JUDGMENT Hon’ble Saumitra Dayal Singh, J.—This writ petition has been filed seeking a writ of Certiorari to quash the order of sanction dated 5.2.2014 granted by the Additional Commissioner, Commercial Tax, Gautam Budh Nagar Zone, NOIDA by which sanction has been granted to the petitioner’s Assessing Authority namely Joint Commissioner (Corporate Circle), Commercial Tax, NOIDA to reassess the petitioner for the assessment year 2009-10 (U.P.), invoking the extended period of limitation and a further writ of Prohibition to restrain the Joint Commissioner, Corporate Circle, Commercial Tax, Noida from taking any reassessment proceedings for assessment year 2009-10(U.P.). 2. The petitioner M/s. Bharat Heavy Electrical Limited is a company incorporated and established by the Government of India. It is engaged in manufacture of heavy electrical machineries, equipment etc. Also, during the year in question, admittedly, it executed various work contracts described in the sanction order as supply, erection and commissioning of complete power plant on turn key basis. 3. While entertaining this writ petition, the Court on 24.3.2014 had passed the following order : “We direct the respondents to file a counter-affidavit specifically clarifying (i) whether the original contracts pertaining to the Assessment Year 2009-10 were produced by the petitioner before the Assessing Authority during the course of assessment proceedings; (ii) whether the account books which were produced by the petitioner do as a matter of fact disclose the labour component separately. It is necessary for the State to clarify both these aspects since the submission of the petitioner, based on the original order of assessment, is that as a matter fact contracts were produced and the account books would indicate that the labour component was separately shown. The counter-affidavit shall be filed within a period of three weeks. Rejoinder-affidavit shall be filed within a period of two weeks thereafter. In the meantime, we direct that until the next date of listing, the reassessment proceedings in pursuance of the impugned order dated 5 February 2014 shall remain stayed. List this petition on 5 May 2014.” 4. We have heard Sri Bharat Ji Agrawal, learned Senior Advocate assisted by Sri Shubham Agrawal, learned counsel for the petitioner and Sri C.B.Tripathi, learned Special Counsel for the State appearing on behalf of the respondent Nos. 1, 2 and 3 and have perused the record. 5. List this petition on 5 May 2014.” 4. We have heard Sri Bharat Ji Agrawal, learned Senior Advocate assisted by Sri Shubham Agrawal, learned counsel for the petitioner and Sri C.B.Tripathi, learned Special Counsel for the State appearing on behalf of the respondent Nos. 1, 2 and 3 and have perused the record. 5. From the original assessment order dated 30.4.2013 passed in the case of the petitioner for A.Y. 2009-10 (UP), we find that the petitioner had, in the course of those proceedings, furnished details of fifteen work contracts executed by it during the assessment year in question together with description of nature and value of each such contract. Also, during the course of those proceedings the petitioner’s Assessing Authority had discussed the issue of billing and of payments having been claimed by the assessee in two parts - first, being in respect of civil supplies and second in respect of labour with reference to contracts executed by the petitioner for work awarded - specifically by the U.P. Rajya Vidyut Utpadan Nigam Limited at Harduaganj (Aligarh), Parichcha (Jhansi) and Anpara (Sonbhadra), in that regard the Assessing Officer also examined the billing break up with reference to the civil work contracts. In reply the assessee had claimed separate components for supply and labour work under the contracts in question. The Assessing Officer also appears to have examined the contract documents, extracts of which have been made and recorded in the assessment order itself. Thereafter, the Assessing Officer observed from the billing break up that the same had been prepared for the purposes of receiving payments from the contractees. The assessee had also claimed in the civil work contracts awarded by Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited, the value and supply of material and labour was specified separately (paragraph 6 of the assessment order). Also, upon examination of the petitioner’s books of account the petitioner’s Assessing Authority specifically verified the purchase of steel and cement as disclosed by the petitioner. Thereafter, upon such a factual inquiry the assessment was concluded. No disallowance and no consequential addition was made to the taxable turnover was made on account of labour charges as claimed by the petitioner. 6. Thereafter, on 10 September, 2013 the Additional Commissioner (Commercial Tax), Gautam Budh Nagar, Noida issued a notice to the petitioner proposing therein to initiate the re-assessment proceedings for the assessment year 2009-10 (U.P.). No disallowance and no consequential addition was made to the taxable turnover was made on account of labour charges as claimed by the petitioner. 