ORDER :

(Sonia Gokani, J.)

1. By way of the present petition under Article 226 of the Constitution of India, the challenge is to notice issued by the respondent under under Section 148 of the Income Tax Act (‘IT Act’ hereinafter) dated 21.3.2021 directing the petitioner to furnish the return of income for the assessment year 2017-18 on the ground that the same is contrary to law and without jurisdiction.

1.1 The order disposing of the objections passed by the respondent dated 25.10.2021 also has been challenged.

2. The petitioner is a limited company which has filed its return of income for A.Y.2017-18 declaring total loss on 28.11.2017 under normal provisions and the bookloss as well.

2.1 The tax return of the petitioner was processed and his case was selected for scrutiny under CASS. The detailed scrutiny was undertaken and the assessment order under Section 143(3) was passed on 21.12.2019 accepting the returned total loss of the petitioner for A.Y.2017-18 without making any addition or disallowance of any expenses. The respondent issued notice under Section 148 asking the petitioner to file return of income for A. Y.2017-18. The petitioner, without prejudice, filed the return of income in compliance with the notice and sought for the reasons recorded for reopening and approval obtained under Section 151 of the Act.

2.2 The petitioner had been provided with the copy of the reasons and approval on 17.5.2021. In response to the same, the objections were raised on 16.8.2021 challenging the validity of the notice. The respondent disposed of the objections on 25.10.2021.

2.3 The notice impugned dated 21.3.2021 under Section 148 is challenged in the present petition with the following prayers:

“7(a) quash and set aside the impugned notice dated 21.03.2021 at Annexure-‘A’ to this Petition;

(b) quash and set aside the impugned order dated 25.10.2021 at Annexure-‘G’ to this Petition;

(c) pending the admission, hearing and final disposal of this petition, to stay implementation and operation of the notice at Annexure-‘A’ to this petition and stay further proceedings for assessment for A Y 2017-18;

(d) any other and further relief deemed just and proper be granted in the interest of justice;

(e) to provide for the cost of this petition.”

2.4 Essential thrust on the part of the petitioner is that the reopening is on the basis of the audit party objection and it is a settled law that the reason to believe needs to be that of the Assessing Officer alone, the same cannot be substituted by objection received from the audit department. The Assessing Officer himself had objected to the audit party’s communication and hence the reasons recorded are not in accordance with the law, the reassessment proceedings under Section 147 is not permissible. Reliance is placed on some of the decisions of this Court, where on the similar grounds, the Court had entertained the petition and had quashed the notice.

2.5 This Court issued the notice on 10.1.2022 (Coram: J.B. Pardiwala, J (as His Lordship then was) and Nisha Thakore, J), and protected by way of ad-interim relief in terms of paragraph 7(c).

2.6 In response to the notice, the affidavit-in-reply is filed by the Assistant Commissioner of Income-tax, Circle 1(1)(1), Ahmedabad denying all averments and allegations.

2.7 According to the respondent, the petition is filed at a pre-mature stage as only the notice under Section 148 read with Section 147 of the I.T. Act has been issued. There is an alternative remedy available by way of preferring the appeal before the CIT, Appeals and thereafter the matter can be challenged before the Tribunal.

2.8 The assessee filed its return of income for A.Y.2017-18 on 28.11.2017 is not being disputed. The process under Section 143(1) of the I.T. Act and subsequently Section 143(3) also is accepted. According to the respondent, from computation of income, the Income from