UNISHWAR NATH BHANDARI, J. - (1.) BOTH these reference applications have been filed under the provisions of s. 256(2) of the IT Act, 1961, by the Revenue as the subject -matter of both the reference applications is same therefore, they are being disposed of by the common order. The Tribunal had refused to make reference of any of the questions sought to be referred to the High Court vide
(2.) A reference application was earlier filed before the Tribunal under the provisions of s. 256(1) of the IT Act for reference of certain questions to this Court. Those questions were arising out of the order of the learned Tribunal vide its reference : "(1) Whether on the facts and in the circumstances of the case the Tribunal was justified in law in altogether ignoring the circumstantial evidence and deleting the addition of Rs. 1,55,000 made on account of undeclared payments made for the purchase of immovable property ? (2) Whether on the facts and in the circumstances of the case the Tribunal was justified in law in altogether ignoring the circumstantial evidence and deleting the addition of Rs. 60,000 made on account of undeclared payments made for the purchase of immovable property - appearing for the Revenue submitted that pursuant to the provisions of s. 158BB of the IT Act, assessee's undisclosed income can be computed on the basis of material or information as is available with the AO. Thus according to the learned counsel for the Revenue, the Tribunal has wrongly refused the referred question so raised for its reference. It was thus prayed that the High Court should call for the reference of the issues. 4. Learned counsel appearing for the assessee urged that both the questions raised by the Revenue are not referable questions as the learned Tribunal had considered each and every aspect of the matter denying reference of both the questions to the Hon'ble High Court. It was thus prayed that the reference applications moved by the Revenue should be rejected. 5. We have considered the rival submissions of the parties and find that AO had made addition of Rs. 1,55,000 and Rs. 60,000 on account of investment of money for purchase of immovable property. Both the additions were deleted by the Tribunal while deciding the appeals against the order of block assessment under s. 158BB on the ground that there was no material available with the AO on the basis of which such addition could have been made. Though it was urged that AO was in possession of the information regarding payment of money by assessee in respect of other transaction thus judging the past conduct of assessee and nature of transaction, a fair estimate was made. 6. On the other hand, learned counsel for the assessee submitted that no material or information was in possession of the AO as required under Chapter XIV -B for making any addition in the block assessment. It is only on the basis of inferences drawn by the assessee (sic -AO) while making assessment that additions were made; however, the said issue was carefully dealt with by the Tribunal while deciding the matter and otherwise the additions can be made only on the basis of incrimination of document/material collected and assessed during the course of search. The various Benches of the Tribunal have followed this principle thus the issue sought to be referred can (sic -not) be treated as referable as it had already (been) settled by the various Benches of the Tribunal. 7. We have gone through the provisions of s. 158BB of the IT Act and find that even in accordance with the provision, addition can be made only when evidence is available as a result of search or requisition of books of account, documents and other material; however, addition cannot be made on the basis of inferences. Various Benches of Tribunal are following the principle that additions can be made only on the basis of incriminating documents/materials collected during the course of search. However, in the present matter, no such facts are available rather it says that additions were made by the AO based on inferences which do not fall within the scope of s. 158BB of the IT Act. Therefore in our opinion two questions raised for reference cannot be said to be referable and thereby we find no fault in the order of the Tribunal. The factual position of the case has already been addressed by the Tribunal; thus, the finding of fact recorded by the Tribunal cannot be made subject -matter of a reference. Therefore, we are not persuaded by any of the arguments of the learned counsel for the Revenue. Hence both the reference petitions are hereby dismissed.;