6. Thereafter, on 10 September, 2013 the Additional Commissioner (Commercial Tax), Gautam Budh Nagar, Noida issued a notice to the petitioner proposing therein to initiate the re-assessment proceedings for the assessment year 2009-10 (U.P.). It is based on a proposal received by the said authority from the petitioner’s Assessing Authority Joint Commissioner (Commercial Tax) Range A, Noida. A perusal of the said proposal indicates that the Assessing Officer entertained a belief of the petitioner’s turnover having escaped assessment for the assessment year 2009-10, impressed, at least in part by certain findings recorded by the said authority in the course of provisional assessment proceeding for the assessment year 2012-13 (March 2013). Also, he observed as a fact that during the course of the original assessment proceedings the assessee had not produced the contract documents pertaining to the work contracts performed by it and had also not produced its account books and that later, upon inquiry made during the provisional assessment proceedings for assessment year 2012-13 (March 2013)it became clear to him that in the year in question petitioner had executed work contracts for supply, erection and commissioning of complete power plant on turn key basis. On these facts it has been inferentially reasoned that the petitioner had been wrongly allowed the deduction of labour charges in excess of 10% of the payments received for work contracts executed by it and that the amount in excess of 10% should have been included in its taxable turnover and assessed to tax in view of Rule 9(3) of the U.P. Value Added Tax Rules 2008 hereinafter referred to as the Rules and taxed accordingly. As such, the petitioner’s assessing authority has reasoned - inferentially that the petitioner was entitled to claim deduction for value of labour and service charges and profit thereon only, in accordance with Rule 9(3) of the Rules, at the rate of 10% of the payments received by the petitioner and not at actual as claimed by it (as contemplated under Rule 9(1) of the Rules) and therefore a part of the petitioner’s turnover has escaped assessment. 7. 7. It appears, in consequence of the aforesaid notice the Additional Commissioner (Commercial Tax), Gautam Budh Nagar, Noida, on 5.2.2014, passed an order granting permission to the petitioner’s Assessing Authority to reassess the petitioner for assessment year 2009-10 (U.P.) by invoking extended period of limitation on the reasoning as is contained in the proposal made by the petitioner’s assessing authority. It is this order/sanction which is under challenge in the instant writ petition. 8. Learned Senior Counsel for the petitioner submits, the sanction order is bad inasmuch as the reassessment is proposed to be made on a mere change of opinion and re-examination of the same material which was available before and which had been examined by the Assessing Authority while framing the original assessment order and that such course is impermissible in view of recent decision of our Division Bench of this Court in (M/s. Varun Beverages Ltd. v. State of U.P. and 2 others, 2016 UPTC 807 (para 9). 9. Second, he relies on the record to contend that copies of the contract documents and books of account were produced before the Assessing Authority at the time of making the original assessment order. Statement to the contrary in the proposal for reassessment made by the petitioner’s assessing authority is factually incorrect and jurisdiction cannot be claimed on such incorrect statement of fact established/apparent on record. In this regard he has taken us through the original assessment order and relied on observations made therein that clearly suggest that the assessing authority was cognizant of the contract documents and various clauses in the contract as also that authority had examined the books of account of the petitioner. He thus relies on passages in the original assessment order to submit that the same could not have found place in the assessment order unless its author i.e. the assessing authority had before him those documents. It is true, the assessment order itself records details namely, the nature and value of various contracts executed by the petitioner as also it contains such extracts of the specific clauses of the contracts as the assessing authority choose to notice/record in that order. Further, we have been taken to paragraph 6 at internal page 19 of the assessment order wherein it has been specifically recorded “vyapari ki lekha pustakon say, civil nirmaan hetu, kharidi gayi steel, cement satyapan yogyey hain”. Further, we have been taken to paragraph 6 at internal page 19 of the assessment order wherein it has been specifically recorded “vyapari ki lekha pustakon say, civil nirmaan hetu, kharidi gayi steel, cement satyapan yogyey hain”. Thus, according to the learned senior counsel, the petitioner’s account books had not only been produced but also examined by the assessing authority in those proceedings and the reassessment proceedings initiated against the petitioner are truly review in the garb of a reassessment. 