JUDGMENT Heard learned counsel for parties. Rule. Returnable forthwith. By consent petition is taken up for final hearing at stage of admission. This petition is filed seeking writ of mandamus directing respondent No. 1 to withdraw and cancel notice dated November 18, 2013, issued under section 148 of Income-tax Act, 1961, and order dated February 4, 2014, rejecting objections of petitioner. aforesaid impugned notice and order appears at exhibit "H" and exhibit "M" of petition. In meantime, petitioner also seeks order restraining respondents from taking steps pursuant to notice dated November 18, 2013, exhibit "H" issued under section 148 of Act. We have heard counsel for parties. Mr. Gopal, counsel for petitioner, submitted that Assessing Officer had no occasion to pass impugned order and in any event reject objections. According to petitioner, it had disclosed all material facts fully and truly, in course of assessment proceedings including all long-term capital gains, trial run expenses and bad debts during course of original assessment proceedings. He further submitted that during course of aforesaid proceedings, petitioner was called upon to submit copies of computation of income, balance-sheet, profit and loss account and audited books of account. After scrutinising same, officer sought details of long-term capital gains, trial run expenses and bad debts, all of which were furnished. According to petitioner, there was no occasion for respondent No. 1 to believe that any income had escaped assessment. Respondent No. 1 had applied his mind and passed assessment order on December 7, 2001, being fully satisfied after scrutinising particulars. notice under section 148 seeks to reconsider same issue and this amounts to change of opinion on same set of facts and is impermissible in law. Mr. Gopal further submitted that on perusal of record, it is evident that Assessing Officer had change of mind. material records evidence that no adverse inference could have been drawn against petitioner in facts of case. He submitted that order under section 143(3) had been passed after due application of mind. There is no new or tangible material which would justify issuance of impugned notice and same is occasioned only as result of change of opinion. Mr. Gopal relied upon decision of Special Bench of Mumbai Appellate Tribunal in case of Deputy CIT v. Times Guaranty Ltd. [2010] 4 ITR (Trib) 210 (Mumbai) [SB]; [2010] 40 SOT 14 and submitted that on basis of said decision respondent's officer has sought to draw adverse inference without any application of mind. He submitted that during course of original assessment proceedings, Assessing Officer has called for details which were furnished to Assessing Officer on or about November 19, 2011, and after considering same Assessing Officer passed order dated December 7, 2011. learned counsel placed reliance on CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC) which lays down that reason to believe that income has escaped assessment must be recorded in writing. He submitted that in facts of present case Assessing Officer has not recorded any reason in writing causing him to believe that any income has escaped tax assessment. hon'ble Supreme Court had in case of Kelvinator of India Ltd. held that one needs to give schematic interpretation to words "reason to believe" failing which section 147 may give arbitrary powers to Assessing Officer to reopen assessments on basis of "mere change of opinion". Mr. Gopal, therefore, submitted that, in present case, there was no new material on basis of which reassessment could be justified. He, therefore, submitted that it is fit case for setting aside impugned notice. Mr. Suresh Kumar, on behalf of respondents, submitted that impugned notice does not arise as result of change of opinion. He submitted that within period of four years, it was permissible to reassess earlier orders. He relied upon decision of this court in case of Export Credit Guarantee Corporation of India Ltd. v. Addl. CIT [2013] 350 ITR 651 (Bom) wherein Division Bench of this court observed that within period of four years if Assessing Officer found reason to believe that income has escaped assessment, it is within his powers to reopen assessment. He escaped assessment, it is within his powers to reopen assessment. He submitted that impugned notice to reopen assessment has passed test laid down in said judgment as also judgment in case of Kelvinator of India Ltd. According to Mr. Kumar, Assessing Officer has applied his mind and found that there were reasons which formed live link with formation of belief that income had escaped assessment. In his view such live link having been established, Assessing Officer was fully within his powers to issue impugned notice and reopen assessment. Having considered rival contentions of parties and having examined facts we proceeded to consider reasons adopted by Assessing Officer for issuing impugned notice dated February 4, 2015, which appears at exhibit "M" of petition. assessment order