JUDGMENT judgment of court was delivered by M. S. Sanklecha J.-These two petitions under article 226 of Constitution of India challenge: (a) two separate notices dated January 25, 2006, issued under section 148 of Income-tax Act, 1961 ("the Act"), seeking to reopen assessment for assessment years 1998-99 and 1999-2000; and (b) two separate reassessment orders passed on March 7, 2006, by Assessing Officer under section 143(3) read with section 147 of Act for assessment years 1998-99 and 1999-2000, respectively. Originally, challenge in both petitions was non-disposal of petitioner's objections to reasons in support of impugned notices dated January 25, 2005. However, pending admission of petition, Assessing Officer without disposing of objections of petitioner to reasons in support of impugned notices, passed two separate reassessment orders dated March 7, 2006, for assessment years 1998-99 and 1999-2000. This led to petitioner to amending both petitions to also mount challenge to two reassessment orders dated March 7, 2006, in these petitions. Both petitions were admitted on April 28, 2006. We are informed that petitioner has not challenged reassessment orders dated March 7, 2006, passed for assessment years 1998-99 and 1999-2000 before appellate authorities under Act. It is agreed between counsel that issues involved in both petitions are identical. Therefore, for sake of convenience, we shall refer to facts in Writ Petition No. 762 of 2006 relating to assessment year 1998- 99 for disposal of both these petitions. On November 30, 1998, petitioner filed its return of income for assessment year 1998-99, declaring total income of Rs. 25.45 lakhs. In its return of income, petitioner had claimed deduction of Rs. 1.66 crores under section 80HHC of Act. On November 23, 2000, notice under section 143(2) of Act, inter alia, calling upon petitioner to furnish details of its claim for deduction under 80HHC of Act. petitioner by its letters dated December 20, 2000, and February 13, 2001, responded by furnishing details. Consequent thereto, on February 28, 2001, Assessing Officer passed order under section 143(3) of Act for assessment year 1998-99 assessing petitioner to income of Rs. 72.12 lakhs while reducing petitioner's claim for deduction under section 80HHC from Rs. 1.66 crores to Rs. 1.64 crores. On January 25, 2005, impugned notice under section 148 of Act was issued seeking to reopen assessment for assessment year 199899. In support thereto, petitioner furnished following reasons for issuing of impugned notice dated January 25, 2005: "The undisputed basic facts of case revealed that assesseecompany, exporter, filed its return of income for assessment year 1998-99, declaring income at Rs. 25,45,970 and claimed deduction of Rs. 1,66,19,692 under section 80HHC(1) of Act therein. assessment records showed loss/negative profit at Rs. 47,75,729. assessment has been completed under section 143/143(1) of Act at Rs. 72,12,960 allowing deduction of Rs. 1,64,26,974 under section 80HHC(1) of Act. Thus, deduction under section 80HHC(1) of Act has been claimed/allowed, contrary to express provisions of section, even in situation where assessee has suffered loss. 2 hon'ble Supreme Court in case of IPCA Laboratory Ltd. v. Deputy CIT [2004] 266 ITR 521 (SC) has categorically held that deduction under section 80HHC(1) of Act can be permitted only if there is positive profit in exports of both self-manufactured goods as well as trading goods. If there is loss in either of two then loss has to be taken into account for purposes of computing profits. If net figure is positive profit then assessee will be entitled to deduction; if net figure is loss then assessee will not be entitled to deduction. 3 Further, jurisdictional High Court in case of Rohan Dyes Intermediater Ltd. v. CIT [2004] 270 ITR 350 (Bom) has held that meaning of word "profit" in proviso appended to sub-section (3)(c) is same as judicially interpreted by hon'ble Supreme Court in case of IPCA Laboratory Ltd. (supra). It has no different meaning and carries same meaning, i.e., positive profit worked out after taking into consideration losses. proviso is not independent provision. Thus, in light of basic facts of case and above discussed decisions of apex court of land and jurisdictional High Court, there exists cogent and relevant material, forming basis for initiation of reassessment proceedings, in instant case, with in meaning of section 147 read with section 148 of Act. Further, Explanation 2 to section 147 of Act also confers jurisdiction to invoke provisions of section 147 of Act, in case, where assessee has claimed excessive allowance or relief. In this case, there is live link between material on record and escapement of income chargeable to tax. Further, decision of apex court/High Court constitute valid basis for reopening of assessment under section 147 read with section 148 of Act. 4 In view of this, I have reason to