JUDGMENT judgment of court was delivered by M. S. Sanklecha J.-Both these two petitions under article 226 of Constitution of India challenge: (a) Notices dated February 2, 2005, and February 3, 2005, both issued under section 148 of Income-tax Act, 1961 ("the Act"), seeking to reopen assessments for assessment years 1999-2000 and 1998-99, respectively; and (b) Two orders dated March 10, 2006 (one for each assessment year) rejecting petitioners objections to issue of impugned notices dated February 2, 3, 2005, for assessment years 1998-99 and 1999-2000. It is admitted position between parties that facts and issues involved in both petitions are identical, save and except change in quantum of figures being different in two assessment years involved. Therefore, for sake of convenience, we shall refer to facts stated in Writ Petition No. 877 of 2006 relating to assessment year 1998-99 which are as under: (a) petitioner, inter alia, carried on business of export. In course of its business of export, it became entitled to Duty Entitlement Passbook Scheme (DEPB) benefit under Export and Import Policy of India and also benefit of deduction under section 80HHC of Act; (b) On November 30, 1998, petitioner filed its return of income for assessment year 1998-99 declaring total income of Rs. 30.73 crores. In its return of income, petitioner claimed benefit of deduction under section 80HHC of Act to extent of Rs. 9.13 crores; (c) On February 28, 2001, Assessing Officer passed assessment order under section 143(3) of Act determining petitioner's income at Rs. 63.04 crores. This after enhancing deduction from Rs. 9.13 crores to Rs. 14.63 crores under section 80HHC of Act; (d) On February 3, 2005, Assessing Officer issued impugned notice under section 148 of Act, seeking to reopen assessment for assessment year 1998-99. reasons in support of impugned notice dated February 3, 2005, are as under: "The assessee has filed return of income on November 30, 1998, disclosing gross total income of Rs. 30.37 crores. Further, deduction under section 80HHC amounting to Rs. 9,13,06,349 has been claimed. On perusal of section 10CCAC report furnished along with return of income, it is observed that assessee has claimed deduction under section 80HHC on DEPB receipts of Rs. 6,26,72,241. assessee treated DEPB receipts as part of export incentives and claimed deduction under section 80HHC on same. 2 It is observed that in assessment order, issue whether assessee is entitled to claim deduction under section 80HHC on DEPB receipts or not, was not dealt with. 3 DEPB receipts are covered under section 28(iv) of Income-tax Act. In this regard, Central Board of Direct Taxes, vide its Circular, vide F. No. 153/93/2004/TPL, dated September 8, 2004, has stated as under: 'It has been concluded that section 80HHC provides for deduction from total income in respect of profits derived from export of goods or merchandise which are realised in convertible foreign exchange and not in respect of incidental income arising through Government scheme. Further, elaborate scheme of computation of deduction provided under section 80HHC(3) of Income-tax Act does not cover profit on sale of DEPB credits. Such profits are, therefore, not eligible for deduction under section 80HHC.' 4 Therefore, in view of circular of Central Board of Direct Taxes, assessee is not entitled to claim deduction under section 80HHC on DEPB receipts. 5 In view of above, I am satisfied that income has escaped assessment to extent of Rs. 1,15,24,463 within meaning of provisions of section 147 of Income-tax Act, 1961. tax effect comes to Rs. 40,33,562. 6 Hence, notice under section 148 of Income-tax Act, 1961, is required to be issued after taking approval of Commissioner of Income-Tax 8, Mumbai." (Sujit Kumar) Asst. Commissioner of Income-tax 8(1) Mumbai. (e) petitioner filed its objections on March 3, 2006, to reasons furnished for reopening of assessment for assessment year 1998-99. In particular, petitioner pointed out that impugned notice was issued beyond period of four years from end of relevant assessment year. Thus, condition precedent to issue notice under section 148 of Act is not satisfied, as reasons furnished do not disclose any failure on part of petitioner to disclose fully and truly all material facts necessary for assessment. Besides, it was submitted that claim for deduction under section 80HHC of Act with reference to DEPB entitlement was subject matter of examination while passing assessment order dated February 28, 2001. Thus, exercise of reopening assessment was on mere change of opinion. It was, therefore, submitted that notice was without jurisdiction and same be withdrawn; (f) However, Assessing Officer by order dated March 10, 2006, rejected petitioner's objections to reasons for reopening of assessments. Assessing Officer held that, prima facie, it appears that petitioner had failed to disclose fully and truly all details of nature, character and modus of earning DEPB entitlements in its return of income. petitioner's challenge to above proceedings for reopening of assessments for assessment years 1998-99 and 1999-2000 is that same are without jurisdiction. Mr. J. D. Mistry, learned senior counsel appearing with Mr. Kudalkar for petitioner in support, submits as under: (a) impugned notice dated February 2, 3, 2005, seeking to reopen assessment for assessment years 1999-2000 and 1998-99, respectively, have been issued beyond period of four years from end of relevant assessment year without alleging any failure on part of petitioner to disclose fully and truly all material facts necessary for assessment. Thus, both notices are without jurisdiction; (b) impugned notices are based on mere change of opinion as petitioner's claim for deduction under section 80HHC of Act was examined and enhanced from Rs. 9.13 crores as claimed to Rs. 14.63 crores. Therefore, impugned notices are without jurisdiction as it amounts to mere change of opinion; (c) reasons recorded for issue of impugned notices only indicates Circular dated September 8, 2004, issued by Central Board of Direct Taxes as basis for impugned notices. circular merely gives interpretation of Central Board of Direct Taxes on section 80HHC (3) of Act that deduction provided therein would not cover profit on sale of DEPB credit. It is submitted that opinion/interpretation of statutory provision by Central Board of Direct Taxes cannot be basis for reopening of assessment as view has to be of Assessing Officer on material