D. M. Chandrashekhar, J. - The Revenue has prayed for a direction to the Income Tax Appellate Tribunal to refer the following questions of law :
'1. Having regard to the fact that tribunals decision in quantum appeal had not been accepted whether the Appellate Tribunal is justified in confirming the A.A.Cs order cancelling the penalty imposed u/s. 271(1)(a) of the I.T. Act, 1961 ?
2. If the answer to the question No. 1 is in negative, whether the Tribunal was justified in confirming the A.A.Cs order cancelling the penalty of Rs. 32074/-imposed u/s. 271(1)(a) of the I.T. Act, 1961 ?'
2. The learned Standing Counsel who appeared for the Revenue, did not dispute that once the order of assessment was set aside by the Appellate Assistant Commissioner, the portion of the order of the Income Tax Officer levying penalty could not stand. However, the learned Standing Counsel contended that the Appellate Assistant Commissioner and the Tribunal should not have cancelled the levy of penalty. The use of particular word or words like set aside or cancelled is not material. One should look to the substance of an order and not to use of any particular word or words therein. Merely because the Appellate Assistant Commissioner and the Tribunal have used the word cancelled and not the words set aside in regard to the penalty levied by the Income Tax Officer, no question of law can be said to arise on this point from the order of the Tribunal.
3. Hence question no. 1 does not merit reference to this court.
4. It follows that question no. 2 does not also merit reference to this court.
In the result this application is dismissed.