10. Third, it has been strenuously urged on behalf of petitioner that there is neither any information nor material on record nor any reason has been recorded to that effect not it is the case of the petitioner’s assessing authority that the accounts maintained by the petitioner do not show separately the value of labour and service and amount of profit accrued on such labour and service or that the account maintained by petitioner are not worthy of credence. Shri. Bharatji Agarwal has vehemently urged, in absence of such a fact assertion and information or material to support existence of such a fact, it cannot be alleged either that the petitioner had made a wrong or excess claim of deduction or that the deduction could be allowed only in accordance with Rule 9(3) of the Rules. It is further the case of the petitioner that admittedly it had maintained its books of account that had also been examined by the Assessing Authority during the original assessment proceedings as such statement to the contrary in the proposal letter and the counter-affidavit is plainly wrong and therefore, Rule 9(3) cannot be applied against the petitioner for this reason also. 11. Opposing the grant of writ, Shri C.B.Tripathi, on behalf of the State submits that the Assessing Authority, while making the original order the Assessing Authority, had not examined either the contract documents or the account books, which evidence, according to him had not been adduced/placed before him in those proceedings. In this regard he relies on contents of paragraph 7 and 8 of the counter-affidavit filed on behalf of the state respondents wherein it has been asserted : “7. That the contents of paragraph Nos. 6 and 7 of the writ petition as stated are not correct hence are denied. In this regard he relies on contents of paragraph 7 and 8 of the counter-affidavit filed on behalf of the state respondents wherein it has been asserted : “7. That the contents of paragraph Nos. 6 and 7 of the writ petition as stated are not correct hence are denied. It is submitted in reply that in the assessment proceeding the dealer/petitioner did not produce the books of account and has merely produced bills relating to purchase and sale relating to the works contract as such it cannot be said that the petitioner is maintaining true and correct books of accounts. 8. That with regard to the contents of paragraph Nos. 8 and 9 of the writ petition it is stated that before the assessing officer the petitioner has produced only bills of purchase and sale had not produced the entire books of account the petitioner did not produce the copy of contract by which the nature of contract as well as the work relating to the petitioner could be examined by the assessing officer. The assessment order was passed on the basis of the material produced before the assessing officer. On non production of the whole copy of the agreement/contract the assessing officer was not in a position to examine the nature of contract and the work carried out by the petitioner.” 12. Therefore, according to him the petitioner is liable to be reassessed in accordance with Rule 9(3) of the Rules as the petitioner was not entitled to claim by way of labour charges etc. any amount in excess of 10% of the payments received against the civil work contracts executed by it. He further submits that the issue of value of labour and service charges and profit thereon is required to be examined and in the facts of the case the applicability of Rule 9 (3) computing that deduction at 10% of the contract price received or receivable is just and proper. 13. Before examining the merits of the contention raised on either side, we may notice the relevant provision of the Act and the Rules with respect to initiation of reassessment proceedings and determination of turnover of sale of goods involved in the execution of work contracts. In this regard Section 29(1) and (7) of the U.P. Value Added Tax Act, 2008 are relevant to this issue, which is quoted as under : 29. In this regard Section 29(1) and (7) of the U.P. Value Added Tax Act, 2008 are relevant to this issue, which is quoted as under : 29. (1) “If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under-assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or re-assess the dealer to tax according to law: Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment or full assessment as the case may be. Explanation I.—Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment. Explanation II.—For the purpose of this section and of Section 31, “assessing authority” means the officer or authority who passed the earlier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer. Explanation III.—Notwithstanding the issuance of notice under this sub-section, where an order of assessment or re-assessment is in existence from before the issuance of such notice it shall continue to be effective as such, until varied by an order of assessment or re-assessment made under this section in pursuance of such notice”. 29. (7) Where the Commissioner, on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do, authorises the assessing authority in that behalf, such assessment or re-assessment may be made within a period of eight years after expiry of assessment year to which such assessment or re-assessment may involve a change of opinion: Provided that it shall not be necessary for the Commissioner to hear the dealer before authorising the assessing authority.” Rule 9(1) and (3) of the Rules which is read as below : 9. Determination of turnover of sale of goods involved in the execution of a works contract.