1. This is a reference made by the Kerala Agricultural Income-tax Appellate Tribunal under Section 60(3) of the Agricultural Income-tax Act, 1950, as directed by this court on the application of the assessee. The question referred is :
'Whether, on the facts and in the circumstances of the case, the imposition of a penalty of Rs. 1,000 for default in the payment of the tax assessed for the year 1961-62 as per the assessment order of the Agricultural Income-tax Officer dated January 21, 1965, which was act aside in appeal by the Appellate Assistant Commissioner can be sustained ?'
2. The assessee was assessed to agricultural income-tax for the year 1961-62 by the Agricultural Income-tax Officer as per his order dated January 22, 1965. He filed an application under Section 40 of the Act not to treat him as a defaulter in respect of the tax demanded as per the assessment, pending the disposal of an appeal which he had filed before the Appellate Assistant Commissioner. The Income-tax Officer rejected this application and allowed the assessee to remit the tax in two instalments. The first instalment was payable on March 18, 1965, and the second instalment was payable on March 20, 1965. The assessee failed to pay them ; and, therefore, the Income-tax Officer by his order dated April 1, 1965, imposed a penalty of Rs. 1,500 on the assessee. The assessee filed an appeal from this order before the Appellate Assistant Commissioner, who by his order dated May 15, 1965, dismissed the appeal but reduced the penalty to Rs. 1,000. In the meanwhile, the Appellate Assistant Commissioner had, by his order dated April 19, 1965, allowed the appeal which the assessee had filed from the order of assessment, and remitted the case to the Income-tax Officer for reassessment in the light of the directions contained in his order.
3. It is now well-settled by the decision of the Supreme Court in Income-tax Officer v. Seghu Buchiah Setty,  52 I.T.R. 538 (S.C.) that, when an order of assessment is set aside in appeal, an order imposing penalty for non-payment of tax demanded pursuant to the said order of assessment falls to the ground. This point was not taken before the Appellate Assistant Commissioner; and he also did not notice it. The assessee filed a further appeal before the Appellate Tribunal, before whom also the above point was not taken. The Appellate Tribunal dismissed the appeal.
4. The only question that arises in this reference and that was urged by the learned counsel for the assessee is whether, in view of the fact that the order of assessment was subsequently set aside by the Appellate Assistant Commissioner, the order of penalty can be sustained. In the light of the decision of the Supreme Court above referred to, this question admits of only one answer. But the learned Government Pleader appearing for the Commissioner of Agricultural Income-tax raised a preliminary objection to the maintainability of this reference, stating that this point was not taken before the Appellate Tribunal. He is right in submitting that the question referred to us is not a question arising out of the order of the Appellate Tribunal in so far as it was neither raised before the Tribunal, nor had it the occasion to consider it. In the result, we decline to answer the question referred to this court. There will be no order as to costs. A copy of this judgment will be forwarded to the Appellate Tribunal as required by Section 60(6) of the Act.