not considered earlier; and (d) In any view of matter, issue on merits now stands concluded by decision of apex court in Topman Exports v. CIT [2012] 342 ITR 49 (SC) in favour of petitioner. Consequently, entire exercise of reassessment proceedings would be academic exercise in view of law declared by Supreme Court in Topman Exports (supra). As against above, Mr. Pinto, learned counsel appearing for respondent-Revenue in support of impugned notices, submit as under: (a) There has been failure on part of petitioner to disclose fully and truly all material facts necessary for assessment inasmuch as nature and character of DEPB entitlements had not been disclosed during assessment proceeding. Therefore, impugned notices are valid; and (b) fact that decision of Supreme Court in Topman Exports (supra) would conclude issue in favour of petitioner today is not disputed. However, it is submitted that same is not material as on date when impugned notices were issued, decision of Supreme Court in Topman Exports (supra) was not available. Therefore, on date impugned notices were issued on basis of reasons recorded, in support thereof, they were valid. Thus, impugned notices should not be disturbed and petitioner be directed to co-operate with reassessment sought to be done by respondent-Revenue. Both impugned notices for assessment years 1998-99 and 19992000 have admittedly been issued beyond period of four years from end of relevant assessment year. statutory jurisdictional condition as provided in proviso to section 147 of Act to be satisfied before issuing notice beyond period of four years from end of relevant assessment year, is failure on part of petitioner to disclose truly and fully all material facts necessary for assessment. We searched in vain for any averment in reasons in support of impugned notices, any facts which would indicate failure on part of petitioner to submit truly and fully all material facts necessary for claiming benefit of deduction under section 80HHC of Act in respect of DEPB receipts. All that reasons in support of impugned notices state is that petitioner's claim to deduction under section 80HHC of Act on DEPB receipts, was not dealt with in assessment order. Mr. Pinto, learned counsel appearing for respondent-Revenue, urged that there was failure on part of petitioner and in support thereof places reliance upon affidavit-in-reply dated April 7, 2006, filed by Assessing Officer. In affidavit, it is stated that assessee had failed to disclose whether DEPB entitlements were utilised in business against import or sold in market at premium. affidavit further alleges that petitioner has failed to disclose whether DEPB entitlements on which deduction was claimed was in fact received from Directorate General of Foreign Trade or merely claimed on basis of notional entitlement. Thus, it is submitted that there is failure to disclose truly and fully all material facts necessary for assessment. Our court has time and again reiterated view expressed in Hindustan Lever Ltd. v. R. B. Wadkar, Asst. CIT (No. 1) [2004] 268 ITR 332 (Bom), that reasons for reopening of assessment are required to be tested/examined as recorded at time of issuing of notice under section 148 of Act. No substitution, deletion or addition to reasons recorded at time of issuing notice can be made to support impugned notices either by affidavit or in order disposing of objections. reopening notices would stand or fall by reasons recorded at time when notices were issued. Therefore, reliance being placed upon by respondent-Revenue on affidavit-in-reply and/or order dated March 10, 2010, rejecting objections to allege that there is failure to disclose details cannot support impugned notices. Thus, submission of Mr. Pinto that there is failure on part of petitioner to disclose truly and fully all material facts necessary for assessment cannot be accepted. Further, impugned notice have been issued as recorded in reasons in support only on basis of Central Board of Direct Taxes circular, dated September 8, 2004, which is merely opinion on statutory provisions. Assessing Officer has to apply his own mind to form reasonable belief that income chargeable to tax has escaped assessment. It is not open to Assessing Officer to rely upon opinion of Central Board of Direct Taxes to justify issuance of impugned notices. Moreover, reliance upon subsequent opinion is itself evidence of change of opinion on part of Assessing Officer. In any case, question of opinion on statutory provision is issue which would only arise, if statutory jurisdictional requirement of failure to disclose fully and truly all material facts necessary for assessment is satisfied. It is not so in these notices. On above basis, we would have allowed petition but Mr. Pinto, learned counsel appearing for respondent-Revenue, insisted that his submission that decision of apex court in Topman Exports (supra) while considering petition be ignored, as same has been rendered only on February 8, 2012, be dealt with. It is submitted that decision in Topman Exports (supra) was not available when impugned notices were issued. According to Revenue, impugned notices have to be tested on basis of law, as it stood on date impugned notices, were issued. This submission ignores well known position in law that courts do not make law when rendering decisions but they only declare what law always was. when rendering decisions but they only declare what law always was. Therefore, decision of apex court in Topman Exports (supra) would be correct position of law even when impugned notices were issued and thus would suffer from failure of reasonable belief that income chargeable to tax has escaped assessment. In any case, it is accepted by Mr. Pinto that as of today, decision in Topman Exports (supra) covers issue in favour of petitioner. In that view of matter, it would serve no useful purpose by allowing Assessing Officer to proceed with reassessment, as issue would be concluded in favour of petitioner in view of binding decision of apex court in Topman Exports (supra) on merits. In view of above, we allow both petitions and set aside impugned notice dated February 2, 3, 2005, seeking to reopen assessment for assessment years 1999-2000 and 1998-99. Consequently, order dated March 10, 2006, rejecting petitioner's objections to impugned notice also do not survive. Both petitions are allowed in above terms, with no order as to costs. *** Aventis Pharma Ltd. v. Assistant Commissioner of Income-tax