JUDGMENT 1. IN this application the writ petitioner challenges the reopening of the assessment for the assessment year 1983-84 by a notice dated 6. 9. 1989 which is at page 97 of the writ petition. 2. AFTER the writ petition was filed the reasons for reopening of the assessment were forwarded to the writ petitioner a copy whereof has been produced in Court (during hearing) in two sheets and the same should be kept on the record of these proceedings. I am told by Counsel on behalf of the respondents that the reasons were produced pursuant to an order dated 16. 3. 1990. An affidavit of one Ramnath Jhunjhunwalla dated 30th March, 1990 is also before me which was affirmed in respect of the said reasons for reopening. By reason of an amendment which became effective from the 1st of April 1989 Section 147 of the Income Tax Act now reads in such a way as not to permit the reopening of the assessment for any assessment year after a lapse of four years from the conclusion of the said assessment year excepting on certain specified grounds In this case the writ petitioner has urged that none of these ground exists and thus the reopening is bad in law. The said proviso is set out hereunder. Provided that where an assessment under sub-section (3) of section 3 43 of this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reasons of the failure on the part of the assessee to make a return under section 139 or in response to a 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. 3. FROM the disclosed reasons for reopening it appears that the reopening was sought to be made because of the dealings between a certain alleged selling Commission Agent, M/s. VAP Corporation, and the assessee. The case of the Department is that on account of a confession made by one Sri Suresh thakkar. 3. FROM the disclosed reasons for reopening it appears that the reopening was sought to be made because of the dealings between a certain alleged selling Commission Agent, M/s. VAP Corporation, and the assessee. The case of the Department is that on account of a confession made by one Sri Suresh thakkar. the Director of the said VAP Corporation, the Department thought what was stated by the assessee to be the payment of Selling commission was merely the diversion of profits as the confession of Thakkar was to this effect that no services had been rendered on account of payment of the amount to this Selling Commission Agent, M/s. VAP Corporation. ' 4. MY attention has been drawn to the correspondence as well as the assessment Order. In particular, a reference has been made to the department's letter dated 28.5.1985 at page 35 of the writ petition where, under item 10 at page 39, Selling Agent Commission data along with evidence of service rendered were called for; the letter at page 50 dated 7.1.1986 has also been referred where the Department again called for original letters regarding commission paid to several parties, and the name of VAP Corporation (P) Ltd. appears in the list at the first page of the letter; the letter dated 24.2.1986 written by the assessee was also referred to whereby the name of M/s. VAP corporation Ltd. was notified to the Department and the letter states that the letters and bills with regard to that party amongst others are also enclosed; the letter dated 28.2.1986 at page 57 from the Income Tax Officer to the assessee states that according to the Officer service was not rendered by certain parties and their names are mentioned at page 50 which List does not contain the name of M/s. VAP Corporation. Before I come to the assessment which is being sought to be reopened i must also mention that in the said affidavit of 30. 3. 1990 the deponent has stated that the reply was given on February, 1986 to the query of 7th january, 1986 about the commission paid to M/s. VAP Corporation; the figures in respect of this commission to VAP is mentioned in the affidavit as rs. 8,53,130/ -. This figure is mot mentioned in the body of the reply of 24.2.1986. 3. 1990 the deponent has stated that the reply was given on February, 1986 to the query of 7th january, 1986 about the commission paid to M/s. VAP Corporation; the figures in respect of this commission to VAP is mentioned in the affidavit as rs. 8,53,130/ -. This figure is mot mentioned in the body of the reply of 24.2.1986. A figure close to this one is mentioned for the reasons for reopening and that figure is Rs. 8,53.809/- 5. IN this background the assessment was made on 27th of March, 1986 and the order is at page 53 of the Annexures. It is clear from the order that the question of services being rendered for Selling Commission Agent's fees was entered into page 77 onwards are clear indications in that regard. It is mentioned in the Assessment Order about various parties including M/s. VAP corporation. It is also stated in the order that out of the claimed sum for selling commission of Rs. 77,51,307/- an amount of Rs. 12,59,422/- was being withdrawn rom the claim by the assessee. These figures are at pages 77 and 80. At page 85 of the Annexures it appears that only the withdrawn claim of rs. 12,59.422/- was added to the assessable income. Though there is no express finding by the Income tax Officer that the rest of Rs. 77,00,000/- and odd is assessed by him to be genuine yet an implied finding to that effect cannot but be read into the Assessment Order. If the claim is for Rs. 77,00,000/- and odd, and if the claim is not pressed with regard to about Rs, 12. 00,000/- and odd, and no other amount of claim than what is not pressed is not added to the income, and assessment is made, then there is no scope to dispute that the rest of the amount claimed as payment by way of selling agency is accepted as such and as genuine, and the necessary deduction or rebate is allowed therefore. 