—(1) Subject to other provisions of these rules, the tax on turnover of sale of goods where such sale is affected by way of transfer of property in goods (whether as goods or in some other form) involved in the execution of a work contract shall be computed on the taxable turnover of sale of taxable goods. For the purposes of determining the taxable turnover of sale of such goods, the amounts specified below shall be deducted if included in the gross amount received or receivable in respect of the works contract. (a)...... (b)...... (c)...... (d) all amounts representing the value of service and labour and profit thereon; (2)——— (3) Where accounts maintained by the contractor do not show separately the value of labour and services and amount of profit accrued on such labour and services, or accounts maintained by the dealer are not worthy of credence or if the dealer has not maintained accounts, for the purpose determining turnover of goods in which transfer of property in goods has taken place, in cases other than those mentioned in the table below, an amount, representing twenty percent of gross amount received or receivable, shall be deducted towards labour and services and amount of profit accrued thereon and in the cases described or mentioned in the Column 2 of the table given below, amount of deduction towards such labour and services and amount of profit accrued thereon shall be computed at the rate percentages, given in the Column 3 against the entry in Column 2 of the table, of the amount received or receivable: TABLE Sl. No. Description of works contracts Rate 1 2 3 1. Fabrication and installation of plant and machinery 10% 2. Fabrication and erection of structural works including fabrication, supply and erection of iron trusses, purline 10% 3. Fabrication and installation of cranes and hoists 10% 4. Fabrication and installation of elevator (lifts) and escalators 10% 5. Supply and installation of air conditioning equipment including deep freezers, cold storage plants, humidification plants and dehumidifier 10% 6. Supply and installation of air conditioners and air coolers 10% 7. Supply and fitting of electrical goods, supply and installation of electrical equipment including transformers 10% 8. Supply and fixing of furnitures and fixtures, partitions, including contracts of interior decorations 10% 9. Supply and installation of air conditioners and air coolers 10% 7. Supply and fitting of electrical goods, supply and installation of electrical equipment including transformers 10% 8. Supply and fixing of furnitures and fixtures, partitions, including contracts of interior decorations 10% 9. Construction of railway coaches and wagons on under carriages supplied by railways 10% 10. Construction of bodies of motor vehicle and construction of trailers 10% 11. Fabrication and installation of rolling shutters and collapsible gates 30% 12. Civil works like construction of building, bridge, roads, dams, barrages, spillways and diversions, sewages and drainage system 30% 13. Installation of doors, doors frames, windows, window frames and grills 30% 14. Supply and fixing of tiles, slabs, stone and sheets 30% 15. Sanitary fitting for plumbing, for drainage or sewerage system 30% 16. Whitewashing, painting and polishing 40% 14. It is settled law that the jurisdiction to initiate reassessment proceedings arises only after the assessing authority records his reason to believe that any turnover has escaped assessment Thus, not only is the belief of escapement essential but more importantly, it is necessary for the Assessing Authority to record his reason/s as to existence of the belief of such escapement. In Commissioner of Sales Tax v. Bhagwan Industries (P) Ltd., (1973) 31 STC 293 (SC), the phrase “reason to believe”appearing in a similar provision in Section 21 of the U.P, Sales Tax Act, 1948 providing for reassessment was interpreted thus: “The words “reason to believe” in Section 21 of the U.P. Sales Tax Act convey that there must be some rational basis for the assessing authority to form the believe that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for some year. If there are, in fact, some reasonable grounds for the assessing authority to believe that the whole or any part of the turnover of a dealer has escaped assessment, it can take action under the section. Reasonable grounds necessarily postulate that they must be germane to the formation of the belief regarding escaped assessment. If the ground are of an extraneous character, the same would not warrant initiation of proceedings under the above section. If, however, the grounds are relavant and have a nexus with the formation of belief regarding escaped assessment, the assessing authority would be clothed with jurisdiction to take action under the section. If the ground are of an extraneous character, the same would not warrant initiation of proceedings under the above section. If, however, the grounds are relavant and have a nexus with the formation of belief regarding escaped assessment, the assessing authority would be clothed with jurisdiction to take action under the section. Whether the ground are adequate or not is not a matter which would be gone into by the High Court or the Supreme Court, for the sufficiency of the grounds which induced the assessing authority to act is not a justiciable issue. What can be challenged is the existence of the belief but not the sufficiency or reasons for the belief. At the same time, the belief must be held in good faith and should not be a mere pretence.” 15. Applying the above principle, this Court, in the case of Rathi Industries Limited v. State of U.P. and another, has further elaborated - “From a perusal of the aforesaid, it is apparently clear that the words “reason to believe” in Section 21 of the U.P. Trade Tax Act conveys that there must be some rational basis for the assessing authority to form a belief that the whole or any party of the turnover of a dealer has for any reasons escaped assessment. Such reason or reasonable ground to believe that the whole or any part of the turnover had escaped assessment must be germane to the formation of the believe regarding escaped assessment. Such reasons or grounds must have a nexus with the formation of the belief. The approach has to be practical and not pedantic.” 