- (1.)THIS judgment shall also dispose of Misc. Civil Cases Nos. 95 and 99 both of 1973.
(2.)THESE are three consolidated references under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958. The periods of assessment are 1958-59, 1959-60 and 1960-61. The dealer was assessed to sales tax for these periods. Thereafter, there was a raid of its premises in which duplicate account books were found. Reassessment proceedings were taken under Section 19 (1) of the Act. The assessing authority imposed penalty both under Section 19 (1) and Section 43 (1) of the Act. In appeal, the Appellate Assistant Commissioner set aside the penalty under Section 43 (1) on the ground that when penalty was imposed under Section 19 (1), it was not proper to impose penalty under Section 43 (1) also. The Commissioner of Sales Tax took up the appellate orders in revision and quashed them and maintained the penalty under Section 43 (1 ). Against the orders of the Commissioner, there were appeals to the Sales Tax Appellate Tribunal (Board of Revenue ). The Tribunal took the view that when penalty was imposed under Section 19 (1), no penalty could be imposed under Section 43 (1) for the same default. The question of law referred in these references is as follows:
Whether in reassessment proceedings under Section 19 (1) of the M. P. General Sales Tax Act, 1958, in addition to a penalty under Section 19 (1), a penalty can be imposed under Section 43 (1) also if it is found that the turnover taxed in reassessment proceedings was deliberately concealed by the assessee at the time of the original assessment proceedings ?

(3.)THE provisions for penalty occur in Sections 17 (3), 19 (1) and 43 of the Act. These provisions read as follows :
17. (3) If a dealer fails without sufficient cause to comply with the requirements of a notice issued under Sub-section (1) or a registered dealer fails without sufficient cause to furnish under the said sub-section his return for any period, the Commissioner may, after giving such dealer a reasonable opportunity of being heard, direct him to pay, by way of penalty, a sum not exceeding one-fourth of the amount of the tax which may be assessed on him under Section 18 or where no tax is payable a sum not exceeding one hundred rupees.

19. (1) Where an assessment has been made under this Act or any Act repealed by Section 52 and if for any reason any sale or purchase of goods chargeable to tax under this Act or any Act repealed by Section 52, during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed, in such manner as may be prescribed, to reassess the tax payable by such dealer and the Commissioner' may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount: Provided that in the case of an assessment made under any Act repealed by Section 52, the period for reassessment on the ground of under-assessment, escapement or wrong deduction shall be as provided in such Act notwithstanding the repeal thereof.

43. Power of Commissioner or appellate authority to impose penalty.- If the Commissioner or the appellate authority in the course of any proceeding under this Act, is satisfied that a dealer has deliberately concealed his turnover in respect of any goods or furnished and false return, the Commissioner or the appellate authority, as the case may be, may after giving the dealer a reasonable opportunity of being heard, direct that the dealer shall, in addition to the tax payable by him, pay by way of penalty a sum not exceeding the amount of the tax which would have been avoided if the return furnished by the dealer had been accepted as correct.