6. 6. IT may be that the selling agency sought to be set up by the writ petitioner for the assessment year 1983-84 as between the writ petitioner and M/s. VAP corporation was a bonus arrangement or merely a sham transaction it may be that the letters or documents produced with regard to M/s. VAP corporation were all collusive documents and did not reflect a complete and true state of affairs. If that is so, not doubt there would be a good reason for reopening the assessment but the period of limitation of four years as per the above proviso would have to be satisfied or in the alternative, reason for reopening of assessment would have to be such a reason as is covered by the express words of that proviso. It is the common position of the appearing parties before me that if that proviso is to be applicable in this case then only that portion is applicable which refers to the disclosure fully and truly of all material facts necessary for the assessment for the concerned assessment year. 7. LEARNED Counsel for the petitioner has relied upon two Supreme Court decisions in that regard. One is the case of Burlop Dealers Ltd. reported in 79 itr 609 and the other case is that of Madani Export, reported in 118 ITR 1. The net upshot of the two decisions is that while interpreting this proviso in the income-lax Act, the Courts and not to read these words in such a way as to cast upon the assessee a duty to disclose that, even the primary documents relied upon by the assessee, were sham or bogue. In other words, if a certain sham or bagus Partnership Deed is entered into by the assessee and produced for assessment, and the assessment is actually made on that basis by accepting the said Deed to be true, then reopening of assessment on the ground that (he deed was bogus has to be made within the prescribed period of limitation, now four years. Otherwise the: matter roosts forever. It is for the income-tax Officer Id take a decision when decided with the original documents, and (he IT C was free to decide the either by accepting the tendered documents as genuine or rejecting them as sham. Otherwise the: matter roosts forever. It is for the income-tax Officer Id take a decision when decided with the original documents, and (he IT C was free to decide the either by accepting the tendered documents as genuine or rejecting them as sham. The assessee is under no obligation to make a self incriminating confession as to the documents relied upon by him self, even if they are sham or flase in nature. Once certain documents are produced, be those bogus or sham, for the purpose of assessment, and the documents are acted upon and assessment made, then finality will attach to the documents and the assessment unless it is reopened on a certain reasonable belief within the prescribed period, which is now four years. Otherwise the documents and papers for the purpose of the said assessment will reach a finality which is not reopenable at all. In view of the two clear Supreme Court decisions where the above principle was followed regard to an allegedly sham Partnership Deed and an allegedly sham transaction for sharing of 50 percent profit, I am bound to decide the present issue in favour of the writ petition. Even if the arrangement with M/s. VAP corporation was a sham arrangement and even if the documents produced before the Income-tax Officer were not at all genuine the same had the effect of obtaining an assessment in favour of the writ petitioner on the basis of the allegedly false documents, and then in that case, the reopening of assessment is not permitted in September 1989 which is roughly 18 months later then the lapse of four years after the expiry of 31.3.1984 which was the end of the concerned assessment year 1983-84. 10. In view of the binding authorities, I need not inquire into the rationale of this seemingly dishonesty favouring principle. But in reality, it is not dishonesty that is being favoured but a finality. It may be that a document is bogue or sham; at the stage of reopening of assessment, it is only the case of the department that the document is sham. 8. THAT case is not admitted by the assessee. What the department is enjoined from doing after four years is not to treat the sham document as genuine, but merely to desist from reopening the issue of the sham nature of the document. 8. THAT case is not admitted by the assessee. What the department is enjoined from doing after four years is not to treat the sham document as genuine, but merely to desist from reopening the issue of the sham nature of the document. Such is the case with all provisions of limitation. When an apparently very good money suit is dismissed as beyond three years, it is done so not because the legislature has thought it fit not to permit the agitation of stale claims which have been kept out of the run of time and events for too long period. Accordingly, the writ petition succeeds. There will be a rule absolute in terms of prayer (a) of the writ petition. 9. THE formality of issuing a rule nisi need not be complied with as the matter has been heard by the less formal procedure of the first issuance of a civil order instead of a rule nisi. 10. THE reasons for reopening produced as indicated may be countersigned and thereafter upon furnishing Photostat copies the same may be returned to the petitioner. Photostat copies shall also be countersigned. All parties to act on a signed. Xerox copy of this Dictated Order supplied to them countersigned by the Court Officer on the usual undertaking. Petition allowed.