16. In the instant case the petitioner’s assessing authority while making the proposal for reassessment recorded his reasons to the effect that in view of discrepancies noticed in the petitioner’s monthly return for A.Y. 2012-13 (March), it had been subjected to a provisional assessment proceedings wherein the petitioner was required to and it produced copies of all work contracts awarded to it and that upon examination of the same it became clear that those contracts were contracts for Supply, Erection and Commissioning of Complete Power Plants on turnkey basis. On this information and material he claims to have entertained the belief that the petitioner was not entitled to claim deduction towards labour charges over and above 10% of the payments received by relying on Rule 9(3) of the Rules. On this information and material he claims to have entertained the belief that the petitioner was not entitled to claim deduction towards labour charges over and above 10% of the payments received by relying on Rule 9(3) of the Rules. In other words according to the petitioner’s assessing authority: (i) petitioner had not produced the entire work contract documents during the original assessment proceedings for Assement Year 2009-10 (U.P.) (ii) in the course of provisional assessment proceedings for subsequent period for March 2013, the entire contract documents were produced wherefrom it appeared to the petitioner’s assessing authority that the petitioner had been awarded contracts for Supply, Erection and Commissioning of complete Power Plants on turnkey basis. Based, upon these two fact allegations it has been inferred (iii) the petitioner was liable to deduction (on account of value of labour and service charges and profit thereon) at the rate 10% only on all payments received against such contracts in view of Rule 9 (3) of the Rules. 17. In this regard, we notice-neither in the reason to believe recorded by the petitioner’s assessing authority (contained in the proposal annexed at pages 65 and 66 of the writ petition nor in the impugned order of sanction dated 5.2.2014 passed by the Additional Commissioner, there is disclosure of any fact or figure or detail in the nature of a belief as to any amount that may according to the petitioner’s assessing authority have escaped assessment on account of excess deduction (of value of labour and service charges and profit thereon) claimed and allowed to the petitioner in the original assessment order dated 30.4.2013. 18. Thus there is no comparative figure available with that authority as to the excess deduction allegedly claimed by the petitioner. For the petitioner’s assessing authority to have entertained a belief of escapement, in the facts of the case, it was imperative on his part to have considered the amount which according to him had been claimed in excess of that which according to him was legally allowable to the petitioner. On the contrary, while the petitioner’s assessing authority has noted that the petitioner was only entitled to claim 10% of its actual receipts against all civil work contracts towards value of labour and service and profit thereon, he has neither quantified that amount nor compared it with the amount actually claimed and deducted by the assessee. On the contrary, while the petitioner’s assessing authority has noted that the petitioner was only entitled to claim 10% of its actual receipts against all civil work contracts towards value of labour and service and profit thereon, he has neither quantified that amount nor compared it with the amount actually claimed and deducted by the assessee. The proposal to reassess the petitioner is completely silent on that issue. 19. While it is true that the at the stage of recording reasons, the petitioner’s assessing authority was not required to measure in any exact figures the quantum of escapement, however, at the same time he could not have entertained a bona fide belief of escapement without first comparing the figure of actual deduction availed and the figure which according to him was legally allowable to the petitioner as deduction. 20. For a belief of escapement to arise there must be shown to exist, as a fact, amount of deduction allowed to be an amount more than or in excess of 10% of the value of contract, received or receivable. In absence of such fact allegation the belief of escapement is no belief as to escapement. 