JUDGMENT

1. This Appeal under Section 260A of the Income Tax Act, 1961 ("The Act" for short), challenges the order dated 6 August 2014 passed by the Income Tax Appellate Tribunal ("The Tribunal" for short). The impugned order dated 6 August 2014 is in respect of Assessment Year 2004-05.

2. Mr. Chhotaray, the learned Counsel for the Revenue, urges only the following question of law for our consideration:-

Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in quashing the reopening of the assessment particularly when the assessment was reopened within a period of four years from the end of the assessment year?

3. Mr. Mody, the learned counsel appearing for the Respondent at the very outset point that the issue raised herein namely can a reopening be issued notice by the Assessing Officer on the very ground which he had opposed in response to the query from the Audit is no longer res integra. It is submitted that this issue stands concluded in favour of the Respondent Assessee by the decisions of this Court in IL & FS Investment Managers Ltd. V/s. Income Tax Officer , (2008) 298 ITR 32 and The Commissioner of Income Tax Vs. M/s. Reliance Industries Ltd. Income Tax Appeal No. 200 of 2013 decided on 1st February 2016 To the same effect, he submits are the decisions of the Delhi High Court in AVETC Ltd. v. DCIT , (2015) 370 ITR 611 (Delhi) and the Gujarat High Court in the cases of Jagat Jayantilal Parikh v. Deputy Commissioner of Income Tax , (2013) 355 ITR 400(Guj. ) and Raajratna Metal Industries Ltd. v. Assistant Commissioner of Income Tax , (2015) 371 ITR 222(Guj. ).

4. However, Mr. Chhotatry, the learned counsel for the Revenue submits that in the present case facts are completely distinguishable. Therefore, according to him, the aforesaid decisions will not govern this particular case. This primarily on the following grounds:-

a) The reasons recorded do not indicate that the same has been issued on the basis of audit objection. Therefore as held by this Court in Hindustan Lever Limited Vs. R. B. Wadkar , (2004) 268 ITR 332, one cannot go behind the reasons recorded in support of the notice to infer that he has acted on the basis of audit objection.

b) The response of non-acceptance by the Assessing Officer to the audit objection was in October 2007. It was almost one and half years thereafter i. e. 19th March 2009 that the reopening notice was issued. Therefore, it is possible for the Assessing Officer to have changed his mind in the interregnum and come to the conclusion that his earlier opposition to the audit objection was not justified. In support he relies upon the decision of the Apex Court in A. L. M. Firm V. CIT , (1991) 189 ITR 285.

c) The impugned order of the Tribunal is perverse in as much as without any basis it has come to the conclusion that the Assessing Officer had issued the notice on the basis of audit objection; and

d) The decision of the Apex Court in Liberty India v. CIT , (2009) 317 ITR 218 (SC) decides the issue in favour of the Revenue with regards to the merits of the issue viz. not entitled to duty drawback incentive deduction under Section 80IB (4) of the Act.

5. The first grievance of the Revenue that in view of the decision of this Court in Hindustan Lever , it is not open to go behind the reasons recorded by the Assessing Officer. The reasons as recorded by the Assessing Officer it is submitted by the Revenue nowhere indicates that it was issued by the Assessing Officer on account of the audit objection. We note that in Hindustan Lever , the Assessee had challenged a reopening notice which was issued beyond a period of four years from the end of relevant Assessment Year. The reasons in support of notice therein did not indicate any failure on the part of the Assessee to fully and truly disclose all material facts. In that context the Court observed that it is not open to the Assessing Officer to improve upon the reasons recorded at the time of issuin