dated February 7, 2011, records that assessee had submitted details required and called for during course of assessment proceedings. submissions of assessee were recorded and order dated February 4, 2015, came to be passed. We, thereafter, proceeded to examine notice dated November 18, 2013, issued under section 148(1) of Act and correspondence thereafter. On November 28, 2013, petitioner filed letter to respondent No. 1 enclosing copy of return of income for assessment year 2009-10 which was filed on September 29, 2009, and requested Assessing Officer to treat said return as petitioner's response to notice under section 148(1). Vide separate letter of same date, petitioner also sought reasons recorded by Assessing Officer for issuing notice under section 148 of Act. In response to said request, almost after 11 months assessee's request for reasons, vide letter of October 10, 2014, Assessing Officer contended that on perusal of records it was observed that assessee has claimed set off of brought forward unabsorbed depreciation pertaining to assessment years 1997-98 and 1999-2000 amounting to Rs. 2,70,12,040 along with long-term capital gain along with Rs. 6,18,54,185. He contended that since this amount are pertaining to 8 years ago, same could not be set off against long-term capital gain. omission, according to Assessing Officer, has resulted in incorrect set off of unabsorbed depreciation of Rs. 2,70,12,040, thereby leading to short levy of tax of Rs. 61,20,928. Further, it was stated that assessee had "claimed deduction of bad debts written off of Rs. 36,72,286 and amount of loss brought forward or unabsorbed depreciation, whichever is less, as per books of account amounting to Rs. 1,74,88,918 from net profit of Rs. 3,83,53,319 while computing income. According to Assessing Officer, claim of unabsorbed depreciation of Rs. 1,74,88,918 in computation of book profit was not in order and assessee had not made full and true disclosure of income and its particulars in return or during assessment proceedings. Hence, Assessing Officer had reason to believe that income has escaped assessment and income chargeable to tax has been underassessed. petitioner's accountant filed objections to reopening, vide letter dated November 24, 2014, copy of which appears at exhibit "L" to petition. petitioner questioned Assessing Officer's contention that various data, facts and particulars mentioned in reasons for reopening were not submitted earlier. According to petitioner, all information was provided while filing return which found to be basis of Assessing Officer's proposed reopening of assessment. It was contended that proposed reopening only based on available records, there is no new material and that reopening under section 147 is bad in law. It was further pointed out that Assessing Officer had used very same material provided during assessment proceedings and has as afterthought, contended that income was underassessed. petitioner contended that what is being attempted is review of assessment under guise of reopening which is not permissible in law. objections were disposed of by communication dated February 4, 2015, in which Assessing Officer repeated his earlier contentions. Assessing Officer relied upon observations in paragraph 10 of judgment in case of Export Credit Guarantee Corporation of India Ltd. in Writ Petition No. 502 of 2012 reported in [2013] 350 ITR 651 (Bom) and contended that he was acting within his jurisdiction to reopen assessment. Section 147 of Income-tax, 1961, is entitled Income escaping assessment. That section reads as under: "147. If Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in course of proceedings under this section, or recompute loss or depreciation allowance or any other allowance, as case may be, for assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as relevant assessment year): Provided that where assessment under sub-section (3) of section 143 or this section has been made for relevant assessment year, no action shall be taken under this section after expiry of four years from end of relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of failure on part of assessee to make return under section 139 or in response to notice issued under subsection (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that nothing contained in first proviso shall apply in case where any income in relation to any asset (including financial interest in any entity), located outside India, chargeable to tax, has escaped assessment for any assessment year: Provided also that Assessing Officer may assess or reassess such income, other than income involving matters which are subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1.-Production before Assessing Officer of account books or other evidence from which material evidence could, with due diligence, have been discovered by Assessing Officer will not necessarily amount to disclosure within meaning of foregoing proviso. Explanation 2.