JUDGMENT Chandramani and Kidwai, JJ. - This is a reference u/s 66(I) of the Income tax Act by the Appellate income tax Tribunal. 2. The Assessee in the present case is Badri Prasad Rameshwar Prasad. He was carrying on some cloth business, Assessment for the first time was made in 1941-42. The Assessee was served with a notice u/s 22(2) in August, 1941, As the Assessee stated that he had no account books he submitted no return and prayed for exemption from assessment. He was, however, assessed u/s 23(4) of the income tax Act. In the next year (1942 43) he was similarly assessed u/s 23(4) of the income tax Act. For the assessment year 1943-44, the notice u/s 22(2) was served on the Assessee in June, 1943. The Assessee filed an application on 7th July, 1943, reiterating the fact of the non-maintenance of the account books and pleading for exemption from assessment on the ground of straitened circumstances. The income tax Officer then visited Nanpara and Matinpurwa and found that the stock of the Assessee's shop was worth about Rs. 10,000/-. He got-information on the spot that the Assessee's sales in the previous year could not have been less than Rs. 2/- lacs. After obtaining the figures from the railway station he made an assessment u/s 23(4). Even during the course of the visit of the income tax Officer the Assessee denied before him the keeping of accounts. Although the Assessee pleaded that he could not file a return of his income as he had not maintained any account books yet he filed an application u/s 27 pleading his illness as an excuse for not filing a return. This application was dismissed on the 12th October, 1944 by the income tax Officer. He went up in appeal against that order before the Appellate Assistant Commissioner but the appeal was dismissed. The assessment was made u/s 23(4) of the income tax Act on 22-9 43. Against that assessment the Assessee went up in appeal to the Appellate Assistant Commissioner. By his older dated the 26th January, 1945, the Appellate Assistant Commissioner remanded the case to the income tax Officer with the following remarks: There appears to be no doubt, that by not complying with the notices the Appellant was gambling with the assessment but when the income tax Officer decided to estimate an income of Rs. 31,000/- against Rs. By his older dated the 26th January, 1945, the Appellate Assistant Commissioner remanded the case to the income tax Officer with the following remarks: There appears to be no doubt, that by not complying with the notices the Appellant was gambling with the assessment but when the income tax Officer decided to estimate an income of Rs. 31,000/- against Rs. 2,600/- and Rs. 2,400/- taken by his predecessors in the preceding years he ought to have acqainted the Appellant with at least the substance of his investigation and the income he wanted to adopt. With a view to testing the information and the inference, he should have given the Appellant an opportunity for rebuttal. This would have given the necessary judicial touch to the proceedings before him. In its absence the figures taken for turnover and profit remain unsubstantiated. No body attends on behalf of the Department nor the account books for the year, under consideration, which are said to be in the custody of the income tax Officer, have been sent to me for my perusal. I, therefore, remand the case to the income tax Officer to make a fresh determination of the turnover and profit pointing out the basis for the same, allowing the Appellant a suitable opportunity to have his say. He should also point out, discuss and give his finding on the objections, if any, raised by the Appellant to the fresh determination of turnover and profit. The assessment record as it stands shows that the income of the period from Dewali, that is, November, 1941 to 31st March, 1942, has entirely escaped assessment. This discrepancy should be explained or removed in making the fresh assessment and the report should be submitted within two months. 3. The income tax Officer then filed a date for hearing in connection with this order of remand and thereafter placed before the Assessee and his counsel all the facts and figures on the basis of which the assessment for 1943-44 had been disposed of. The statement of the Assessee was taken on oath on the 13th May, 1945. Badri Prasad, the Assessee alleged that he could not file his return of income for the previous year as be was ill and also as his accounts were not complete. The statement of the Assessee was taken on oath on the 13th May, 1945. Badri Prasad, the Assessee alleged that he could not file his return of income for the previous year as be was ill and also as his accounts were not complete. He also admitted to have filed an application on the 7th August stating therein that he had no accounts but be alleged that he filed that application as his accounts were not correct. The Assessee's counsel insisted that the account books for the previous year should be admitted in evidence. The income tax Officer thought that the Assessee had no right to produce his account books for assessment purposes. Nonetheless he carefully examined the account books so produced and come to the conclusion that they were faked, incomplete and entirely unreliable. Eventually he came to the conclusion that the assessment made by his predecessor had been rightly made and accordingly he submitted his report to the Appellate Assistant Commissioner. 