Brijlal Gupta, J. - (1.) This is a writ petition under Article 226 of the Constitution. The petition has been filed challenging an order of penalty dated 25th July, 1959, under Section 15-A of the U. P. Sales Tax Act. The provision in that section is: 15-A. (1) If the Assessing Authority is satisfied that any dealer (a) has, without reasonable cause, failed to furnish the return of his turnover which he was required to furnish under Section 7, (7-A or 18) or has, without reasonable cause failed to furnish it within the time allowed and in the manner prescribed ; or (b) has concealed the particulars of his turnover or deliberately furnished inaccurate particulars of such turnover ; (c) ...he may direct that such dealer shall pay, byway of penalty, in the cases referred to in Clauses (a) and (c), in addition to the amount of tax payable by him, a sum not exceeding 25 per cent, of the tax due if the tax is upto Rs. 10,000 and not exceeding 50 per cent, of the tax due if the tax is above Rs. 10,000 and in the cases referred to in Clause (b), in addition to any tax payable by him, a sum not exceeding one and one-half times the amount of tax, which would have been avoided, if the turnover, as returned by such dealer, had been accepted as the correct turnover : Provided that no penalty shall be imposed under the foregoing clause (i) except after notice to the dealer, and (ii) in a case falling under Clause (a), until a period of 60 days has expired after the date on which the return is required to be furnished under Section 7.
(2.) The reasons given in the penalty order, which is annexure "D" to the petitioner's affidavit, for imposing penalty, are that as the dealer failed to furnish the return under Sub-section (a) of Section I5-A, it must also be considered to have concealed the particulars of the turnover under Sub-section (b). From the portion of Section I5-A quoted above, it appears to me quite apparent, that so far as the question of any concealment under Sub-section (b) is concerned, the Sales Tax Officer is clearly in error. How, merely by reason of the fact, that a return had not been filed, could it possibly be concluded that particulars of turnover had been concealed.
(3.) Therefore, the only matter, which has to be considered is, whether there was any failure by the dealer, to comply with the provisions of Sub-section (a) of Section I5-A of the U. P. Sales Tax Act.;