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TMI Blog2020 (2) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... found some fault in the exercise of jurisdiction by AO and remanded the matter back. However, in the process CIT (Appeals) did not observe anything expressly on the direction about initiating the penalty proceedings. 3. A fresh order was thereafter passed by AO without observing on need to initiate Section 271 proceedings therein. Perhaps on the strength of the earlier observation, the penalty proceedings have been taken up. The objection of Assessee is earlier order did not survive and in absence of any specific direction to initiate such proceedings in later assessment order, the initiation itself is barred. 4. We have heard the respective counsels. 5. Admit on the following substantial questions of law: 1. Whether on the facts and in the circumstances of the case, there was jurisdiction in the respondent to levy the impugned penalty? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in giving a finding that as at the relevant time, the Commissioner of Income Tax (Appeals) had the power to partially set aside an order of assessment and any finding in the order of assessment so set aside as regards satisfaction as no concealment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.3.2001 maintaining the appellant's income at Rs. 54,49,180/- or in other words, maintaining the disallowance of Rs. 1,40,00,000/-, attained finality. 9. The appellant also instituted a separate appeal before the Commissioner (Appeals) questioning the Order dated 28.5.2001 imposing penalty upon the appellant in the amount of Rs. 40,00,000/-. 10. The Commissioner (Appeals) vide Order dated 8.1.2002 allowed the appellant's appeal by agreeing with the appellant's contention that the Order dated 16.11.2000 made by the Commissioner (Appeals) in the first round of litigation had completely set aside and even obliterated the Assessment Order dated 8.2.2000. The Commissioner (Appeals) reasoned that since the entire Order had been set aside, even the endorsement regards issue of penalty notice stands set aside. 11. Accordingly, the AO's Order dated 28.5.2001 levying penalty upon the appellant was set aside. 12. The respondent - Revenue appealed to the Income Tax Appellate Tribunal Panaji Bench (ITAT) against the Order dated 8.1.2002 made by the Commissioner (Appeals) setting aside the levy of penalty. This was disposed of by Order dated 7.4.2006, the operative portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the endorsement regarding initiation of Penalty proceedings contained in the AO's initial Order dated 8.2.2000 was not wiped out by the Order dated 16.11.2000 made by the Commissioner (Appeals). 16. Aggrieved by the impugned Judgment and Order dated 28.8.2013, the appellant instituted the present Tax Appeal, which, as noted earlier came to be admitted vide Order dated 9.9.2014 on the aforesaid substantial questions of law. 17. Although, this Court, has framed two substantial questions of law in its Order dated 9.9.2014, it is apparent that the issue raised by both the questions is really one and the same namely whether in the facts and circumstances of the present case, did the AO have jurisdiction to impose penalty upon the appellant based upon the initiation of the penalty proceedings as endorsed in AO's Order dated 8.2.2000, which Order was subject matter of appeal before the Commissioner (Appeals) and which appeal came to be disposed of vide Order dated 16.11.2000? 18. Mr. Kulkarni, the learned Counsel for the appellant submits that the Order dated 16.11.2000 made by the Commissioner (Appeals), upon being read in its entirety, clearly suggests that the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal. 21. Rival contentions now fall for our determination. 22. The entire appeal turns on the interpretation of the Order dated 16.11.2000 made by the Commissioner (Appeals), in the appeal against AO's Order dated 8.2.2000. The AO, as noted earlier, by his Order dated 8.2.2000 has not only disallowed the mining land restoration charges and ordered the same to be added back to the return income, but further ordered the initiation of the penalty proceedings under Sec.271 (1) (c) of the said Act. 23. The appellant in his appeal against the AO's Order dated 8.2.2000 had raised no formal grounds to the initiation of penalty but had only attacked the Order, insofar as it made a disallowance of Rs. 1,40,00,000/- being the provision made for expenses on restoration of land affected by mining. This is quite clear not only from the Appeal Memo handed in by the learned Counsel for the appellant but also from the Order dated 16.11.2000 made by the Commissioner (Appeals). 24. The crucial portion of the Order dated 16.11.2000 is to be found in paragraphs 7 and 8, which read as follows: "7. The AO has assumed without any tangible basis that in the case of Gogte Minerals, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the AO's Order dated 8.2.2000. If the Order dated 16.11.2000 is read and interpreted in this fashion, then, it is difficult to agree with Mr. Kulkarni's submissions or to take a view at variance with that taken by ITAT in the impugned Order dated 28.8.2013. 27. Mr. Kulkarni, is quite right in his submission, that in the absence of the words like "quash" or "set aside" do not really make any significant difference when evaluating the substance of an order as has been held in Bhan Textile P. Ltd. (supra). However, this principle will have to be extended to determining the substance of the Order dated 16.11.2000 in its entirety and not merely to the extent which benefits only appellant assessee. Therefore, applying the principle that it is the substance of the Order which is important and not the mere form, we find that the interpretation of the ITAT in the impugned Order, is the interpretation which promotes such substance over mere form and therefore there is really no case made out to interfere with the impugned Order made by the ITAT. 28. Mr. Kulkarni, quite correctly urged that the observation made by ITAT on aspect of merger is incorrect. Ms. Razaq, also did not de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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