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[2007] 294 ITR 64 (BOM.) HIGH COURT OF BOMBAY Safari Mercantile (P.) Ltd. v. Income-tax Appellate Tribunal F.I. REBELLO AND J. P. DEVADHAR, JJ. WRIT PETITION NO. 1517 OF 2007 JULY 31, 2007 Section 252 of the Income-tax Act, 1961 - Appellate tribunal - General â–  Where assessee filed miscellaneous application before Tribunal contending that when Commissioner of (Appeals) had deleted penalty under section 221 by recording a finding that Assessing Officer did not raise any demand against assessee, Tribunal could not have held that no plea was raised by assessee regarding non-service of demand notice, as assessee's plea was correct, rectification application was to be allowed [Assessment year 2001-02] Penalty was levied on the assessee under section 221 on the ground that the assessee had not paid the full amount of self-assessment tax. On appeal filed by the assessee, Commissioner (Appeals), inter alia, accepted the contention of the assessee that the Assessing Officer did not raise any demand against the assessee and simply issued the penalty notice and, accordingly, held that the assessee could not be said to be in default. On appeal filed by the Revenue, the Appellate Tribunal, by its order dated 9-5-2006, held that the demand of tax in the case was undisputed and, accordingly, sustained the penalty to the extent of tax remaining unpaid. The assessee filed a miscellaneous application seeking rectification of the Tribunal's order on the ground that when the Commissioner (Appeals) had deleted the penalty under section 221 by recording a finding that the Assessing Officer did not raise any demand against the assessee, the Tribunal could not have held that no plea was raised by the assessee regarding non-service of the demand notice. The Tribunal dismissed the miscellaneous petition. Held that on a perusal of the order passed by the Commissioner (Appeals), it was seen that the penalty levied under section 221 of the Act was deleted on the ground that the demand notice had not been served upon the assessee. In the appeal filed by the Revenue against the said order of the Commissioner (Appeals), the main issue was whether the Commissioner (Appeals) was…

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