- (1.) WE have heard learned counsel for the parties and perused the material placed before us.
(2.) THIS is an application under Section 256(2) of the IT Act, 1961. The Tribunal has found that no substantial question of law arises out of its appellate order dt. 19th Dec., 1994 by which the penalty of Rs. 1,23,062 in respect of additions made in the assessment had been deleted. In the facts and circumstances of the case, we are satisfied that the substantial questions of law do arise out of Tribunal's order dt. 11th July, 1995, and the finding of the Tribunal that no substantial question of law arises out of its appellate order dt. 19th Dec., 1994 is erroneous and the application deserves to be allowed.
(3.) ACCORDING to the applicant - -the CIT, following substantial questions of law do arise out of Tribunal's order : '(1) Whether, on the facts and in the circumstances of the case, the learned Tribunal is legally justified in cancelling the penalty of Rs. 1,23,062 imposed under Section 271(1)(c) ? (2) Whether the Tribunal is right in cancelling the penalty under Section 271(1)(c) by entertaining a fresh plea of the assessee which was never taken before the authorities below ? (3) Whether the Tribunal is right in observing that the penalty is not to be levied for falsity or inconsistency in its plea but for the default of concealment which has not been proved in the case, ignoring the acceptance of the fact by the Bench that the particulars furnished by the assessee before the AO or the learned CIT(A) were inaccurate and false ? (4) Whether, on the facts and in the circumstances of the case, the Tribunal's order is not perverse ? (5) Whether the CIT(A), Jodhpur's order dt. 6th Dec., 1989 in Appl. No. 1/1988 -89 which stands final and in which it was held that the assessee did not disclose the closing stock of empty bottles worth Rs. 2,19,065 was not a conclusive and sufficient evidence for sustaining the penalty of Rs. 1,23,062 under Section 271(1)(c) by the Tribunal ? (6) Whether there was any evidence before the Tribunal to accept the assessee's changed stand to take a view that there was no suppressed closing stock of empty bottles and to come to the conclusion that penalty under Section 271(1)(c) was not leviable ?' ;