S.P.BHARUCHA, J. (1) THE appeal is directed against an order of a Division Bench of the High Court of Gujarat declining to call for a reference of the following question: "WHETHER on the facts and in the circumstances of the case and in law, the Tribunal is right in cancelling the penalty holding that it is levied on uncertain and alternative grounds?" The High Court gave no reasons for its refusal. (2) IN the application under Section 262(1) the Tribunal came to the conclusion that the reference should be refused because its earlier order had held that the authority imposing the penalty must be sure of the charge and the basis on which the penalty is imposed. In such a situation, the authority imposing the penalty must say that the assessee is guilty of concealing the income and furnishing inaccurate particulars but it cannot use the word "or" because that indicates the lack of a firm basis for the imposition of a penalty. (3) THIS, the refore, brings us to the order imposing the penalty. It is true that in the penultimate paragraph of his order the Income Tax Officer has said that he was satisfied that the assessee had concealed the particulars of his income or furnished inaccurate particulars of such income and that he was levying a penalty on that account. However, the paragraph immediately preceding the penultimate paragraph cannot be lost sight of. It states: "IN view of what is stated above it is clear that the assessee has furnished inaccurate particulars of income and concealed the particulars of income particularly for the speculative loss of Rs.1,02,075 and commission of Rs.68,750 and also having understated the income by making highly excessive claim (Rs.80,042) for export market development allowance." There is no ambiguity, whatsoever, in this paragraph. It is categoric that the assessee had furnished inaccurate particulars of income and concealed the particulars of income. (4) WE are, therefore, satisfied that a question of law does arise out of the order of the Tribunal which the High Court ought to consider in reference. In consideration of the question on its merits, the High Court shall not take into account what we have said above. (5) THE appeal is allowed. The order of the High Court under appeal is set aside. In consideration of the question on its merits, the High Court shall not take into account what we have said above. (5) THE appeal is allowed. The order of the High Court under appeal is set aside. The Tribunal shall refer the question above-quoted to the High Court for consideration, after having drawn up the requisite statement of case. No order as to costs.