believe that income chargeable to tax has escaped assessment with in contemplation of section 147 read with section 148 of Act. Consequently, notice under section 148 of Act is issued to assessee company." petitioner by their letters dated March 29, 2005, and September 2, 2005, objected to reasons furnished in support of impugned notice. petitioner besides contesting reasons on merits also pointed out that impugned notice dated January 25, 2005, having been issued beyond period of four years from end of relevant assessment year 1998-99 without any failure to disclose fully and truly material facts for assessment on part of petitioner is without jurisdiction. petitioner called upon Assessing Officer to dispose of objections in light of Supreme Court's decision in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 (SC) before proceeding with reassessment for assessment year 1998-99. Thereafter, without disposing of petitioner's objections, in spite of petitioner's request, Assessing Officer on February 23, 2006, called upon petitioner to furnish various details so as to complete reassessment proceeding for assessment years 1998-99 and 1999-2000. In response, petitioner by its letter dated February 24, 2006, sought time till March 15, 2006, and same was granted. In spite of having granted time, Assessing Officer on March 7, 2006, passed reassessment orders for assessment years 1998-99 and 1999-2000. impugned reassessment orders dated March 7, 2006, were both best judgment Assessment passed under section 144 of Act. Mr. F. V. Irani, learned counsel appearing for petitioner in support, submits as under: (a) Both impugned notices dated January 25, 2005, seek to reopen assessment beyond period of four years from end of relevant assessment years 1998-99 and 1999-2000. jurisdictional requirement to issue notice for reassessment is failure on part of petitioner to truly and fully disclose all material facts necessary for assessment. It is submitted that grounds furnished to petitioner in support of impugned notice nowhere indicates any failure on part of petitioner to disclose truly and fully all material facts necessary for assessment. Thus, notices are without jurisdiction; (b) entire issue with regard to petitioner's claim for deduction under section 80HHC of Act was subject of examination during scrutiny proceeding leading to assessment orders dated February 28, 2001, and February 13, 2002, for assessment years 1998-99 and 1999-2000, respectively. Therefore, issuing notices impugned herein on same ground is clear case of change of opinion. Therefore, proceedings of reassessment are without jurisdiction; and (c) Assessing Officer has passed reassessment orders dated March 7, 2006, for both assessment years 1998-99 and 1999-2000 without disposing of petitioner's objections to grounds in support of impugned notices dated January 25, 2005. This is contrary to decision of apex court in GKN Driveshafts (supra). Therefore, it is on basis of above, it is submitted that impugned notices for reassessment being without jurisdiction consequent reassessment orders passed on March 7, 2006, also do not survive. As against above, Mr. Arvind Pinto, learned counsel appearing for respondent- Revenue, submits opposing both petitions submits as under: (a) assessment orders dated March 7, 2006, on reassessment has already been passed for assessment years 1998-99 and 1999-2000. Therefore, petitioners have efficacious alternative remedy of filing appeal under Act which they must be relegated to adopt; (b) In any view of matter, petitioner had submitted to jurisdiction of Assessing Officer for purpose of reassessment leading to order dated March 7, 2006. In support, reliance is placed upon letter dated February 23, 2006, issued by Assessing Officer to petitioner, calling for certain information for completing reassessment proceeding. Thus, it is not open to petitioner to challenge same by way of this writ petition. (c) In view of decision of apex court in IPCA Laboratory Ltd. v. Deputy CIT [2004] 266 ITR 521 (SC) position in law was settled and this declaration of law by Supreme Court would apply even for assessment year 1998-99. Thus, Assessing Officer was entitled to reopen assessment and examine facts in light of Supreme Court's decision; and (d) There is no change of opinion in issuing impugned notices dated January 25, 2005, as earlier opinion was formed in absence of decision of Supreme Court in IPCA Laboratory (supra). Therefore, it is submitted that change in law warrants issuing of impugned notices. contention of Mr. Pinto, learned counsel appearing for respondent- Revenue, that petitioner should be relegated to alternative remedy of filing appeal, as assessment order has already been passed at final hearing of both petitions, without examining challenge to jurisdiction of Assessing Officer, is strange. These petitions have been pending in this court since 2006. Although, at time of admitting