-For purposes of this section, following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:- (a) where no return of income has been furnished by assessee although his total income or total income of any other person in respect of which he is assessable under this Act during previous year exceeded maximum amount which is not chargeable to income-tax; (b) where return of income has been furnished by assessee but no assessment has been made and it is noticed by Assessing Officer that assessee has understated income or has claimed excessive loss, deduction, allowance or relief in return; (ba) where assessee has failed to furnish report in respect of any international transaction which he was so required under section 92E. (c) where assessment has been made, but- (i) income chargeable to tax has been underassessed; or (ii) such income has been assessed at too low rate; or (iii) such income has been made subject of excessive relief under this Act; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed. (d) where person is found to have any asset (including financial interest in any entity) located outside India. Explanation 3.-For purpose of assessment or reassessment under this section, Assessing Officer may assess or reassess income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in course of proceedings under this section, notwithstanding that reasons for such issue have not been included in reasons recorded under subsection (2) of section 148. Explanation 4.-For removal of doubts, it is hereby clarified that provisions of this section, as amended, by Finance Act, 2012, shall also be applicable for any assessment year beginning on or before 1st day of April, 2012." In instant case, notice under section 148 has not been issued after expiry of four years but within four years. Therefore, assessee must have reason to believe that income chargeable to tax has escaped assessment and which alone will enable him to assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in course of proceedings under this section or recompute loss or depreciation allowance or any other allowance, as case may be, for assessment year concerned. In present case, what is referred to by Assessing Officer is Explanation 2(c)(i). What we find from reading of impugned notice and order rejecting objections is that Assessing Officer invokes deeming fiction in Explanation 2. He, therefore, holds that reasons recorded by him would show that assessment has been made but income chargeable to tax has been underassessed or such income has been assessed at too low rate. There is also reference made to excessive loss or depreciation allowance or any other allowance which has been computed under this Act. Therefore, argument of Mr. Suresh Kumar is that there are reasons to believe that income chargeable to tax has escaped assessment. He would also submit that in light of Explanation 2 and deeming fiction therein it is valid ground to presume that loss or depreciation allowance has to be recomputed. That has not been properly computed and rather there is underassessment in respect thereof in prior assessment. We are unable to agree with Mr. Suresh Kumar and for more than one reason. hon'ble Supreme Court has held that on going through changes made to section 147 of Act, it is clear that prior to Direct Tax Laws (Amendment) Act, 1987, reopening could be done under two conditions which have been noted in case of CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC), but in section 147 of Act from 1st April, 1989, they were given go-by and one condition has remained, viz., that where Assessing Officer has reason to believe that income has escaped assessment he has jurisdiction to reopen assessment. Though power to reopen is much wider but to reopen assessment. Though power to reopen is much wider but interpretation that words "reason to believe" must receive interpretation which is in consonance with scheme of law. There cannot be arbitrary powers to Assessing Officer to reopen assessment on basis of mere change of opinion. Assessing Officer has no power to review. He has only power to reassess. In garb of reopening assessment review cannot take place. This view of hon'ble Supreme Court binds us. We have tested impugned orders and notice in present case on this touchstone. In somewhat similar situation, Division Bench of this court in case of Titanor Components Ltd. v. Asst. CIT [2012] 343 ITR 183 (Bom); [2011] (5) Mh.LJ 141, referred to amended section 147 after 1st April, 1989, and all its provisions and explanation and held as under (page 186): "According to learned counsel, Revenue is entitled to issue such notice if Assessing Officer has reason to believe that income chargeable to tax has escaped assessment by reason of failure on part of assessee (a) to make return under section 139 or (b) in response to notice issued under sub-section (1) of section 142 or section 148, or (c) to disclose fully and truly all material facts necessary for that assessment year. Since first two conditions are not pleaded by respondents, it is submission of petitioner that notice