21. In other words, at least on a prima facie basis, that amount which according to assessing authority had escaped assessment was required to be mentioned which must necessarily be in excess of the amount equal to 10% of the total contract value received or receivable by the petitioner i.e it is not an absolute figure but a relative figure which may or may not give rise to inference of escapement. If for example, in a given case the actual claim of value of labour and service charges and profit thereon allowed to the petitioner is compared with the amount equal to 10% of the value of contracts received or receivable by the petitioner and that figure has a negative value (i.e.it is less than the value reached by applying the rule of 10%) then in such a case no inference of escapement may ever arise. If on the other hand the differential amount is a positive figure then the assessing authority may entertain a belief in respect of that amount. If on the other hand the differential amount is a positive figure then the assessing authority may entertain a belief in respect of that amount. An assessing officer, faced with such a situation may therefore be expected, in normal course to mention a figure or amount which according to him has escaped assessment as otherwise it cannot be accepted that he had a belief of escapement. Only, then and in respect of such an amount he may further show existence of reasons so as to assume jurisdiction to reassess the petitioner. In absence of any quantification whatsoever, it is difficult to accept Shri Tripathi’s contention that escapement of turnover is a necessary consequence of Rule 9 (3) because the said rule restricts the deduction on account of labour charges to 10% of amount received or receivable. Such a conclusion is presumptive and over simplistic. It presumes without basis that such a deduction would otherwise in all cases have been claimed in excess of 10% of the contract value received or receivable. There is no principle of law that may warrant a conclusion to be drawn to the contrary. For various contracts and for varied reasons actual value/s of service and labour charges may be lower or higher than 10%. 22. Thus, the belief of escapement has not been shown to exist on record. Mere statement that the deduction towards labour charges is allowable under Rule 9 (3) of the Rules, even if accepted to be absolute does not automatically, give rise to the necessary belief of escapement of any part of the turnover for which reassessment proceedings may be initiated. 23. Also, on the other hand even if we assume for some time that there existed a belief, though nebulous and vague as to escapement, then, mere existence of such a belief would not be sufficient to vest jurisdiction in the Assessing Authority to reassess the petitioner. The belief must be shown to be founded on reasonable grounds as has been held in the case of Bhagwan Industries (supra). In the instant case no reason has been assigned to reach such a belief (even if it is assumed to exist). The belief must be shown to be founded on reasonable grounds as has been held in the case of Bhagwan Industries (supra). In the instant case no reason has been assigned to reach such a belief (even if it is assumed to exist). It is so because here, in the instant case, the belief as to escapement of turnover is founded on the assumption that Rule 9 (3) of the Rules applies and if it were given effect to the petitioner would have been assessed at a higher figure of turnover, though there exists no fact or material to reach such a conclusion. 24. Further, from a plain reading of Rule 9 of the Rules, it is clear that in the first place under Rule 9 (1) the petitioner is entitled to claim “all amounts representing the value of service and labour and profit thereon” by way of deduction. The deduction is thus allowable in entirety subject of course to its due verification without any limit or restriction to a percentage or proportion to the amount received or receivable against the work contracts in respect of which such a deduction is claimed. However, another method for computation of such deduction is provided under Rule 9 (3) of the rules. It is subject in its application to three alternate pre-conditions, one of which must be found attracted before the method of computation of deduction of value of labour and service and profit thereon may be applied. Read together, normally, under Rule 9 (1) deduction on account of value of labour and service and profit thereon is to be allowed at actual figures claimed by any assessee. However, a rule of exception is contained in Rule 9 (3) which comes into play either if (i) the assessee does not show separately the value of labour and service and amount of profit accrued on such labour and service or (ii) the accounts maintained by the assessee are not worthy of credence or (iii) if the assessee does not maintain any accounts. Plainly, Rule 9 (1) and Rule 9 (3) cannot and they do not apply or operate simultaneously, rather, Rule 9 (3) applies only if application of Rule 9 (1) is excluded on account of presence of any of the three preconditions mentioned in Rule 9 (3). 25. Plainly, Rule 9 (1) and Rule 9 (3) cannot and they do not apply or operate simultaneously, rather, Rule 9 (3) applies only if application of Rule 9 (1) is excluded on account of presence of any of the three preconditions mentioned in Rule 9 (3). 25. Here, in this case no information, material or fact or reason has been recorded to establish the satisfaction of any of the three pre-conditions of the applicability in Rule 9 (3) inasmuch as it has not been alleged by the Assessing Authority in the reason to believe recorded by him that the petitioner had not maintained its books of account or that they were not worthy of credence. On the contrary, while the reason to believe recorded by the petitioner’s assessing authority is absolutely silent on this issue, in the original assessment order dated 30.4.2013 it is had been categorically recorded by the petitioner’s Assessing Authority that the books of account had been maintained by the assessee and the same had been examined by him whereafter, a finding was recorded by him as to figures of sale of steel and cement. In addition thereto the Assessing Authority while making the original assessment order had also examined the contract documents specifically in respect of payments to be made therein and observed that payments for labour charges and supplies were provided to be made separately. Thus, the third alternate condition for application of Rule 9 (3) of the Rules clearly and admittedly does not exist i.e. it cannot be alleged that the petitioner had not maintained the books of account. 