JUDGMENT
1. By this petition under Section 256(2) of the Income-tax Act. 1961 (for short “the Act”), the Revenue seeks a direction to the Income-tax Appellate Tribunal (“the Tribunal” for short) to state the case and refer the following questions arising out of I. T. A. No. 7479/Delhi of 1991, in respect of the assessment year 1985-86, for our opinion :
“(1) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in deleting the addition of Rs. 63,000 on the ground that once the assessment is set aside in appeal, the Assessing Officer would not be justified in making an addition which had not been made in the original assessment ?
(2) Whether there is evidence for the Income-tax Appellate Tribunal to come to the conclusion that the bank drafts totalling Rs. 63,000 formed part of the assessee’s business of discounting of upcountry drafts ?
(3) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in deleting the addition of Rs. 63,000 ?”
2. Despite service no one has appeared for the respondent-assessee. We have accordingly heard Mr. Sanjiv Khanna, learned senior standing counsel for the Revenue.
3. Having perused the order of the Tribunal, we are of the view that since the Tribunal has held as an abstract proposition of law that while making fresh assessment, pursuant to the set aside order, the Assessing Officer is not competent to make a new addition based on new source of income, the order of the Tribunal does give rise to a question of law. However, we find that the Tribunal has not dealt with the question of addition of Rs. 63,000 on the merits. In our view proposed questions Nos. 2 and 3 do not arise from the order of the Tribunal.
4. Accordingly, we direct the Tribunal to state the case and refer the following question for the opinion of this court :
“(1) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in deleting the addition of Rs. 63,000 on the ground that once the assessment is set aside in appeal, the Assessing Officer would not be justified in making an addition which had not been made in the original assessment ?”
5. The petition stands disposed of with no order as to costs.