on the ground that it would vest arbitrary powers in the Assessing Officer............." 39. The Delhi High Court in Seema Gupta v. ITO (2023) 457 ITR 642 (Delhi) held that the order under section 148A(d) and notice under section 148 of the Act should be set aside when the reassessment was initiated on a change of opinion where the same was discussed and verified by the Assessing Officer at the time of original assessment proceedings. 43.1 Therefore, the concept of change of opinion being an in- built test to check abuse of power by the Assessing Officer and the Assessing Officer having allowed the claim of deduction under Section 80JJAA of the Act in the assessment order dated 13th November 2017, now to disallow the same is based on a clear change of opinion. Reassessment proceedings initiated on the basis of a mere change of opinion is invalid and without jurisdiction. Reassessment proceedings initiated on the basis of a mere change of opinion is invalid and without jurisdiction. On this ground also the impugned notice issued under Section 148 of the Act has to be quashed and set aside." 33 The Hon'ble Apex Court in case of Indian and Eastern Newspaper Society (supra) while dealing with audit objection had also occasion to consider as to whether material already considered would amount to change of opinion or not. In that context it was held as under: "Now, in the case before us, the Income Tax officer had, when he made the original assessment, considered the provisions of sections 9 and 10. Any different view taken by him afterwards on the application of those provisions would amount to a change of opinion of material already considered by him. The Revenue contends that it is open to him to do so, and on that basis to reopen the assessment under section 147(b). Reliance is placed on Kalyanji Mavji & Co. v. Commissioner of Income Tax (1976) 102 ITR 287 (SC), where a Bench of two learned Judges of this Court observed that a case where income had escaped assessment due to the "oversight, inadvertence or mistake" of the Income Tax officer must fall within section 34(1) (b) of the Indian INCOME TAX ACT , 1922. It appears to us, with respect, that the proposition is stated too widely and travels farther than the statute warrants in so far as it can be said to lay down that if, on reappraising the material considered by him during the original assessment, the Income Tax officer discovers that he has committed an error in consequence of which income has escaped assessment it is open to him to reopen the assessment. In our opinion, an error discovered on a reconsideration of the same material (and not more) does not give him that power. That was the view taken by this Court in Maharaj Kamal Singh v. Commissioner of Income Tax (1959) 35 ITR 1 (SC), Commissioner of Income Tax v. Raman and Company (1968) 67 ITR 11 (SC) and Bankipur Club Ltd. v. Commissioner of Income Tax. (1971) 82 ITR 831 (SC) and we do not believe that the law has since taken a different course. Any observations in Kalyanji Mavji & Co. (1971) 82 ITR 831 (SC) and we do not believe that the law has since taken a different course. Any observations in Kalyanji Mavji & Co. v Commissioner of Income Tax (1976) 102 ITR 287 (SC) suggesting the contrary do not, we say with respect, lay down the correct law." 34. In view of above conspectus of law, the law has not changed even after the amendment of the provisions of section 147 and section 148 and introduction of procedural provision of section 148A in the statute. The concept of change of opinion has remained constant for the purpose of reopening of the assessment as the reopening or reassessment is not review of the assessment already done.” 8.1 Referring to the above decision it was submitted that the impugned notice may be quashed and set aside. 9. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani appearing for the respondent referred to and relied upon para 6.3 of the order passed under section 148A(d) of the Act which reads as under: “6.3 Further, the assessee has stated that the matter has already been discussed during the Scrutiny Assessment u/s. 143(3) of the I.T.Act no re-assessment proceedings can be initiated for the matter already discussed unless any new tangible information is obtained by the Assessing Officer. In this regard, it is stated that original assessment was completed on the basis of “Limited Scrutiny” for the reasons “Whether the share capital is genuine and from disclosed sources” subsequently the then A.O. had completed the assessment u/s. 143(3) on 18.12.2018 on the basis of selection reason on CASS parameter. During earlier assessment proceedings, it is not mandatorily to examine the issue other than the reason(s) as specified by CASS parameter. In the instant case, it is found that interest expense of Rs. 7,08,390/- was on interest on over draft and interest expenses of Rs. 2,56,715/- was interest paid to Pratiman Traders and Chandrakant J. Chhaliawala (HUF). The details regarding amount of loan which was received by the assessee and which were utilized for earning interest income has not been disclosed either in the return of income or during the assessment proceedings. Thus, the expenditure amounting to Rs. 9,65,105/- remained unexplained and had escaped assessment.” 10. The details regarding amount of loan which was received by the assessee and which were utilized for earning interest income has not been disclosed either in the return of income or during the assessment proceedings. Thus, the expenditure amounting to Rs. 9,65,105/- remained unexplained and had escaped assessment.” 10. Considering the above submissions, it is not in dispute that the impugned order is passed for disallowance of the interest on the ground that the same is not relatable to the interest income earned by the petitioner. The Assessing Officer has discarded the reply of the petitioner stating that it is not a fit case to reopen the assessment only on the ground that it was a case of a limited scrutiny for the reasons as to whether the share capital is genuine and from disclosed sources or not. Merely because the initiation of the scrutiny assessment on a particular issue and during the course of assessment proceedings, the Assessing Officer cannot be precluded to look into further issues which has come to his knowledge and accordingly, the show cause notice dated 31.10.2018 was issued wherein, the Assessing Officer, while proposing the addition, has also called upon the petitioner to provide documentary proof for the expenditure of interest of Rs. 7,08,390/- and 2,56,715/- which were claimed as expenses out of the interest income earned from the Bank FDR and interest income from other sources. We are therefore, of the opinion that once the Assessing Officer has already examined the aspects of disallowance of interest expenses, the same issue cannot form part of the information which suggests that income has escaped assessment for the year under consideration as it would amount to review of the assessment order which is already passed under section 143(3) of the Act. This is supported by the by the decision of the Hon’ble Apex Court in case of Commissioner of Income tax v. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC) : “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? xxxxxxxx 6. 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? xxxxxxxx 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 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, the impugned notice dated 21.07.2022 issued under section 148 of the Act and the order dated 21.07.2022 under section 148A(d) of the Act are quashed and set aside as the reopening would amount to review of the assessment order already passed considering the same issues under section 143(3) of the Act and therefore, it would not amount to assessment based upon the information that suggests the escapement of the income under the guise of review. Rule is made absolute to the aforesaid extent. No order as to costs.