petition, on April 28, 2006, none appeared on behalf of Revenue to oppose admission, respondent-Revenue had filed its affidavit in reply on April 25, 2006, taking same objection of alternative remedy and yet petition was admitted on April 28, 2006. Thereafter, no application for vacating order of admission or for early hearing of petitions was made by respondent-Revenue. They choose to await petitions reaching their turn for final hearing and now raise plea of alternative remedy. These petitions deal with assessment years 1998-99 and 1999-2000. Therefore, it is too late for respondent-Revenue to seek dismissal of petitions on plea of alternate remedy without examining merits of petitioner's challenge to jurisdiction. Indubitably, in case petitioner fail in its challenge to jurisdiction to issue impugned notices, petition would be dismissed and petitioner would be left to avail of remedies, if any available under Act. contention of respondent-Revenue that petitioner had submitted itself to jurisdiction of Assessing Officer during reassessment proceeding leading to orders dated March 7, 2006, on is not correct. We find that notice was issued on February 23, 2006, by Assessing Officer, calling upon petitioner to furnish certain details for purpose of reassessment. petitioner by its letters dated February 24, 2006, recorded that at meeting held on February 23, 2006, with Assessing Officer, Assessing Officer agreed to adjourn hearing of notice dated February 23, 2006, till March 15, 2006. In spite of above, Assessing Officer passed best judgment assessment order on March 7, 2006, without any notice to petitioner. Thus, there is no submitting to jurisdiction of Assessing Officer for reassessment proceedings by petitioner. We find that reasons in support of impugned notices do not in any manner indicate failure on part of petitioner to fully and truly disclose all material facts necessary for assessment. In fact, reasons recorded that original claim for deduction made by petitioner for assessment year 1998-99 was for Rs. 1.66 crores and Assessing Officer allowed deduction of only Rs. 1.64 crores while claim for deduction in assessment year 1999- 2000 was Rs. 2.69 crores and Assessing Officer allowed deduction of Rs. 2.39 crores. However, it is submitted on behalf of respondent-Revenue that examination at time of assessment of petitioner's disclosure was without aid of subsequent decision of apex court in IPCA Laboratory (supra). Thus, Revenue is entitled to re-examine petitioner's accounts in light of subsequent demand. However, even if one accepts this light of subsequent demand. However, even if one accepts this submission, yet where assessments are sought to be opened beyond period of four years from end of relevant assessment year before notice to reopen can be issued, condition precedent must be satisfied, i.e., failure on part of petitioner to disclose fully and truly all material facts necessary for assessment. This court had occasion to consider identical submission in Sesa Goa Ltd. v. CIT [2007] 294 ITR 101 (Bom) to hold that subsequent decision cannot justify reopening of assessment beyond period of four years from end of relevant assessment year unless there is failure to disclose fully and truly all facts necessary for assessment. This is jurisdictional requirement. Similarly, in Voltas Ltd. v. Asst. CIT [2012] 349 ITR 656 (Bom) our court has observed as under (page 662): "While subsequent decision of court or legislative amendment enforced after order of assessment may legitimately give rise to inference of escapement of income, before Assessing Officer proceeds to reopen assessment after expiry of four years of end of relevant assessment year, he must none less apply his mind to fundamental question as to whether there has been failure to disclose on part of assessee. In present case, ex facie there is no such allegation. Moreover, return of income and material placed on record by assessee together with return would make it abundantly clear that assessee had set forth basis of its claim and there was no suppression of material facts. In these circumstances, and for reason that are stated herein above, we are of view that fundamental condition for reopening assessment beyond period of four years has not been fulfilled." Therefore, on aforesaid ground alone, viz., no failure on part of petitioner to disclose fully and truly all facts for assessment, petitions have to be allowed. This is jurisdictional issue. In light of above, it was not felt necessary to deal with other submissions of petitioner and respondent- Revenue. In view of above, impugned notices dated January 25, 2006, and subsequent impugned orders dated March 7, 2006, for assessment years 1998-99 and 1999-2000 are not sustainable. Therefore, rule is made absolute in terms of prayer clause (a) in both petitions. No order as to costs. *** Sadhna Nitro Chem Ltd. v. A. B. Koli, Assistant Commissioner of Income-tax