JUDGMENT :

D.A. Mehta, J.

1. 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 supposed to get 5% commission on sales as decided by APMC and the petitioner is required to pay market fee at the @ 0.50 paise on every Rs. 100/- of sale, which the petitioner collects from the purchasers of the goods sold by the petitioner.

3. Sometime in November, 1997, it is the say of the petitioner, that the petitioner received summons under Section 131 of the Act from the Assistant Director of Income-Tax (Investigation), Unit No. I(1) ('the ADIT (Investigation)' for short) on the basis of some search and seizure proceedings in case of some other dealers in the market. It is the case of the petitioner that the petitioner has no relation, either in business or in any other manner with the said dealers. The petitioner has narrated in Paragraph No. 2 of the petition the modus operandi for accounting its commission receipts as explained to the ADIT (Investigation) when the petitioner attended before the said authority with books of accounts. It appears that, according to the petitioner, the ADIT (Investigation) advised the petitioner to avail of the Voluntary Disclosure of Income Scheme, 1997 (the VDIS) which was in operation at the relevant point of time. For this purpose, the petitioner has referred to communication dated 30.12.1997 addressed by the petitioner to the ADIT (Investigation). Ultimately, it appears that the petitioner declared an amount of Rs.6,00,000/- under VDIS for each of the three years under consideration.

4. Subsequently, the impugned notices, for the 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 reasons recorded do not disclose any income which has escaped assessment so as to clothe the respondent authority with jurisdiction.

6. On behalf of the respondent authority Shri M.R. Bhatt, learned Senior Standing Counsel, submitted that it was an accepted position that the petitioner was required to pay market fee @ 0.50 paise per Rs.100/- of sale and the petitioner had paid market fee of Rs.1,97,679/- in Assessment Year 1995-96, Rs.1,73,435/- in Assessment Year 1996-97 and Rs.1,91,572/- in Assessment Year 1997-98. Therefore, the assessee was bound to have received total commission of Rs.19,76,790/- Rs.17,34,350/- and Rs.19,15,720/- for each of the three Assessment Years respectively. As against that commission receipts to the tune of Rs.7,18,358/-, Rs.8,71,534/- and Rs.9,44,173/- were shown to have been received by the petitioner assessee as recorded in books of account leading to substantial difference in each of the three years under consideration. Therefore, it was for the assessee to lead evidence to establish whether the said figure was required to be re