JUDGMENT 1. Counsel heard. 2. This application for reference under Section 256(2) of the Income-tax Act, 1961, has been filed with the contention that the money has been recovered from one Sanjay Kumar on May 30, 1988, to the tune of Rs. 4,45,000 which he declared to be the money of the assessee. This was accepted by the assessee. He thereafter filed a return in July 1988, and declared the amount to be the income for the assessment year 1989-90. Thereafter, he modified the statement and declared this income for the assessment year 1987-88. However, the Income-tax Officer accepted the amount to be the income for the current year, i.e., for 1988-89 and the assessment year 1989-90. 3. The contention of learned counsel for the applicant is that since the money was found on a search and, therefore, the penalty was a must, the Tribunal had committed an error by setting aside the penalty. The money in fact was recovered from Sanjay Kumar who declared the money to be the income of the assessee which was not recovered on the search from the assessee himself. 4. The Income-tax Officer accepted the income to be the income for the current year and taxed him accordingly. The assessee had a right to declare the income up to March 1989, but, however, he declared it in July, 1988, itself. 5. In view of the above, it cannot be said that the Tribunal has committed any error in accepting the amount for the current year and in setting aside the penalty. We find no substance in the application even otherwise the question of penalty is a question of fact. The second question regarding the amount of Rs. 25,000 as to whether, the income is of a past year is also a question of fact. No question of law arises. The application is dismissed.