26. This brings us to the stand taken by the respondent state authorities in their counter-affidavit in paragraph Nos. 6,7,14 and 16 that in the original assessment proceedings the petitioner had not produced the copy of the whole contract and further it had produced the books of account for verification and the same were not examined by the Assessing Authority while framing the assessment order and therefore there are no books of account. While it is true that the Court had while entertaining this writ petition directed the state to file a counter-affidavit stating whether the petitioner had produced its books of account etc. While it is true that the Court had while entertaining this writ petition directed the state to file a counter-affidavit stating whether the petitioner had produced its books of account etc. and state has pleaded in the negative, we find it difficult to accept the correctness of that averment made in the counter-affidavit in face of specific findings and observations recorded in the original assessment order itself, as discussed above, to the effect that the petitioner had produced contract documents and also its books of accounts. 27. Nothing has been brought on record even by way of counter-affidavit to show what had actually been produced by the petitioner in the course of the assessment proceedings (described as contract documents and books of account in the original assessment order) perusal whereof may have lead to another inference. Be that as it may, the unsubstantiated bald averments made in the counter-affidavit, in complete absence of any material or information or belief as also reason to entertain a belief of escapement, is nothing but a self serving statement that cannot be accepted and is accordingly rejected. 28. It is also not the case of the department that the accounts maintained by the petitioner do not show separately the value of labour and service charges and amount of profit accrued thereon. Neither in the reason to believe as recorded and proposed by the Assessing Authority nor in the sanction order dated 5.2.2014 there exists anything to suggest such a state of affairs so as to justify application of Rule 9 (3) against the petitioner for that reason. 29. It is also not possible to accept the contention of Sri Tripathi that it would be open to the petitioner to contest the applicability of Rule 9 (3) of the rules during the course of reassessment proceedings inasmuch as existence of such a fact allegation is a sine qua non for assumption of jurisdiction to reassess the petitioner. While in a regular assessment proceedings it may have been open to the Assessing Authority to issue a simple notice to the assessee to show-cause why Rule 9 (3) may not be applied or to show whether the value of labour and services etc. have been separately shown in its books of accounts and no infirmity could be alleged against such a notice, the same cannot be the position for claiming jurisdiction to reassess. 30. have been separately shown in its books of accounts and no infirmity could be alleged against such a notice, the same cannot be the position for claiming jurisdiction to reassess. 30. To claim jurisdiction to reassess the petitioner, the burden was solely on the assessing authority to categorically bring on record such information or material as may establish presence of the pre-condition for application of Rule 9 (3) of the Rules. In the context of reassessment proceedings initiated by the Assessing Authority, it was mandatory to record such a fact by way of a reason (based on some material or evidence) that one of the three statutory pre-condition for application of Rule 9 (3) existed. 31. In absence of any material it was not open to the authorities to assume existence of such facts for the purpose of acquiring jurisdiction and to later, in the course of reassessment proceedings to conduct an inquiry as to its existence or otherwise. The Supreme Court in the case of Arun Kumar and others v. Union of India and others, (2007) 1 SCC 732 , has categorically held : 74. A “jurisdictional fact” is a fact which must exist before a Court, tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a Court, a tribunal or an authority. It is the fact upon which an administrative agency’s power to act depends. If the jurisdictional fact does not exist, the Court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. 75. In Halsbury’s Laws of England, it has been stated: “Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs my be described as preliminary to, or collateral to the merits if, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling it not conclusive.” 76. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling it not conclusive.” 76. The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a Court of limited jurisdiction. 84. From the above decisions, it is clear that existence of “jurisdictional fact” is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of “jurisdictional fact”, it can decide the “fact in issue” or “adjudicatory fact”. A wrong decision on “fact in issue” or on “adjudicatory fact” would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present.” 