4. The Appellate Assistant Commissioner examined his report on 21st January, 1946, and holding that the account books could not be produced and further they were faked and unreliable, agreed with the income tax Officer that no change was called for in the basis of the assessment. In respect of the income from grain business, however, he interfered holding that this income should not be included in the assessment order. To this extent he modified the order of assessment and disposed of the appeal. 5. The Assesee then went up in appeal before the income tax Appellate Tribunal. The Tribunal refused to take into consideration the account books which, after the order of remand, had been produced before the income tax officer and, ignoring this evidence, they confirmed the order of the Appellate Assistant Commissioner and the appeal was dismissed. 5. The Assesee then went up in appeal before the income tax Appellate Tribunal. The Tribunal refused to take into consideration the account books which, after the order of remand, had been produced before the income tax officer and, ignoring this evidence, they confirmed the order of the Appellate Assistant Commissioner and the appeal was dismissed. On the request of the Assessee and on agreement by the opposite-party, the Commissioner of income tax, U.P. and Ajmer Merwara the following question has been referred by the Tribunal for the opinion of this Court: "Whether in the circumstances of the case the Tribunal was right in upholding the inadmissibility of the evidence of the account books or vouchers of purchases produced after the completion of assessment u/s 23(4), on 22nd September, 1943 and in confining themselves to and basing their decision on the material winch was before the Incom-tax Officer at the time of the assessment." 6. We have beard the learned Counsel and are satisfied that the answer to the question must be in the affirmative. 7. The order of remand has already been reproduced in the statement of the case. We have not the least doubt that the Appellate Assistant Commissioner directed the income tax Officer to make further inquiries and to submit a report within two months. The purpose of the inquiry was limited. The grievance of the Appellate Assistant Commissioner was that the material relied on by the Income tax Officer had not been brought to the notice of the Assessee. The Assistant Commissioner was also wrongly given to understand that account books had been produced and were in possession of the income tax Department, This statement was palpably false as after remand an attempt was made to produce the account books which have now been excluded by the income tax Tribunal. The Appellate-Assistant Commissioner thought that at opportunity should have been given to the Assessee to rebut the inference drawn by the income tax Officer from the material which he had collected. Accordingly he ordered the income tax Officer "to make a fresh determination of the turnover and profit pointing out the basis for the game, allowing the Appellant a suitable opportunity to have his say. Accordingly he ordered the income tax Officer "to make a fresh determination of the turnover and profit pointing out the basis for the game, allowing the Appellant a suitable opportunity to have his say. He should also point out, discuss and give his finding on the objections, if any, raised by the Appellant to the fresh determination of turnover and profit." It will be noticed that the order of assessment has not been set aside. Only an inquiry between ordered by him and the appellate Assistant Commissioner also required the report to be admitted to him within two months. The Officer, therefore, acted in exercise of the powers u/s 31, Sub-section (2) of the income tax Act the account books were sought to be produced for the first time after this order of remand and the income tax Officer thought that they were not a dismissible. However, the authority to decide whether this evidence should have been admitted or not was the Appellate Assistant Commissioner who had not yet disposed of the appeal. The Appellate Assistant Commissioner, on being apprised of the facts relating to these documents, held that they could not be admitted in evidence. This was a power which was vested in him and he has exercised it. The Appellate Tribunal in rejecting these documents, has upheld the exercise of the power by the Appellate Assistant Commissioner and this clearly was a right which was vested in the Tribunal. We cannot under the circumstances hold that in rejecting these documents the Tribunal acted contrary to law. 8. Our answer to the reference in these circumstances is in the affirmative. The reference is answered accordingly. The opposite-party is entitled to Rs. 200/- as cost of this reference against the Assessee.