1. This is an application under Section 256(2) of the I. T. Act, 1961, by the department.
2. The Tribunal by its order dated November 27, 1973, set aside the penalty of rupees one lakh which was imposed on the assessee in respect of the assessment year 1963-64, on the ground that the assessment itselfhad been set aside by the AAC. Learned counsel for the applicant submitsthat the Tribunal instead of deciding the appeal against penalty shouldhave adjourned it and heard it along With the appeal of the departmentagainst the order of the AAC setting aside the assessment. This questionwas not raised before the Tribunal at the time when the appeal againstthe penalty was heard. The question cannot, therefore, be said to ariseout of the Tribunal's order.
3. The application is dismissed, but without any order as to costs.