- (1.) On a reference application, the Tribunal has referred the following questions set out at page 5 of the statement of case for our opinion : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the onus is on the Revenue to establish that the assessee was the owner of the valuables and books of account found and seized from the business-cum-residential premises of the assessee ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the sum of Rs. 12,395 from the total income of the assessee for the assessment year 1974-75 and the sum of Rs. 94,447 from the total income of the assessee for the assessment year 1975-76 ?" There was a search at the residence of the assessee and books including gold jewellery were seized. When on the seized material some additions were made in the hands of the assessee, for the assessment years 1974-75 and 1975-76 on an application under Section 264, the Commissioner of Income-tax has directed the Assessing Officer to re-examine the seized material. The notice under Section 143(2) was served on the assessee, Nikunja Behari Das, the legal representative of the assessee. Again, the cash book, ledger, gold jewellery register and also seized excise books were examined. The Income-tax Officer has also examined the regular books of account, showing the transaction in gold and jewellery and noticed the Inspector's report on perusal of the book No. 1, book No. 2 and book No. 3 for the B. S. 1380, B. S. 1381 and B. S. 1381. These transactions were not entered in the regular sets of accounts, nor the particulars of these transactions were disclosed. Therefore, in the second round also income was estimated at the rate of 15 per cent. on such transactions and added as income from undisclosed sources.
(2.) In appeal before the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax (Appeals) found that the seized books which are seized by the Gold Control authorities belonged to the legal representative of the assessee, i. e., Nikunja Behari Das, and the books and jewellery in the possession of the legal representative of the assessee was treated as belonging to the assessee and the income was estimated on the basis of the transactions found on the material seized and the investment made in the jewellery. The Commissioner of Income-tax (Appeals) has finally dismissed the appeal.
(3.) In the second appeal before the Tribunal, the Tribunal has noticed these facts and in the end has taken the view that any additions in both the years are not maintainable.;