The judgment of the Court was delivered by

DR. B. P. SARAF, J. - By this reference under section 61(1) of the Bombay Sales Tax Act, 1959, made at the instance of the assessee, the Maharashtra Sales Tax Tribunal has referred the following question to this Court for opinion :

"Whether, on the facts and in the circumstances of the case, the Assistant Commissioner had jurisdiction to take any action under section 57 of the Act and thereby levying penalty for the first time under section 36(2)(c) of the Act and consequently the Tribunal confirming orders of the lower authorities ?"

Obviously the above question is a pure question of law and the answer thereto would depend on a proper construction of section 57 and section 36(2) of the Bombay Sales Tax Act, 1959 ("the Act").

2. The assessee, who is a dealer under the Bombay Sales Tax Act, 1959, was assessed by the Sales Tax Officer by his order of assessment dated June 30. 1975, under section 33(3) of the Act for the period April 1, 1972 to March 31, 1973. No appeal or revision was filed by the assessee against the above order of assessment.

3. After more than one and half years of the completion of the assessment, the Assistant