TMI Blog2009 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. Mr. Bhatt, learned senior standing counsel, with Mrs. Mauna M. Bhatt for the Respondent. JUDGMENT The judgment of the court was delivered by JUSTICE D. A. MEHTA - This petition has been preferred challenging notices issued under Section 148 of the Income-tax Act, 1961 (the Act) for Assessment Years 1995-96, 1996-97 and 1997-98. 2. The petitioner is a partnership firm, who is assessed to tax under the Act. The petitioner has business of selling fresh vegetables on commission basis in the market outside Jamalpur Gate. The market is run and managed by Agricultural Produce Market Committee (APMC). The petitioner purchases vegetables from farmers and sells the same. According to the petitioner, the petitioner is supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three Assessment Years dated 23.03.1999 have been received by the petitioner and the same are under challenge in the present petition. 5. Learned advocate for the petitioner has assailed the action of the respondent authority, firstly on the ground that the respondent department has gone back on its word in re-opening the assessments which were concluded under the VDIS and the said income, which was declared under the said Scheme, is sought to be taxed again. For this purposes reliance has been placed on various questions and answers issued in the form of Circular No.755 dated 25.07.1997 to contend that an income which has been declared under VDIS cannot be subjected to any further proceedings. Secondly, it was submitted that the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of which department could re-open the case, it was not necessary to enter into any further analysis of facts. It was therefore urged that the petition was required to be rejected. 7. Having heard the learned counsel appearing for the respective parties it is apparent that in so far as the factum of declaration under the VDIS is concerned, though strenuous contentions were raised, it would not be germane to the issue in the facts of the present case because the Court is only to examine as to whether the re-opening of completed assessments initiated by issuance of three notices impugned is valid in law or not on the basis of settled parameters. For this purposes it is necessary to consider the reasons recorded by the respondent authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any Assessment Year if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any Assessment Year. Therefore, the basic requirement is that an income which is chargeable to tax has escaped assessment. 9. Keeping the aforesaid position of law in mind if one reads the reasons recorded, in Paragraph No.1 of the reasons, facts are narrated; in Paragraph No.2 the Assessing Officer undertakes arithmetical calculation applying the formula of three by taking the figure of market fee paid as the starting point and working out the total commission which the assessee must have received on total sale proceeds by adopting the rate of 5% of sales. Thereafter, difference between commission shown and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income which has escaped assessment." This indicates that there is no material available with the respondent authority for holding any belief that any income chargeable to tax has escaped assessment, which in fact reasons recorded also does not disclose. A completed assessment cannot be reopened merely to make inquiries. That is the domain of regular assessment. 11. In the facts of the case the decision cited by the learned counsel on behalf of the respondent authority is not applicable because this is not a case where there is some material to come to the conclusion that there is any nexus with any income chargeable to tax which has escaped assessment. On facts, in fact, there is no material which can lead the Assessing Officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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