is wholly unwarranted and invalid since there is no allegation whatsoever that petitioner has failed to disclose all material facts necessary for assessment. This submission can be considered only with reference to reasons put forth by respondents for issuing notice. letter dated January 27, 2005, inter alia, states that Assessing Officer has reason to believe that income has escaped assessment because petitioner has wrongly claimed deduction under section 80-IA in respect of income which was not derived from income of petitioner's unit of Kundaim. Further, that long-term capital gains have been wrongly claimed by assessee which have been wrongly considered for set off of unit of Kundaim which has resulted in escapement of income. Nowhere has Assessing Officer stated that there is any failure on part of assessee to disclose fully and truly all material facts necessary for assessment. Having regard to purpose of section, we are of view that power conferred by section 147 does not provide fresh opportunity to Assessing Officer to correct incorrect assessment made earlier unless mistake in assessment so made is result of failure of assessee to fully and truly disclose all material facts necessary for assessment. Indeed, where assessee has fully disclosed all material facts, it is not open for Assessing Officer to reopen assessment on ground that there is mistake in assessment. Moreover, it is necessary for Assessing Officer to first observe whether there is failure to disclose fully and truly all material facts necessary for assessment and having observed that there is such failure to proceed under section 147. It must follow that where Assessing Officer does not record such failure he would not be entitled to proceed under section 147. As observed earlier, Assessing Officer has not recorded failure on part of petitioner to fully and truly disclose all material facts necessary for assessment year 1997-98. What is recorded is that petitioner has wrongly claimed certain deductions which he was not entitled to. There is well known difference between wrong claim made by assessee after disclosing all true and material facts and wrong claim made by assessee by withholding material facts fully and truly. It is only in latter case that Assessing Officer would be entitled to proceed under section 147. We are supported in this view by decision of Division Bench of this court in Hindustan Lever Ltd. v. R. B. Wadkar, Asst. CIT (No. 1) [2004] 268 ITR 332 (Bom) where in similar case Division Bench held that reason that there was failure to disclose fully and truly that all material facts must be read as recorded by Assessing Officer and it would not be permissible to delete or add to those reasons and that Assessing Officer must be able to justify same based on material record. Division Bench observed as follows (page 338): 'He must disclose in reasons as to which fact or material was not disclosed by assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between reasons and evidence.'" In present case, order dated February 4, 2015, annexure M proceeds on footing that case records indicate that issues involved in reassessment proceedings were never examined by Assessing Officer. Assessing Officer without looking into issues allowed claim which is not Assessing Officer without looking into issues allowed claim which is not permissible. However, beyond making reference to judgment of Division Bench of this court in Export Credit Guarantee Corporation of India Ltd. v. Addl. CIT [2013] 350 ITR 651 (Bom) nothing has been stated or observed. complete reading of notice dated November 18, 2013, would indicate that Assessing Officer proposes to reassess income because assessee claimed set off of brought forward unabsorbed depreciation pertaining to 1997-98 to 1999-2000 amounting to Rs. 2,70,12,040 against longterm capital gain along with current year's losses of Rs. 6,81,54,185. This was position emerging from return filed on September 29, 2009, which was thereafter selected for scrutiny and assessment order was passed under section 143(3) on December 7, 2011. reasons disclose that Assessing Officer was of opinion that this unabsorbed depreciation of more than eight years old could not have been set off against long-term capital gain. judicial precedent has been referred in reasons and it has been opined that unabsorbed depreciation may be allowable under new provision but has to be dealt with in accordance with old provision and is subject to limitation of being eligible for set off only against business income and for eight years. Thus, unabsorbed depreciation of above assessment years 1997-98 to 2001- 02 is not eligible for relief granted having regard to section 32(2) of Incometax Act in assessment year 2002-03. omission has resulted in incorrect set off of unabsorbed depreciation thereby leading to short levy of tax. Then there is reference to deduction of bad debts written off and even with regard thereto what we find is that bad debts written off and to tune of Rs. 36,72,286 is also