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TMI Blog1979 (12) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 18(1)(c) of the WT Act, 1957 and not an order giving effect to the order of the CWT passed u/s 18(2A) of the WT Act, 1957 and therefore, an appeal would lie before the AAC and the Tribunal ? (ii) Whether on the facts and in the circumstances of the case, the ITAT was right in holding that the conduct of the assessee was not contumacious or dishonest and was right in cancelling the penalties ? 2. The asst. yr. under consideration in all the cases in 1970-71. The facts in these cases are more or less identical and for our purposes it would be sufficient to state the facts of one case. We take case No. 69 of 1978 : The original assessment u/s 16(3) of the Act was completed on March 31, 1971. The Assessee failed to disclose t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l holding that the order of the Commr. could not be questioned. Aggrieved by the order of the AAC, the assessee filed further appeal before the ITAT before whom a preliminary objection was taken on behalf of the Revenue that no appeal lay u/s 18(2A). There was, however, a difference of opinion between the Judicial Member of the Tribunal and the Accountant Member. The Judicial Member held that the appeal was entertainable and that no penalty could have been levied. The learned Accountant Member was however, of the view that no appeal lay to the Tribunal and in this view of the matter, he directed that the appeal be rejected as not maintainable. There being difference of opinion between the two members of the Tribunal, the questions were refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l should have stated the case and referred the question of law arising out of its order. We have also perused the relevant orders of the Tribunal and are satisfied that a question of law arises out of the Tribunals order dated October 13,1977. 5. We may state, here, that the second question submitted before the Tribunal is not a question of law, but is a question of fact and in the circumstances of the case, it would not arise, if the answer to the first question is returned in the negative. However, if the answer to the first question is returned in the affirmative then, as an inevitable consequence, the assessee would succeed as the finding on the second question which is one of the fact is in his favour. 6. Accordingly, we allow th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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