JUDGMENT R.A. Sharma, J. - u/s 256(2) of the income tax Act, 1961 the Tribunal, Allahabad Bench has referred the following two questions to this Court for its opinion: 1. Whether there was any material for the Tribunal to hold that the assessee had made an unexplained investment of Rs. 50,000 outside the account books during the relevant previous years? 2. Whether the Tribunal was justified in law and on facts in holding that inspections granted on 13-3-1979, 22-3-1979 and 24-3-1979 were sufficient opportunities to the assessee for examining 247 documents? On 13-8-1976 a raid was conducted on the residential premises of the assessee, who is an individual, as a result of which 244 documents were seized. As some of these documents related to transactions relevant to the assessment year 1976-77 in question, the ITO after giving an opportunity of being heard to the assessee passed the assessment order, whereby these transactions were totalled at Rs. 4,24,396 and profits were estimated at Rs. 42,440 at the rate of 10 per cent. To this profit of Rs. 42,440 a sum of Rs. 50,000 was added as unexplained investment in the unexplained business. In this manner a total sum of Rs. 92,000 was assessed as income from unexplained sources. The Assessing Officer also made two additions of Rs. 3,693 and Rs. 4,747 as income from other sources on the basis of seized vouchers. The assessee challenged the assessment order by filing an appeal before the Commissioner (Appeals) , which was dismissed against which the assessee filed a second appeal before the Tribunal, which has also been dismissed. u/s 256(2) the Tribunal has referred the aforesaid two questions to this Court. 2. Regarding question No. 1, finding recorded by the Tribunal is: So far as the addition of Rs. 50,000 as unexplained capital is concerned, the same was based on the extent of sales, viz. Rs. 4,24,396. For recording its finding, the Tribunal has not relied upon or referred to any document and addition of Rs. 50,000 as unexplained investment has been made merely on the basis of the sale transactions amounting to Rs. 4,24,396. Even the ITO and Appellate Commissioner have given the same reason for adding the aforesaid Rs. 50,000 as unexplained investment. Rs. 4,24,396. For recording its finding, the Tribunal has not relied upon or referred to any document and addition of Rs. 50,000 as unexplained investment has been made merely on the basis of the sale transactions amounting to Rs. 4,24,396. Even the ITO and Appellate Commissioner have given the same reason for adding the aforesaid Rs. 50,000 as unexplained investment. As laid down by the Supreme Court in the case of Dhakeswari Cotton Mills Ltd. v. CIT [1954] 26 ITR 775,the ITO is not bound by the technical rules of evidence and pleadings and is entitled to act on any material which may not be technically accepted as evidence in a civil court but he cannot make the assessment on a pure guess without reference to any evidence or material. In this connection it is appropriate to refer the following passage from the aforesaid decision: As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the income tax Officer is not fettered by technical rules of evidence, and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub-section (3) of section 23 of the Act, the income tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment u/s 23(3) .... (p. 782) As mentioned hereinbefore, no evidence or material has been referred to or relied upon for treating the aforesaid sum of Rs. 50,000 as unexplained investment and only circumstance, which has been referred in this connection is the estimated sale of Rs. 4,24,396. From the estimated sale it cannot necessarily be inferred that the assessee has invested Rs. 50,000 in some unexplained business. It being not a necessary inference is a pure guess and the findings seem to be based on surmises and conjectures without there being any evidence or material in support thereon. 3. So far as the second question is concerned, we find that the assessee was asked to explain the nature of the transactions contained in the documents seized from his residential premises in the raid conducted by the department. 3. So far as the second question is concerned, we find that the assessee was asked to explain the nature of the transactions contained in the documents seized from his residential premises in the raid conducted by the department. On 13-3-1979 the assessee was shown those papers; but he informed the ITO that it is not possible for him to say as to which business these documents related. The assessee was asked to explain the entries of those documents on some other date to which he agreed and the case was adjourned to 19-3-1979; but on this date the assessee did not appear and instead his counsel attended and on his request the case was adjourned to 22-3-1979 so as to enable the assessee to explain the transactions contained in the documents seized in the raid. On 22-3-1979 the assessee's counsel filed a written reply which was duly signed by the assessee. As the reply submitted by the assessee was vague and the learned counsel of the assessee expressed his inability to see and explain the books in the absence of the assessee, the case was adjourned to 26-3-1979 so as to enable the assessee to explain. However, on 24-3-1979 the assessee appeared before the Assessing Officer, even though the case was fixed for 26-3-1979. The assessee was as such afforded full opportunity to explain and in that connection the case was adjourned several times on his request. The Assessing Officer, the Commissioner (Appeals) and the Tribunal were fully justified to hold that the assessee was given full opportunity but he avoided giving full and correct explanation. The submission of the learned counsel for the assessee that the assessee was not given reasonable opportunity of being heard by the Assessing Officer does not appear to be justified in view of the facts and circumstances of this case. Our answer to the first question is in the negative, i.e., in favour of the assessee; but our answer to the second question is in the affirmative, i.e., in favour of the department. In view of the facts and circumstances of the case, there shall be no orders as to costs.