not adjustment specified under section 115JB of Income-tax Act. This has resulted in understatement of book profits to extent indicated in reasons leading to short levy of tax. If assessee has not made full and true disclosure of income and its particulars in return or during assessment proceedings then we do not see how these figures have been derived by Assessing Officer. In one breath he says that he has perused records and which reveals above position. At same time, he holds that petitioner has not made full and true disclosure of income and its particulars in return or during assessment proceedings. This contradiction and inconsistency in reasons would indicate that necessary satisfaction in terms of statutory provision has not been recorded at all. This would be further clear if one refers to other reason, viz., that income has escaped assessment and also in view of sub-clause (i) of clause (c) of Explanation 2 to section 147 of Act if income chargeable to tax has been underassessed. Such recording of reasons can never be termed as satisfactory. There is either satisfaction based on income escaping assessment by virtue of it being chargeable to tax and, therefore, reassessment and in terms of substantive provision is required. satisfaction can also be said to be that case is covered by deeming fiction and income chargeable to tax has escaped assessment by virtue of Explanation 2 clause (a), clause (b), clause (ba) , clause (c) and clause (d). However, if one refers to failure on part of assessee to make full and true disclosure of income then what Assessing Officer has in mind is first proviso to section 147. That enables reassessment after expiry of four years from end of relevant assessment year if income chargeable to tax has escaped assessment for such assessment year by reason of failure on part of assessee to make return under section 139 or in response to notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year. In present case, both are referred, viz., first proviso to section 147 and Explanation 2 thereof. However, this is not case where action under section 147 is taken after expiry of four years from end of relevant assessment year but it is within four years period. Thus, this proviso cannot be of any assistance. At same time, Assessing Officer says that he has reason to believe that income has escaped assessment and also in view of sub-clause (i) of clause (c) of Explanation 2. court cannot be called upon to indulge in guess work or speculate as to which reason has enabled Assessing Officer to act in terms of this section. If more than one reason is assigned as in this case then court can sustain notice only if it is of opinion that erroneous reference to statutory provision has been made but still there is income chargeable to tax which has escaped assessment and on account of which issuance of notice is justified. Which ground is sufficient to sustain notice is something which must be indicated in clear terms and should not be matter of speculation or guess work. We are unable to agree with reasoning of Assessing Officer. In our view, entire approach of Assessing Officer in facts of present case is misconceived. assessment order in present case has obviously taken into account aspect of depreciation. Perusal of assessment order reveals that all relevant documents and details as called for were filed. It is further recorded in paragraph 3 of assessment order that details of assessee-company along with return of income and those which were called for assessment proceedings were scrutinised. There does not appear to tangible material/reason for Assessing Officer to reopen assessment proceedings in facts of present case. reasons offered by Assessing Officer while rejecting objection that issues involved in reassessment proceedings were never examined by Assessing Officer are not tenable. No particulars whatsoever has been relied upon by Assessing Officer while rejecting objections. facts reveal and we are satisfied that in present case, order of reopening of assessment will not be justified. decision to reopen assessment is not based on proper reasons but obviously is result of change of opinion. This is impermissible. In case of ECGC, there was specific finding that there existed tangible material and reason to reopen assessment and that was evident from record in that case. It is not case of Revenue that in this case any new material was forwarded to Assessing Officer. In any event we are not called upon to decide on merits of case and proposed reopening is not justifiable in facts and circumstances of present case. Accordingly, petition must succeed. We, therefore, pass following order: impugned notice dated November 18, 2013, being exhibit "H" to petition issued under section 148 of Income-tax Act, 1961, in respect of assessment year 2009-10 and order dated February 4, 2015, rejecting objections of petitioner passed by respondent No. 1 are hereby set aside. There will be no order as to costs. *** Plus Paper Food Pac Ltd. v. Income-tax Officer