32. Thus we accept the contention of the petitioner that in this case, in the state of the reason to believe as contained in the proposal made by the petitioner’s assessing authority, the jurisdictional fact of applicability of Rule 9 (3) of the Rules is not established. 33. In this regard the further argument of Sri Tripathi that there is no finding recorded in the original assessment order to the effect that the value of labour charges etc. had not shown separately in the account books produced by the petitioner is also not of any consequence inasmuch as absence of such a finding may not lead to the automatic inference of value of labour and services etc. having not been separately shown. In a given case where such value may have been shown separately, the Assessing Authority may fail to record such finding in the original assessment order for any reason. 34. However, for initiation of reassessment proceedings thereafter the burden lies on the assessing authority to find out and allege as a fact, in his reason to believe, that such value had not not separately shown. We do not find any such allegation or factual assertion. 34. However, for initiation of reassessment proceedings thereafter the burden lies on the assessing authority to find out and allege as a fact, in his reason to believe, that such value had not not separately shown. We do not find any such allegation or factual assertion. Thus to allow reassessment proceedings at present would only amount to allowing the reassessment for the sake of making the verification of facts or as has been often described to enter into a fishing expedition or roving inquiry, all falling outside the scope of reassessment proceedings. 35. Further, the facts of the case clearly do not warrant examination on the third condition for application of Rule 9 (3) inasmuch as that condition would apply in a case where the accounts maintained by the dealer are not worthy of credence. Such situation may arise only in the course of original assessment proceedings where the Assessing Authority may, if satisfied, proceed to reject the books of account. In the instant case, in any case, petitioner’s books of account were produced and accepted during the course of original assessment proceedings. In any case there is no material or information existing or shown on record that the books of account of the assessee are not worthy of credence. 36. Thus we do not find there exist any reason less so cogent or germane to the belief of escapement, if any. In fact there neither exists a belief with the petitioner’s assessing authority as to escapement of turnover nor there exist any reason to justify a belief of escapement. The initiation of reassessment proceedings against the petitioner is based on presumptions devoid of factual basis or reasonable ground germane to the formation of belief regarding escaped turnover. 37. To allow the respondents to reassess the petitioner in the present facts would allow the State to make an inquiry into the facts on which its authorities have not entertained a reason to believe inasmuch as the sanction order and the proposal containing the belief do not even remotely suggest that the Assessing Authority has any material or information that the petitioner had not shown separately the value of labour and services and amount of profit accrued on such labour and services. 38. Thus, we conclude that the petitioner’s Assessing Authority had not fulfilled the requirement of recording a reason to believe to apply Rule 9 (3) of the Rules. 38. Thus, we conclude that the petitioner’s Assessing Authority had not fulfilled the requirement of recording a reason to believe to apply Rule 9 (3) of the Rules. The assessing authority is clearly wrong in treating it to be a mandatory rule of normal application and not a rule of exception. In absence of any fact or reason recorded to establish existence, of either three mandatory pre-conditions for applicability of Rule 9 (3) of the Rules, the Assessing Authority could never assume jurisdiction to compute the deduction on account of labour and service charges and profit thereon in accordance with Rule 9 (3). This is a clearly impermissible course and the action of the Assessing Authority is without jurisdiction. Moreover, even if Rule 9 (3) were to be applied, even then, at this stage, there is complete absence of any belief and reason or application of mind as to the amount, which in the opinion of the assessing authority has escaped assessment. Thus the reassessment proceedings initiated at present appear to be an exercise merely to conduct an inquiry, by way of review of the original assessment order, which is clearly impermissible on account of lack of jurisdiction. 39. We, however, find force in the argument of Sri Tripathi that there is no change of opinion involved in the instant case inasmuch as in the original assessment proceedings the Assessing Authority had not expressed any opinion on the issue of value of labour and services charges and profit thereon. However, in view what we have observed above the petition cannot fail on this count. 40. In view of above the writ petition stands allowed. The order dated 5.2.2014 passed by the Additional Commissioner granting permission to the petitioner’s Assessing Authority to reassess the petitioner for the year 2009-10 (U.P.) is quashed.